IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
User Terms of Service
Last Updated: May 1, 2022
ACCEPTANCE OF THESE TERMS
All references to "you" or "your," as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity.
ADDITIONAL TERMS AND POLICIES
"Collective Content" means User Content and Pietra Content together.
"Content" means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Pro Services requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.
"Customer Member" means a Member who is registered to receive quotes for Pro Services, requests quotes for Pro Services, or otherwise uses the Platform to receive, pay for, review, or facilitate the receipt of Pro Services.
"Member" means a person who completes Pietra's account registration process or a person who submits or receives a request through Pietra, including but not limited to Service Members and Customer Members.
"Platform" means all Pietra websites, mobile or other applications, software, processes and any other services provided by or through Pietra.
"Pro Services" means the services listed, quoted, scheduled, offered or provided by Service Members, or sought, scheduled or received by Customer Members, through the Platform.
"Service Member" means a Member who is registered to send quotes for Pro Services, sends quotes for Pro Services, or otherwise uses the Platform to offer, provide, receive payment for, or facilitate the provision of Pro Services.
"Pietra Content" means all Content Pietra makes available on or through the Platform, including any Content licensed from a third party, but excluding User Content.
"User Content" means all Content submitted, posted, uploaded, published, or transmitted on or through the Platform by any Member or other user of the Platform, including but not limited to photographs, profile information, descriptions, postings, reviews, and payments made through the Platform, but excluding Pietra Content and Feedback.
ELIGIBILITY, SERVICE MEMBER REPRESENTATIONS, WARRANTIES, AND USE OF THE PLATFORM
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
By registering or using the Platform to offer, post or provide Pro Services, Service Members represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their Pro Services and in relation to the specific job they are performing.
Pietra is not in the business of providing Pro Services. Service Members understand and agree that by creating and maintaining an account on the Platform, they receive only the ability to use the Pietra Platform to access persons interested in receiving Pro Services and related tools, including but not limited to the ability to message Customer Members or schedule appointments, that facilitate the provision of Pro Services.
Service Members understand and agree that using the Platform does not guarantee that any Pietra users will engage them for Pro Services. Service Members understand and agree that they are customers of Pietra, and are not Pietra employees, joint venturers, partners, or agents. Service Members acknowledge that they set or confirm their own prices, provide their own equipment, and determine their own work schedule. Pietra does not control, and has no right to control, the services a Service Member provides (including how the Service Member provides such services) if the Service Member is engaged by a Customer Member, except as specifically noted herein.
Pietra, as permitted by applicable laws, obtains reports based on publicly available information regarding Service Members, which may include history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Service Member's account based on the results of such a check. As a Service Member, you agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports from Pietra's vendors.
ACCOUNT REGISTRATION AND OTHER SUBMISSIONS
Users may access the Platform without registering for an account. To access and participate in certain features of the Platform, you will need to create a password-protected account ("Account"). You may register for an Account using your existing Facebook account and log-in credentials (your "Third-Party Site Password"). You agree to provide accurate, current, and complete information during the registration or request submission process and at all other times when you use the Platform, and to update information to keep it accurate, current, and complete. You are solely responsible for safeguarding your Pietra password and, if applicable, your Third-Party Site Password. You are solely responsible for all activity that occurs on your Account, and you will notify Pietra immediately of any unauthorized use. Pietra is not liable for any losses by any party caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of Pietra or others due to such unauthorized use.
YOUR LICENSE TO USE THE PLATFORM
Subject to your compliance with these Terms, Pietra grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. The Platform and Collective Content are provided to you AS IS. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Pietra or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to Pietra a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Pro Services, or for any other purpose in our sole discretion, except that private messaging through the Platform will not be used by Pietra in public advertising. In the interest of clarity, the license granted to Pietra shall survive termination of the Platform or your Account. Pietra does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Pietra the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Pietra's use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree that Pietra may proofread, summarize or otherwise edit and/or withdraw your User Content,and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
Pietra reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or users, or for any other reason.
