BY PLACING A CHECK IN THE “I ACCEPT” BOX OR OTHERWISE INDICATING YOUR ACCEPTANCE THROUGH A SIMILAR ELECTRONIC ACCEPTANCE METHOD, CUSTOMER (“CUSTOMER,” “YOU,” OR “YOUR”) HEREBY ACKNOWLEDGES THAT CUSTOMER (A) HAS READ THIS SOFTWARE SUBSCRIPTION AGREEMENT, AND UNDERSTANDS AND AGREES TO ALL THE TERMS AND CONDITIONS HEREIN; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF THE CUSTOMER AS AN AGENT OF CUSTOMER, OR IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. CUSTOMER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND PFU AMERICA, INC. (“PAI”) AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, BOTH ORAL AND/OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT IF PAI IS REQUIRED TO ENGAGE IN ANY PROCEEDING, LEGAL OR OTHERWISE, TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT, PAI SHALL BE ENTITLED TO RECOVER DAMAGES FROM CUSTOMER, IN ADDITION TO ANY OTHER SUMS DUE, REASONABLE ATTORNEYS FEES, COSTS, AND DISBURSEMENTS.
This Software Subscription Agreement (this “Subscription Agreement”, or “Agreement”), effective as of the date you place your order (“Effective Date”) on https://store.pfu-us.ricoh.com/scanners/software/ or https://www.pfu-us.ricoh.com/scanners/fi/solutions/paperstream-capture-pro (collectively, the “Site”) or through PAI’s authorized Distribution Channel (defined below), is entered into by and between PAI, with offices located at 3900 Freedom Circle, Suite 240, Santa Clara, CA, 95054, and Customer located at the billing address provided on the order placed for the Service.
Capitalized terms used in this Subscription Agreement without definition have the meanings ascribed to them in Section 17 (Definitions).
1. PURPOSE OF SUBSCRIPTION AGREEMENT. The purpose of this Subscription Agreement is to set forth the general terms and conditions upon which Customer shall subscribe to and receive access of certain Software (including access to cloud-based software or cloud-based services, if applicable) as specified and attached hereto in Exhibit A (the “Service”) for a certain Subscription Term.
2. COMMENCEMENT PROCEDURES AND SUBSCRIPTION TERM. Subject to the other terms and conditions contained herein, Customer shall receive access to the Service in accordance with the applicable order(s) for the Service. Customer shall receive e-mail notification from PAI once the Service is made available for electronic download, and this shall be the date the Service is deemed delivered to Customer. Customer shall not access or use the Service at any time without having first agreeing to the terms of the applicable Software EULA, and Customer’s continued access or use of the Service shall constitute Customer’s acceptance with the applicable Software EULA terms.
Subject to Section 3 (Fees; Payment Terms) below, the initial term of this Agreement shall begin on the Effective Date, provided the payment for Customer’s selected subscription term is made to PAI and PAI subsequently provides access to the Service to Customer, and shall continue for the remainder of the then-current subscription term (“Initial Term”). After the Initial Term, Customer shall be required to purchase and activate a separate renewal order in order to continue using the Service for another subscription term (“Renewal Term”) (collectively, the “Subscription Term”). Customer’s current Subscription Term will be indicated on the e-mail notification from PAI to which the Software was made available for Customer to download.
3. FEES; PAYMENT TERMS.
a. Where Customer’s order is directly with PAI through our Site:
As fees (“Fees”) for the Service, Customer agrees to pay PAI the amount specified in PAI’s invoice for the Service. PAI will invoice to Customer the Fees for the Subscription Term upon receipt of Customer’s order made through the Site. Unless otherwise agreed upon by PAI and Customer in a separate written agreement, all payments are due in full without deduction or set-off within thirty (30) days of the date of PAI’s invoice. THE FEES FOR THE SERVICE ARE NON-REFUNDABLE AND NON-CANCELLABLE, UNLESS OTHERWISE PERMITTED UNDER THIS AGREEMENT OR EXPRESSLY PERMITTED BY PAI IN ITS SOLE DISCRETION.
b. If Customer’s order is purchased through PAI’s authorized Distribution Channel, PAI may in its sole discretion, upon written notice to Customer, suspend or terminate Customer’s rights to use the Service in the event PAI fails to receive payment for the Service or PAI confirms that Customer has not paid for the Service through PAI’s authorized Distribution Channel.
