Pico MES Free User Service Terms and Conditions

Please read the following terms of service (the “Terms of Service” or “Terms”) carefully as they contain the legal terms and conditions governing your access and use of the Service (defined below) provided by PICO MES INC. (“Company,” “we,” “our,” or “us”), including access and use of the Service through the PICO MES website and provided platform (the “Site”). The terms “Customer,” “you,” or “your” means the individual or business entity who registers for the Service and accepts these Terms. If you are an individual acting on behalf of a business entity, you represent and warrant that you have the authority to bind such business entity to these Terms.

COMPANY is providing a Digital Work Instructions application that allows you to create and maintain a digital version of manufacturing instructions (the “Service”).  Company is providing you the ability to access and use the Service, and you desire to access and use the Service under the Terms of Service.   

Company may modify these Terms of Service at any time by posting updated versions of these Terms of Service on the Site. Modifications become effective immediately upon your first access to or use of the Service after the “Last Updated” date at the bottom of these Terms of Service. Your continued access to or use of the Service after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms of Service. If you do not agree with the modifications, do not access or use the Service. 

1. DEFINITIONS.

“Customer Data” means any data, information, content, or other material submitted to the Service by or on behalf of Customer or Users related to Customer’s business. Customer Data excludes Usage Data. 

“Documentation” means the applicable specifications and user documentation, instructions or other materials provided or made available by Company to Customer describing the use and operation of the Service. 

“Output” means any data, information, content, or other material produced or generated as a result of Customer’s use of the Service and provided to Customer via the Service. 

“Usage Data” means content, data, or information that is collected or produced by the Software in connection with the use of the Services and may include, but is not limited to, usage patterns, traffic logs and user conduct associated with the Software. 

“User” means any Customer employee or contractor, or other individual or entity, that are authorized to access the Service through Customer’s account and/or access credentials or is added to the Service by Customer. 

2. SERVICE.     

2.1 Service License. Subject to the terms and conditions of these Terms, Company grants Customer and its Users, during the Term, a non-exclusive, non-sublicensable, and non-transferable license to: (a) access and use the Service; and (b) to use the Documentation solely in connection with Customer’s use of the Service, in each case solely for Customer’s internal business purposes.     

2.2 Output License. Subject to the remainder of this Section 2, Output provided via the Service shall be deemed part of the Service. Notwithstanding the foregoing, and subject to the terms and conditions of these Terms, Company grants Customer a limited, non-exclusive, non-transferable license, for the duration of your access to the Service, to use Output, solely for Customer’s internal business purposes.

2.3 Open Source Software. Certain aspects of the Service may include software that is subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. The Open Source Software is not subject to the terms and conditions of these Terms, and instead, is licensed to Customer under the terms of the license associated with such Open Source Software. Nothing in these Terms limits Customer’s rights under, or grants Customer rights that supersede, the licenses applicable to the Open Source Software. If required by any license for any Open Source Software, Company will make such Open Source Software, and Company’s modifications to that Open Source Software, if any, available by written request at the notice address specified herein. 

2.4 Usage Data. Customer acknowledges and agrees that provision of the Service involves, and Customer authorizes Company to: (a) collect Usage Data in connection with providing the Service, (b) use Usage Data in connection with providing, analyzing, and improving Company’s products and services, and (c) generate and use de-identified aggregated, or anonymized data based on the Usage Data that does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any User) for any lawful purpose. Company will comply with applicable laws with respect to the collection and use of the data generated pursuant to this Section 2.4.

3. FEES AND PAYMENTS. 

3.1 Fees. Customer Access to the Service under these Terms is currently provided by Company at no fee to Customer; however, Company reserves the right to implement a fee, in its sole discretion, for access to the Service upon reasonable notice.

4. CUSTOMER RESPONSIBILITIES.

4.1 Restrictions on Use. Customer agrees that Customer shall not do, attempt to do, nor permit any User or any other person or entity to do, any of the following (except as otherwise expressly permitted herein): (a) permit any unauthorized party to access and/or use the Service; (b) rent, lease, loan, or sell access to the Service to any third party, or use the Service on behalf of any third party; (c) interfere with, disrupt, create an undue burden on, alter, translate, or modify the Service, any part thereof, or the networks or services connected to the Service (through scripts or otherwise); (d) perform penetration tests or any other security tests on the Service, create derivative works of the Service, or reverse engineer, reverse compile, reverse assemble or do any other operation with any aspect of the Service that would reveal any source code, trade secrets, know-how or other proprietary information; (e) access the Service in order to (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions, or graphics of the Service; or (iii) copy any ideas, features, functions, or graphics of the Service; (f) without Company’s express written permission, introduce software or automated agents or scripts to the Service, including but not limited to agents or scripts intended to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (h) access the Service or any feature thereof in excess of or in circumvention of any usage limitations described in the Documentation or these Terms of Service; or (i) resell any Output or any modifications, enhancements, or derivative works thereof.