As a user of the Platform, you may not:
- Use another person's Account, misrepresent yourself or Pro Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform;
- Use any automated system including but not limited to robots, spiders, offline readers, scrapers to access the Platform for any purpose without Pietra's prior written approval;provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material (Pietra reserves the right to revoke these exceptions either generally or in specific cases);
- In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, use on a mirrored, competitive, or third-party site;
- Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
- Take any action that (a) may unreasonably encumber the Platform's infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm Pietra or users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (g) circumvents or manipulates Fee (defined herein) structure, billing, or Fees owed;
- As a Service Member, use the Platform in any manner that circumvents your obligation to pay Pietra or use credits for access to services provided by the Platform;
- Collect, harvest or publish any personally identifiable data including but not limited to names or other account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
- Recruit, solicit, or contact in any form Service Members or Customer Members for employment or any other use not specifically intended by the Platform;
- Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law;
- Violate any key Pietra policies that govern your use of the Platform and our interactions with you and third parties;
- Advertise or solicit a Pro Service not related to or appropriate for the Platform including, but not limited to any Pro Service that (a) is not in supported categories or provides only products; (b) provides directories or referrals; (c) offers lending; (d) offers rental space; (e) promotes events (such as a party or professional convention); (f) competes with the business of Pietra; (g) is based outside the United States; (h) promotes or offers Ponzi schemes, junk mail, spam, chain letters, pyramid schemes, affiliate marketing or unsolicited commercial content, discount cards, credit counseling, online surveys or contests, raffles, prizes, bonuses, games of chance or giveaways; or (i) provides non-local content.
- Submit User Content that damages the experience of any user including but not limited to (a) requests to download non-Pietra mobile applications and/or links that direct the user to mirrored websites where the user must enter information that is redundant with what has already been entered on Pietra, (b) offers to purchase a Pro Service or any other service outside of Pietra, or (c) using a profile page or user name to promote services not offered on or through the Platform;
- Take any action that may undermine the efficacy or accuracy of reviews or ratings systems;
- Fail to perform Pro Services purchased from you as promised, unless the Customer Member fails to materially meet the terms of the mutually agreed-upon agreement for the Pro Services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Customer Member's identity;
- Engage in fraudulent conduct including but not limited to offering to make money transfers with intent to request a refund of any portion of the payment or soliciting users to mail cash or use other payment methods prohibited by Pietra;
- Sign up for, negotiate a price for, use, or otherwise solicit a Pro Service with no intention of following through with your use of or payment for the Pro Service;
- Agree to purchase a Pro Service when you do not meet a Service Member's requirements;
- Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform; and
- Attempt to indirectly undertake any of the foregoing.
Pietra FEES AND TAXES
In connection with use of Pietra's Platform, Pietra charges certain Fees ("Pietra Fees" or "Fees"). Current Fees for purchasing credits ("Pietra Credits") used by Service Members for various purposes will be shown when purchasing such credits. Fees for additional products or services, including ongoing products or services, will be provided to you before you use such products or services.
Pietra may also charge penalty Fees for fraud, misconduct or other violations of these Terms, as determined in our sole discretion. Information about current penalty Fees is available in the policy or support center.
You agree to pay these Fees. Information about current penalty Fees is available in the policy or support center. You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account.
Charges shall be made to your credit card, PayPal or other payment method designated at the time you make a purchase or register for a service. If you do not pay on time or if Pietra cannot charge a credit card, PayPal or other payment method for any reason, Pietra reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or Fees due will be made by electronic mail or by phone. Such communication may be made by Pietra or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that Pietra may charge such unpaid Fees to your credit card or otherwise bill you for such unpaid Fees. You understand and agree that you are solely responsible for determining your own tax reporting and sales tax collection requirements in consultation with tax advisers, and that we cannot and do not offer specific tax advice to either Service Members or Customer Members. All sales on Pietra are final and non-refundable, except as otherwise specified herein.
