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This Master Service Agreement (“Agreement”) is between Customer and Rain Technologies Inc., doing business as Pluvo (“Pluvo”), a Canadian corporation having a place of business at 203-421 Richmond Road, Ottawa, Ontario, Canada, and sets out the terms on which Customer may use the Service and make the Service available to Users within its enterprise. This Agreement, together with any ordering document referencing it (each, an “Order Form”), forms the “Service Agreement” between the parties.
By taking an action to indicate acceptance (such as clicking a checkbox, executing an Order Form, or making a payment for the Service which references this Agreement), Customer acknowledges to have read, understood and accepted this Agreement, which constitutes a binding legal agreement between Customer and Pluvo. If Customer is accepting this Agreement on behalf of a corporation or other entity, Customer represents and warrants that: (i) the individual accepting this Agreement is duly authorized to accept the Agreement on such entity's behalf and to bind such entity; and (ii) such entity has full power, corporate or otherwise, to enter into this Agreement and perform its obligations hereunder.
This Agreement is effective between Pluvo and Customer as of the date of Customer’s acceptance of this Agreement (“Effective Date”). Changes to this Agreement. Pluvo will notify Customer of any material changes to this Agreement by providing notification via the Service or sending an email (as applicable). Any non-material change will become effective on the date the change is posted. Any material changes will be effective: (i) immediately for new Customers; and (ii) for existing Customers, upon the earlier of (a) thirty (30) days after notice is provided of such changes, which notice may be provided through email or through the Service (as applicable), or (b) acceptance of the updated Agreement.
1. Definitions
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of the Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Background Technology” means the Service, Documentation, Implementation Services, all Intellectual Property therein, and all other Intellectual Property owned, used, developed, acquired, or otherwise obtained by Pluvo, either prior, during or after the Term.
“Customer” means in case of a company or other legal entity, such company or legal entity, or in the case of an individual accepting the Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting the Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates).
“Customer Data” means all electronic data or information imported by a Customer and/or Users into the Service, including any Personal Information and information passed through the Service via a Third-Party Service.
“Documentation” means the technical user guide for the Service that may be provided to Customer and/or Users, as updated by Pluvo from time to time.
“Fee” means the fees charged by Pluvo to Customer for the Service, as specified in an Order Form and/or at the time of registration or subscription.
“Implementation Services” means the setup and implementation services required for Customer and/or Users to receive access to the Service.
“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
“Output” means an output generated by the Service arising out of Customer’s or User’s use of the Service (including but not limited to an analysis of Customer Data generated by AI Services).
“Personal Information” means information about an identifiable individual.
“Privacy Laws” means all data protection and privacy laws applicable to a party's processing of Personal Information under this Agreement, including the Personal Information Protection and Electronic Documents Act (Canada), applicable Canadian provincial privacy legislation, and any applicable United States federal or state privacy laws.
“Representatives” means a party’s agents, employees, Affiliates, and contractors.
“Service” means Pluvo's AI analysis software, as further described on Pluvo's website, and all inclusions and modifications to the Service made from time to time.
“User” means an individual or entity that is part of Customer’s organization and for whom the Service is made available under the Agreement.
“User Fees” means the fees charged by Pluvo to a User in connection with the Service, including but not limited to User’s purchases of additional Service modality.
“User Terms” means the Service terms under which Pluvo shall provide Users with access to the Service.
Pluvo and Customer are referred to individually as a “party” and collectively as the “parties”.
2. Access to the Service
2.1 Grant of License. Subject to compliance with this Agreement, Pluvo shall make the Service available to Customer during the Term for the Customer’s internal business purposes, including making the Service available to Users within the Customer’s enterprise. The Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form or at the time of registration for the Service. The Customer agrees to provide Pluvo with such materials and access as is reasonably required to perform the Implementation Services.
2.2 Accounts. Customer may be required to register a Service account (“Account”) to use the Service or Pluvo may provide Accounts to Customer. The Customer shall be solely responsible for safeguarding the Account credentials used to access the Service, for any activities or actions under Accounts, and for immediately notifying Pluvo of any compromised Account credentials. Customer shall remain responsible for any Account activity until the compromised Account is secured and/or deactivated.
