Effective Date: September 4th , 2025
PLEASE READ THIS SERVICES AGREEMENT (THESE “TERMS”) CAREFULLY TO LEARN THE RULES AND RESTRICTIONS THAT GOVERN YOUR USE OF PENSERO’S WEBSITE (THE “WEBSITE”) AND THE SERVICES (AS DEFINED HEREIN). THESE TERMS ARE A BINDING CONTRACT BETWEEN THE CUSTOMER PARTIES (AS DEFINED HEREIN) AND PENSERO, INC. (“PENSERO” OR “PROVIDER,” AND THE PROVIDER AND THE CUSTOMER PARTIES COLLECTIVELY "PARTIES" AND EACH INDIVIDUALLY A "PARTY"). BY USING THIS WEBSITE IN ANY WAY OR BY EXECUTING ONE OR MORE ORDER FORMS WITH PROVIDER WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM” AND TOGETHER WITH THESE TERMS, THE “AGREEMENT”), YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND OUR PRIVACY POLICY (THE “PRIVACY POLICY”), FOUND AT https://pensero.ai/privacy-policy, INCORPORATED HEREIN. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT AND WHICH IS ACCEPTED BY PROVIDER SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE USING THIS WEBSITE OR EXECUTING AN ORDER FORM ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THESE TERMS AND THE TERMS OF ANY ORDER FORM.
IMPORTANT: PLEASE REVIEW THE LITIGATION CLASS ACTION WAIVER AND ARBITRATION PROVISIONS CONTAINED HEREIN, AS THEY REQUIRE THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS AND TO SUBMIT DISPUTES TO FINAL AND BINDING ARBITRATION. IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE WEBSITE IN ANY WAY OR EXECUTE AN ORDER FORM.
1. SCOPE OF AGREEMENT
These Terms govern (i) the Customer Parties’ use of the website and (ii) Provider's provision of the Services, according to one or more Order Forms, each of which shall incorporate these Terms by reference. An Order Form must be signed by both the Customer and Pensero to be binding. Any amendments to an Order Form or the addition of new Order Forms must be mutually agreed upon in writing and signed by the Customer and Pensero to be effective. Access to the Services is provided based on these Terms and specific usage rights detailed in each Order Form.
2. DEFINITIONS
“Customer” means a person or entity who has executed an Order Form with the Provider.
“Customer Parties” or “you” means a Customer and its Authorized Users.
"Affiliate" means, concerning a Party, any person or entity that controls, is controlled by, or is under common control with that Party, where "control" means ownership of more than fifty percent (50%) of the outstanding voting securities.
"Services" means the Software provided to the Customer according to these Terms and each Order Form, including related documentation, user guides, and service descriptions made available by the Provider.
“Service Specific Terms” means the additional terms set forth in Section 3.2 governing Provider’s provision of the Services to Customer Parties pursuant to an Order Form.
"Authorized User" means a named person authorized to use the Services under a valid subscription or other right granted by the Provider to the Customer and who has been supplied access to the Services via a user identification and password.
"Intellectual Property Rights" means patents, patent applications, copyrights, trademarks, service marks, trade names, domain name rights, know-how, other trade secret rights, and all other intellectual property rights and similar forms of protection.
"Customer Data" means any materials provided or submitted by the Customer, either directly or through an Authorized User, to or through the Services for processing, including outputs and modifications obtained from such processing.
"Personal Data" means information that identifies a person, such as a name or online identifier, uploaded into the Software by the Customer Parties or third parties acting on the Customer Parties’ behalf.
"Software" means the Provider's proprietary SaaS-based productivity and performance management software, accessed by the Customer, including any updates or enhancements generally provided to customers.
"External Service" means any software used by the Provider in connection with the provision of the Services that is administered by a third party, including, but not limited to, DNS servers, hosting providers, and email servers
"Service Downtime" means the period during which the Customer cannot access the Services due to it being unavailable, excluding the Exclusions defined herein.
“Service Credit” shall have the meaning set forth in Section 4.4 of this Agreement.
