TERMS

Community Agreement

Last updated on April 15, 2020

This Pico Community Agreement (the “Agreement”) is entered into by and between Pico Networks, Inc. (“Pico”) and the entity or person accessing the Software and Services (as defined below) (“you” or “your”). Capitalized terms used but not otherwise defined herein shall have the same meaning as set forth in the Pico Terms of Use.

1. License to Use Pico Software

Subject to the terms and conditions of this Agreement, Pico hereby grants you a limited, non-transferable (except as permitted herein), non-sublicensable, non-exclusive, internal-use, right and license to use the Pico Software and Services (as defined below) during the term of this Agreement.

2. Pico Software and Services

2.1

Pico will provide you with access to downloadable software to enable the integration of Pico’s Plugin ("Pico Software") on your designated website (“Community Website”). The Pico Software will enable members of the Community Website who have registered with Pico via the Pico Software (“Community Members”) to purchase subscriptions or access certain content made available on the Community Website or to make Donations to you.

2.2

You will be able to access your Pico account details via Pico’s online community dashboard available at publisher.pico.tools via the login credentials provided by Pico to you (“Pico Dashboard”). The Pico Dashboard will enable you to view and adjust some of your Pico account settings (such as your payment information and certain limitations on the number of Community Members who will or will not have access to your Community Website content) and view your Pico revenue performance.

2.3

By accessing or using Pico Software or the Pico Dashboard (collectively, the “Services”), you agree to be bound by the terms and conditions set forth in this Agreement and the Pico Terms of Use. If you access or use the Services on behalf of an entity, you represent that you have the authority to bind such entity to this Agreement and that this Agreement is fully binding upon them. In such a case, the term “you” or “your” will refer to such entity. If you do not have that authority, or if you otherwise do not agree with the terms and conditions set forth in this Agreement, you may not access or use the Services.

2.4

By using the Services, you grant Pico an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use your member authentication data and information for purposes of providing the Services and allowing Community Members to access your content via the Pico Software.

3. Changes to these Terms

3.1

Due to the evolving nature of the Services, Pico reserves the right to modify the terms in this Agreement in its sole discretion at any time. If Pico determines that a modification may materially adversely impact you, Pico will provide you with reasonable notice prior to implementing the modification. If you do not wish to be bound by any new or modified terms, you must cease all use of the Services.

3.2

The date on which this Agreement was last updated is shown in the “Last Updated” legend on the top of this Agreement.

4. Use of the Services

4.1

You may only use, install or incorporate Pico Software into your systems, in accordance with Pico’s instructions and directions and for the sole purpose of integrating the Community Website with the Pico Plugin.

4.2

You may only access the Pico Dashboard for the sole purpose of managing your account with Pico, tracking the number of Community Members, the content on the Community Website available to Community Members, and Donations.

4.3

You will be responsible for all costs and expenses associated with using the Services, including ensuring that you have the necessary and compatible technology, hardware, systems and software to use the Services as directed by Pico.

4.4

You will not, and will not permit others to:

(a)

license, sublicense, assign, convey or transfer any rights granted hereunder;

(b)

publish, display, disclose, sell, rent, lease, store, loan, distribute, transmit, translate, publicly display or perform, co-brand, frame, host, outsource, or otherwise commercially exploit the Services;

(c)

copy, reproduce, modify, create derivative works of, translate, adapt, disassemble, reverse engineer, decompile, reverse compile, create compilations of the Services, or otherwise try to discern the source code for the Software;

(d)

use the Services in any manner that may infringe any intellectual property rights, rights of privacy or other rights of Pico or any third party;

(e)

use the Services for any service bureau, time-sharing, resale or similar purposes;

(f)

circumvent any technological measure or authentication measures implemented by Pico;

(g)

remove, obscure, or alter any trademark or intellectual property rights notices on or related to the Services;

(h)

access or use the Pico Services in violation of any applicable laws or for any purpose other than as expressly permitted under this Agreement or the Pico Terms of Use; or

(i)

introduce into the Software or Services any software, malware, virus, worm, Trojan horse, “back door”, or any similar harmful code.

4.5

You are responsible for maintaining the confidentiality and security of any credentials made available to you by Pico or through the Services, including, but not limited to, any password or other account access information. Pico is not liable for any loss or damage arising from any unauthorized access of your credentials. You will take appropriate steps and precautions for the protection of the Services in your possession or control, including keeping all tangible forms of the Services under access and use restrictions sufficient to prevent any unauthorized use or access.

