Pickit Enterprise Agreement
Between the Customer and Pickit
Updated: May 31, 2023
This ENTERPRISE AGREEMENT (the “Agreement”) shall govern your (“you” or the “Customer”) use and access of the Pickit service, websites, and software applications (together, the “Pickit Service” or “Service”) or any content or material that is made available through the Service (“Content”). The Service is provided by PicHit.Me Inc, a Delaware Corporation with registered offices at 2711 Centerville Road, Suite 400, Wilmington, DE 19808, County of New Castle.
By signing up for the Service, the Customer acknowledges and agrees to be bound by this Agreement.
The Customer and the Service Provider is referred to individually as a “Party” and collectively as the “Parties”.
1. THE PICKIT SERVICE
1.1 The Pickit Service enables you to view, use, and organize photos and other digital images (“Images”). The Service includes a general market space (the “Pickit Public Library”), where Images are made available (“Pickit Public Library Content”) by Service users and/or other content providers (“Content Providers”) subject to the license terms, described in Section 6.2 below. Pickit may also enable you to access via the Service Images that are not part of the Pickit Public Library (“External Content”), made available by Content Providers under separate licenses, as further described in Section 6.5 below. A detailed specification of the features included in your Service subscription is set forth in in your Purchase Order. Also, the Purchase Order sets out the subscription term and any fees payable by you in relation to your chosen Pickit Business Subscription (“Business Subscription”), as well as any other specific terms applicable thereto.
1.2 Pickit is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Pickit provides may change from time to time without prior notice to you.
2. YOUR PICKIT ACCOUNT
2.1 In order to access the Service, you must create and/or sign into a user account (“Pickit Account”) by following the signup process designated by Pickit. The Pickit Account is the Customer’s master account, under which you may setup an unlimited number of employee user accounts solely for use by your employees and consultants, pursuant to the terms of the relevant Business Subscription.
2.2 You are solely responsible for the activity that occurs in your Pickit Account. You are also responsible for maintaining the security of your account password, as well as the passwords of any Third-Party Services that you may have elected to link to your account. You, being the Customer purchasing a Business Subscription, is fully liable for any actions and use of the Service, including but not limited to, the use and posting of any Content, by your employees under your Pickit Account and any employee user accounts connected thereto.
2.3 You agree to notify us immediately of any breach of security or unauthorized use of your Pickit Account. You may be liable for the losses of Pickit due to such unauthorized use or any other use in violation of this Agreement.
3. THIRD PARTY SERVICES
3.1 The Services may be integrated with certain third-party applications, websites, and services, such as Microsoft Office PowerPoint, Word, Teams etc. (“Third Party Services”), to make available Services to you. These Third-Party Services may have their own terms and conditions of use and privacy policies and your use of these Third-Party Services will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Services or for any transaction you may enter into with the provider of any such Third-Party Services.
4. RIGHTS TO THE SERVICE
4.1 Subject to the terms and restrictions of the applicable Purchase Order, Pickit hereby grants you a worldwide, non-exclusive, revocable license to access and use the Service, subject to this Agreement. The Pickit Services are licensed, not sold, to you, and Pickit and its licensors retain ownership of all copies of the Pickit Services even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices.
4.2 All Pickit trademarks, service marks, trade names, logos, domain names, and any other features of the Pickit brand (“Pickit Brand Features”) are the sole property of Pickit or its licensors. The Agreement does not grant you any rights to use any Pickit Brand Features whether for commercial or non-commercial use.
5. CUSTOMER CONTENT
5.1 The Pickit Service allows Customer and Customer employees to upload digital photos and images to Customer’s internal image bank hosted through the Service (“Customer content”).
5.2 Pickit may, but has no obligation to, monitor or review Customer content. In all cases, Pickit reserves the right to remove or disable access to any Customer content for any or no reason, including but not limited to, Customer content that, in Pickit’s sole discretion, violates the Agreement. Pickit may take these actions after prior notification to you or any third party. Removal or disabling of access to Customer content shall be at our sole discretion, and we do not promise to remove or disable access to any specific Customer content.
