Terms of Service

This Terms of Service (“Agreement”) is a legally binding contract between you and Pack Digital, Inc. (“Pack Digital,” “us,” “we,” or “our”) regarding your use of the Services (defined in Section 2). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us, placing an Order using online functionality Pack Digital makes available like clicking a box, creating an Account (defined in Section 3.4), or otherwise affirmatively accepting the Agreement through another means Pack Digital offer you. If the Services are being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Services (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you and your and the entity’s rights and obligations with respect to the Services, and the Services will at all times be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of the Agreement, then you do not have our permission to use the Services. Your use of and our provision of the Services to you, constitutes an Agreement by Pack Digital and by you to be bound by this Agreement.

YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF PACK DIGITAL AT THE PHONE NUMBER YOU PROVIDE TO PACK DIGITAL. THESE TEXTS/CALLS MAY INCLUDE MESSAGES REGARDING USAGE LIMITATION OVERAGES OR OPERATIONAL MESSAGES ABOUT YOUR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

1.     Defined Terms. Certain capitalized terms used in this Agreement are defined in Section 16 (Definitions) and others are defined contextually in this Agreement.

2.     Overview. Pack Digital provides a proprietary cloud service (including Pack Digital APIs) and other services that are identified in the relevant Order (excluding Support and technical services) (collectively, the “Services”). Pack Digital offers Services that provide end-to-end infrastructure to help Customer create its own Customer-branded e-commerce storefronts (“Storefront”) and to connect those Storefronts to the Shopify platform.

3.     The Services.

3.1.         Ordering Process. Services are purchased as stated in an Order in the manner established for each of the Services. Each Order may include the specific Services ordered by Customer, including, as applicable, the purchased Services, quantity and scope, and Usage Limitations (defined below) for which such Order applies.

3.2.         Permitted Use. During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement (including any additional limitations or restrictions set forth in the applicable Order), Customer may access and use the Services only for its internal business purposes in connection with Customer’s management of its Storefronts and in accordance with the Documentation, this Agreement, and any limitations, including Usage Limitations, set forth in an Order. Subject to the terms and conditions of this Agreement, Pack Digital hereby grants to Customer a non-exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except pursuant to Section 15.1 (General Provisions)) license, during the Subscription Term, to: make calls to Pack Digital’s application programming interfaces (“APIs”) solely as specified in the Documentation and in accordance with this Agreement. Pack Digital reserves the right to monitor Customer’s use of the APIs and may restrict Customer’s access to the API or limit the volume of API calls in that Customer may make, including if Customer’s use exceeds Pack Digital’s API call limits or has a negative impact on performance of the Services. Pack Digital may, but has no obligation to, update, upgrade, or otherwise modify its APIs and features or functionality thereof. For avoidance of doubt, Customer’s right to use the APIs is subject to Section 3.6 (Restrictions).

3.3.         Storefront. Except as expressly set forth in this Agreement, Customer is solely responsible for all Storefronts, including the Storefronts’ compliance with all Laws. Customer may remove any Storefront at any time by deleting Customer’s Account on the Services. Customer represents and warrants that each Storefront will include the following (collectively, “End User Terms”): (a) a privacy policy that clearly discloses how Customer collects, uses, shares, and discloses personal information, including references to region-specific privacy laws such as the General Data Protection Regulation and California Consumer Privacy Act, if applicable; and (b) a terms of service between Customer and Customer’s end users of the Storefront that will include a disclaimer and release of Pack Digital from any and all liability for damages or losses end users may incur as a result of using Customer’s Storefronts, including the purchase of any products or services. The End User Terms will be directly between you and the end user. Pack Digital is not and will not be a party to the End User Terms. For avoidance of doubt, nothing in the End User Terms will supersede any of Pack Digital’s obligations or liability towards Customer, or any of Customer’s obligations or liability to Pack Digital, under this Agreement.