5. Community Websites

5.1

You are responsible and liable for the operation, hosting, development, display, access and delivery of all websites owned and controlled by you, including the Community Website and all content therein, and ensuring that each Community Member who has purchased access to the Community Website via the Pico Services is able to obtain proper access to the content associated with their purchases or subscriptions.

5.2

Each Community Member's access to the Community Website will be governed by the terms and conditions governing your website, including any online terms of use or service, and privacy policy. However, any use of the Pico Plugin by a Community Member will be governed by Pico’s Terms of Use and privacy policy.

5.3

Pico’s access to the Community Website will be governed by this Agreement. You hereby authorize Pico to place the Pico Plugin on the Community Website to enable Community Members to access certain content on the Community Website, to access and integrate with any of your software, data or systems for the Pico Plugin to perform the functions described in this Agreement and to allow Pico to track the activities of members of the Community Websites while accessing the Community Website, regardless of whether such members are Community Members or members of the Community Website who have not registered with Pico. Activities that may be tracked by Pico include the member's browsing activity on the Community Website, any sharing of any Community Website content by the Community Member and any use of the Pico Plugin. All right, title and interest in and to such data collected by Pico will remain owned exclusively by Pico.

6. Pico Fees and Payment

6.1

Each Community Website domain shall be assessed fees separately.

6.2

When a Community Member purchases a subscription or access to certain content on the Community Website or uses the Pico Plugin to make a Donation, Pico will collect the amounts received from the Community Member (“Pico Revenue”). Pico will then remit the value to you (“Community Fee”) subject to the fees that Pico retains for itself and its third party vendors, as more fully set forth at https://trypico.com/pricing, or such other fees as agreed by the parties. Pico will use its reasonable efforts to pay the Community Fees owed to you in arrears on a monthly basis, during the first week of the following month. However you acknowledge and agree that Pico’s obligation and ability to pay you the Community Fee is dependent on Pico receiving adequate Pico Revenue and also being able to use the Pico Revenue to pay its third party vendors, such as its third party payment processors.

6.3

If the parties have agreed that Pico will collect Donations for you via the Pico Plugin, Pico will pass on such Donations to you as set forth in your account settings in the Pico Dashboard or as otherwise agreed to by the parties in writing, subject to any amounts that the parties agree that Pico may retain for itself and its third party vendors. You will ensure that your receipt and use of any such Donations complies with all applicable laws, including those relating to charitable donations and receipts or other rules on such transfers.

6.4

All subscription and content access fees, payments, refunds, Donations, Community Fees, Community Member fees, and any other fees associated with or arising from the Services are processed through a third-party vendor. Pico is not responsible for and disclaims all liability for any failure or delay in processing any payment, refund, Donation, Community Fee, Community Member fee, and/or any other payment caused by an act or omission outside of Pico’s control.

6.5

You will be responsible for the payment of all taxes in connection with this Agreement, including the Community Fees and Donations.

7. Intellectual Property

7.1

Subject to the rights expressly granted by Pico to you under this Agreement, Pico or its licensors exclusively own all rights, title and interest in and to the Software and the Services, including all source code and object code, interfaces developed for use of the Services; all modifications, enhancements, revisions, changes, copies, translations, improvements, and derivative works of the Software and the Services and intellectual property rights therein; and any and all materials available on the Pico website or through the Services and all intellectual property rights therein (collectively the “Pico Intellectual Property”).

7.2

Subject to the rights expressly granted by you to Pico under this Agreement, you exclusively own all right, title and interest in and to the Community Website, including all trademarks and intellectual property rights therein, other than the Pico Intellectual Property.

7.3

Pico will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, methodologies, and techniques that it acquires or uses in the course of providing the Services for any purpose. In addition, you may from time-to-time submit feedback, comments, suggestions, questions, ideas, or other information to Pico concerning Pico’s Services or other products, services, technology, techniques, processes or materials (“Feedback”). Pico may in connection with any of its products and/or services freely use, copy, disclose, license, distribute and otherwise exploit such Feedback in any manner without any obligation, payment, royalty or restriction whether based on intellectual property rights or otherwise.

7.4

Other than as incorporated in the Pico Plugin, you may not use any Pico trademarks or service marks without Pico’s express permission. However, during the term of this Agreement, you may publicly identify Pico as the provider of the Pico Plugin and Pico may publicly identify you as a Pico Community or member, and you hereby consent and grant Pico a license to use your trade names, trademarks, service marks, logos, and/or Community Website domain name only in connection with Pico’s business purposes, including on Pico’s websites and other marketing materials. Pico will cease any such use to the extent you reasonably object in writing under Section 12.6 or upon termination of this Agreement with you. Neither you nor Pico will imply any untrue sponsorship, endorsement, or affiliation between you and Pico.