"Monthly Uptime Percentage" means the percentage of total minutes in a calendar month that the Services are available, calculated by subtracting from 100% the percentage of minutes during the month in which the Services were unavailable due to Service Downtime, except where such unavailability results from the causes listed in the Exclusions
"Planned Downtime" means any instance where the Provider intentionally makes the Services unavailable to perform updates, upgrades, or maintenance necessary to ensure the performance, security, or integrity of the Services or its underlying infrastructure (e.g., system upgrades, hardware repairs). Such downtime will occur outside of regular business hours (3 am—9 pm U.S. Eastern Time, Monday through Friday, U.S. Federal holidays excluded) or as otherwise agreed upon by the Parties. The Provider will make reasonable efforts to notify the Customer at least 48 hours before such downtime. In the case of emergency maintenance, the Provider will inform the Customer as soon as reasonably possible.
USE OF WEBSITE AND SERVICES
3. USE OF WEBSITE
3.1 Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. The Provider does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. The Provider disclaims all liability and responsibility arising from any reliance placed on such materials by you, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Provider, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Provider. The Provider is not responsible, or liable to you or any third party, for the content or accuracy of any Website materials provided by any third parties.
The Provider may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and the Provider is under no obligation to update such material.
3.2 Your Responsibilities Regarding Website Access
To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by the Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
If you choose, or are provided with, a username, password, or any other piece of information as part of Provider’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal and agree not to provide any other person with access to this Website or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
The Provider has the right to disable any username, password, or other identifier, whether chosen by you or provided by the Provider, at any time in our sole discretion for any or no reason, including if, in the Provider’s opinion, you have violated any provision of the Agreement.
3.3 Prohibited Uses
You may use the Website only for lawful purposes and in accordance with these Terms. You agree not to use the Website:
● In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
● For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
● To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the these Terms.
● To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
● To impersonate or attempt to impersonate the Provider, a Provider employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
● To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by Provider, may harm the Provider or users of the Website, or expose them to liability.
Additionally, you agree not to:
● Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
● Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
● Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in the Agreement, without Provider’s prior written consent.
● Use any device, software, or routine that interferes with the proper working of the Website.
● Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
● Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
● Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
● Otherwise attempt to interfere with the proper working of the Website.
3.4 Monitoring and Enforcement
Provider reserves the right to:
● Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
● Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of the Agreement.
3.5 Links
You may link to the Website’s homepage, provided you do so in a way that is fair and legal and does not damage Provider’s reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on Provider’s part.
You agree to cooperate with Provider in causing any unauthorized linking immediately to stop. The Provider reserves the right to withdraw linking permission without notice.
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. The Provider has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
3.6 Privacy Policy
The Agreement incorporates by reference Provider’s Privacy Policy, which governs Provider’s obligations regarding the processing of personal data collected on this Website or within the Services. This Privacy Policy details Provider’s data collection, use, and protection practices and outlines Provider’s role in managing data on behalf of Customer Parties. By using the Website, you consent to all actions taken by Provider with respect to your information in compliance with the Privacy Policy.
Provider may update the Privacy Policy to reflect changes in regulatory requirements or data handling practices. Any material changes will be communicated to you, ensuring continued compliance with applicable privacy regulations.
3.7 Ownership of Website
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Provider, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms permit you to use the Website only for your internal business purposes in accordance with the Agreement. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
● Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
● You may store files that are automatically cached by your Web browser for display enhancement purposes.
● You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
● If Provider provides desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
You must not:
● Modify copies of any materials from this Website.
● Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
● Incorporate the Website or Services in any services or materials provided to third parties (except as authorized).
No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Provider. Any use of the Website not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
4. SERVICE-SPECIFIC TERMS
The following Service-Specific Terms govern the Provider’s provision of the Services.
4.1 Provider Responsibilities
Subject to and conditioned on the Customer's payment of Fees and compliance with all other terms and conditions of the Agreement, Provider will make the Services available with a Monthly Uptime Percentage of at least 99.5%, subject to Planned Downtime and Exclusions. For the purposes of calculating the Monthly Uptime Percentage, any Service Downtime resulting from Exclusions or Planned Downtime will not be included. The Provider will operate the Services in compliance with all applicable laws and regulations and will maintain appropriate safeguards to protect the security, confidentiality, and integrity of Customer Data.
4.1.1 External Services Disclaimer
The Services integrates with third-party tools (e.g., Slack, Jira) to enhance functionality. The Provider does not guarantee the availability or performance of these third-party services and is not responsible for any disruptions or inaccuracies arising from their use.
