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Skupos, A PDI Company - Terms & Conditions

Last Updated: August 13, 2024

Welcome, and thank you for your interest in the products and services of PDI Technologies, Inc. (“PDI,” “we,” or “us”). These Terms of Service are between you and PDI and govern your use of PDI’s Skupos service at www.pdiessentials.com (the “Skupos Service”) along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and PDI regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING PDI’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND PDI’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY PDI AND BY YOU TO BE BOUND BY THESE TERMS.

1. Skupos Service Overview

We provide access to scan data, loyalty and rebate programs through our Skupos product.

2. Eligibility

You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

3. Purchase through a Partner

If you have purchased the Service through a third-party PDI partner then you represent and warrant that you have authorized such partner to order, renew and, if necessary, terminate the Service on your behalf, and agree and acknowledge that all orders and termination of Service requests submitted by the partner to PDI are binding upon you.

4. Accounts and Registration; Additional Requirements for Accessing the Service

  1. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@skupos.com.
  2. You will need a computer to access the features of this Service, and other hardware as we may reasonably require.
  3. Certain features of the Service may be subject to your agreement to and compliance with additional terms and conditions, and the rights granted to you under these Terms are conditioned on that compliance.

5. Payment Terms

  1. General. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
  2. Price. PDI reserves the right to determine pricing for the Service. PDI may change the fees for any feature of the Service, including additional fees or charges, if PDI gives you advance notice of changes before they apply. PDI, at its sole discretion, may make promotional offers with different features and different pricing to any of PDI’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
  3. Authorization. You authorize PDI and its third parties to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by PDI, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, PDI and its authorized third parties may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Payments due for the Service may be subject to Stripe’s terms, as further described in Section 10 below. If you do not agree to Stripe’s terms, then please do not sign up for the Service.
  4. Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize PDI to periodically charge, on a going-forward basis, and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription, or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information).
  5. Delinquent Accounts. PDI may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.

6. Licenses

  1. Limited License. Subject to your complete and ongoing compliance with these Terms, during the Contract Term (as defined in Section 14(a) below), PDI hereby grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (ii) access and use the Service through our proprietary platform of services, software and technology used to provide the Service (the “Platform”), accessible to you through your account login information. For any user manuals, online resources, or other documentation made available to you with respect to the Service (as may be amended or added to from time to time, the “Documentation”), you may reproduce and use the Documentation solely as necessary to support your use of the Platform during the Contract Term.
  2. API License. If PDI makes available to you any application programming interface, including any provided by or to a third party integration partner of PDI (a “PDI Integration Partner”) for accessing and using any part of the Service (each, a “PDI API”), subject to your complete and ongoing compliance with these Terms and any additional terms provided in connection with the applicable PDI API, during the Contract Term, PDI hereby grants you, solely for your personal, use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the PDI API: (i) solely in accordance with the Documentation provided by PDI in connection with the PDI API, (ii) solely for your own internal business purposes, and (iii) only for the purposes of transmitting and receiving required data and information and receiving output and results from the portion of the Service that the PDI API is provided for use in connection with. You must at all times comply with any volume or other usage-based restrictions established by PDI in connection with use of any PDI API.
  3. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
  4. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant PDI an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
  5. Store Information. You acknowledge and agree that as part of the Service, we may share information regarding your store(s) (including store addresses and other identifiers) with Brands (defined below) in order to facilitate, operate, maintain and improve our products and services (including the Service). “Brands” means any third party that supplies, distributes or otherwise sells goods and products that may be sold within your stores.
  6. Trademark and Name Usage. You hereby grant PDI a non-exclusive, transferable and sublicensable royalty-free right to use your company name, any associated tradenames, trademarks, brand names, logos and other identifying marks for the purpose of identifying you as a customer of PDI in any PDI advertising material, websites, or other publications or communications.