Marketplace payment processing services for Service Members on Pietra are provided by Stripe, and, where applicable, may include money transmission services pursuant to licenses held by Stripe. Payment processing services provided by Stripe are subject to theStripe Connected Account Agreement, which includes theStripe Services Agreement. By agreeing to these terms or continuing to operate as a Service Member on Pietra, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Pietra enabling payment processing services through Stripe, you agree to provide Pietra accurate and complete information about you and your business, and you authorize Pietra to share with Stripe this information and transaction information related to your use of the payment processing services provided by Stripe.
Pietra serves as a limited payment collection agent of a Service Member and is authorized to collect payment from Customer Members on behalf of a Service Member. Payment made by a Customer Member to Pietra in connection with Pro Services shall be considered the same as a payment made directly to a Service Member. As a Service Member, you hereby appoint Pietra as your limited payment collection agent solely for the purpose of accepting payment from Customer Members in connection with Pro Services. You agree that payment made to Pietra shall be considered the same as a payment made directly to you. You further understand that, as a limited payment collection agent for its Service Members, Pietra's obligation to you, as the Service Member, is subject to and conditional upon successful receipt of payment from Customer Member. In accepting appointment as your limited payment collection agent, Pietra assumes no liability for your acts or omissions in your capacity as the Service Member.
If any Member does not make a marketplace payment on time or if Pietra cannot charge a credit card, PayPal or other payment method for any reason, Pietra reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or payments due will be made by electronic mail or by phone. Such communication may be made by Pietra or by anyone on its behalf, including but not limited to a third-party collection agent. If you have a balance due on any Account, you agree that Pietra may charge such unpaid payments to your credit card or otherwise bill you for such unpaid payments.
All cancellation and refund requests will be subject to Pietra's review and absolute discretion. We will normally process your valid written request within thirty (30) days of receiving it, unless a shorter period is required by law. You may request a cancellation or refund by emailing your request to Pietra support at firstname.lastname@example.org. If you cancel your Account at any time, you will not receive any refund.
DISPUTES BETWEEN OR AMONG USERS
Pietra values our Pros and Customers, and we understand that occasionally disputes may arise between or among them. Our goal is to provide tools to help users resolve such disputes independently. In the rare event a dispute initiated by either a Service Member or a Customer Member cannot be resolved independently, you agree, at Pietra's request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by Pietra or a neutral third-party mediator or arbitrator selected by Pietra. Notwithstanding the foregoing, you acknowledge and agree that Pietra is under no obligation to become involved in or impose resolution in any dispute between or among users or any third party.
TRANSACTIONS BETWEEN BUYERS & SELLERS
By sending us any feedback, comments, questions, or suggestions concerning Pietra or our services, including the Platform (collectively, "Feedback") you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Pietra and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account or the Platform.
We expect users to respect copyright law. In appropriate circumstances we will terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright & DMCA Policy for more information.
Pietra does not endorse any Member, user or any Pro Services, and Pietra is not a party to any agreements between or among users, Members or third parties. No agency, partnership, joint venture, or employment is created as a result of the Terms or any user's or Member's use of any part of the Platform, including but not limited to any scheduling or other services. Neither Pietra nor any Members or users of the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. Members are required by these Terms to provide accurate information, and although Pietra may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any user or their purported identity or background, regardless of the specific Pietra services they are using or any involvement by Pietra personnel in providing or scheduling those services.
Any reference on the Platform to a user being licensed or credentialed in some manner, or "badged," "best of," "top," "background checked" or "gold," "silver," or "bronze" (or similar language) designations indicates only that the user has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Pietra and is not verification of their identity and whether they or their Pro Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other user. Pietra offers a non-exhaustive list of safety tips to consider when hiring a Service Member. Pietra is not responsible for any damage or harm resulting from your interactions with other users.
The Collective Content may contain links to third-party websites, offers, or other events/activities not owned or controlled by Pietra. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk.
By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from Pietra with respect to such actions or omissions.