8. Confidentiality

8.1

Confidential Information” means any trade secrets or other confidential and/or proprietary information that is disclosed by one party to the other party under this Agreement, and that is either:

(a)

conspicuously marked or otherwise identified as confidential or proprietary at the time of disclosure; or

(b)

should reasonably be understood by the receiving party to be confidential based upon the nature of the information disclosed or the circumstances of the disclosure, but excluding information that is:

(i)

previously known to the receiving party without an obligation not to disclose such information;

(ii)

independently developed by or for the receiving party without use of the other party’s Confidential Information;

(iii)

acquired by the receiving party from a third party which was not, to the receiving party’s knowledge, under an obligation not to disclose such information; or

(iv)

becomes publicly available through no breach of this Agreement.

8.2

A party may use or make copies of the Confidential Information of the other party only to the extent reasonably necessary for purposes of this Agreement or for the parties’ discussions regarding potential Services under this Agreement.

8.3

Each party will protect the confidentiality of the other party’s Confidential Information in the same manner as it protects the confidentiality of its own similar information, but in no event using less than a reasonable standard of care. Each party will restrict access in the Confidential Information to those of its personnel and subcontractors engaged in the performance or use of the Services under this Agreement, provided that such parties are bound by obligations of confidentiality no less protective than the terms of this Agreement.

8.4

If the receiving party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, it will, to the extent legally permissible, promptly notify the other party and if requested by the other party, cooperate in opposing the subpoena or process.

9. Data Protection

9.1

Each party will:

(a)

be responsible for complying with its obligations under applicable law governing the processing of personal information, including any data protection, privacy, or similar laws, regulators, rules, or orders (“Data Protection Laws”); and

(b)

maintain and use appropriate technical, organizational and physical security measures (such as policies, standards, and practices) as required by applicable law, including the Data Protection Laws, and commensurate with the state of the art, the sensitivity of the data collected, handled and stored, and the nature of the party’s data processing activities, which protect against:

(i)

any anticipated threats or hazards to the confidentiality, integrity and availability of personal information; and

(ii)

the unauthorized or unlawful processing of any personal information.

9.2

Pico will be and remain the controller of any personal information collected from members of the Community Website by Pico for purposes of compliance with the Data Protection Laws. You acknowledge and agree that Pico will have sole responsibility for determining the purposes and means by which such information will be processed, and nothing in the Agreement will restrict or limit in any way Pico’ rights or obligations as owner or controller of such information.

9.3

You acknowledge that the Services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control.

10. Changes to and Discontinuation of the Services; Termination

10.1

Pico may modify or suspend the Services or any features or functionalities of the Services or suspend your access to the Services, from time to time, for any reason and in its sole discretion, without providing any notice to you. In addition, Pico may, upon notice to you, terminate this Agreement, discontinue the Services or terminate your access to the Services, for any reason and in its sole discretion.

10.2

You may terminate this Agreement at any time and for any reason, by providing prior written notice to Pico to the email address set forth in Section ‎12.6.

10.3

In the event Pico terminates this Agreement, discontinues the Services or terminates your access to the Services under Section ‎10.1 or you terminate this Agreement under Section ‎10.2:

(a)

you will cease all use of the Services and remove any Pico Software from your systems and destroy any copies of the Pico Software and Pico Confidential Information in your possession or control;

(b)

Pico will pay any outstanding Community Fee and Donation amounts under this Agreement to you as soon as reasonably practicable;

(c)

any license or any other right Pico granted to you under this Agreement will terminate;

(d)

any license or any other right you granted to Pico under this Agreement will terminate; and

(e)

Sections 3, 4.3, 4.4, 8, 9, 11, 12, and 13 of this Agreement will survive.

11. Indemnification, Disclaimers and Liability

11.1

You will defend, indemnify and hold harmless Pico, its affiliates, officers, directors, agents, representatives, and employees from any claim, suit, or demand (including legal fees) made or incurred by any third party that is based on or arising out of your: (a) breach of this Agreement, (b) Community Website’s or application’s infringement of Pico’s or any third party’s intellectual property rights, (c) use of the Services, (d) websites, applications or technology, or (e) other actions or omissions resulting in liability to Pico. Pico will promptly notify you in writing of a claim or suit and provide reasonable cooperation (at your expense) and full authority to defend or settle the claim or suit. You may not settle any claims which relate to or otherwise impact Pico without Pico’s written consent which may be withheld in its sole discretion.