2.3 Incremental Services. From time to time, certain additional Service functionality may be made available by Pluvo and which additional functionality may be enabled and/or purchased (either by Customer for itself and Users by paying Fees or by the User directly from Pluvo by paying User Fees) in accordance with such terms and conditions as may be applicable to such additional functionality (such terms and conditions prevailing in the event of any inconsistency with the terms and conditions of this Agreement). Customer acknowledges that this Agreement is non-exclusive, and nothing shall prevent Pluvo from contracting with Users directly for the Service, incremental services, or any other product or services.
2.4 Users. Users may use the Service subject to the terms of this Agreement and if the Customer has purchased sufficient Service licenses for each such User. Every User will be required to accept the User Terms prior to Pluvo providing the User access to the Service. Pluvo may discontinue provision of Service to a User who breaches the User Terms without liability to the Customer. Users may be required to register an Account with Pluvo to use the Service or Pluvo may provide Accounts to Customer to be used by Users. Customer agrees to be directly liable for any act or omission by such Users to the same degree as if the act or omission were performed by Customer such that a breach by a User of the provisions of this Agreement will be deemed to be a breach by Customer. The Customer shall ensure that no User commences or maintains any claim against Pluvo for any matter arising in connection with this Agreement (whether founded on breach of contract or tort or any other legal theory).
3. Use of the Service
3.1 Pluvo Responsibilities. Pluvo shall: (i) in addition to its confidentiality obligations hereunder, not use, modify, or disclose the Customer Data (except for the purposes of performing its obligations or exercising its rights under the Agreement); (ii) maintain the security and integrity of the Service and Customer Data in accordance with the technical and organizational security measures described in the Pluvo Trust Center at https://trust.pluvo.io/, including Pluvo's Data Management Policy (together, the “Security Measures”), which are incorporated into this Agreement by reference and which Pluvo shall not materially degrade during the Term, and Pluvo will communicate material changes to the Security Measures through the Trust Center; handle Customer Data as Confidential data in accordance with the Data Management Policy, encrypt Customer Data at rest and in transit over public networks, and notify Customer of any breach thereof in accordance with Privacy Laws; (iii) provide basic support for the Service at no additional charge; (iv) subject to Section 11.11, use commercially reasonable efforts to provide Customer the Service in accordance with the Service Level Terms in Exhibit A; and (v) upon expiration or termination of the Agreement, securely delete Customer Data within ninety (90) days, except where retention is required by law, regulation, or legal hold, and dispose of such data using secure methods consistent with the Data Management Policy.
For clarity, only the Security Measures are incorporated into this Agreement by reference. Descriptions of Service features, capabilities, performance, roadmap, and certification or audit status published in the Trust Center or elsewhere on Pluvo's websites are provided for information only and are not representations, warranties, or conditions, and do not form part of this Agreement or of the Documentation.
3.2 Customer Responsibilities. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Pluvo promptly of any such unauthorized access or use; (ii) comply with all applicable laws in using the Service, including without limitation, Privacy Laws; (iii) have sole responsibility for obtaining all consents and third-party licenses, and providing all necessary notices in accordance with Privacy Laws to ensure Customer Data can be shared with and used by Pluvo as contemplated herein; (iv) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; and (v) provide Pluvo with the capability to remotely communicate with Customer's system via Internet access to provide diagnostic capabilities. Pluvo shall have the right to use the capabilities of the Service to confirm Customer's compliance with the Agreement.
3.3 Use Guidelines. Customer shall not (and shall not allow any of its Representatives or a third party to): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Service, or make the Service available to any third party; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; (iv) attempt to copy, modify, create derivative works from, or distribute any part of the Service, except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (v) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reproduce any part of the Service; (vi) access any part of the Service in order to build a competing product or service; (vii) frame or mirror any content forming part of the Service; or (viii) remove any proprietary notices, labels, or marks from the Service.
3.4 Publicity. Neither party will issue a press release or other formal public announcement about this Agreement without the other party's prior written consent.
Pluvo is glad to have Customer as a customer and would like to be able to say so — but will always ask first. Pluvo will not use Customer's name, logo, or trademarks in any customer or vendor list, website, case study, proposal, or marketing material without Customer's prior written consent. Customer may withdraw that consent at any time by written notice, and Pluvo will stop using the materials.