SANCTIONS FOR VIOLATIONS OF THESE TERMS
Without limiting any other rights reserved herein, Pietra may, in its sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and Pietra, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit certain funds or paid Fees, assessing monetary penalties or costs, terminating your Account, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
ACCOUNT SUSPENSION OR TERMINATION
We may, in our discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your Pietra Account in whole or in part. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from Pietra support teams; (b) if appropriate in our sole discretion, we may communicate to other users that your Account has been terminated, blocked, suspended, deactivated, or cancelled, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services or Pro Services cancelled or delayed as a result of Account termination. You may cancel your use of the Platform and/or terminate your Account at any time by following the "Settings" link in in your profile, clicking "Account," and clicking "Deactivate Account." Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any reviews.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Pietra agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Pietra as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Pietra's support department email@example.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Pietra support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Pietra will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Pietra will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America, and you and Pietra agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND Pietra AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
The Terms and the relationship between you and Pietra shall be governed in all respects by the laws of the State of California, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against Pietra that is not subject to arbitration must be resolved by a court located in San Francisco County, San Francisco, California, or a United States District Court, Northern District of California, located in San Francisco, California, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California or the United States District Court, Northern District of California located in San Francisco, California, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM, PRO SERVICES, OR COLLECTIVE CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT Pietra DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) FOR ANY PERMISSIBLE PURPOSE, CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING BUT NOT LIMITED TO SERVICE MEMBERS AND CUSTOMER MEMBERS. THE PLATFORM IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Pietra AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE PRO SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. Pietra MAKES NO WARRANTY THAT THE PLATFORM OR PRO SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Pietra ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. Pietra SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Pietra OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER MEMBERS, SERVICE MEMBERS OR SERVICE RECIPIENTS. YOU UNDERSTAND THAT Pietra DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY PRO SERVICES. Pietra MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM.
YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE PRO SERVICES. Pietra EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING PRO SERVICES OR REQUESTING OR RECEIVING PRO SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF Pietra OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER Pietra NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Pietra HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, PRO SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING PRO SERVICES OR REQUESTING OR RECEIVING PRO SERVICES THROUGH THE PLATFORM.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF Pietra AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, PRO SERVICES, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY PRO SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO Pietra BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
INDEMNIFICATION AND RELEASE
You agree to release, defend, indemnify, and hold Pietra and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform or your violation of these Terms; (b) your User Content or the Collective Content; (c) your interaction with any Member or user; and (d) the request or receipt or offer or provision of Pro Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Pro Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Pietra and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
FULFILLMENT SERVICES AGREEMENT
All users of Pietra's platform agree to the below terms when using Pietra's fulfillment services. Pietra Inc, a Delaware Limited Liability Company. By sending items to Pietra's Fulfillment center, you are automatically agreeing to the terms and conditions below. You, as a Pietra Platform user are referred to as “Company” in the following terms.
WHEREAS , the Company is in the business of selling and/or manufacturing certain products; and
WHEREAS , Pietra provides to various retailers and manufacturers order fulfillment services, pursuant to which Pietra provides storage, packing, kitting, and shipping products to the Companys customers; and
WHEREAS , Company desires to retain Pietras services, and Pietras desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE , in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The Company hereby engages Pietra to provide, and Pietra hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, to provide the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of this Agreement.
The term of this Agreement commences on the Effective Date [DATE] and continues for the initial period of one (1) year, unless and until earlier terminated as provided under this Agreement or applicable law ("Term "). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a " Renewal Term "). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
3. PIETRA SERVICES
3.1 Services. Pietra shall provide the following services to the Company (collectively, the " Services "):
- Receive shipments from the Company of the Product
- Provide storage facilities for the Inventory in Pietras warehousing facilities ("Warehouse ").
- Upon notification by the Company of a purchase of Products by a customer, Pietra will pick and package the Products from the available Inventory, and ship such Products directly to the customer ("End-User ").
- Pietra will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
- Upon request by the Company, Pietra may include additional materials concerning the Product, to be provided by Company, at the time of product assembly.