4.2 Availability. Customer is responsible for obtaining all services and technologies necessary to access to the Service and Customer understands that such access may involve third party fees and costs (such as Internet service provider or airtime charges). Customer is responsible for all such fees and costs. 

4.3 Usernames and Passwords. Customer is solely responsible for maintaining the confidentiality of all Customer usernames and passwords. Customer agrees (a) not to allow any third party, except Users, to use its account, usernames, or passwords at any time, except as expressly permitted under these Terms; and (b) to notify Company promptly of any actual or reasonably suspected unauthorized use of its account, usernames, or passwords, or any other breach or suspected breach of the Terms of which it becomes aware. Company reserves the right to terminate or suspend any username that Company determines may have been used by an unauthorized third party or an individual or entity other the User to whom such username and password was originally assigned or that Company determines is attempting to access the Service as or on behalf of a competitor of Company.

4.4 Authority. Customer represents and warrants that it has the authority to (a) disclose to Company, and to permit Company to collect and process, Customer Data and Usage Data in connection with, and in accordance with, these Terms, and (b) take any and all actions taken with respect to Customer’s and any User’s use of the Service, including the use of Usage Data as permitted by these Terms.

5. DISCLAIMER.

TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS SUPPLIERS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICE. THE SERVICES ARE PROVIDED "AS IS."

6. TERM, TERMINATION, AND SUSPENSION.

6.1 Term. These Terms will become effective on the first date you begin using the Service (the “Start Date”) and continue until the date that these Terms are terminated as set forth herein (“Term”).

6.2 Termination of Terms. Except as otherwise provided for herein, either party may terminate these Terms upon the material breach of the other party, if such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of the breach.

6.3 Termination for Convenience. Either party may terminate Customer’s access to the Service at any time and for any reason by providing the other party written notice of termination (email being sufficient).     

6.4 Termination due to Customer’s Paid Subscription.  The parties may mutually agree to terminate these Terms of Service in the event that Customer desires to expand the usage of Company’s products and services and convert the use of the Service into a broader paid subscription.  This Agreement will automatically terminate upon the Customer’s execution or consent to be bound to Company’s then-current subscription agreement or the Pico MES Service Terms and Conditions (available at https://www.picomes.com/customer-terms) when Customer upgrades to a paid subscription for Company’s products or services.

6.5 Suspension. If (a) Customer breaches any subsection of Section 4.1 (Limitations), or (b) there is a threat to the security or technical integrity of the Service, Company may suspend Customer’s access to the Service, in each case until such time as Company determines in its reasonable discretion that Customer is in compliance with these Terms and/or that such threat has been addressed.

6.6 Effect of Termination. Upon any termination of these Terms: (a) Customer’s access to the Service will be terminated, and Customer shall immediately cease using the Service (with Company having the right to terminate such access immediately upon termination); and (b) Customer shall promptly (but in any event within fifteen (15) days) destroy any and all copies of such Output that contains Company’s proprietary or confidential content in any form. Company may request, and Customer must provide, written certification of the destruction or deletion required by (b). Notwithstanding the foregoing, provided that this Agreement is not terminated by Company pursuant to Section 6.2 (Termination of Terms), upon Customer’s request, Company will temporarily permit Customer to access the Service, solely for the purpose of downloading Customer Data for a period of thirty (30) days following the effective date of termination or expiration of this Agreement. 

6.7 Survival. Sections 1 (Definitions), 2.4 (Usage Data), 4.1 (Limitations), 5 (Disclaimer), 6.6 (Effect of Termination), and 7 (Ownership) through 11 (General Provisions) shall survive any termination or expiration of these Terms.

7. OWNERSHIP.

7.1 Ownership of Service and Content. As between Company and Customer, Company (and its third-party suppliers as applicable) owns all right, title, and interest in and to the Service, Documentation, and proprietary and confidential content provided via the Service, including all intellectual property rights therein. Customer acknowledges and agrees that it does not acquire any rights in or to the Service, except those specifically set forth in these Terms. All brand, product, and service names and marks used in the Service which identify Company are proprietary names and marks of Company. All brand, product, and service names and marks used in the Service which identify third parties, or their products or services are proprietary names and marks of such third parties. Nothing in the Service shall be deemed to confer on any person any license or right with respect to any such name or mark. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its suppliers on the Service or Documentation. 

7.2 Ownership of Customer Data. As between Company and Customer, Customer owns all right, title, and interest in and to the Customer Data, including all intellectual property rights therein. Company shall have no rights in Customer Data other than the limited right to use such Customer Data as required for Company to perform the Service for Customer in accordance with these Terms and for purposes of generating de-identified aggregated, or anonymized data to use for any lawful purpose. 