5.3 All intellectual property rights in and to any of your Customer content remains with you or the relevant rights holder. Pickit is however granted a right to use, reproduce, store and modify such Customer content to the extent necessary for the provision of the Service to you in accordance with the Agreement.
5.4 You are fully responsible for all Customer content posted through your Pickit Account. You agree that if anyone brings a claim against Pickit related to Customer content, then, to the extent permissible under law, you will indemnify and hold Pickit harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of such claim.
5.5 We are always interested in learning about ways we can improve the Service. If you choose to submit comments, ideas or feedback you agree that we are free to use them without any restriction or compensation to you.
6. USE OF IMAGES
6.1 With the exception of your Customer content, all other Content on the Service is either owned or licensed by third party Content providers (“Content Provider(s)"), and is subject to copyright, trademark rights, and other intellectual property rights of such rights holders. As a Customer you are granted a right – directly from the relevant Content Provider - to use such
Content as described in this Section 6.
6.2 Pickit Public Library Content. Subject to Section 6.7 below, during the term of your Business Subscription and followed by a 36 month’s period thereafter, Customer is granted a non-exclusive, royalty-free, non-transferable and non-sublicensable right, throughout the world to use, store, display, reproduce, modify, create derivative works, perform, and distribute Pickit Public Library Content downloaded by Customer, in any media existing today or in the future, subject to the usage restrictions set forth in this Agreement (“Pickit Public Library Content License”). For the avoidance of doubt, the Pickit Public Library Content License does not include rights for you to re-sell or sublicense the Pickit Public Library Content to any third party. Thus, under the Pickit Public Library License you are not permitted to use the Pickit Public Library Content in the context of any third-party advertising campaign.
6.3 In the event that Pickit removes, or disables access to, any Pickit Public Library Content downloaded by you, due to a claim by a third party that such material is infringing any intellectual property or privacy rights of a third party (“Infringing Material”), Pickit will inform you via your Pickit Account and/or email that the Infringing Material has been removed from Pickit Public Library and all rights granted to you under Section 6.2 above with respect to any such Infringing Material shall be revoked, and you must immediately stop using the Infringing Material. For the sake of clarity, it is noted that Pickit’s warranty under Section 11.1 below shall not apply to any Infringing Material, from the date of Customer’s receipt of Pickit’s notification that said material has been removed pursuant to the aforesaid in this Section 6.3.
6.4 Pickit does its utmost to ensure that all Images on Pickit Public Library is legally cleared and do not infringe any third-party rights. For this purpose, Pickit has set up a comprehensive content moderation process consisting of a four-step process, including (i) user Guidance, (ii) Pre-moderation, (iii) Post-moderation and (iv) Reactive moderation. All four steps have human involvement, but the pre- and post-moderations are augmented by machine learning interfaces. Notwithstanding the aforesaid, you understand that Pickit is not the licensor of any Pickit Public Library Content or other Content and does not warrant and is not liable for or in connection with your use of such Content.
6.5 External Content. If you choose to access any External Content, your use of such Content is subject to separate license terms between you and the relevant third-party External Content provider, which license terms will be made available to you prior to your access of the External Content. Access to External Content may be subject to separate license fees payable by you to the External Content Provider.
6.6 Requested Images. If you choose to source Content from a Content Provider by launching a so-called image request (“Image Request”), your use of any Content provided to you in response to such an Image Request (“Requested Images”) is subject to separate license terms between you and the relevant Content Provider accepting your Image Request, which license terms will be made available to you prior to your access of the relevant Requested Images.