7. Ownership; Proprietary Rights

The Service is owned and operated by PDI. The visual interfaces, graphics, design, compilation, information, data, support, marketing and sales materials, formulas, charts, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by PDI are protected by intellectual property and other laws. All Materials included in the Service are the property of PDI or its third party licensors. Except as expressly authorized by PDI, you may not make use of the Materials. PDI reserves all rights to the Materials not granted expressly in these Terms.

8. Third Party Terms

  1. Third Party Services and Linked Websites. PDI may provide tools through the Service that enable you to export information, including Store Movement Data (defined below), to third party services. You will abide by and comply with all third party terms related to such third party services. By using one of these tools, you agree that PDI may transfer that information to the applicable third party service. Third party services are not under PDI’s control, and, to the fullest extent permitted by law, PDI is not responsible for any third party service’s use of your exported information and anything related to your use of any third party service. The Service may also contain links to third party websites. Linked websites are not under PDI’s control, and PDI is not responsible for their availability or content.
  2. Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.

9. Delivery and Use of Store Movement Data

  1. Definition. “Store Movement Data” means all information transmitted by you to us related to your use of the Service and any associated transactions, except for full payment card numbers (except for the last four digits) and their expiration dates. Store Movement Data includes but is not limited to: the raw point of sale scanner or website transaction data for UPC-coded and/or EAN-coded product purchases and PLU product purchases, each as recorded in your stores, including private label data, and front register data and pharmacy data, any corresponding hierarchies of yours (categorizations of goods sold) and geographies, all click-and-collect transactions (and all associated data) where items are ordered and/or purchased online and purchased and/or delivered at a physical store of yours, and (for each item sold) units sold and price with and without a loyalty card.
  2. Delivery of Store Movement Data. You shall provide to us all Store Movement Data related to each of your stores registered on the Platform on a daily basis and in the format we request.
  3. License to and Use of Store Movement Data.
    1. You represent and warrant that you have all consents, permissions and licenses necessary to provide the Store Movement Data you provide to PDI for PDI to use such Store Movement Data in accordance with subsection (ii) below.
    2. You hereby grant PDI a non-exclusive, perpetual, transferable, and sublicensable royalty-free, worldwide license to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data to provide Service to you and for PDI’s own commercial purposes. For the avoidance of doubt, under this license you hereby (a) authorize PDI to process the Store Movement Data into either a form necessary for providing the Service or an anonymized and aggregated form for provision to third parties (“PDI Processed Data” and such modification and use, to “Process”), (b) authorize PDI to sublicense the Store Movement Data to any third parties to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data, (c) authorize such third parties to sublicense the Store Movement Data to other third parties to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data, (d) authorize any third party to Process the Store Movement Data (“Third Party Processed Data”), and (e) authorize any such third party to incorporate any such Third Party Processed Data into services of such third party for provision to other third parties; in all cases above in perpetuity. You agree that PDI shall own PDI Processed Data and that Store Movement Data that is Processed by a third party shall be owned by PDI unless PDI and such third party otherwise mutually agree in writing. You hereby assign all of its right, title, and interest in and to PDI Processed Data to PDI and to any Third Party Processed Data to PDI unless PDI and such third party otherwise mutually agree in writing.
    3. PDI and any third party may use the Store Movement Data in the creation of reports that are aggregated across retail organizations in a geographical area. PDI may collect, use and disclose to any such third party store-specific or chain-specific sales information. You agree that PDI and such third party may release any of your store specific or chain specific sales information or the aggregated data to their respective clients, and clients of their client brokers, client value added resellers and client alliance partners for internal business use of such clients and of clients of such client brokers, client value added resellers and client alliance partners.
    4. You grant PDI and any third party the right to utilize the Store Movement Data (a) for syndicated usage within third parties on an ongoing basis (b) to contact you (directly or through your distributor(s)) for marketing purposes, and (c) to automate orders to your store.
    5. In the event you are transferring to PDI services from a competitive or other software services provider, you agree to provide PDI with, or access to, any of your relevant historical data from the prior provider.

10. Engage Terms

Unless you have opted out of the Service consisting of PDI’s discounting and promotions platform known as “Engage” (as further described in the applicable Documentation, “Skupos Engage”) pursuant to Section 10(f) below, the Skupos Engage terms in this Section 10 will apply in addition to the other terms and conditions of these Terms.