c. Evaluation Offerings; Software Promotions. Subject to the terms and conditions of any applicable evaluation offerings or Software promotions for the Service (collectively, “Software Offerings”) that may be offered by PAI from time to time in PAI’s sole discretion, Customer may not be charged or may receive a discounted rate for the Software during the Software Offering’s evaluation and/or promotion period. PAI reserves the right to cancel, suspend, modify, or terminate Software Offerings in its sole discretion without notice to Customer.
d. Additional Software Support; Additional Features to Software. If available, Customer may purchase certain additional support service and/or additional features or enhancements for the Service (collectively, “Add-On Features”) for additional fees. Fees for any Add-On Features shall be set forth on PAI’s Site(s) and Add-On Features shall be purchased separately from Customer’s subscription for the Service. PAI reserves the right to cancel, suspend, modify, or terminate Add-On Features (including Exhibit A and/or the terms and conditions related thereto) in its sole discretion.
For purchase of any Add-On Features (if available) through PAI’s authorized Distribution Channel, please contact a reseller or distributor for pricing and/or other applicable additional terms.
4. TECHNICAL SUPPORT; SOFTWARE MAINTENANCE.
a. Technical Support. PAI shall provide customer technical support for the Service via telephone and web support during PAI’s normal business hours, excluding PAI holidays.
PAI, its affiliates, and/or its licensors may use any portion of the Customer’s feedback to consider error correction and/or enhancement of the Service, and it is PAI’s, its affiliates’, and/or its licensor’s sole option to determine whether or not Customer’s feedback will be adopted or utilized. PAI, its affiliates, and/or its licensors may freely adopt Customer’s feedback, without Customer’s consent, and without payment of any consideration. PAI, its affiliates, and/or its licensors will retain any and all rights (including intellectual property rights), title, interest and ownership in and to all results, patches, bug fixes, workarounds, improvements, updates, derivative works, modifications, enhancements, suggestions, ideas, reports, identification of defects or deficiencies or any other contributions relating to the Service conceived, reduced to practice, made, created or developed by PAI, its affiliates, and/or its licensors based on Customer’s feedback.
b. Software Maintenance. PAI, its affiliates, and/or its licensors, may develop and provide certain software updates for the Service in its sole discretion, and Customer agrees that PAI, its affiliates, and/or its licensors have no obligation to develop any software updates for the Service at all or for particular issues. Customer further agrees that all software updates will be deemed the Service, and shall be subject to all terms and conditions of this Agreement and the applicable Software EULA. Software updates are intended to correct errors, support new releases of the operating systems with which the Service is designed to operate, add significant functional capability, support new input/output devices, or provide other incidental updates and corrections.
5. EXPIRATION OF SERVICE; TERMINATION BY PAI; EFFECT ON EXPIRATION OR TERMINATION.
a. Expiration of Service. Subject to the terms of this Agreement and the applicable EULA, Customer will only receive access for the Service for the then-current Subscription Term. In the event Customer’s Subscription Term expires or terminates, Customer will no longer receive access for the Service, including any Add-On Features.
b. Termination by PAI. PAI may elect, at any time or for any reason, or in accordance with the applicable Software end user license agreement (“EULA”) related to use of the Service under this Subscription Agreement, to terminate this Subscription Agreement by providing prior written notice to Customer, at least fourteen (14) days prior to the expiration of the then-current Subscription Term.
c. Effect on Expiration or Termination. In the event Customer’s Subscription Term expires or terminates, the Service’s basic functionality (if available, and applicable to the Software) may still be available for Customer’s use. Customer’s use of such Service’s basic functionality shall continue be governed by the applicable Software’s EULA.
6. TAXES. If applicable, PAI shall report and pay all Taxes now or hereafter imposed or assessed by any governmental body, agency or taxing authority upon the purchase, ownership, delivery, installation, leasing, rental, use or sale of the Service, the Fees or other charges payable hereunder, or otherwise upon or in connection with any Subscription Agreement, whether assessed on PAI or Customer, other than any such Taxes required by law to be reported and paid by Customer. Customer shall promptly reimburse PAI for all such Taxes paid by PAI, together with any penalties or interest in connection therewith attributable to Customer’s acts or failure to act, excluding (a) Taxes on or measured by the overall gross or net income or items of tax preference of PAI, and (b) as to any Subscription Agreement for the related Service, Taxes attributable to the period after the return of such Service (if applicable) to PAI.