8. CONFIDENTIAL INFORMATION.

8.1 Definition. “Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential or is of a nature or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Service shall be considered Company’s Confidential Information. Customer Data shall be considered Customer’s Confidential Information. The relationship of the parties created by these Terms is not Confidential Information. Customer’s Confidential Information specifically excludes any Customer contact information collected by Company and used by Company for communications and marketing purposes (e.g., for managing Company’s relationship with Customer). Customer will provide Company accurate and current contact information for invoices and related communications.

8.2 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms, and shall disclose the Confidential Information of the Disclosing Party only to the employees, independent contractors, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

8.3 Exceptions. Confidential Information does not include information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Site that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, during the Term, Company may use Customer’s name and logo in Company’s marketing materials that include a customer list unless Customer advises Company, in writing, that Customer does not consent to such use. 

8.4 Feedback. “Feedback” means any Customer or User suggestions regarding new features, functionality, or performance for the Service, including suggestions submitted through the Site. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use such Feedback for any lawful purpose, including, without limitation the development or improvement of features or functionality for the Service. Company will not identify Customer as the source of any such Feedback.

9. INDEMNITY.

9.1 Claims Against Company. Customer shall defend, at its own expense, any claim, suit, or action against Company brought by a third party to the extent that such claim, suit, or action arising from or related to any breach by Customer’s unauthorized use of the Service, including Section 4 (Customer Responsibilities) or any breach of this Agreement (each, a “Company Claim”), and Customer shall indemnify and hold Company harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Company Claim or those costs and damages agreed to in a monetary settlement of such Company Claim. The foregoing obligations are conditioned on Company: (a) promptly notifying Customer in writing of such Company Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations (provided Customer will not enter into any settlement of any claim, suit, or action that does not contain a full release of Company’s liability without Company’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this Section 9.1 or otherwise with respect to any claim to the extent it is based upon the gross negligence or intentional misconduct of Company.

10. LIMITATIONS ON LIABILITY.

IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICE EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S AGGREGATE LIABILITY TO THE CUSTOMER UNDER THESE TERMS SHALL NOT EXCEED DAMAGES IN EXCESS OF $100. 

11. GENERAL PROVISIONS.

11.1 Governing Law. These Terms are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any rule or law that would apply the law of another jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Delaware in any litigation arising out of this Agreement or the Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.2 Compliance with Laws. Each party shall comply with all laws, rules, and regulations applicable to such party while performing under these Terms.

11.3 Severability; Waiver. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of these Terms shall not constitute an ongoing or future waiver of such breach or provision.

11.4 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.

11.5 Headings. Headings used in these Terms are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect these Terms.

11.6 Assignment. Neither party may assign or transfer, by operation of law or otherwise, these Terms, or any of its rights under these Terms to any third party without the other party’s prior written consent; except that Company may assign these Terms pursuant to a transfer of all or substantially all of Company’s business and assets to which these Terms relate, whether by merger, sale of assets, sale of stock, or otherwise, which shall not require the Customer’s consent. Any attempted assignment or transfer in violation of foregoing shall be void. The Terms will inure to the benefit of and be binding upon any permitted successors or assigns. 

11.7 No Relationship. Customer and Company acknowledge and agree that these Terms are not intended and should not be construed to create an agency, partnership, joint venture, or employee-employer relationship. Neither party shall have the power to obligate or bind the other party.

11.8 Notice. Any notices to Company required or permitted hereunder shall be sent to Company at the address below, or at such other address as Company shall specify in writing. Any notices to Customer required or permitted hereunder shall be given at the address or email address provided by Customer when creating an account to access the Site, or at such other address or email address as Customer shall specify in writing. Such notice shall be deemed given upon personal delivery; if sent by email to Customer, one (1) day after being sent (unless a system rejection is received by the sending party within such time); or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing. 

PICO MES INC.

Attn: Ryan Kuhlenbeck

303 Twin Dolphin Drive, 6^th Floor

Redwood City, CA 94065

United States

help@picomes.com

11.9 Customer Communication. Customer understands and agrees that the Service requires periodic email communication including password resets, notifications, and other critical emails. Further, Customer understands and agrees that without email communication Customer will not be able to receive customer support, maintenance notifications, upgrade announcements, and other critical information to operate the Service. As a result, by accessing the Service, Customer is consenting to Company’s email communications with (and notices sent to) administrative contacts supplied by Customer.

11.10 Entire Agreement. The website terms of use (available at https://www.picomes.com/terms-of-use) and these Terms set forth the entire understanding and agreement of the parties and supersedes all oral or written agreements or understandings between the parties as to the subject matter hereof.  To the extent that there is any conflict between the website terms of use and these Terms, these Terms shall control.  Neither party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.