4.1.2 Customer Support
The Customer may use the following channels for support for inquiries and issues related to the Website or the Services:
1. Self-Service Documentation: Customers may access the Documentation Center at pensero.ai/doc or via the “Documentation” tab within the Software for information on usage, best practices, and troubleshooting the Services. The Provider may update this material from time to time.
2. Support Inquiries: Authorized Users may report service impairments or performance issues by emailing the Provider’s support team at help@pensero.ai. Inquiries must originate from an email associated with an Authorized User. The Provider will provide an initial response within one (1) business day, which may include:
a. A suggested resolution to the problem;
b. A request for more detailed information or clarification, which will enable the Provider to determine the appropriate course of action; or
c. An estimated time for providing the Authorized User with further information, resolution, or a workaround, as appropriate.
4.2 Customer Parties Responsibilities
The Customer agrees to:
● Use the Services solely for authorized internal productivity and performance management purposes.
● Ensure compliance with the Agreement and all applicable laws by the Customer Parties.
● Use best efforts to prevent unauthorized access to or use of the Services (including by maintaining confidentiality of login credentials) and promptly notify the Provider of any unauthorized access or use.
● Use the Services in compliance with the Agreement and all applicable laws.
For the avoidance of doubt, the Customer shall be responsible for all actions and inactions of their Authorized Users as if such actions and inactions were taken by the Customer itself.
The Customer shall not:
● Make the Services available to any third party (except as authorized).
● Sell, rent, or lease the Services.
● Use the Services to transmit materials that infringe on third-party rights or contain malicious code.
● Use the Services for unlawful purposes, including but not limited to intellectual property infringement, defamation, or uploading harmful software.
● Use the Services to transmit inaccurate or misleading data that may cause harm to the Provider or third parties.
● Attempt to gain unauthorized access to the Services or disrupt their integrity.
The Authorized User agrees to:
● Comply with the Agreement.
● Take such steps as may be required to ensure that Customer complies with its obligations under the Agreement.
4.3 Exclusions
Service Downtime will not be considered for calculating the Monthly Uptime Percentage or Service Credits if it results from any of the following (“Exclusions”):
● Unavailability due to External Services outside of the Provider’s control.
● Unavailability due to the Customer’s equipment or network.
● Planned Downtime, with reasonable notice provided by the Provider.
● Actions or omissions by the Customer cause unavailability.
● Internet service failures or force majeure events.
4.4 Service Credits
If the Monthly Uptime Percentage falls below 99.5% due to Service Downtime not attributable to Exclusions, the Customer may receive credits to be applied to the Customer’s next fee payment (“Service Credits”) as follows:
● Less than 99.5% but ≥ 99.0%: 5 Service Credits.
● Less than 99.0%: 10 Service Credits.
One Service Credit shall equal one day of daily Fees paid for the Services pursuant to the applicable Order Form, and awarded Service Credits shall be applied to the Customer's next payment. The Customer must request Service Credits within 30 days of the month of unavailability. If the Customer’s fees have been fully paid and the subscription does not renew, outstanding Service Credits will be paid out as a partial refund of prepaid fees.
4.5. COMPLIANCE WITH LAWS
4.5.1 Regulatory Compliance
The Parties shall comply with all applicable laws, rules, and regulations concerning their performance under the Agreement. This includes compliance with relevant privacy regulations, labor laws, and any AI-related laws that govern data processing, employee monitoring, and using AI tools in the workplace.
4.5.2 Privacy and Data Protection
4.5.3 Provider:
The Provider shall comply with applicable U.S. privacy laws, including (to the extent applicable) the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), as well as any other relevant federal, state, or local privacy laws. The Provider shall implement appropriate technical and organizational measures, such as encryption and access controls, to protect the Personal Data processed through the Software. If the Provider becomes aware of a data breach affecting the Personal Data, it will notify the Customer without undue delay and provide reasonable information to assist the Customer in meeting its legal or regulatory obligations.
4.5.4 Customer:
The Customer is responsible for ensuring that its use of the Software, including the collection, processing, and sharing of Personal Data, complies with all applicable laws. The Customer must obtain any required consent from individuals whose data is processed through the Software and implement safeguards to protect Personal Data in line with relevant privacy requirements.
