This Subscription Agreement (this "Agreement") contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined below), and is a contract between Pipeline6, an Alberta, Canada company ("Pipeline6," "we," or "us"), and you or the entity or organization that you represent.
If you are an individual using the Services for your own purposes: (1) all references to "Customer" are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of majority where you reside, and that you have the right, power, and authority to enter into this Agreement.
If you are using the Services on behalf of an entity or organization that you represent: (1) all references to "Customer" are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of majority where you reside, and that you have the right, power, and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services; (2) when you click an "I Accept," "Sign Up," or similar button or checkbox referencing this Agreement; or (3) when you enter into an Order (as defined below) with Pipeline6.
This Agreement sets forth the terms pursuant to which Customer may access and use Pipeline6's Services in connection with one or more Orders. Subject to the terms of an Order, the Services will support Customer's operation of a digital customer loyalty program for Customer's business (collectively, but exclusive of the subscribed Services, "Customer's Environment").
2.1 Subject to the applicable Order and this Agreement, Pipeline6 grants Customer the right to access and use the Services in accordance with the Documentation during the Order Term for Customer's Environment.
2.2 All rights granted by each Party to the other under this Section 2 are limited, non-exclusive and, except as otherwise provided in this Agreement, non-transferable.
Pipeline6 commits to make the Services Available at least 99.8% of the time, exclusive of any time the Services are not Available as a result of one or more Exceptions (the "Availability Standard"). If the actual Availability of the Services is less than the Availability Standard in any two consecutive months, Customer may terminate the applicable Order in the calendar month following such two-month period upon written notice to Pipeline6. In the event of such termination, Pipeline6 will issue Customer a Pro-Rated Refund (as defined in Section 13.3).
Subject to this Agreement, Pipeline6 will provide Support to Authorized Users by email. Although resolution times are not guaranteed, Pipeline6 commits to respond to each request for Support from an Authorized User (each, a "Support Request") within 48 hours. Customer's sole and exclusive remedy for any alleged failure by Pipeline6 to provide Support with reasonable skill, care, and diligence following a Support Request shall be re-performance of the applicable Support.
5.1 Taking into account the nature and types of Customer Data, Pipeline6 will employ administrative, physical, and technical measures in accordance with applicable industry practice to protect the Services and prevent the accidental loss or unauthorized access, use, alteration, or disclosure of Customer Data under its control during each Order Term.
5.2 Customer is responsible for properly configuring the Services in accordance with the Documentation, enabling single sign-on for Customer's accounts, and securing access passwords, keys, tokens, or other credentials used by Customer in connection with the Services (collectively, "Customer Credentials"). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify Pipeline6 if Customer believes (a) any Customer Credentials have been lost, stolen, or made available to an unauthorized third party; or (b) an unauthorized third party has accessed the Services or Customer Data.
5.3 Except for limited Personal Information in Account Data, Pipeline6 does not require Personal Information for Customer's access and use of the Services. Customer shall limit Personal Information in Account Data to only that necessary for the creation and administration of its Pipeline6 account. With regard to Customer Data, Customer shall not use the Services to Process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Information in Customer Data. The Documentation provides further information on filtering and masking Personal Information before submission to the Services.
5.4 Pipeline6 may Process information about Customer's configuration and use of the Services ("Usage Data"), Customer Data, and Account Data: (a) to manage Customer's account; (b) to provide and improve the Services and Support, including to address Support Requests and troubleshoot other issues; and (c) to provide Customer and Authorized Users insights, service and feature announcements, and other reporting. Pipeline6 may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Customer as the source of the information): (i) to develop new services and features; and (ii) to promote Pipeline6's services, including, for example, through analyses of patterns and trends. Pipeline6's Processing of Usage Data, Customer Data, and Account Data shall at all times be subject to Pipeline6's obligations under this Agreement, including those of security under Section 5.1 and confidentiality under Section 11; the DPA (as defined in Section 7.1), if applicable; and, with respect to Account Data, the Privacy Policy.
6.1 Customer will be solely responsible for: (a) Customer's Environment, including as necessary to enable Authorized Users' access and use of the Services; (b) Account Data, Customer Data, and Customer Credentials (including activities conducted with Customer Credentials), subject to Pipeline6's Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users, and persons whose Personal Information may be included in Account Data, Customer Data, or Customer Credentials; and (d) ensuring use of the Services is only for Customer's Environment and in accordance with the AUP, Documentation, and applicable Third-Party Terms.
6.2 No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Services; (b) attempt to gain unauthorized access to any Service or its related systems or networks; (c) use any Service to access Pipeline6 Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy, or create any derivative work based upon a Service or any portion, feature, or function of a Service; (e) resell, distribute, or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble, or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions, or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure, or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the Services in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in the applicable Order, Documentation, and this Agreement.