11.2

THE SERVICES AND ANY OTHER ITEMS PROVIDED BY PICO ARE PROVIDED “AS IS”. PICO DOES NOT MAKE ANY OTHER REPRESENTATIONS, GUARANTEES, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES OR ANY OTHER ITEMS MADE AVAILABLE BY OR ON BEHALF OF PICO UNDER THIS AGREEMENT (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).

11.3

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, RELIANCE OR EXEMPLARY DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORESEEABLE.

11.4

NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS (INCLUDING THIRD PARTY CLAIMS) ARISING FROM OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT OR TORT OR OTHERWISE), WILL EXCEED THE COMMUNITY FEES PAID BY PICO TO YOU UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM.

11.5

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages exists for the purpose of allocating the risks of this Agreement between the parties and constitutes an essential element of the basis of the bargain between the parties.

12. General

12.1

Neither party will be liable for, or be considered to be in breach of this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control (including fire, explosion, earthquake, storm, flood, wind, drought or act of God or the elements; court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage or war; unavailability of required parts, materials or other items; or act, delay or failure to act by the other party or any third party).

12.2

Each party will comply with applicable federal, state, provincial, and local laws and regulations that pertain to each party’s operation of its business and specific industry, and will be responsible for its compliance with all applicable export control laws and economic sanctions programs relating to its respective business, facilities, and the provision of services to third parties.

12.3

The parties agree to submit all disputes, claims, actions, causes of action, issues or requests for relief between you and Pico arising out of or relating to Pico, the Services or this Agreement (“Disputes”) to confidential arbitration on an individual and purely bilateral, non-class/non-representative basis. Arbitration on an individual basis is the exclusive remedy for any Disputes that might otherwise be brought on a class, collective or representative basis between you and Pico. This agreement to arbitrate will be governed by the Federal Arbitration Act, 9 U.S.C. § 1 (the “FAA”) and will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will take place in Brooklyn, New York. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. The parties will select a mutually agreeable arbitrator from the AAA. Unless otherwise precluded by law, the parties will each separately pay its own attorneys’ fees and costs. Notwithstanding the foregoing, if the Dispute concerns a matter for injunctive or other similar relief that is appropriate under applicable law, for instance the enforcement or validity of our, or our licensors’ intellectual property rights, Pico may seek such injunctive or other similar relief in any state or federal court of competent jurisdiction, whether or not it is in the State of New York. The arbitrator(s) will provide a reasoned award and may award to the prevailing party, if any, as determined by the arbitrator(s), its costs and expenses, including attorneys’ fees. The arbitrator(s) will not award punitive or exemplary damages of any kind. Judgment upon any award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.

12.4

You agree that regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after the occurrence of the event or facts giving rise to a Dispute, or you waive the right to pursue any Dispute based upon such event or facts forever.

12.5

You agree that Pico may provide any notices to you under this Agreement by posting it on or through Pico’ website or the Pico Dashboard, emailing it to the email address associated with your Pico account, or mailing it to the street address listed in your Pico account. Notices sent to you by email are considered to be received by you within 24 hours of the time we send the email unless Pico receives notice the email was not delivered. Notices sent to you by mail are considered received by you within three (3) business days of the date we send the notice unless it is returned to us.

12.6

Notices to Pico must be sent to [email protected]. Notices sent to this email address shall be deemed only received when you receive a reply from Pico, other than an automated reply.

12.7

Each party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligation or liability upon either party. Further, neither party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other party.

12.8

This Agreement exists for the benefit of the parties only, and only the parties may enforce it. The parties do not intend for this Agreement to confer any right or benefit on any third party. No third party may commence or prosecute an action against a party to this Agreement claiming to be a third-party beneficiary of this Agreement or any of the transactions contemplated in this Agreement.

12.9

This Agreement may not be interpreted or construed to prohibit or in any way restrict either party’s right to perform any services for any third party or to otherwise restrict the placement of any resources of either party who are involved in the performance or use of the Services.

12.10

The delay or failure of either party to insist upon or enforce the other party’s strict performance of any provision of this Agreement, or to exercise any right or remedy under this Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of that party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.

12.11

Neither party may assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that either party may assign this Agreement to an affiliate or to any successor by way of any merger, acquisition, sale of assets, consolidation or other corporate reorganization upon providing written notice to the other party. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

12.12

This Agreement will be interpreted, construed and enforced in accordance with the laws of the state of California, U.S.A., without reference to its rules relating to choice of law. To the extent it may be applicable, the parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement. In addition, this Agreement will not be governed by any law based in any way upon the Uniform Computer Information Transactions Act (UCITA).

12.13

This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between the parties with respect to the Services and any other items provided or to be provided under this Agreement.

12.14

The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. The words “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement.