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Terms of Service
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PASTEL VENTURES, INC.. (“Pastel”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PASTEL WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PASTEL’S STANDARD ONLINE PROCESS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY FREE TRIAL (AS DEFINED BELOW)) AND WHICH IS ACCEPTED BY PASTEL SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. TO THE EXTENT THESE TERMS CONFLICT WITH ANY ORDER FORM, SUCH ORDER FORM SHALL GOVERN.1. Order Forms; Access to the Service; Free Trial. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Pastel grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Pastel product(s) and/or service(s) specified in an Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) only for Customer’s internal business purposes as provided herein and only in accordance with user documentation provided by Pastel for such Service (the “Documentation”).2. Free Trial. Pastel may make the Service available to Customer on a trial basis free of charge (“Free Trial”), which will commence upon the date of Customer’s first use of the Service and shall continue for the trial period specified on the applicable Order Form or, if not specified thereon, otherwise communicated to the Customer in writing (email to suffice) (each, a “Trial Period”). Notwithstanding anything to the contrary in this Agreement, (i) the Service under the Free Trial is provided “AS-IS”, without warranty of any kind, (ii) Customer’s access to the Service may be limited, (iii) Pastel shall not have any obligation to provide any support for the Service (including without limitation pursuant to Section 3 (Support & Maintenance)), and (iv) Pastel shall have no obligations under Section 11 (Indemnification) or liability of any kind with respect to the Service for the Free Trial (unless such exclusion of liability is not enforceable under applicable law, in which case Pastel’s liability with respect to the Service provided during the Free Trial shall not exceed $100.00). Pastel will notify Customer before any Services Customer is then using begin carrying a fee. If Customer does not cancel its account prior to the end of a Trial Period, Customer shall be responsible for all applicable fees in accordance with Section 6. Customer shall be fully liable under this Agreement to Pastel for any damages arising out of Customer’s use of the Service under the Free Trial, any breach by Customer of this Agreement and any of Customer’s indemnification obligations hereunder. In the event of a conflict between this Section 2 and any other portion of this Agreement, this Section 2 shall control. Either party may terminate the applicable Order Form without cause during the Trial Period immediately upon notice to the other party.3. Support & Maintenance. Subject to Customer’s payment of all applicable fees, Pastel will use commercially reasonable efforts to provide support and maintenance for the Services.4. Service Updates. From time to time, Pastel may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Pastel shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Pastel may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Pastel shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.5. Ownership; Feedback As between the parties, Pastel retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Pastel for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Pastel with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Pastel notwithstanding anything else. Pastel acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Pastel a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Pastel’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.6. Fees; Payment. Customer shall pay Pastel the fees for the Service as set forth in each Order Form (“Fees”). Please see Pastel’s Billing Policy, which is incorporated herein by reference, for additional details on how billing works. Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Customer shall pay a late fee of past due invoices at the lesser of 1.5% per month or the maximum amount permitted by applicable law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Pastel’s net income). Unless otherwise expressly agreed upon by the parties in accordance with the Cancellation and Refund Policy (which is incorporated herein by reference), all Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Pastel shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Pastel’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage.7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Pastel product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) bypass any measures Pastel may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service), whether through use of manual or automated means; (x) use the Service in a manner that is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (xi) jeopardize the security of any Customer Pastel account or anyone else’s account (such as allowing someone else to log in to the Services as you); (xii) attempt, in any manner, to obtain the password, account, or other security information from any other user; (xiii) violate the security of any computer network, or cracks any passwords or security encryption codes; or (xiv) run Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer is not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights, and (c) shall use the Service in accordance with Pastel’s Fair Use Policy, which is available at Pastel.co/fair-use and which is incorporated herein by reference. Further, Customer shall not use the Service to send:
Messages which are obscene, defamatory, threatening, intimidating, harassing, hateful, exploitative, abusive, racially or ethnically offensive, or which instigate or encourage conduct that would be illegal or otherwise inappropriate, such as promoting violent crimes, endangering or exploiting children or others, or coordinating harm;
Fraudulent messages, including but not limited to impersonation, misrepresentation, scams, phishing, or any deceptive messages used to lure consumers into providing their or another person’s personal information, including but not limited to medical, health or financial information;
Malicious content, including but not limited to malware or viruses;
Messages relating to the offer or sale of cannabis, CBD or vape products; or Messages relating to the offer or sale of prescription medication.
Messaging Policy. Pastel treats all messaging transmitted via the Service as Application-to-Person (“A2P”) messaging. All A2P messages originating from Pastel are subject to this Messaging Policy. Customer is responsible for any person to which it provides the ability to send messages through Pastel.Consent/Opt-in Requirements. Prior to sending the first message to each recipient, Customer must obtain consent from the recipient to communicate with them. Customer must make clear to the recipient that he/she is agreeing to receive the type of messages Customer plans to send. If Customer does not send the initial message to the recipient within a reasonable period after receiving consent, then Customer must reconfirm consent in the first message sent to that recipient. Consent is limited to the specific use or campaign to which the recipient has consented, and Customer may not send additional messages about other uses or campaigns unless Customer has received consent from the recipient for such additional messages. Customer must keep a record of each consent, such as a copy of the document or form that the message recipient signed, or a timestamp of when the customer completed a sign-up flow.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Pastel, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Pastel shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Pastel is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Pastel’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted ninety (90) days after this Agreement is terminated or Customer’s account is delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Pastel may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Pastel’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Pastel’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Pastel in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
Pastel will retain each phone number under Customer’s account for no more than for