4.5.5 Data Subject Requests:
The Provider will, to the extent legally permitted, notify the Customer of any data subject request received that relates to Personal Data processed on behalf of the Customer. The Provider will assist the Customer, upon written request, with fulfilling its obligations to respond to such requests to the extent that the Customer cannot independently address the request through the Software.
4.6 AI and Labor Regulations
To the extent that the Software utilizes AI or interacts with employee performance metrics, the Customer shall ensure compliance with all applicable U.S. federal, state, and local laws, including, but not limited to, the AI Accountability Act, privacy, AI, and labor regulations.
4.7 Responsibility for Compliance and Security Standards
The Provider certifies that the Software has been developed and maintained according to applicable data security and operational standards, including SOC 2 Type I certification. The Customer, however, is solely responsible for ensuring that the specific use of the Software complies with all applicable laws, regulations, and industry standards. The Provider shall not be liable for penalties, fines, or damages arising from the Customer’s misuse or non-compliance, and the Customer agrees to indemnify and hold the Provider harmless from any claims or liabilities resulting from such non-compliance.
4.8 DATA SECURITY
4.8.1 Security Measures
The Provider will implement appropriate administrative, physical, and technical safeguards, including encryption of Customer Data in transit and at rest, to protect its security, confidentiality, and integrity.
4.8.2 Customer Obligations
Each Customer Party is responsible for maintaining the security of its account credentials and for any activity that occurs under its account. The Customer Party must notify the Provider immediately of any unauthorized access to its account or security breach.
4.9 INTELLECTUAL PROPERTY RIGHTS
4.9.1 Ownership of Software and Services
Except for the limited licenses to the Customer expressly granted under the Agreement, the Provider retains all rights, titles, and interests, including all related Intellectual Property Rights, in and to the Software and Services and any associated updates, enhancements, and modifications. The Customer acknowledges that the Software and Services are the proprietary intellectual property of the Provider, including any patents, copyrights, trademarks, and trade secrets. No rights, licenses, or interests in or to the Software or Services are granted to the Customer except for the limited use rights expressly in the Agreement. The Customer further acknowledges that the Software contains the Provider's valuable proprietary information and trade secrets, and unauthorized use or disclosure of the Software may cause irreparable harm to the Provider.
4.9.2 License Grant
Subject to the Agreement, the Provider grants the Customer a non-exclusive, non-transferable, non-sublicensable, worldwide license to access and use the Software during the Subscription Term for internal business purposes, as outlined in the Agreement.
4.9.3 Restrictions on Use
The Customer shall not:
a) copy, modify, translate, or create derivative works based on the Software;
b) reverse engineer, decompile, disassemble, or attempt to access the source code of the Software;
c) sublicense, sell, resell, lease, or distribute the Software to any third party;
d) use the Software for purposes of benchmarking or developing a competing product or service; or
e) circumvent any security measures related to the Software
f) Print, store, or save Services content or processes unrelated to necessary functionality.
g) Copy, modify, create derivative works, or remove any intellectual property rights notices.
h) Assign, sublicense, or transfer usage rights without written consent from the Provider.
4.9.4 Patent Rights
Provider retains all rights, title, and interest in and to any patents, whether issued or pending, associated with the Software or Services provided under the Agreement. Nothing in the Agreement shall be construed as granting the Customer any rights, licenses, or interests in any patents held by the Provider, whether by implication, estoppel, or otherwise. The Customer agrees not to take any action that might infringe, misappropriate, or otherwise violate the Provider's patent rights, including reverse engineering, decompiling, or attempting to discover any proprietary methods or technologies embedded within the Software that may be subject to patent protection.
4.9.5 Customer Data
The Customer retains ownership of any data it uploads, submits, or transmits to or through the Software ("Customer Data"). The Provider will have a limited, non-exclusive right to access and process Customer Data to perform its obligations under the Agreement, which include providing support, resolving issues with the Services, and ensuring compliance with the Customer instructions, and to deliver insights and enhance system performance.
4.9.6 Aggregated Anonymous Data
Provider may collect and use aggregated, anonymized data derived from the Customer's use of the Software to improve the Software and for business development, product enhancement, and other operational purposes. Such aggregated data will not identify the Customer or any individual and shall not include Personal Data.