Customer is free to say that it uses Pluvo and to reference Pluvo by name, and nothing in this Agreement restricts that. Customer will not use Pluvo's logo or trademarks in a way that implies endorsement, sponsorship, or partnership without Pluvo's prior written consent.
Where either party has given consent, use of the other party's name, logo, or trademarks will follow that party's current brand guidelines.
3.5 Trial and Free Services. In the event of a conflict between Section 3.5 and any other portion of this Agreement, Section 3.5 shall control.
3.5.1 Trial Services. At its discretion, Pluvo may make parts of the Service available on a trial basis (“Trial”). If Customer registers for a Trial, Pluvo will make the applicable part of the Service (“Trial Service”) available to Customer (and its Users, as applicable) on a trial basis until the earlier of: (a) the end of the Trial period for the applicable Trial Service; (b) Customer purchasing the applicable Trial Service; or (c) termination by Pluvo in its sole discretion. Use of the Trial Service is subject to this Agreement. Additional terms may be applicable to the Trial Service and will be made available at the time of registration (as applicable) and will be incorporated into this Agreement by reference.
3.5.2 Free Services. Pluvo may make some of the Service available free of charge (“Free Services”). Free Services shall exclude any Trial Service. Use of Free Services is subject to this Agreement and may be provided to Customer (and its Users, as applicable) up to certain limits, with usage over the limits requiring purchase or subscription for continued use. Pluvo, at its sole discretion and for any or no reason, may terminate access to the Free Services or any part thereof. Any termination of access to the Free Services may be without prior notice, and Pluvo shall not be liable to Customer or any third party for such termination.
4. Fees and Payment
4.1 Fees. Customer shall pay Pluvo the Fees, all as specified in the applicable Order Form or at the time of registration. Certain features of the Service may require payment of a one-time Fee payment and Customer shall be required to pay a recurring subscription (“Subscription”) Fee to receive access to the Service. Unless otherwise set out in an Order Form or at the time of registration, Fees are billed monthly for each calendar year of the Term until the end of the Term, beginning on the Effective Date. During the Term (including any Renewal Term), Pluvo reserves the right to increase Fees it charges for the Service on an annual basis. Pluvo will provide the Customer with thirty (30) days’ prior written notice of any such Fee increases and the new Fees will be applied for Customer’s next billing cycle.
4.2 Refunds. After ninety (90) calendar days of the Start Date of the applicable subscription, if the Customer finds that the Service does not meet their requirements or fails to provide the anticipated value, the Customer is entitled to request early termination. To initiate a cancellation under this clause, the Customer must contact Pluvo's support team at support@pluvo.io and agrees to provide any reasonably requested details about the cancellation by Pluvo. Unless expressly stated in the Agreement to the contrary, all Fees are non-refundable.
4.3 Invoicing and Payment. Pluvo reserves the right to collect Fees via a Third-Party Service or via invoice. All amounts are payable in the currency at the time of registration or, if not so specified, in US dollars. Unless otherwise stated in an invoice, invoiced Fees are due net thirty (30) days from the invoice date. Invoices will be deemed accepted and undisputed by the Customer if they are not disputed within ten (10) days of the invoice receipt date. The Customer must maintain accurate payment information and notify Pluvo of any changes to billing information. If Customer’s payment method expires, is invalid, or is otherwise not able to be charged for Fees for any reason, Customer’s Subscription may not be continued or renewed (as applicable). Customer must provide a valid payment method within ten (10) days of a missed Fee payment to continue accessing the Service without interruption.
4.4 Usage and Changes to Tier. Customer shall be responsible for any Fees incurred by Users. If Customer’s (or User’s) modification to the Subscription results in changes to Fees, the new Fees will be effective and billed on the first day of the subsequent billing cycle, unless otherwise communicated to Customer at the time of the change. Customer acknowledges and agrees that downgrading a Service plan may cause the loss of Outputs or access to certain Service features or customizations. Changes to number of Users may require Customer to pay additional Fees.
4.5 Overdue Payments. Any Fees not received from Customer by the applicable due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at Pluvo’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.6 Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Pluvo’s net income or property. If Pluvo has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Pluvo with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Suspension of Service. If Customer fails to provide an updated payment method per Section 4.3 or if Customer’s Fees are thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Pluvo reserves the right to suspend access to the Service, without liability to Customer or User, until such amounts are paid in full.