  1. Brand Opt-In. Brands may offer Programs (as defined below) through Skupos Engage from time-to-time, whereby Brands agree to (i) offer discounts and promotions to consumers that purchase products and goods in certain qualifying transactions with you (each such qualifying transaction, a “Transaction”) over a period of time; and (ii) reimburse you for the amounts incurred by you (or with respect to Co-Funding Programs, for a portion of the amounts incurred by you as specified in the applicable Co-Funding Program Rules) in providing such discounts and promotions to such consumers for each Transaction in connection with such Programs. By subscribing to, or otherwise using, Skupos Engage, you hereby acknowledge and agree that you are opting in to participate in all Programs (excluding Co-Funding Programs) offered to you now or in the future for all Brands that are on Skupos Engage now or in the future. “Program” means any discounting and/or promotional program offered by any Brand through the Service, including those offered through Skupos Engage.
  2. Programs. By participating in any Program, you hereby acknowledge and agree that: (i) you will comply with the specific Program terms, conditions and rules (including any Co-Funding Program Rules, if applicable) communicated to it in connection with such Program; (ii) you are responsible for incurring the Transaction Discount Value (as defined below) for each Transaction at the time of such Transaction (with respect to each Program, “Incurred Program Amounts”); (iii) your right to be reimbursed through Skupos Engage for Incurred Program Amounts (or with respect to Co-Funding Programs, for a portion of the Incurred Program Amounts as specified in the applicable Co-Funding Program Rules) will be expressly conditioned on the applicable Brand’s remittance of sufficient Program funds to PDI to cover such reimbursement; and (iv) in the event that the applicable Brand fails to remit sufficient Program funds to PDI to cover any Incurred Program Amounts, you will look solely to Brand to recover any Incurred Program Amounts, and PDI will not be responsible for reimbursing you for such Incurred Program Amounts until and unless it has received such amounts from Brand. “Transaction Discount Value” means, with respect to any Transaction, the total dollar value of the applicable discount or other promotion offered by Brand to the applicable consumer under the applicable Program for such Transaction.
  3. Co-Funding Programs. From time-to-time, Brands may offer Programs through Skupos Engage where retailers are required to co-fund and bear the cost of a portion of the Transaction Discount Value for each Transaction (such Programs, “Co-Funding Programs”). You will be required to specifically opt-in to participate in Co-Funding Programs on a Program-by-Program basis through the functionality of Skupos Engage, and will be notified through Skupos Engage of the associated terms, conditions, rules and Brand funding that is available with respect to such Co-Funding Program (the “Co-Funding Program Rules”).
  4. Withdrawals. Subject to Section 10(b), (i) your reimbursements for Incurred Program Amounts (or with respect to Co-Funding Programs, a portion of the Incurred Program Amounts as specified in the applicable Co-Funding Program Rules) will be deposited on a monthly basis to a connected account (“Connected Account”) managed by PDI’s third party payment processor and linked to your designated bank account (“Customer Account”); and (b) you may withdraw funds from your Connected Account to your Customer Account through the functionality offered by Skupos Engage as described in the Documentation, which withdrawals may be subject to additional transaction and/or processing fees, and withdrawal periods as may be imposed by PDI or its third-party payment processor, Stripe as described in the Documentation. From time-to-time at the sole discretion of Brands, Brands may deposit additional funds into your Connected Account, which may take the form of reimbursements or other incentives, and which may or may not relate to your participation in a Program. Notwithstanding the forgoing, for ease of operations, any funds left in the Connected Account for more than twelve months from deposit will be transferred to PDI and become the property of PDI.
  5. Stripe Terms for Skupos Engage. You acknowledge and agree that your use of Skupos Engage, the Connected Account and acceptance of any payments or withdrawals from the Connected Account is contingent on its acceptance of the Connected Account Agreement (located at https://stripe.com/connect-account/legal), which includes the Stripe Services Agreement (located at https://stripe.com/ssa) and the Stripe Privacy Policy (located at https://stripe.com/privacy), each as may be updated from time to time by Stripe and your ongoing use of Stripe’s services as provided in the Connected Account Agreement. As a condition of using the Connected Account and Skupos Engage, you agree to provide PDI accurate and complete information about yourself and your business, and authorize PDI to share with Stripe this information and other transaction information related to your use of the payment processing services provided by Stripe. You will pay the fees charged by Stripe which are in addition to the fees described herein. Stripe and not PDI is responsible for all payment processing services provided by or through Stripe, and you release and hold PDI harmless from any liability, costs, or damages resulting from the Stripe or other third-party payment processing services.
  6. Tobacco Scan Services. Notwithstanding the foregoing, at any time upon written notice to PDI at support@skupos.com, you may opt out of the Skupos Engage tobacco scan services if applicable law bars you from providing rebates or discounts on tobacco products at your stores or if all agreements between you and applicable tobacco Brand(s) terminate and/or expire.

11. Rights to Aggregate Information

PDI shall have the right to (a) aggregate any information, including non-personally identifiable information and personally identifiable information that has been anonymized, received directly or indirectly from you or otherwise in connection with any use of the Skupos Service (“Aggregate Information”) and to use, store, analyze and disclose such Aggregate Information for any purposes, including marketing purposes; and (b) utilize data capture, syndication and analysis tools, and other similar tools, to create, extract, compile, synthesize, and analyze Aggregate Information. To the extent that Aggregate Information is created, extracted, compiled or synthesized from personal information received directly or indirectly from you in connection with any use of the Skupos Service, PDI shall ensure that Aggregate Information does not identify you by name. Aggregate Information shall be solely owned by PDI and may be used and disclosed by PDI for any lawful purpose (including marketing purposes, for provision to third party consumer packaged goods companies, for provision to financial analyst companies and for the building of algorithms or the purposes of machine learning) without a duty of accounting to you. You represent and warrant that you have all rights necessary to the Store Movement Data and the rights necessary to grant PDI the licenses set forth in this Section 11.

12. Prohibited Conduct

BY USING THE SERVICE YOU AGREE NOT TO, AND TO PREVENT OTHERS (WHETHER OR NOT AUTHORIZED BY YOU) FROM USING YOUR ACCOUNT TO:

  1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
  2. misuse the Service or use the Service in any way other than as expressly permitted by us;
  3. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
  4. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
  5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; or (iii) otherwise attempting to gain unauthorized entry to the Service;
  6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
  7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
  8. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials;
  9. use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service;
  10. access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or copy any ideas, features, functions or graphics of the Service;
  11. except as otherwise authorized herein, provide Service passwords or other log-in information to any third party or share non-public Service features or content with any third party; or
  12. attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.

13. Modification of these Terms

We reserve the right to change these Terms on a going-forward basis at any time without notice. Please check these Terms periodically for changes. We will post changes to these Terms to this website. Changes will not apply retroactively and will become effective no sooner than thirty days after they are posted; however, changes made for legal reasons will be effective immediately. If you do not agree to the changed Terms, please discontinue use of the Service, and your continued use of the Service constitutes your acceptance of these modified Terms. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

14. Term, Termination and Modification of or Additions to the Service

  1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14(b) (the “Contract Term”).
  2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminates. In addition, PDI may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@skupos.com.
  3. Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer be authorized to access your account or the Service; (iii) you must pay PDI any unpaid amount that was due prior to termination; and (iv) all payment obligations accrued prior to termination and Sections 6(d), 7, 9, 11, 14(c) and 15-23 of these Terms will survive. For a period of 15 days following termination of your account, you may request that a copy of the data associated with your account be provided to you by PDI in a raw format. After this 15-day period, we may, in our sole discretion, delete all or part of your Store Movement Data or other data you have submitted to or otherwise is stored in connection with the Service and we will have no obligation to provide any data associated with your account to you.
  4. Modification of the Service. PDI reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. PDI will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
  5. Additional Features. From time to time, PDI may offer and you may accept additional features beyond what the parties initially agreed to be included in the Service. PDI may charge an additional fee for such additional services and such services may have additional terms and conditions. To the extent the parties agree to include such additional features, those features shall be deemed part of the “Service” and any additional terms and conditions associated with such features shall be deemed incorporated by reference into these Terms.

15. Indemnity

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU ARE RESPONSIBLE FOR YOUR USE OF THE SERVICE, AND YOU WILL DEFEND AND INDEMNIFY PDI AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, SUBSIDIARIES AND AGENTS (TOGETHER, THE “PDI ENTITIES”) FROM AND AGAINST EVERY CLAIM BROUGHT BY A THIRD PARTY, AND ANY RELATED LIABILITY, DAMAGE, LOSS, AND EXPENSE, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR CONNECTED WITH: (A) YOUR ALLEGED OR ACTUAL USE OF, FAILURE TO USE, UNAUTHORIZED USE OF, OR MISUSE OF, THE SERVICE; (B) YOUR VIOLATION OF ANY PORTION OF THESE TERMS, ANY REPRESENTATION, WARRANTY, OR AGREEMENT REFERENCED IN THESE TERMS, OR ANY APPLICABLE LAW OR REGULATION; (C) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING ANY INTELLECTUAL PROPERTY RIGHT OR PUBLICITY, CONFIDENTIALITY, OTHER PROPERTY, OR PRIVACY RIGHT; OR (D) ANY DISPUTE OR ISSUE BETWEEN YOU AND ANY THIRD PARTY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU (WITHOUT LIMITING YOUR INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THAT MATTER), AND IN THAT CASE, YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THOSE CLAIMS.

16. General Disclaimers; No Warranties

THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PDI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PDI DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PDI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PDI EXPRESSLY DISCLAIMS ANY WARRANTIES IN CONNECTION WITH ANY SUPPORT OBLIGATIONS IT MAY PROVIDE. WHILE PDI USES COMMERCIALLY REASONABLE EFFORTS TO DETECT, PREVENT AND ASSIST WITH REMEDIATION OF THREATS, THE DEPLOYMENT OF SERVICE WITHIN AN END USER’S NETWORK CANNOT GUARANTEE THE UNACHIEVABLE GOAL OF RISK ELIMINATION, AND THEREFORE PDI DOES NOT MAKE ANY GUARANTEE OR WARRANTY THAT INTRUSION, COMPROMISES, OR ANY OTHER UNAUTHORIZED ACTIVITY WILL NOT OCCUR ON YOUR NETWORK OR THAT THE SERVICES WILL BE COMPATIBLE WITH YOUR EQUIPMENT AND SOFTWARE CONFIGURATIONS. FOR MISSION CRITICAL NETWORKS AND APPLICATIONS, YOU ARE ADVISED TO PURCHASE REDUNDANT SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR PDI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PDI ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OR DISCLOSURE OF DATA, INCLUDING STORE MOVEMENT DATA.

THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PDI does not disclaim any warranty or other right that PDI is prohibited from disclaiming under applicable law.

17. Additional Disclaimers and Acknowledgements and Obligations

  1. Point of Sale Features. Certain functionality of the Service allows direct interaction, either directly or through a third party, with a live transaction to facilitate discounts, price adjustments, and other features of the Service, including, but not limited to, in connection with any Program implemented via Skupos Engage. To the maximum extent permitted by law, PDI disclaims any liability associated with such interactions with live transactions and with any errors that may occur involving any of the foregoing features.
  2. Connectivity. The Service relies on the regular synchronization of your systems and PDI’s servers. Where such synchronization does not occur in a timely fashion, PDI will endeavor to contact you via email or other communications. You acknowledge that it is your responsibility to ensure an active connection is maintained between the Service and your own devices.
  3. Transactional Inaccuracies. Certain functionality of the Service creates a method for third party vendors to offer rebates for certain purchases, including, but not limited to, in connection with any Program implemented via Skupos Engage. However, such functionality relies on the accurate reporting of transactions to PDI. You shall be fully responsible directly to any such third party vendor for any fraudulent, inaccurate or other transactions that result in rebates or other third-party credits being improperly issued. PDI disclaims any liability to you for any such transactions. You acknowledge and agree to comply with any third party rebate program requirements in order to use such functionality of the Service.
  4. Automated Ordering. Certain functionality of the Service may facilitate the automated ordering of products for you, either through fully automated ordering (i.e., PDI makes the order on your behalf) or manual ordering (i.e., PDI generates an order for you to submit). You acknowledge that automated ordering is NOT covered under the “Service” or these Terms but rather is the function of PDI’s relationship with the associated third party vendor and/or your relationship with the associated third party vendor. For manual ordering, you acknowledge that such order preparations may contain errors and that it is ultimately your responsibility to ensure the timeliness and accuracy of any such orders. You acknowledge that PDI shall not be liable to you for any manual or automated ordering errors or omissions.
  5. Age Verification. You understand and agree to comply with all appropriate age verification laws and to ensure and you will remain fully responsible for any age-restricted purchases.
  6. Cooperation with Law Enforcement. PDI may share any information provided to it under the Service, including Store Movement Data, to law enforcement upon a lawful request or, in its sole discretion, to protect itself or third parties. Where law enforcement requires disclosure of such information, PDI will endeavor to (i) disclose only information necessary to satisfy the legal request and (ii) keep you apprised of such disclosures so that you may defend against or otherwise assist with such disclosures.

18. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PDI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PDI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PDI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) TOTAL FEES PAID FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

19. Confidential Information

“Confidential Information” means all information disclosed by or otherwise obtained from PDI to or by you, whether orally, visually, or in writing, that is designated as “confidential” or “proprietary” or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to PDI, (b) was known to you prior to its disclosure by PDI without breach of any obligation owed to PDI, (c) is received from a third party on a non-confidential basis without breach of any obligation owed to PDI, or (d) was independently developed by you without the use of PDI’s Confidential Information. Except as otherwise permitted in writing by PDI, you will (i) use the same degree of care that you use to protect the confidentiality of your own confidential information of like kind (but in no event less than reasonable care); (ii) not use or disclose any Confidential Information of PDI other than in the exercise of your rights and performance of your obligations under these Terms; and (iii) limit access to Confidential Information of PDI to those of your employees, contractors and agents and the employees, contractors and agents of your affiliates who need such access for purposes consistent with these Terms and who are subject to confidentiality obligations with you that are at least as protective of PDI’s Confidential Information as those herein. You may disclose Confidential Information of PDI if you are compelled by applicable law to do so, provided you give PDI prior notice of such compelled disclosure (to the extent legally permitted).

20. Remote Monitoring and Support Software

In order to provide and support the Service, we may install third party (i.e. not part of the Service) remote monitoring and support software on any of your devices using the Service (“Third Party Support Software”), and such Third Party Support Software may be installed at the time you download or otherwise commence using the Service or at any subsequent time prior to the termination of these Terms. You hereby grant PDI permission to install Third Party Support Software as set forth above, and acknowledge that since the Third Party Support Software is not provided by PDI, it is not included or deemed to be part of the “Service” for purposes of these Terms, other than with respect to Sections 15 (Indemnity) and 18 (Limitation of Liability), and as set forth in the following sentence. You agree to comply with the provisions of Section 12 (Prohibited Conduct) with respect to any Third Party Support Software as if such Third Party Support Software were the “Service” as set forth in Section 12. To the fullest extent permitted by law and PDI’s agreement with the provider of the Third Party Support Software, PDI is not responsible for the provider of any Third Party Support software’s use of your exported information and PDI makes no warranties and offers no indemnities with respect to, and shall not be liable for, any Third Party Support Software, irrespective of whether such Third Party Support Software is provided with the Service. You acknowledge and agree that PDI may access and use Third Party Support Software installed on your devices as reasonably necessary in conjunction with the provision of the Service without further notice to you and/or in your absence. In the event that you fail to install Third Party Support Software requested by PDI or disable such software this may prevent the Service from functioning correctly, and PDI shall have no liability for such impaired functionality or failure to provide support for the Service. Further, in such case, PDI may terminate these Terms and your access to the Service immediately in its sole discretion. Upon the termination of these Terms for any reason, you agree to uninstall any Third Party Support Software if requested to do so by PDI. You acknowledge that the Third Party Support Software is licensed by PDI from the Third Party Support Software provider, and that you as an end user of such Third Party Support Software may be required to be bound by and/or comply with certain provisions of PDI’s agreement with such provider, and will so comply as reasonably requested by PDI or the Third Party Support Software provider in writing.