- Pietra will process, package and ship all Product orders in accordance with Pietra Legal Policies.
- Pietra will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to the Company through Pietra's software platform.
- Pietra will facilitate any Product returns from the End-User to the Company where the Company will be responsible for paying for the return label and any additional restocking fees.
- In addition to the above described Services, Pietra shall perform any additional services, including special projects, that the Company desires Pietra to perform to be amended from time to time as agreed upon by the Parties.
4. COMPENSATION AND REIMBURSEMENT FOR SERVICES
4.1 Pay as You Go Payments & Invoicing. Pietra utilizes a "Pay As You Go" model for some services and upfront payment for others. Company will use Pietra Software to pay for services when requested and invoiced on a bi-monthly basis for any additional services performed outside of the Creator Hub. For example, The Company may pay upfront for a certain number of units to be assembled but then be billed later if more units were shipped and assembled after the original payment.
4.2 Product Invoicing. Pietra will invoice to The Company at the agreed upon rates at www.pietrastudio.com/plans-and-pricing on a twice-monthly basis.
4.3 Late Payment Fee. If Pietra fails to receive payment from the Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
4.4 Options & Ways to Pay. Pietra provides the Company with a convenience to pay for their invoices online through the Company's account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% credit card processing fee), PayPal (4% Payment processing fee), or a wire transfer (Free within the U.S.). Pietra is using a 3 rd party payment processing company Stripe. Pietra does not store any payment information on its own servers; all of the Company's payment information is stored with Stripe. The Company agrees that Pietra shall have the right to auto-charge for the invoice on payment due date using the payment method that has been used in the past.
5. TITLE, RISK OF LOSS AND INSURANCE
5.1 Title. Company hereby agrees that at no time during the period that Products are held by Pietra as Inventory in the Warehouse will Pietra hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
5.2 Risk of Loss . Company hereby agrees that at no time during the period that Products are held by Pietra as Inventory in the Warehouse will Pietra carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User. Pietra shall exercise commercially reasonable standards of care for all of Company's Products in its possession but specifically disclaims liability of loss except for instances of Gross Negligence by Pietra. This includes providing General Liability Insurance for Pietra's Fulfillment Center.
5.3 Insurance. COMPANY HEREBY AGREES THAT IT IS COMPANY'S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN AN INSURANCE POLICY THAT COVERS THE COST OF THE PRODUCTS AND MANUFACTURING QUALITY HELD IN INVENTORY. Company has the option of adding the Pietra's Warehouse as a designated storage location to Company's general inventory policy.
5.4 No Insurance. Company can choose not to insure its inventory. In this event, Pietra will, under no circumstances, be liable for any loss or damage to the inventory stored at Pietra facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.
6. COMPANY'S ACCOUNT
6.1 Services Available Through the Account. Subject to Company's compliance with this Agreement, Pietra shall perform the Services described in this Agreement as selected and authorized by Company in the Account, and described on Exhibit A attached hereto. Company may order Services through the Pietra Creator Hub platform or in some special cases through a Pietra Specialist. All Pietra Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that Pietra operates, partially, as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. Pietra is an independent contractor for all purposes, and only acts as the agent of Company with respect to Pietra's custody of the Products in its Inventory.
6.2 Account Balances. Any invoices Pietra sends to Company in accordance with Section 4 of this Agreement shall be based on any balance accrued in the Company's Account. "3
rd Party Fees" or "Other Fees" are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during Company's use of Services) ordered through the platform and any special or additional fees assessed against the Account as permitted in this Agreement. The 3 rd party fees for Services are billed during the month in which the Services are performed, but such 3 rd Party Fees are subject to change due to circumstances beyond Pietra's control. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed twice monthly as part of standard Pietra practices.