6.7 You may only use Images (a) in accordance with the Agreement, including the relevant license terms which apply to each Image; (b) by way of editing the Image, only provided such editing is carried out in ways which would not vilify the author or any person shown in the Image; (c) in a way that does not promote or encourage illegal activity (d) in a way that is not racially or ethnically offensive and/or constitutes agitation against a minority (such as e.g. national group or ethnic group); (e) in a way that does not constitute defamation, contain pornography or is in any other way sexually explicit; (f) in a way that does not attack sexual orientation or religion or is discriminating in any other way; (g) in a way that is in no other way harmful, abusive, offensive or illegal or which infringes the rights of any third party (such as including but not limited to copyright and trade marks); (h) in way that does not promote products related to or promoting tobacco or drug use; (i) in a way that does not promote products relating to pharmaceutical, healthcare, herbal or medical products or the use thereof; (j) in a way that does not promote politicians, political ideologies or positions. You may not use an Image as a trademark or logo.
7. ACCEPTABLE USE
7.1 Customer agrees to use the Pickit Services in an acceptable way and shall procure that all of its users does not engage in any of the following activities in relation to the
Services:
(i) Using the Pickit Services to encourage any illegal, fraudulent, abusive, or other activities that materially interfere with the business or activities of Pickit.
(ii) Attempting to bypass or break any security mechanism on any of the Pickit Services or using the Pickit Services in any other manner that poses a material security or service risk to Pickit or any of its other customers.
(iii) Reverse-engineering the Pickit Services in order to find limitations, vulnerabilities, or evade filtering capabilities.
(iv) Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Pickit Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Pickit Services.
(v) Transmitting any material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs.
(vi) Using the Pickit Services to engage in, or in connection with fraudulent activity.
(vii) Violating or facilitating the violation of any local, state, federal, or foreign law or regulation, including, but not limited to, laws and regulations regarding the transmission of data.
(viii) Using the Pickit Services in a manner that triggers a law enforcement, government, or regulatory agency to request the suspension of the Pickit Services to you.
(ix) Using the Pickit Services to transmit any material that infringes the intellectual property rights or other rights of third parties.
(x) Using the Pickit Services to transmit any material that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful content to any person or entity, and any other material that Pickit reasonably believes degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category.
(xi) Using the Pickit Services to transmit any material or content that is offensive, inappropriate, pornographic, obscene, illegal, or otherwise objectionable to any person or entity.
(xii) Creating a false identity or forged email address.
8. SERVICE LIMITATIONS AND MODIFICATIONS
8.1 Pickit will make reasonable efforts to keep the Pickit Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Pickit reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Pickit Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Pickit Service or any function or feature thereof (“Scheduled Downtime”). Notwithstanding the foregoing, if you have prepaid fees for any Service that Pickit permanently discontinues before you have had chance to access such a Service, Pickit will refund you the prepaid fees for the Service after such discontinuation.
8.2 If any changes are made to the core functionality of the Service, Customer will be made aware of such changes at least three (3) months prior to that the changes are implemented.
8.3 Pickit provides access to the Service twenty-four hours a day, seven days a week with a monthly uptime percentage of at least 99.9%, other than Scheduled Downtime.
9. CUSTOMER SUPPORT
9.1 We will operate and update the Service and receive and handle your inquiries relating to your use of or access to the Service, such as technical, billing and payment issues and other related issues (“Customer Support”).
9.2 Our Customer Support is available to you as a customer and user of the Service. Our goal is to ensure that you enjoy an outstanding experience while using the Service. If you encounter any technical problems, have questions regarding the Service, you can seek advice from our Q&A section or contact our Customer Support by e-mail at support@pickit.com. Customer Support does not include handling of issues relating to defects, interruptions and other failure caused in your hardware, Internet connectivity, communication or other equipment, for which you are solely liable.
9.3 Additional support services may be agreed under the relevant Purchase Order.
10. TERM AND TERMINATION
10.1 This Agreement shall enter into force upon the date the Customer signs up for the Service and remain in full force and effect throughout the term of your Business Subscription, unless terminated prior to such date in accordance with the terms hereof.