21. Miscellaneous

  1. General Terms. These Terms, together with the Privacy Policy and any other agreements and documents expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and PDI regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
  2. Governing Law; Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local Laws of the State of Texas, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. You and PDI agree that the Uniform Computer Information Transactions Act (“UCITA”) or any version thereof, adopted by any state in any form, shall not apply to these Terms; and, to the extent that UCITA is applicable, you and PDI each hereby disclaim its application and agree to opt out pursuant to the opt-out provisions contained therein. You and PDI each hereby irrevocably consent to the exclusive jurisdiction and venue of the federal, state, and local courts in Dallas County, Texas in connection with any action arising out of or in connection with these Terms.
  3. Class Action Waiver. YOU AND PDI EACH WAIVE THE RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER OR OTHERWISE TO SEEK RELIEF ON A CLASS BASIS, INCLUDING ANY CURRENTLY PENDING ACTIONS AGAINST PDI. TO THE FULLEST EXTENT ALLOWABLE BY LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE LITIGATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, CONSOLIDATED, OR PRIVATE ATTORNEY GENERAL BASIS. A COURT MAY ONLY AWARD FINAL RELIEF (INCLUDING INJUNCTIVE OR DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE FINAL RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. A COURT MAY NOT AWARD FINAL RELIEF FOR, AGAINST, OR ON BEHALF OF ANYONE WHO IS NOT A PARTY TO THE LITIGATION ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL BASIS.
  4. Privacy Policy. Please read the PDI Privacy Policy at https://www.pditechnologies.com/privacy-policy/ (the “Privacy Policy”) carefully for information relating to our collection, use, storage, disclosure of your personal information. The PDI Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
  5. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
  6. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law. For example, we listen to and record calls for quality monitoring purposes.
  7. Contact Information. The Service is offered by PDI Technologies, Inc., located at 11675 Rainwater Dr., Ste. 350, Alpharetta, GA 30009. You may contact us by sending correspondence to that address to the attention of the Chief Legal Officer or by emailing us at support@skupos.com.
  8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
  9. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
  10. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms (except for failure to make payments when due) on account of, any delay or failure to perform as required by these Terms as a result of any war, insurrection, fire, flood, natural disaster, strike or other labor disturbance, epidemic, pandemic or other public health emergency, act of any governmental body or following any guidance, recommendation or order of any governmental body, or any other cause or condition beyond its reasonable control.

22. Notice Regarding Apple

This Section 22 only applies to the extent you are using our mobile application on an iOS device (the “iOS App”). You acknowledge that these Terms are between you and PDI only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Your license to the iOS App is limited to a non-transferable license to use the iOS App on any Mac products that you own or control and as permitted by the User Rules set forth in the terms of service applicable to the Mac Apple Store. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

23. Use of MNSP or HaaS Devices

If you utilize a third-party managed network service provider (MNSP) or Hardware as a Service (HaaS) device to access the Services, you hereby grant us permission to load any software related to the Service directly onto the device subject to your obtaining any necessary approvals or permissions from your device vendor. If you use such a device to access the Services, in addition to PDI’s rights in Section 15 hereof, you hereby release us and hold us harmless from any and all claims or actions arising from or related to any malfunction or action/non-action of such device that causes harm of any nature to you or your business, including, but not limited to, lost data, erroneous data, computer virus or malware.