6.3 Pipeline6 reserves the right to investigate potential violations of this Section 6. If Pipeline6 reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 13.2), Pipeline6 may suspend Authorized Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Pipeline6 reasonably believes the violations are willful, or in urgent or emergency situations, Pipeline6 will notify Customer of any such suspension in advance (each, a "Suspension Notice") and work with Customer in good faith to resolve the potential violation. For clarity, Pipeline6 reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described in this Section 6.3.
Each Party agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing:
7.1 Each Party shall comply with Applicable Laws concerning the privacy and protection of Personal Information. Without limiting Section 6.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Information may be included in Account Data, Customer Data, or Customer Credentials. If Customer believes Customer Data may include the Personal Information of natural persons located in the European Economic Area and wishes to execute a Data Processing Addendum ("DPA") pursuant to the GDPR, Customer may request one by emailing [email protected]. Promptly following Pipeline6's receipt of Customer's request, Pipeline6 will send Customer a DPA ready for execution.
7.2 Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this Agreement and the date of each Order, Customer represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee, agent, or representative of Pipeline6 or its Affiliates in connection with this Agreement.
7.3 Each Party shall (a) comply with Applicable Laws administered by export control and trade sanction authorities ("Export Laws"), including restrictions on designated countries, entities, and persons ("Sanctions Targets"), and (b) not directly or indirectly export, re-export, or otherwise deliver Services to a Sanctions Target, or facilitate any transaction in violation of Export Laws. Customer represents that it is not a Sanctions Target or otherwise prohibited from receiving Services.
8.1 Customer agrees to pay all fees charged by Pipeline6 for Customer's use of the Services in accordance with this Agreement and applicable Order(s) and Service Plan(s) (collectively, "Fees"). Except as otherwise provided in an Order: (a) Fees for Services are set forth on the Pricing Page; (b) Fees must be paid in U.S. dollars and at the time the applicable Order is made; and (c) Fees for Services include Support at no additional charge.
8.2 If Customer is paying Fees using a credit card or any digital payment method supported by Pipeline6, Customer authorizes Pipeline6 to charge Customer's account for the Services using that payment method. Customer must keep all information in its billing account current. Pipeline6 uses a third-party intermediary to manage credit card processing, which is not permitted to use Customer's credit card information except in connection with authorized purchases.
All Fees are exclusive of taxes, levies, duties, or charges imposed by government authorities ("Taxes"). Customer shall be solely responsible for all sales, service, value-added, use, excise, consumption, and any other Taxes on amounts payable by Customer (other than Taxes on Pipeline6's income). If Customer is required to withhold any Taxes under Applicable Laws outside Canada, Customer shall remit such Taxes in accordance with those laws, and all Fees payable shall be increased so that Pipeline6 receives the amount it would have received had no withholding or deduction been made.
As between the Parties: (a) Customer owns all right, title, and interest in and to Customer's Environment and Customer Data, including all associated Intellectual Property Rights; and (b) Pipeline6 owns all right, title, and interest in and to the Services, Documentation, and Feedback, including all associated Intellectual Property Rights. Except for the rights expressly granted, all rights are reserved.
11.1 "Confidential Information" means any information disclosed by one Party (the "Discloser") that is designated as confidential or that reasonably should be understood to be confidential, including: (a) Customer Data; (b) information relating to technology, customers, business plans, marketing, finances, and other business affairs; (c) third-party confidential information; and (d) the terms of this Agreement and all Orders. Confidential Information does not include information that: (i) was known to the recipient (the "Recipient") without obligation of confidentiality; (ii) is independently developed without use of the Discloser's Confidential Information; (iii) is lawfully obtained from a third party without restriction; or (iv) becomes public through no fault of the Recipient.
11.2 The Recipient shall not use the Discloser's Confidential Information for any purpose outside the scope of this Agreement or disclose it to any third party, except to its employees, agents, contractors, and service providers who are bound by confidentiality obligations at least as protective and who need to know the information to perform under this Agreement. The Recipient may disclose Confidential Information to the extent required by law or a valid court/government order, provided the Recipient (to the extent legally permitted) gives reasonable prior notice to allow the Discloser to seek protective relief. The Discloser is entitled to seek injunctive and other equitable relief for any breach or threatened breach of this Section 11.
12.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT, AND MATERIALS ARE PROVIDED BY PIPELINE6 ON AN "AS IS" AND "AS AVAILABLE" BASIS. PIPELINE6 MAKES NO WARRANTY AND HAS NO LIABILITY WITH RESPECT TO ANY CUSTOMER COMPONENT, NOR THAT THE SERVICES OR RESULTS WILL (a) MEET REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR-FREE; OR (e) BE COMPATIBLE WITH CUSTOMER COMPONENTS.
13.1 The term of this Agreement continues through the expiration or earlier termination of the last Order in effect.
13.2 Upon expiration or earlier termination of an Order: (a) all rights granted to Customer with respect to Services under such Order terminate as of the effective date of termination; and (b) Pipeline6 will have no obligation to provide Services after the effective date of termination, subject to Section 13.4.
13.3 If an Order is terminated early by Customer pursuant to Section 3, or by Pipeline6 pursuant to this Agreement, (a) Customer shall not be obligated to pay any additional amounts under the Order following the effective date of termination; and (b) Pipeline6 will refund to Customer a pro rata share of any unused, prepaid amounts for the remaining portion of the current Order Term (a "Pro-Rated Refund"). In all other cases, Fees are non-refundable and any unpaid Fees become immediately due.
13.4 Provided Customer has paid all amounts due, and subject to any applicable shorter Service Plan retention periods, for up to 30 days from the effective date of termination an Authorized User designated by Customer may access and download Customer Data that was accessible to Authorized Users immediately prior to termination. Such access/use is limited solely to export of Customer Data and remains subject to this Agreement.
13.5 The provisions set forth in the following Sections—and any other right or obligation that by its nature should survive—will survive any expiration or termination: 5.4, 6.2, 7, 9–16, and 18–27.
14.1 Subject to Sections 14.2 and 14.4, Pipeline6 will defend, indemnify, and hold harmless Customer, its Participating Affiliates (as defined in Section 18), and their employees, contractors, agents, officers, and directors (collectively, "Customer Indemnitees") from and against third-party claims alleging that use of the Services as permitted under this Agreement infringes a Canada patent or copyright, or misappropriates a trade secret (each, a "Customer Infringement Claim"), and will pay damages, costs, and reasonable attorneys' fees finally awarded.
14.2 If the Services become, or in Pipeline6's opinion are likely to become, the subject of a Customer Infringement Claim, Pipeline6 may, at its expense: (a) obtain the right for Customer to continue using the Services; (b) modify the Services to be non-infringing; or (c) terminate this Agreement and affected Orders and issue a Pro-Rated Refund. Pipeline6 has no obligation to indemnify to the extent a claim arises from: (i) Customer's Environment (including Connections to Customer Components); (ii) Account Data, Customer Data, or Customer Credentials; or (iii) use of the Services in breach of the Order, Service Plan, or this Agreement. THIS SECTION STATES PIPELINE6'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
14.3 Subject to Section 14.4, Customer will defend, indemnify, and hold harmless Pipeline6, its Affiliates, and their employees, contractors, agents, officers, and directors (collectively, "Pipeline6 Indemnitees") from and against third-party claims to the extent arising out of Customer-Controlled Matters described in Section 14.2.
14.4 The party seeking indemnification ("Indemnitee") shall promptly notify the other party ("Indemnifying Party") of any claim and cooperate at the Indemnifying Party's expense. The Indemnifying Party will control the defense with counsel of its choice, while the Indemnitee may participate at its own expense. The Indemnifying Party will not settle any claim requiring action or payment by the Indemnitee without the Indemnitee's written consent (not to be unreasonably withheld).
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 15: (a) IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES; AND (b) IN NO EVENT SHALL EITHER PARTY'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO PIPELINE6 BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING DOES NOT LIMIT A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, CUSTOMER'S BREACH OF SECTION 6.2, OR CUSTOMER'S PAYMENT OBLIGATIONS.
Neither Party shall, except as required by law, issue publicity or use the other Party's marks or logos without prior written consent; provided, however, that Pipeline6 may (subject to its non-attribution obligations under Section 5.4) include Customer's name and logo in lists of Pipeline6 customers, on its website, and in promotional materials. Pipeline6 will cease such use upon Customer's written request to [email protected].
Unless otherwise specified: (a) Pipeline6's physical address for notices is Pipeline6, 2407-8520 Jasper Ave. NW, Edmonton, Alberta, Canada, and its email address for notices is [email protected]; and (b) Customer's notice addresses are those associated with its Order(s). Notices are deemed given: (i) one business day after being sent by overnight courier; (ii) three business days after being sent by registered mail, return receipt requested; or (iii) one business day after being sent by email (provided the sender does not receive a delivery failure or out-of-office reply and provided indemnification notices are sent by courier or mail).
Where a Customer Affiliate has not entered into a separate agreement directly with Pipeline6, Customer may authorize that Affiliate (each, a "Participating Affiliate") to access and use the Services under an existing Order between Pipeline6 and Customer. References to "Customer" in the applicable Order and this Agreement will be deemed references to both Customer and the Participating Affiliate. Customer and its Participating Affiliates are jointly and severally liable for compliance.
So long as Customer remains current on payments, Customer may assign this Agreement in connection with a merger, consolidation, reorganization, or sale of all or substantially all of Customer's business or assets relating to this Agreement. Otherwise, Customer may not assign without Pipeline6's prior written consent. Any prohibited assignment is void. This Agreement binds and benefits the Parties and their permitted successors and assigns.
The Services and Documentation are provided as "commercial computer software," "commercial computer software documentation," and "technical data," with only those rights customarily provided to the public. If these terms fail to meet U.S. Government needs, Customer must discontinue use.
The Parties are independent contractors. This Agreement creates no partnership, franchise, joint venture, agency, fiduciary, or employment relationship. There are no third-party beneficiaries.
Neither Party shall be liable for delays or failures in performance (other than payment obligations) due to causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, embargoes, or national/regional emergencies, provided prompt notice is given and diligent efforts are used to mitigate and resume performance.
Except to the extent an issue is governed by federal law of Canada, this Agreement is governed by the laws of the Province of Alberta, Canada, without regard to conflict-of-laws rules. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the provincial or federal courts located in Edmonton, Alberta, Canada, and the Parties consent to personal jurisdiction and venue in those courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
This Agreement, together with all Orders, the AUP, and the Privacy Policy, is the complete agreement and supersedes all prior or contemporaneous communications relating to its subject matter. Any terms on Customer's purchase orders or other documents are void. This Agreement may be modified only by a written instrument executed by authorized representatives of both Parties, except as provided in Section 27. No waiver is effective unless in writing. If any provision is held invalid, the remainder remains in effect. Headings are for convenience only.
Capitalized terms not otherwise defined in this Agreement have the meanings below.
"Account Data": Information about Customer provided to Pipeline6 in connection with account creation/administration (e.g., names, usernames, emails, billing contacts). No Sensitive Information should be included.
"Affiliate": An entity controlling, controlled by, or under common control with a Party (control = >50% voting securities).
"Applicable Laws": All applicable laws, rules, directives, regulations, and orders.
"Authorized User": An individual employee, agent, or contractor of Customer or a Participating Affiliate for whom subscriptions have been purchased and who has user credentials.
"Available/Availability": Services are reachable over the internet, assessed from Pipeline6's hosting provider and measured monthly.
"Exceptions": (a) Customer's breach of this Agreement, an Order, or the AUP; (b) Customer's failure to configure/use the Services per Documentation; (c) failures/issues with Customer's Environment; (d) Force Majeure Events; (e) Pipeline6's suspension under Section 6.3; or (f) maintenance windows for which Pipeline6 provides advance notice.
"Feedback": Bug reports, suggestions, or other feedback regarding the Services or Documentation (excluding Customer Confidential Information).
"GDPR": Regulation (EU) 2016/679.
"Intellectual Property Rights": All worldwide IP rights, registered or unregistered.
"Malicious Code": Viruses, worms, time bombs, Trojan horses, or other harmful code.
"Order": A separate order for Services (online via the Pipeline6 site and accepted by Pipeline6 or executed by both Parties).
"Order Term": The initial subscription term and all renewal terms, if any.
"Party": Each of Pipeline6 and Customer.
"Personal Information": Information relating to an identified or identifiable natural person protected by privacy laws where the individual resides.
"Pricing Page": Pipeline6's public pricing page(s).
"Privacy Policy": Pipeline6's Privacy Policy at https://pipeline6.com/privacy-policy.
"Process/Processing": Any operation performed on data (e.g., collect, store, use, disclose).
"Sensitive Information": Certain categories of Personal Information (e.g., government IDs, financial account data, biometric/health data, special categories under GDPR, PCI data). Customer shall not submit Sensitive Information into the Services.
"Service Plan": The plan/features detailed on the Pricing Page for the hosted Pipeline6 service.
"Services": The hosted services to which Customer subscribes under an Order, made available by Pipeline6 online. Pipeline6 may modify the Services from time to time, provided such changes do not materially decrease features or functionality as of the effective date of the Order.
"Support": Pipeline6's standard customer technical support, currently provided via email.
Any written Order may be executed in counterparts (including via electronic signature service), each deemed an original, together constituting one instrument.
Pipeline6 may modify this Agreement at any time by posting a revised version at https://pipeline6.com/subscription-agreement, which modifications become effective on the first day of the calendar month following the month in which they were posted; provided, that if an Order specifies a fixed term of 12 months or longer, the modifications will instead be effective at the start of the next Renewal Order Term. If Customer objects to the updated Agreement, Customer's sole remedy is to choose not to renew.
Pipeline6
2407-8520 Jasper Ave. NW
Edmonton, Alberta, Canada
Email: [email protected]