6.3 Pietra Services Estimates. Quotes for 3 rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon Pietra unless otherwise noted in writing. Quotations for courier rates are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
6.4 Pricing Changes & Currency Fluctuations. Pietra reserves the right to adjust its pricing for its Services on the Pietra website and/or directly to the Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. After the first 90-days, Pietra reserves the right to automatically revise pricing without notice if actual volume does not meet or exceed the initial volume estimates provided by the Company at the time of contract execution to a rate equal to actual volume. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
6.5 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to Pietra within 30 days of the fee being charged (" Dispute Period "). Pietra will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
6.6 Account Balance Disputes . If Pietra becomes aware of, or is notified of, a dispute relating to the Account Balance, then Pietra will promptly review the dispute. After the resolution of the dispute, Pietra will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
6.7 Abandoned Account and Liquidation. If Company's Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then Pietra reserves the right, at its sole discretion to reclassify Company's Account as an " Abandoned Account ." Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company's Inventory up to the cumulative amount necessary for payment of all Usage Fees and 3 rd Party Fees as well as any reasonable expenses incurred by Pietra for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Pietra and would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending Usage Fees and 3 rd Party Fees above and beyond the liquidation proceeds.
6.8 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activities will be suspended. Pietra reserves the right to cease shipping orders for a number reasons, including but not limited to the following:
- Account Balance remaining unpaid within 15 days of receipt of invoice;
- if anyone using the Account uses abusive language or otherwise threatens Pietra or its staff;
- to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
- to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
- to allow time to pick all inventory for the close out order.
6.9 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days' notice to the other party in the event of a breach by the other party of any provision of this Agreement if the breaching party fails to cure such breach during the 30 day period; provided , that Pietra may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period, a 30 day wind down of the Company Account shall commence (" Termination Notice Period "). Company may have full or limited use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the account in a commercially reasonable manner. Any Product inventory that remains in Pietra's inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company's credit card, at Company's expense. If no address is available or payment method is declined for shipment back to the Company, Pietra will liquidate the Product inventory in accordance with an Abandoned Account.
6.10 Additional Actions. If Company is in breach of any of the terms of this Agreement, Pietra may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, Pietra may also take any additionally available legal actions
6.11 Closing Accounts. Company may close the Account for any reason, upon giving Pietra 30 days prior written notice. Merchandise will be returned subject to Company paying Pietra's standard pick and pack rates outlined in Exhibit A.
7. PIETRA INTELLECTUAL PROPERTY RIGHTS
7.1 PIETRA Property. For purposes of this Agreement, "PietraProperty " shall mean (a) Pietra's methodology for the provision of the Services; and (b) Pietra Confidential Information; and © all Pietra software, algorithms, and websites relating to Pietra. Pietra hereby retains all worldwide right, title and interest in and to the Pietra Property. Any rights not expressly granted herein to the Pietra Property shall be retained by Pietra. Company acknowledges that all right, title and interest to the Pietra Property is owned by Pietra.
7.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Pietra's Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Pietra and Company shall not copy, imitate, or use them without Pietra's express prior written consent. Company may use HTML logos provided by Pietra through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to pietrastudio.com*. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Pietra or the Services, or display them in any manner that implies Pietra's sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access Pietra's website or Services for any purpose without Pietra's express written permission, (ii) interfere or attempt to interfere with the proper working of Pietra's website or any activities conducted on the website, or (iii) bypass any measures Pietra may use to prevent or restrict access to Pietra's website or the Services.
7.3 Client Property. No Confidential Information obtained by Pietra from Company shall become Pietra Property.
7.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (" Data ") is currently stored and processed in the United States. Pietra has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. Pietra will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to Pietra's attention. Company agrees to immediately notify Pietra of any suspected security breach at firstname.lastname@example.org, followed by contacting Pietra customer support.
7.5 Third Party Software . Any third party software application Company uses on the Pietra website, to connect to the Services, or related to the Services (" Third Party Software") is solely subject to any third party software provider software licenses. Pietra does not own, control or have any responsibility or liability for any Third Party Software.