3.4.         Access. To access the Services, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide Pack Digital with information (such name, email address, or other contact information). Customer agrees that the information it provides to Pack Digital is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Pack Digital (including, if applicable, API access keys) (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Pack Digital’s breach of this Agreement). Customer will promptly notify Pack Digital if it becomes aware of any compromise of any Log-in Credentials. Pack Digital may Process Log-in Credentials in connection with Pack Digital’s provision of the Services or for Pack Digital’s internal business purposes. Customer represents and warrants to Pack Digital that: (a) it has not previously been suspended or removed from the Services; and (b) its registration and use of the Services are in compliance with all Laws.

3.5.         Usage Limitations. Pack Digital will specify to Customer a User Cap and Traffic Cap as follows:

a)              User Limitation. The Order will specify the number of Users allowed to access the Services during the Subscription Term (“User Cap”). Customer shall ensure that (i) no Users access or use the Services through Customer’s Account in excess of the User Cap, and (ii) each User abides by the terms of this Agreement. Any act or omission of a User that, if undertaken by Customer, would be a breach of this Agreement shall be deemed a breach of this Agreement by Customer. Customer may request an increase to the User Cap, and Pack Digital may, in its sole discretion, accept or reject any such request and alter the Fees in accordance with Section 3.5.d) (Overages) below.

b)             Storefront Limitation. The Order will specify the number of Storefronts Customer may have during the Subscription Term (“Storefront Cap”). Customer shall ensure that the total number of Storefronts Customer has across all Users does not exceed the Storefront Cap. Customer may request an increase to the Storefront Cap, and Pack Digital may, in its sole discretion, accept or reject any such request and alter the Fees in accordance with Section 3.5.d) (Overages) below.

c)              Traffic Limitation. The Order will specify the number of end users allowed to access each Storefront for the duration specified in the Order (“Traffic Cap,” and together with the User Cap and Storefront Cap, the “Usage Limitations”). Customer shall ensure that no end users access or use the applicable Storefronts in excess of the Traffic Cap, and that each end user complies with the End User Terms. Customer may request an increase to the Traffic Cap, and Pack Digital may, in its sole discretion, accept or reject any such request and alter the Fees in accordance with Section 3.5.d) (Overages) below.

d)             Overages. Customer recognizes that excess usage beyond the Usage Limitations may result in additional fees charged by Pack Digital. Customer and Pack Digital agree to cooperate in good faith to review Customer’s use of the Services in compliance with this Section 3.5 and Customer will promptly pay any additional reasonable Fees charged in connection with such excess usage. Customer will promptly notify Pack Digital in the event that Customer undergoes any changes that could lead to a material increase in its use of the Services (including, without limitation, as a result of any merger, acquisition, or similar event affecting Customer).

3.6.         Restrictions. Customer will not (and will not permit its Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Services to a third party (other than Users); (b) use the Services on behalf of, or to provide any product or service to, third parties; (c) exceed the Usage Limitations set forth in each Order; (d) use the Services to develop a similar or competing product or service; (e) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Services, except to the extent expressly permitted by Law (and then only with prior notice to Pack Digital); (f) modify or create derivative works of the Services or copy any element of the Services; (g) remove or obscure any proprietary notices in the Services; (h) publish benchmarks or performance information about the Services; (i) interfere with the operation of the Services, circumvent any access restrictions, or conduct any security or vulnerability test of the Services; (j) transmit any viruses or other harmful materials to the Services; (k) take any action that risks harm to others or to the security, availability, or integrity of the Services; (l) access or use the Services in a manner that violates any Law; or (m) use the Services with Prohibited Data. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Pack Digital is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Pack Digital has no liability for Prohibited Data.

3.7.         Support. Subject to Customer’s ongoing compliance with the terms of this Agreement (including timely payment of all applicable Fees), Pack Digital will use commercially reasonable efforts to provide support for the Services during its standard business hours in accordance with Pack Digital’s standard support practices for Customer’s applicable user tier (“Support”). More information about the support offered for your particular user tier can be found on our Support Page available at https://support.packdigital.com.