10.2 Either Party may further terminate the Agreement or parts thereof with immediate effect in case:
(i) the other Party has committed a material breach of this Agreement, and, where the breach is capable of being remedied, has not rectified the same within thirty (30) days after receipt of a written notice thereof; or
(ii) the other Party is wound up or if a trustee in bankruptcy or insolvency, liquidator, receiver, or manager on behalf of a creditor is appointed or if circumstances arise which would entitle the court or a creditor to make a winding-up order, or if it otherwise is likely that the other 10.3 Either Party may terminate this Agreement by the expiration date of the initial or renewal term according to the relevant Business Subscription using thirty 30 days prior notice to such expiration date. Notwithstanding the abovementioned, Customer’s subject to a Business Subscription stipulating monthly billing may terminate this Agreement by the end of Party is insolvent.
- a month using no less than thirty 30 days prior notice. For the avoidance of doubt, Pickit shall be under no obligation to refund any subscription fees already paid to Pickit or a Pickit Reseller due to a termination according to this clause.
- 10.4 Upon termination of this Agreement Pickit shall return all Customer Content to the Customer and delete such content from Pickit’s systems.
11. WARRANTY AND DISCLAIMER
11.1 Subject to Section 6.3 above, Pickit warrants that the Pickit Public Library Content and the Customer’s use thereof in accordance with this Agreement and in the form delivered by Pickit, (that is, excluding any modifications, overlays or re-focusing done by you), does not and shall not infringe any third part copyrights and other intellectual property rights or violate the publicity rights of any person.
11.2 The Customer warrants that (i) it has the right to use, provide and grant to Pickit the rights set out in Section 6.4 above to all the Customer Content, (ii) the Customer Content does not infringe the intellectual property rights or violate the publicity rights of any person and (iii) the Customer and its users will use the Service in compliance with this Agreement, including Pickit’s Acceptable Use Policy and will not use any Content outside the scope of this
Agreement.
11.3 Other than as explicitly stated in Section 11.1 above, the Service is provided "as is" and Pickit grants no warranties, express, implied or otherwise, as to the accessibility, quality, suitability, or accuracy of the Service and disclaims any warranties or conditions of merchantability, fitness for a particular purpose or non-infringement. Furthermore, there are situations when the Service will not be accessible, including but not limited to situations due to necessary maintenance and circumstances outside the reasonable control of Pickit such as net access failure and the Service not being accessible due to these circumstances shall not constitute any fault in the Service or breach by Pickit and Pickit shall not be liable to the Customer on account thereof.
12. INDEMNITY
12.1 Each party (the “Indemnifying Party”) shall be liable for and shall indemnify, defend and hold the other party and its directors, officers, employees, and agents (each, an “Indemnified Party”) harmless from and against any claim, damage loss, cost, liability, and expense
(including reasonable attorneys’ fees) suffered or incurred by any of them arising out of or in connection with any claim by a third party based on a breach by the Indemnifying Party of any of its warranties under the Agreement.
12.2 Further, Customer shall indemnify and hold Pickit and any third parties harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) any Customer Content uploaded on the Service (including, but not limited to damages arising out of a third party claim that any User Content posted by you to the Service or the use thereof by Pickit in accordance with the Agreement infringes the intellectual property or other rights of a third party) and (2) your violation of any law or the rights of a third party.
13. LIMITATION OF LIABILITY
13.1 Except for in the event of gross negligence or intentional breach, neither party shall be liable to the other party for any indirect damages, such as lost data, lost capital, loss of business or opportunity, lost profits, lost income, lost revenue, business interruption, damages for goodwill, procurement of substitute services or any other indirect damages.