8. CONFIDENTIAL INFORMATION
8.1 Scope. From time to time during the Term, either Party ("Discloser ") may disclose or make available to the other Party ("Recipient ") Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as "confidential." For purposes of this Agreement, "ConfidentialInformation " includes all industrial and other intellectual property rights comprising or relating to:
- all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models);
- all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
- all rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
- all rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
- all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.
8.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
- information that is or becomes generally available to and known by the public;
- information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
- information published or otherwise made known to the public by Discloser;
- information that was generated independently without reference to the Discloser's Confidential Information; or
- information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
9.1 Indemnification . Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Pietra and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, "Losses"), arising out or resulting from any claim of a third party alleging:
- breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
- any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
- any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company;
- the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Pietra;
- any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
- any failure by Company to comply with any applicable state, federal or international laws.
10.1 As Is. Pietra's obligations under this agreement and the attached Exhibits (including the use of Pietra's technology) are provided on an "as is" and "as available" basis. Pietra expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, Pietra's website and any third-party services. the use of services, Pietra's website, or third party services is at Company's risk.
10.2 No Continuous Access. Pietra does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Pietra's control. However, Pietra will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Pietra makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
11. LIMITATION ON PIETRA LIABILITY
11.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER PIETRA NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PIETRA/ OR COULD HAVE BEEN REASONABLY FORESEEN BY PIETRA, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL PIETRA'S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO PIETRA EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES ("DAMAGES CAP"). PIETRA MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM PIETRA.
11.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY'S EXCLUSIVE REMEDY AGAINST PIETRA FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT PIETRA CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
11.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT PIETRA IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND PIETTRA IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN "INVENTORY LOSS" AND PIETRA'S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL PIETRA BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES. IF THERE ARE ANY ISSUES WITH COUNTS, THEY ARE TO BE ADDRESSED PRIOR TO SELLING THE PRODUCT.
12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and Pietra Services constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
12.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
12.3 No Waiver. Failure or delay of Pietra to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
12.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a " Notice ") must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to Pietra must be sent by postal mail to: Pietra, Inc., Attention: Legal Department, 270 Lafayette Street, Suite 604, New York, New York, 10012
12.5 Conflict of Terms. If there is a conflict between this Agreement and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier's terms will control. If not stated within the carrier's terms, this Agreement shall control.
12.6 Attorneys' Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys' fees incurred in enforcing this Agreement.
12.7 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of New York without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in New York, New York. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within New York, New York. Notwithstanding the foregoing, Pietra may seek injunctive or other equitable relief to protect Pietra's intellectual property rights in any court of competent jurisdiction.
12.8 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a "Force Majeure Event "). Company's financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give Pietra prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
If requested by Pietra, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company's rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the New York Commercial Code or any similar statute or regulation.
IN WITNESS WHEREOF , this Pietra Agreement has been executed by the Parties' duly authorized officers as of the date first set forth above.
Pietra is a digital platform offering Creators the ability to source products and packaging, connect with freelance designers, use Pietra's fulfillment center, leverage Pietra's eCommerce integrations, access tons of educational resources and more. Pietra's digital platform can be accessed with a monthly subscription. After signing up for a subscription, your billing cycle will begin and payment will be collected monthly via the credit card on file. If electing for an annual subscription, payment will be collected annually. After requesting cancellation of a subscription, Pietra will terminate your subscription and you will have full access to the Pietra platform until the end of your current billing cycle. We are more than happy to cancel a subscription at any time, but we will not authorize refunds on subscription payments since it is a digital platform you are subscribing to use.
Force Majeure: Other than payment obligations, neither Pietra nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Contacting You and E-SIGN Consent: You agree that Pietra may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Platform. With your consent, Pietra or Service Members may also contact you by telephone or through text messages. If you have agreed to receive text messages or telephone calls from Pietra or Service Members, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by sending an email to email@example.com with "Revoke Electronic Consent" in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (a) a device (such as a computer or mobile phone) with a web browser and Internet access; and (b) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, send an email firstname.lastname@example.org with contact information and the address for delivery.
Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Pietra's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Pro Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect.
Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email to email@example.com.