3.8.         Use of Customer Data. Customer grants Pack Digital the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary: (a) to provide the Services; (b) to derive or generate Usage Data; (c) to create and compile Aggregated Data; (d) as necessary to facilitate, maintain, and operate an integration with Third-Party Platforms as described in Section 3.15 (Third-Party Platforms); and (e) as otherwise required by Laws or as agreed to in writing between the parties.

3.9.         Privacy Policy. To the extent Personal Data as defined in Pack Digital’s Privacy Policy at https://packdigital.com/pages/privacy-policy is uploaded, transmitted, submitted, provided, or processed in connection with Customer’s use of the Services, Pack Digital will comply with the Privacy Policy.

3.10.      Usage Data; Aggregated Data. Customer grants Pack Digital a nonexclusive, worldwide, sublicensable right to Process Usage Data and Aggregated Data for internal business purposes to: (a) track use of Services for billing purposes; (b) provide Support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.

3.11.      Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Services. Customer represents and warrants that (a) it has sufficient rights to grant the rights and licenses provided herein and it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Pack Digital to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data; and (b) the Customer Data is not subject to any Laws that impose upon Pack Digital any legal or regulatory compliance requirements or liability as a result of Pack Digital’s possession or Processing of the Customer Data in accordance with this Agreement.

3.12.      Suspension. Customer acknowledges that Pack Digital may, but is under no obligation to, monitor Customer’s use of the Services. Notwithstanding the foregoing, Pack Digital may immediately suspend Customer’s and its Users’ access to the Services if: (a) Customer breaches Section 3.6 (Restrictions) or Section 3.11 (Customer Obligations); (b) Customer’s breaches Sections 3.5 (Usage Limitations) for two consecutive months or for any three months (or more) in a rolling 12-month period; (c) any payment required under this Agreement are overdue by 30 days or more; (d) changes to Laws or new Laws require that Pack Digital suspend the Services or otherwise may impose additional liability on us; or (e) Customer or its Users actions risk harm to any of Pack Digital’s other customers, licensors, or the security, availability, or integrity of the Services. Where practicable, Pack Digital will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, Pack Digital will use reasonable efforts to restore your access to the Services.

3.13.      Modifications to the Services. Pack Digital may modify or discontinue all or any part of the Services at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that Pack Digital will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any material depreciation of any material feature or functionality of the Service). Pack Digital will have no liability for any change or modification to the Services or any suspension or termination of access to or use of the Services as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Order entered into or renewed after Pack Digital’s implementation thereof.

3.14.      Customer Systems. Customer will maintain all Customer Systems.

3.15.      Third-Party Platforms. Certain features of the Services may enable integration with Third-Party Platforms. If Customer directs Pack Digital to transmit data to, or receive data from, a Third-Party Platform on Customer’s behalf (including by enabling the applicable integration in the settings of the Services), then Customer authorizes Pack Digital to Process any such data (including Customer Data) in connection with the applicable integration, in a manner consistent with the functionality of the Services requested by Customer and the permissions granted to Pack Digital by the relevant integration (which Processing may include, without limitation, performing queries on the data held by the Third-Party Platform). Customer acknowledges and agrees that Customer’s use of a Third-Party Platform is subject to Customer’s agreement with the relevant provider of such Third-Party Platform, and that Pack Digital is not a party to such agreement. Pack Digital does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. All data received from Third-Party Platforms on behalf of Customer as described in this Section 3.15 will be deemed Customer Data under this Agreement.

4.     Commercial Terms.

4.1.         Subscription Term Renewal. Each Subscription Term will automatically renew for successive terms equal in length to the Subscription Term. Either party may give the other party notice of non-renewal at least 30 days before the current Subscription Term ends. Customer may cancel your Account at any time by following the procedures described in the Services or by emailing Pack Digital at support@packdigital.com. YOUR CANCELLATION MUST BE RECEIVED AT LEAST THIRTY (30) DAYS BEFORE THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM IN ORDER TO AVOID BEING CHARGED FOR THE NEXT SUBSCRIPTION PERIOD.