13.2 Except for in the event of gross negligence or intentional breach, breach of Section 16 (Confidentiality) or liabilities to third parties pursuant to Section 12 (Indemnity), each Party’s maximum aggregate liability under this Agreement shall be limited to the amounts paid to it (in the case of Pickit) or paid and payable by it (in the case of Customer) hereunder during the previous twelve (12) months, even if it has been advised of the possibility of such damages.
13.3 With respect to, breach of Section 16 (Confidentiality) or liabilities to third parties pursuant to Section 12 (Indemnity), each party’s maximum aggregate liability under this Agreement shall be limited to ten-thousand US dollar (USD 10,000).
14. PERSONAL DATA
14.1 Pickit may in the performance of the Services process personal data on behalf of the Customer. The Customer determines the purpose for and the manner in which such personal data will be processed. Thus, within the meaning of GDPR, the Customer is regarded as a data controller and Pickit as data processor. The Customer is, as data controller, responsible for the processing of personal data in accordance with the Personal Data Act, including but not limited to ensuring that any processing is in accordance with applicable law. In the event Pickit process personal data on behalf of the Customer, the separate data processing agreement (“DPA”) found at [link] shall be incorporated into this Agreement by reference and the Parties agree that Pickit’s processing of Customer’s personal data under this Agreement shall be governed exclusively by the DPA.
15. SECURITY
15.1 Pickit shall in the performance of the Services take all necessary steps to observe any reasonable security instructions specified by the Customer to protect the Customer’s Content or any personal data, provided that such instructions have been presented to and approved by Pickit in advance. If the security instructions supplied by the Customer are amended after the commencement of the Agreement and Pickit incurs increased costs in order to ensure compliance therewith, the Customer shall compensate Pickit for any such costs.
16. CONFIDENTIALITY
16.1 Each party shall treat as confidential all information of a confidential nature, including but not limited to the course of negotiations between the parties, as well as any other written, oral or other information and documents directly or indirectly disclosed by either party which should reasonably be considered confidential (“Confidential Information”) belonging to the other party, and shall not use such confidential information except as contemplated herein or otherwise authorized in writing. Any Content, including Customer Content, shall not constitute Confidential Information under this Agreement. Customer acknowledges and agrees that the Service is not a safe environment for storage of confidential or business critical material or information and Pickit shall not be liable for any loss or damages incurred by Customer due to any disclosure or leakage of such confidential or business critical information stored on the Service by customer or any of its users.
17. ENTIRE AGREEMENT
17.1 Other than as explicitly agreed upon in writing between you and Pickit, the Agreement (including any schedules and the DPA, as applicable) constitute all the terms and conditions agreed upon between you and Pickit and supersede any prior agreements in relation to the subject matter of this Agreement, whether written or oral.
18. SEVERABILITY AND WAIVER
18.1 Unless as otherwise stated in the Agreement, should any provision of the Agreement be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreement, and the application of that provision shall be enforced to the extent permitted by law.
18.2 Any failure by Pickit or any third-party beneficiary to enforce the Agreement or any provision thereof shall not waive Pickit’s or the applicable third party beneficiary’s right to do so.
19. ASSIGNMENT
19.1 Pickit may assign the Agreement or any part of them, and Pickit may delegate any of its obligations under the Agreement. You may not assign the Agreement or any part of them, nor transfer or sub-license your rights under the Agreement, to any third party.
20. NOTICES
20.1 Notices and other communications between the Parties shall, where sent by post, be addressed to the parties addresses as set out in the Purchase Order. Any termination or other notice given shall be in writing and may be delivered by courier, sent by registered letter or email to the addresses referenced above. Such notice shall be deemed to be given if sent by courier, on the day of delivery to the receiving party; if sent by registered letter, seven (7) days after the day of dispatch; or if sent by e-mail, one (1) day after dispatch, provided that the dispatching party does not receive an
automatically generated message stating that the email could not be delivered to the receiving Party.
21. CHOICE OF LAW AND DISPUTE VENUE
21.1 The Agreement shall be governed by the laws of the State of Delaware.