4.9.7 Feedback
If the Customer or any of its employees or contractors sends or transmits any communications or materials to the Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software and/or the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), the Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The Customer hereby assigns to the Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and the Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although the Provider is not required to use any Feedback.
4.10 FEES & PAYMENT
4.10.1 Fees
The Customer will pay the Provider all fees outlined in any applicable Order Form (collectively, the "Fees") within thirty (30) days of the Customer’s receipt of an invoice unless otherwise specified in the Order Form. The Customer's payment obligations are non-cancelable, and all Fees paid are non-refundable. Fees are due in advance and are based on the Services purchased, irrespective of actual usage by the Customer.
4.10.2 Payment Terms
The Customer will provide the Provider with a valid payment method, including but not limited to money order, ACH, wire transfer, credit card, debit card, or any other alternative payment method reasonably acceptable to the Provider. The Customer is solely responsible for ensuring that accurate and complete billing and contact information is provided to the Provider and that such information is updated promptly. Should the Customer fail to update its payment method details (e.g., credit card expiration date), the Provider may participate in programs supported by the Customer's card provider (e.g., updater services, recurring billing programs) to update the payment information automatically. The Customer authorizes the Provider to continue billing the account with the updated information.
4.10.3 Overdue Charges
If any Fees are not paid within fifteen (15) days following the due date, the Provider reserves the right to charge interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, on the outstanding balance. Additionally, suppose any Fees remain unpaid for more than thirty (30) days past the due date. In that case, the Provider may suspend the performance of its Services until all outstanding amounts are paid in full. The Provider also reserves the right to require full payment of all overdue amounts before resuming Services. The Customer is responsible for any legal fees or collection costs incurred by the Provider due to overdue payments.
4.10.4 Taxes
Fees are exclusive of all applicable taxes, levies, and duties. The Customer is responsible for paying all such taxes, levies, and duties, excluding taxes based solely on the Provider's net income. The Customer shall pay all Fees free and clear of and without reduction for any applicable transaction taxes, including but not limited to sales and use taxes, VAT, GST, gross receipts taxes, withholdings, and other similar transactional charges ("Transaction Taxes"). If the Provider is required to pay any Transaction Taxes arising from the licenses granted or Services provided under the Agreement, those amounts will be billed to and payable by the Customer. Any withholding taxes required by law to be deducted from payments made to the Provider are the Customer's sole responsibility and will not reduce the amount owed under the Agreement.
4.11. CONFIDENTIALITY
4.11.1 Definition of Confidential Information
"Confidential Information" means all confidential and proprietary information disclosed by Provider ("Disclosing Party") to you ("Receiving Party"), whether orally or in writing, that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. This includes, but is not limited to, business and marketing plans, technical information, product designs, financial data, Customer information, business processes, and intellectual property. Confidential Information does not include information that the Receiving Party can demonstrate:
a) Was publicly available or in the public domain at the time of disclosure;
b) Becomes publicly available through no breach of the Agreement by the Receiving Party;
c) Was lawfully received by the Receiving Party from a third party without an obligation of confidentiality;
d) Was independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information or
Is approved for release by written authorization from the Disclosing Party.
4.11.2 Use of Confidential Information
The Receiving Party acknowledges it will have access to certain Confidential Information of the Disclosing Party. Accordingly, the Receiving Party agrees to:
a) Use the Confidential Information only for the purposes described in the Agreement;
b) Protect such Confidential Information from unauthorized use, disclosure, or access using the same degree of care that it uses to protect its confidential information, but in no event less than a reasonable degree of care;
c) Limit access to the Confidential Information to those of its employees, contractors, agents, and consultants who need such access for purposes consistent with the Agreement and who are bound by confidentiality obligations no less protective than those contained herein; and
d) Return or destroy all Confidential Information of the Disclosing Party upon termination or expiration of the Agreement or the Disclosing Party’s written request, except as may be required to retain a copy for legal or compliance purposes.
4.11.3 Protection of Confidential Information
The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its Confidential Information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party agrees:
Not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement;
Not to disclose Confidential Information to any third party without the prior written consent of the Disclosing Party, except as authorized in the Agreement; and
Not to disclose the terms of the Agreement to any third party except its Affiliates, legal counsel, or accountants, and only on the condition that such third parties are bound by confidentiality obligations no less stringent than those herein.