4.2.         Fees. You may use certain features of the Services free of change. Other features of the Services may require you to pay Fees based on your use of the Services. Pack Digital reserves the right to determine pricing for the Services. If you are required to pay Fees, such Fees for the Services are described in the Order. All fees for the Services (“Fees”) will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced or charged as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for Fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection Fees. All Fees and other expenses are non-refundable. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Pack Digital’s income tax (“Taxes”). Fees are exclusive of all Taxes.

4.3.         Payment Processing. We may contract with a third party to process any payments submitted for or through our Services (“Payment Processor”). By making any purchase for or through our Services, you authorize us to share any of your information with the Payment Processor in order to process your payment. We may use Stripe as our Payment Processor (https://stripe.com). In that case, Stripe will collect, use, and process your information, including payment information, in accordance with Stripe’s privacy policy (which may be accessed at https://stripe.com/privacy), and Stripe’s terms of service (which may be accessed at https://stripe.com/legal/consumer)..)

4.4.         Authorization. You authorize Pack Digital and the Payment Processor to charge all sums for the Orders that you make and any level of Services you select as described in this Agreement or published by Pack Digital, including all applicable Taxes, to the payment method specified in your Account. If you pay any Fees with a credit card, then Pack Digital may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that Pack Digital or the Payment Processor may seek pre-authorization of the credit card account Customer provide to Pack Digital for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. If your payment method is no longer valid at the time a renewal Fee is due, then Pack Digital reserves the right to delete your Account and any information or Customer Data associated with your Account without any liability to you.

4.5.         Pricing. Pack Digital reserves the right to determine pricing for the Services. We will use reasonable efforts to keep pricing information with respect to the Services that is published on Pack Digital’s pricing page (available at https://packdigital.com/pages/pricing) up to date, and Pack Digital encourages Customers to check it regularly for current pricing information. Unless Pack Digital and Customer otherwise agree in an Order executed by the parties, Pack Digital may change the Fees for the Services (including any feature or functionality of the Service) and Pack Digital will notify Customer of any such changes before they apply. Pack Digital may make promotional offers with different features and different pricing to any of Pack Digital’s other customers. These promotional offers, unless made to Customer, will not apply to your Order or this Agreement.

4.6.         Renewal Fees. Fees for renewal Subscription Terms are at Pack Digital’s then-current Fees at the time of such renewal regardless of any discounted pricing in a prior Order or promotional offers previously extended to Customer.

5.     Limited Warranty; Disclaimer.

5.1.         Limited Warranty. Pack Digital warrants to Customer that the Services will perform materially as described in the Documentation during a Subscription Term (“Limited Warranty”).

5.2.         Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1, THE SERVICES ARE PROVIDED “AS IS”. PACK DIGITAL, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT PACK DIGITAL WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. PACK DIGITAL IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE PACK DIGITAL’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD.

5.3.         Warranty Remedy. If Pack Digital breaches a Limited Warranty during the Subscription Term and Customer makes a reasonably detailed warranty claim in the manner required by Pack Digital within 30 days of discovering a breach of the Limited Warranty for the Services, then Pack Digital will use reasonable efforts to correct the non-conformity. If Pack Digital cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the Services. Pack Digital will then refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Subscription Term. This Section 5.3 sets forth Customer’s exclusive remedy and Pack Digital’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Services; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Services other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.

6.     Term and Termination.

6.1.         Term. This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms.

6.2.         Termination. Either party may terminate this Agreement (including any or all Orders) upon written notice to the other party if the non-terminating party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Either party may terminate (i) a specific Order or (ii) specific Services under an Order. Unless otherwise specified in the termination notice, termination in the case of: (i), will not impact any other Orders, and (ii), will not impact any other Services under the applicable Order nor any other Orders. If Customer violates any provision of this Agreement, then your authorization to access the Services and this Agreement automatically terminate. In addition, Pack Digital may, in its sole discretion, terminate this Agreement or Customer’s Account on the Services, or suspend or terminate Customer’s access to the Services, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination. Customer may terminate your Account and this Agreement at any time by following the procedures described in the Services or by emailing Pack Digital at support@packdigital.com.