4.8 AI Token Allocation. The Subscription Fee includes the AI Token allocation applicable to the Service package selected by Customer, as specified in the applicable Order Form or at the time of registration (1 AI Token = 1,000 LLM tokens), drawn from a shared monthly pool across all AI-powered actions. Within this allocation, AI-powered actions are measured solely by AI Token consumption. Customer may monitor AI Token usage at any time within the Service. Pluvo shall notify Customer at 80% and 100% of the monthly allocation, and shall pause usage before Customer exceeds it, resuming only upon Customer's approval of any additional AI Token package. Any such pause shall not constitute a Service interruption or failure to meet the Service Level Terms.
5. Proprietary Rights
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Pluvo and its licensors reserve all rights, title and interest in and to the Service, Implementation Services, Background Technology, and any enhancements and/or modifications to the Background Technology (including all related Intellectual Property Rights), regardless of: (i) whether Pluvo contributed any such enhancements and/or modifications; or (ii) whether any such enhancements and/or modifications were made during the Term. Pluvo’s templates and processes are deemed Background Technology, and nothing shall stop Pluvo from using the same templates and processes for its other customers. No rights are granted to the Customer hereunder other than as expressly set forth in the Agreement.
5.2 Customer Data. As between Pluvo and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under the Agreement. Pluvo shall not access Accounts, including Customer Data, except to respond to service or technical problems, at Customer's request, or as necessary for the operation of the Service or billing of Fees. To the extent Customer Data contains Personal Information, Pluvo will handle such Customer Data in accordance with Privacy Laws. Customer hereby grants Pluvo a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to process, store and otherwise use the Customer Data as reasonably required to provide the Service.
During onboarding and the performance of Implementation Services, Pluvo personnel may access Customer Data as reasonably necessary to configure Customer's organization within the Service, establish and validate connections to Customer's source systems, and test that the Service is operating correctly. Such access is limited to those Pluvo personnel who require it for those purposes, and Customer Data accessed in connection with setup, configuration, testing, or support is used solely for those purposes.
5.3 Outputs. As between the parties, Customer owns all rights, title, and interest in and to the Outputs derived from Customer Data, including the report templates and the business-rules configurations that Customer defines or configures. Pluvo retains all rights, title, and interest in and to the Pluvo Background Technology, the Service, and all underlying software, data models, methodologies, and business-rules logic, including all Intellectual Property Rights therein. To the extent any Output incorporates Pluvo Background Technology, Pluvo grants Customer a perpetual, non-exclusive, worldwide, royalty-free license to use such Background Technology solely as embodied in and necessary to use the Outputs for Customer's internal business purposes. Such license is non-transferable except to a successor in interest to all or substantially all of Customer's business or assets. On Customer's request, Pluvo will export the Outputs and Customer's business-rules configurations in a commercially reasonable, documented format.
5.4 Statistical Information. Pluvo may create aggregated or anonymized statistical analytics arising from Customers’ and Users’ interaction with and use of the Service (“Aggregated Statistics”), which Aggregated Statistics shall not include any underlying Customer Data. As between Customer and Pluvo, Pluvo shall own all rights to such Aggregated Statistics free from encumbrance.
5.5 Suggestions. Pluvo shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other Pluvo products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Representatives, or Users relating to the Service.
6. Confidentiality
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, the Customer Data, the Service, and either party’s Intellectual Property. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties and Disclaimers
7.1 General Warranties. Each party warrants that it has the legal power to enter into and perform its obligations under this Agreement. Pluvo warrants that (i) it will provide the Implementation Service and Service in a manner consistent with general industry standards reasonably applicable to the provision thereof, and provide maintenance and support in accordance with this Agreement; and (ii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data imported into the Service or otherwise originating from Customer or a User).
7.2 AI Services; Outputs. Outputs are generated by the Service from Customer Data in Customer's connected source systems, using a combination of automated computation, the business rules Customer configures, and AI Services.
Pluvo warrants that the Service and Implementation Services will perform materially in accordance with the Documentation. Customer's sole and exclusive remedy, and Pluvo's entire liability, for any material non-conformance is re-performance of the affected Service or Implementation Services, provided Customer reports it to Pluvo in writing within sixty (60) days of becoming aware of it.
Because AI Services use machine learning models that generate predictions from patterns in data, Outputs are intended to support, not replace, Customer's judgment. Customer is responsible for reviewing and validating each Output through human tie-out before relying on it externally or for any decision, and is solely responsible for decisions made, actions taken, and failures to act based on Outputs. Pluvo's warranty does not extend to Outputs relied on externally without such review.
The description above of how the Service operates is provided for information only. Pluvo makes no representation, warranty, or condition of any kind as to the accuracy, completeness, reliability, or fitness of any Output or any value in it, and does not warrant that Outputs will be accurate, applicable for Customer's or User's desired use, or unique.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, PLUVO MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE AND IMPLEMENTATION SERVICE ARE PROVIDED TO CUSTOMER “AS IS”; PLUVO DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES PLUVO WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
8. Mutual Indemnification
8.1 Indemnification by Pluvo. Subject to the terms and conditions of this Agreement, Pluvo shall, at its own expense, defend Customer in any third party action, suit or proceeding alleging that the Service infringes or misappropriates any Intellectual Property Rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Pluvo and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Pluvo: (i) Customer shall notify Pluvo promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Pluvo sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Pluvo in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Pluvo’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
8.2 Mitigation. If: (a) Pluvo becomes aware of an actual or potential IP Claim; or (b) Customer provides Pluvo with notice of an actual or potential IP Claim, Pluvo may (or in the case of an injunction against Customer, shall), at Pluvo’s sole option and determination: (i) procure for Customer the right to continue to use the Service without infringement; (ii) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Fees for any periods after such termination, less any outstanding Fees owed by Customer to Pluvo.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any Intellectual Property Rights by the combination of the Service with other products, software or services not provided by Pluvo; (ii) any IP Claim related to any Customer Data, Output, or Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Pluvo and its Representatives (the “Pluvo Indemnitees”) in any third party action, suit or proceeding arising out of: (i) Customer Data, including any claim that Customer Data infringes or misappropriates the Intellectual Property Rights of, or violates the Privacy Laws or other rights of, any third party; (ii) use of the Service by Customer or its Users in violation of this Agreement, the User Terms, or applicable law; or (iii) use of any Third-Party Service by Customer or its Users (each a “Customer Claim”), and shall indemnify and hold the Pluvo Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Pluvo by a court or tribunal of competent jurisdiction in such Customer Claim. As conditions for such defense and indemnification by Customer: (I) Pluvo shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (II) Pluvo shall give Customer sole control of the defense and settlement of such Customer Claims; (III) Pluvo shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (IV) Pluvo shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto. Customer acknowledges that for the purpose of this Section 8.4, Pluvo is acting as agent of Pluvo Indemnitees.
9. Limitation of Liability
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER TO PLUVO HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Certain Damages Not Excluded. NOTWITHSTANDING SECTIONS 9.1 AND 9.2, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (I) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (II) DAMAGES ARISING FROM A PARTY’S INFRINGEMENT AND/OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
10. Term and Termination
10.1 Term. This Agreement shall commence as of the Effective Date and shall continue in effect for a period of one (1) year, unless otherwise specified in the applicable Order Form (such initial term referred to as the “Initial Service Term”). Thereafter, the Term shall be automatically renewed annually on the anniversary of the Effective Date for additional periods of the same duration as the Initial Service Term (any such subsequent renewal terms referred to as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Service Term or any Renewal Term hereof. Collectively, the Initial Service Term and any subsequent Renewal Terms shall constitute the “Term”.
10.2 Termination. Each party may terminate this Agreement with notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party except as permitted in Section 11.7; (ii) fails to correct a material breach of its obligations under the Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; or (iii) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
10.3 Effect of Termination. Upon termination, except as expressly set forth herein, all licenses and rights granted by Pluvo under the Agreement shall terminate. Termination or non-renewal shall not limit Customer’s obligation to pay Fees incurred and within thirty (30) days of the effective day of termination, Customer shall pay to Pluvo all fees owing up to and including the effective date of termination. In the case of any attempted early termination by Customer not permitted by this Agreement, Customer shall be obligated to pay all outstanding or incurred Fees (including, without limitation, Fees for the period between the end of the agreed-upon Term and the date of Customer’s early termination) and any User Fees owing and outstanding, including any interest incurred per Section 4.4. Pluvo will make all Customer Data available to Customer for electronic retrieval for a period of ninety (90) days following the effective date of termination and will delete all customer data after the 90-day period. The following provisions of this Agreement shall survive any termination or expiration: Sections 2.4, 3.2-3.5, 4-9, 10.3, 10.4, and 11.