4.11.4 Compelled Disclosure
Notwithstanding any other provision in the Agreement, the Receiving Party may disclose Confidential Information if
required to comply with the order of a court or other governmental body or as otherwise necessary to comply with applicable law. In such cases, the Receiving Party shall, to the extent permitted by law, provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance at the Disclosing Party’s expense if the Disclosing Party wishes to contest the disclosure. Suppose the Receiving Party is legally compelled to disclose Confidential Information in a civil proceeding to which the Disclosing Party is a party and does not contest the disclosure. In that case, the Disclosing Party will reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to such Confidential Information.
4.11.5 Survival
The confidentiality obligations outlined in this section will survive the expiration or termination of the Agreement for five years.
4.12 DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
4.13 LIMITATION OF LIABILITY
4.13.1 Cap on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE PROVIDER (OR ITS AFFILIATES) BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL FEES PAID OR PAYABLE BY THE CUSTOMER TO THE PROVIDER FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE).
4.13.2 Exclusion of Certain Damages
IN NO EVENT WILL THE PROVIDER OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, BUSINESS, DATA, OR USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR FOR ANY DAMAGES ARISING FROM INACCURATE DATA ENTERED BY ANY CUSTOMER OR AUTHORIZED USER. THIS EXCLUSION APPLIES REGARDLESS OF THE LEGAL THEORY INVOLVED.
4.13.3 Limitation on Liability for Data
THE PROVIDER WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO DATA OR INFORMATION UPLOADED, STORED, OR PROCESSED THROUGH THE SERVICES, EXCEPT AS EXPRESSLY OUTLINED IN THE AGREEMENT.
4.13.4 Foundation of the Agreement
THE LIMITATIONS AND EXCLUSIONS OUTLINED IN THIS SECTION ARE ESSENTIAL ELEMENTS OF THE AGREEMENT, AND BOTH PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS FORM THE BASIS FOR THE TERMS AND PRICING OFFERED.
4.13.5 Disclaimer of Customer Decisions
Notwithstanding anything to the contrary herein, the Provider hereby explicitly disclaims any liability for claims brought by third parties arising from or relating to decisions or actions related to employment, promotion, advancement, termination, notification, or compensation of any employee, contractor, or Authorized User of the Software or Services.
4.14 INDEMNIFICATION
4.14.1 Indemnification by The Provider
The Provider shall indemnify, defend, and hold the Customer harmless from any third-party claim, action, suit, or proceeding made or brought against the Customer alleging that the Customer’s use of the Software, under the Agreement, infringes the third party’s intellectual property rights (an “Infringement Claim”). In the event of an Infringement Claim, the Provider may, at its sole option and expense:
a) Procure for the Customer the right to continue using the Software or the infringing part thereof;
b) Modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities or
c) If neither of the foregoing is commercially practicable, terminate the Agreement and repay the Customer a pro-rata portion of any prepaid but unused Fees.
The Provider will have no liability for an Infringement Claim if the actual or alleged infringement results from:
a) The Customer’s breach of the Agreement;
b) The Customer’s modification, alteration, or addition made to the Software or any use thereof, including any combination of the Software with other materials not provided or authorized by the Provider;
c) The Customer’s failure to use any corrections or modifications made available by the Provider that would have avoided the infringement without resulting in any material loss of functionality or
d) Use of the Software in a manner or in connection with a product or data not contemplated by the Agreement.
The Provider disclaims any liability for settlements entered into by the Customer or costs incurred by the Customer concerning an Infringement Claim not pre-approved by the Provider in writing.
4.14.2 Indemnification by the Customer
The Customer shall indemnify, defend, and hold the Provider harmless from any third-party claim, action, suit, or proceeding arising out of or resulting from:
a) The Customer’s use of the Services (except to the extent such claim is covered by the Provider’s indemnification obligations according to Section 4.14.1);
b) Any actions or inactions by the Customer’s Authorized Users;
c) The Provider’s use of any Customer Data under the Agreement or
d) The Customer’s negligence, willful misconduct, or violation of applicable law, rule, or regulation.