6.3.         Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) all outstanding Orders and access to the Services will automatically terminate, including any licenses and other rights granted to any of Pack Digital’s APIs (and, if applicable, Customer must uninstall the APIs); (b) all Storefronts will be removed from the Services; and (c) all outstanding payment obligations of Customer will become due and payable immediately. Upon expiration or termination of an Order, Customer’s access to, and Pack Digital’s obligations to provide, the Services will cease. During a Subscription Term and for the 15-day period immediately following the date of expiration or earlier termination of the applicable Subscription Term or this Agreement, Customer may export data from the Storefronts or information that Customer (including its Users) submits to the Services, including from Third-Party Platforms from the applicable Services, using the export features described in the applicable Documentation. After that 15-day period, Pack Digital will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 11 (Confidentiality), may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

6.4.         Survival. These Sections survive expiration or termination of this Agreement: 3.5 (Usage Limitations), 3.6 (Restrictions), 3.10 (Usage Data; Aggregated Data), 3.11 (Customer Obligations), 4.2 (Fees), 4.4 (Authorization), 5.2 (Disclaimer), 6.3 (Effect of Termination), 6.4 (Survival), 7 (Ownership), 9 (Limitations of Liability), 10 (Indemnification), 11 (Confidentiality), 13 (Modifications), 15 (Miscellaneous), and 16 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

7.     Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data. Except for Customer’s use rights in this Agreement, Pack Digital and its licensors retain all intellectual property rights and other rights in the Services (including APIs), Software, Documentation, Usage Data, and Pack Digital’s technology, templates, formats, and dashboards, including any modifications or improvements to these items made by us. If Customer provides Pack Digital with feedback or suggestions regarding the Services or its other offerings, Pack Digital may use the feedback or suggestions without restriction or obligation.

8.     Communication.

8.1.         Text Messaging & Phone Calls. You agree that Pack Digital and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Services, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM PACK DIGITAL, YOU CAN EMAIL SUPPORT@PACKDIGITAL.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM PACK DIGITAL, YOU CAN EMAIL SUPPORT@PACKDIGITAL.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICES. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Services.

8.2.         Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

9.     Limitations of Liability. Except for claims for unpaid Fees to Pack Digital under this Agreement and for breaches of Sections 3.2 (Permitted Use), 3.6 (Restrictions), and 11 (Confidentiality), neither Pack Digital’s, Customer’s or their respective suppliers or licensors will have liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance. Except for breaches of Sections 3.2 (Permitted Use), 3.6 (Restrictions) and 11 (Confidentiality), payment obligations arising out of Section 10 (Indemnification), and claims for unpaid Fees to Pack Digital under this Agreement, neither Pack Digital’s, Customer’s or their respective suppliers or licensors liability arising out of or related to this Agreement will exceed in aggregate the greater of (a) the amounts paid or payable by Customer to Pack Digital pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement and (b) $50 USD. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

10.  Indemnification. Customer will defend Pack Digital from and against any third-party claim to the extent resulting from Customer Data or Customer’s breach or alleged breach of Section 3.11 (Customer Obligations), and will indemnify and hold Pack Digital harmless against any damages and costs awarded against Pack Digital (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

11.  Confidentiality.

11.1.      Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Our Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services.

11.2.      Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 3.8 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Pack Digital is the Recipient, Pack Digital may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Pack Digital, the subcontractors referenced in Section 15.5) (collectively, “Representatives”), provided Recipient remains responsible for its respective compliance with this Section 11 and such Representatives are bound to confidentiality obligations no less protective than this Section 11.

11.3.      Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the Recipient; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

11.4.      Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 11.