10.4 Wind-Down. Upon termination of the Agreement, Pluvo shall continue to provide the Service to any existing Users as of the effective date of expiration or termination for which Pluvo had received User Fees (“Wind-Down User(s)”) for the remaining term of the applicable User’s purchased Service modality. Immediately upon receiving or issuing a notice of non-renewal or termination (as applicable), the Customer shall provide Pluvo such on-going assistance as reasonably required to transition Users’ receipt of Service to be under an agreement between User and Pluvo.
11. General Provisions
11.1 Relationship of the Parties. The parties are independent contractors. The use of the word “partner” or any similar term shall not imply or be construed as creating a partnership, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement in Section 8.4, there are no third-party beneficiaries to this Agreement.
11.3 Third Parties. Pluvo may retain the services of Representatives from time to time to assist Pluvo in performing its obligations under this Agreement. As between Pluvo and Customer, Representatives shall remain under the direction and control of Pluvo. Pluvo shall, in the performance of its obligations under this Agreement, use reasonable efforts to comply with all Customer policies, procedures and rules pertaining to Representatives that have been communicated to Pluvo in writing.
11.4 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by email. Notices to Pluvo shall be addressed to support@pluvo.io. Notices to Customer shall be addressed to the email address designated by Customer in the applicable Order Form or during Service onboarding.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Pluvo may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, shares or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Customer has the right to assign to a successor or acquirer in a merger, acquisition, reorganization, or sale of all/substantially all assets without Pluvo’s consent, mirroring Pluvo’s own right.
11.8 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
11.9 Venue; Waiver of Jury Trial. The courts located in Ottawa, Ontario, Canada shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.10 Dispute Resolution. Before initiating arbitration or other legal action against the other relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts hereunder, the parties will attempt to settle it in good faith by mediation. To initiate the mediation a party must give notice in writing to the other party requesting mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Ottawa, Ontario and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of the Province of Ontario, Canada. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Ottawa, Ontario before one (1) arbitrator. In the event the parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each party shall bear its own legal costs in connection with mediation and/or arbitration under this provision.
11.11 Force Majeure. Except for any fee obligations, neither party shall be responsible for its failure to perform its obligations under this Agreement to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.12 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
11.13 Entire Agreement; Order of Precedence. This Agreement, including all schedules and Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency, the following order of precedence applies: (i) the applicable Order Form; (ii) this Agreement, including its Exhibits; and (iii) any document incorporated by reference, including the Security Measures. Except for changes to this Agreement made by Pluvo in accordance with the paragraph titled “Changes to this Agreement” above, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
EXHIBIT A — SERVICE LEVEL TERMS
The Service shall be available 99.5% of the time, measured monthly, excluding Scheduled Maintenance. “Scheduled Maintenance” means maintenance performed within Pluvo's published maintenance window for which Pluvo has provided Customer at least forty-eight (48) hours’ advance notice. If Customer requests maintenance outside of a Scheduled Maintenance window, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Pluvo’s reasonable control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Pluvo’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Pluvo will credit Customer 5% of Service fees for each period of thirty (30) or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.
Downtime shall begin to accrue as soon as Customer (with notice to Pluvo) recognizes that downtime is taking place, and continues until the availability of the Service is restored.
In order to receive downtime credit, Customer must notify Pluvo in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Fees in any one (1) calendar month in any event.
Pluvo will only apply a credit to the month in which the incident occurred. Pluvo blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Pluvo to provide adequate service levels under this Agreement.
Referenced Documents
The following documents are incorporated into this Agreement by reference and are published separately:
- Pluvo Trust Center — https://trust.pluvo.io/ — the technical and organizational Security Measures and Data Management Policy are incorporated by reference (Section 3.1); other Trust Center content is informational only.