4.14.3 Indemnification Procedures
Each Party’s indemnity obligations are subject to the following:
a) The indemnified Party shall promptly notify the indemnifying Party in writing of the applicable claim;
b) The indemnifying Party shall have sole control of the defense and all related settlement negotiations concerning the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability) and
c) The indemnified Party shall reasonably cooperate, at the indemnifying Party’s expense, to the extent necessary to defend such claim.
4.14.4 Sole Remedy
SECTION 12.1 SETS FORTH THE CUSTOMER PARTIES’ SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
4.15 Ethics & Anti-Corruption
Each Party warrants that it has not received, been offered, or provided any illegal or improper bribe, kickback, payment, gift, or anything of value in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this Section 4.15. If a Party becomes aware of any violation, it agrees to notify the other Party promptly.
4.16 Force Majeure
Neither Party will be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of war, riots, fires, floods, epidemics, acts of terrorism, cyberattacks, criminal actions, or failures of public utilities (each a “Force Majeure Event”). If a Force Majeure Event prevents a Party from performing its obligations for more than thirty (30) days, either Party may terminate the Agreement immediately upon written notice to the other.
4.17 Global Score
4.17.1 Feature Description and Opt-In Requirement
The Provider offers a Global Score feature ("Feature") that enables Customers to receive anonymized, comparative performance insights based on aggregated productivity data from the entire population of Customers. All data used in the Feature is fully anonymized and aggregated to ensure individual privacy. This Feature is included by default, and all Customers are automatically enrolled unless they choose to opt out.
4.17.2 Data Collection and Processing
Provider will provide Customers with anonymized benchmark insights, including:
a) Percentile rankings showing how the Customer's employees perform relative to the entire population of Customers participating in the Feature. All benchmark data provided will be aggregated across multiple organizations and anonymized to prevent identification of any specific company or individual.
b) Technology platforms and development tools used
4.17.3 Benchmark Provision
Provider will provide participating Customers with anonymized benchmark insights, including:
a) Percentile rankings showing how the Customer's employees perform relative to the entire population of Customers who have opted in. All benchmark data provided will be aggregated across multiple organizations and anonymized to prevent identification of any specific company or individual.
4.17.4 Data Protection and Restrictions
Provider commits to the following data protection measures:
a) No data will be shared outside the Customer's organization in a manner that could identify the specific company or its employees
b) Individual employee data will not be provided to third parties or other participating Customers
c) Only aggregated, anonymized data from multiple participating organizations will be used for benchmark calculations
d) Customer data collected through this Feature will not be used to train Provider's machine learning models or AI systems
e) All benchmark data will be aggregated across a minimum threshold of participating organizations to ensure anonymization
4.17.5 Data Retention and Deletion
Customers may opt out from the Feature at any time by providing thirty (30) days written notice to Provider. Upon withdrawal:
a) Provider will immediately cease including the Customer's data in future benchmark calculations
b) Previously calculated aggregate benchmark data may retain anonymized historical contributions where such data cannot reasonably be extracted from existing calculations without compromising the anonymization of other participants' data
4.17.6 Employee Notice and Consent
Customer acknowledges that participation in the Feature may require additional employee notice and consent beyond standard Software usage. Customer is responsible for:
a) Providing appropriate notice to employees regarding participation in industry benchmarking
b) Obtaining any required employee consent for inclusion of their productivity data in anonymized benchmarks
c) Ensuring compliance with applicable employment and privacy laws regarding employee data use
4.17.7 Compliance and Security
The Feature will be operated in compliance with all applicable privacy laws and regulations, including those specified in Section 4.5 of this Agreement
4.17.8 Limitation of Liability
Provider's liability for the Feature is subject to the general limitation of liability provisions in Section 4.13 of this Agreement. Provider makes no warranties regarding the accuracy, completeness, or usefulness of benchmark data, which is provided for informational purposes only.
5. TERM
The Terms become effective when the Customer Party first uses this Website or first signs an Order Form and, notwithstanding anything in the Agreement to the contrary will remain in effect unless terminated in writing by both parties. Notwithstanding anything to the contrary in the Agreement, Provider may terminate or suspend any Authorized User’s access to all or part of the Website or the Services for any or no reason.