11.5.      Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

12.  Trials and Betas. If Customer or its Users receive access to or use of Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Pack Digital. These Trials and Betas will be considered part of the Services and, subject to the remainder of this Section 12, all provisions of this Agreement relating to the Services will apply to these Trials and Betas. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Pack Digital may never release, and their features and performance information are deemed to be Pack Digital’s Confidential Information. Pack Digital may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its Users’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PACK DIGITAL PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.

13.  Modifications. Pack Digital may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless Pack Digital indicates an earlier effective date. If Pack Digital requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Pack Digital, in which case Pack Digital will provide Customer a refund of any pre-paid Fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify Pack Digital of its objections within 30 days after Pack Digital’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Services constitutes its acceptance of the modifications. Pack Digital may require Customer to click to accept the modified Agreement.

14.  Publicity. Pack Digital may use Customer’s name and logos as a reference for marketing or promotional purposes on Pack Digital’s website and in other communication with existing or potential customers, subject to any written trademark policies Customer may provide to Pack Digital in writing with reasonable advanced notice. Neither party will issue any press release or publish or disseminate any white papers or case studies describing the activities taking place under this Agreement without the other party’s prior written consent, not to be unreasonably withheld and may be solicited and given by email.

15.  Miscellaneous.

15.1.      General Provisions. This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and Pack Digital regarding your use of the Services. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without Pack Digital’s prior written consent. Pack Digital may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect Pack Digital’s right to require performance at any other time after that, nor will a waiver by Pack Digital of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

15.2.      Governing Law. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts having jurisdiction over San Diego, California, and both parties submit to the personal jurisdiction of those courts.

15.3.      Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Pack Digital may also send operational notices to Customer by email or through the Services.

15.4.      Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.

15.5.      Subcontractors. Pack Digital may use subcontractors and permit them to exercise Pack Digital’s rights, but Pack Digital remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

15.6.      Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

15.7.      Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using the Services. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

15.8.      Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by Pack Digital in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

15.9.      Government End-Users. Elements of the Services are commercial computer software. If the User or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

15.10.   Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any exhibits, attachments, addenda, applicable Pack Digital policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in an Order; (b) the terms contained in the body of this Agreement; (c) the terms of the exhibits, attachments, and addenda to this Agreement, and applicable Pack Digital policies; and (d) the Documentation.

15.11.   Additional Terms. Customer’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Pack Digital may post on or link to from the Services (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.

15.12.   Consent to Electronic Communications. By using the Services, Customer consents to receiving certain electronic communications from Pack Digital as further described in Pack Digital’s Privacy Policy. Please read Pack Digital’s Privacy Policy to learn more about Pack Digital electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that Pack Digital sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

15.13.   Contact Information. The Services are offered by Pack Digital, Inc., located at 101 West Broadway, Unit 1270 San Diego, CA 92101 US. Customer may contact Pack Digital by sending correspondence to that address or by emailing Pack Digital at support@packdigital.com.

15.14.   Notice to California Residents. If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

16.  Definitions.

“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.

“Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is collected, accessed, used, disclosed, transferred, transmitted, stored, hosted, or otherwise processed by Pack Digital to provide the Services to Customer.

“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services.

“Documentation” means the then-current version of Pack Digital’s usage guidelines and standard technical documentation for the Services that Pack Digital makes generally available to its customers that it provides the Services to, the current version of which are at https://docs.packdigital.com/.

“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data.

“Order” means an order that is executed by the parties or a process Customer complete through the online order flow Pack Digital provide each of which references this Agreement.

“Privacy Policy” means the Privacy Policy at https://packdigital.com/pages/privacy-policy.

“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.

“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.

“Software” means any software, scripts, or other code required by Pack Digital to operate the Services.

“Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.

“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Pack Digital that Customer elects to integrate or enable for use with the Services, including without limitation, the Shopify e-commerce platform.

“Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data.

“User” means any employee or contractor of Customer that Customer allows to use the Services on Customer’s behalf.