6. DISPUTE RESOLUTION & GOVERNING LAW
6.1 Governing Law
The laws of the State of New York shall govern the Agreement.
6.2 Exclusive Jurisdiction
Subject to Sections 6.3 and 6.4, any disputes arising from the Agreement shall be brought to the state or federal courts in New York County, New York.
6.3 Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY. YOU WILL HAVE TO RESOLVE ANY DISPUTE THROUGH ARBITRATION AND NOT THROUGH A COURT PROCEEDING.
a) Except as otherwise specifically provided in the Agreement, or as otherwise required by a non-waivable provision of applicable law, any dispute, controversy, or claim arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved exclusively through binding arbitration by a single arbitrator in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS in effect at the time the demand for arbitration is made. The arbitration shall be administered by JAMS, and judgment upon an award arising in connection therewith may be entered in any court of competent jurisdiction. The parties expressly acknowledge that, under the preceding sentence, they are waiving their right to a jury trial with regard to all matters for which arbitration is required. Any arbitration, mediation, court action, or other adjudicative proceeding arising out of or relating to the Agreement shall be held in New York City, New York or, if such proceeding cannot be lawfully held in such location, as near thereto as applicable law permits.
b) The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney’s fees of the prevailing party. The prevailing party or parties in any arbitration, mediation, court action, or other adjudicative proceeding arising out of or relating to the Agreement shall be reimbursed by the party or parties who do not prevail for their reasonable attorneys, accountants, and expert fees and related expenses (including reasonable charges for in-house legal counsel and related personnel) and for the costs of such proceeding.
6.4 Litigation and Class Action Waiver
To the extent allowed by applicable law, you agree that any arbitration and proceeding to litigate in court any dispute arising out of or relating to the Agreement, will be conducted solely on an individual basis, and you agree not to seek to have any controversy, claim or dispute heard as a class action or any other type of representative proceeding.
7. MISCELLANEOUS
7.1 Assignment
No Party may assign or transfer any of its rights or obligations under the Agreement to any third party without the prior express written consent of the other Party. Notwithstanding the foregoing, a Party may assign the Agreement to its successor without the other Party’s consent concerning a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt to assign rights or obligations violating this section will be void and of no effect. The Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
7.2 Entire Agreement
These Terms, any applicable Order Forms, and the Privacy Policy constitute the entire understanding between the Parties and supersedes all prior or contemporaneous communications, whether oral or written. Unless expressly provided in an Order Form, the Customer Parties acknowledge that their obligations under the Agreement are not contingent on the delivery of future functionality or features, nor dependent on any oral or written statements made by the Provider about such future functionality.
7.3 Modification and Waiver
The Provider may modify these Terms at any time upon written notice. The waiver of any breach of any term will not be construed as a waiver of any other breach or term in the future.
7.4 Notices
Any notice or demand required under the Agreement will be deemed given and received:
a) when delivered by hand;
b) upon confirmed electronic transmission;
c) when delivered by a nationally recognized overnight courier or
d) five (5) days after being sent by certified or registered mail, postage prepaid, return receipt requested,
to the address or email provided in the Order Form or to such other address as either Party may designate by notice to the other.
7.5 Severability
If any provision of the Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder will continue in full force and effect. Any invalid or unenforceable provision will be replaced with a valid and enforceable provision that most closely reflects the Parties' original intent.
7.6 Use of Logo
The Customer grants the Provider the right to use its name and logo in marketing materials such as the Provider’s website, newsletters, social media posts, or case studies. This right will remain in effect unless the Customer provides written notice requesting the removal of its name and logo, whereupon the Provider will have 30 days to comply.
7.7 Amendment
Provider reserves the right to revise and update these Terms from time to time in Provider’s sole discretion. The most current version will be posted on the website, with notification of significant changes provided by email or website notice. All changes are effective immediately when Provider posts them, and apply to all access to and use of the Website thereafter. If updates significantly affect the Customer Parties’ rights or obligations, Provider will provide advance notice. Continued use of the Service or the Website following updates constitutes acceptance of the revised Terms. You are expected to check this page so you are aware of any changes, as they are binding on you.
7.8 Contact Information
If you have questions or concerns about these Terms, any Order Form, or the Services, please contact the Provider at sales@pensero.ai.