7. GENERAL INDEMNITY. Without limiting Customer’s obligations under the applicable EULA, Customer, to the extent permitted by law, shall indemnify and hold harmless PAI, its parents, affiliates, and assignees, from and against any and all Claims arising directly or indirectly out of or in connection with any matter involving this Subscription Agreement, or the Service, including but not limited to the access, acceptance, rejection, subscription, maintenance, use (including any patent, trademark or copyright infringement), or the enforcement of PAI’s rights under the Subscription Agreement. Notwithstanding the foregoing, Customer shall have no obligation to indemnify or defend against any Claim arising solely as a result of PAI’s gross negligence or willful misconduct.
8. DISCLAIMERS AND CUSTOMER WAIVERS. CUSTOMER AGREES THAT IT HAS AN ABSOLUTE AND UNCONDITIONAL OBLIGATION TO PAY ALL FEES AND OTHER AMOUNTS WHEN DUE. CUSTOMER HEREBY WAIVES ANY RECOUPMENT, CROSS-CLAIM, COUNTERCLAIM OR ANY OTHER DEFENSE AT LAW OR IN EQUITY TO ANY FEES OR OTHER AMOUNT DUE WITH RESPECT TO SUBSCRIPTION FOR THE SERVICE, WHETHER ANY SUCH DEFENSE ARISES OUT OF THIS SUBSCRIPTION AGREEMENT, ANY CLAIM BY CUSTOMER AGAINST PAI, PAI’S PARENTS, PAI’S AFFILIATES, PAI’S ASSIGNEES OR PROVIDERS OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER’S SUBSCRIPTION FOR THE SERVICE SHALL BE “AS IS, AS AVAILABLE, AND WITH ALL FAULTS”. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT (A) EXCEPT AS EXPRESSLY SET FORTH IN THIS SUBSCRIPTION AGREEMENT, PAI MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, OF ANY KIND, INCLUDING WITH RESPECT TO THE MERCHANTABILITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, FITNESS FOR ANY PURPOSE (EVEN IF PAI HAS BEEN ADVISED OF SUCH PURPOSE), OR COMPLETENESS OF THE SERVICE OR ANY DATA, OR THE NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS.
ADDITIONALLY, PAI DOES NOT REPRESENT OR WARRANT THAT:
a. THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA;
b. ANY STORED DATA OR UPLOADED DATA WILL BE OR REMAIN ACCURATE OR RELIABLE;
c. THE RESULTS OBTAINED BY USING THE SERVICE ARE ACCURATE, COMPLETE OR USEFUL;
d. THE SERVICE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SERVICE WILL MEET CLIENT’S OR END USER’S REQUIREMENTS OR EXPECTATIONS;
e. ERRORS OR DEFECTS WILL BE CORRECTED; OR
f. THE SERVICE, OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9. CUSTOMER WARRANTIES. Customer represents, warrants and covenants to PAI that: (a) Customer has the power and authority to enter into this Subscription Agreement; (b) this Subscription Agreement is a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with their terms and do not violate or create a default under any instrument or agreement binding on Customer; (c) there are no pending or threatened actions or proceedings before any court or administrative agency that could reasonably be expected to have a material adverse effect on Customer or this Subscription Agreement, unless such actions have been disclosed to PAI and consented to in writing by PAI; (d) Customer shall comply in all material respects with all laws and regulations the violation of which could have a material adverse effect upon the Service or Customer’s performance of its obligations under this Subscription Agreement; (e) Customer does not export, re-export, or transfer any Software, source code or any direct product thereof to a prohibited destination, or to nationals of proscribed countries wherever located, without prior authorization from the United States government and other applicable governments; (f) Customer does not use the Service, Software or technology, technical data, or technical assistance related thereto or the products thereof in the design, development, or production of nuclear, missile, chemical, or biological weapons or transfer the same to a prohibited destination, or to nationals of proscribed countries wherever located, without prior authorization from the United States and other applicable governments; and (g) Customer is not an entity designated by the United States government or any other applicable government with which transacting business without the prior consent of such government is prohibited.
10. DEFAULT. Any of the following shall constitute a default by Customer (a “Customer Default”) under this Subscription Agreement: (a) Customer fails to pay any Fees payment or any other amount payable to PAI under this Subscription Agreement within 10 days after its due date; or (b) any change occurs in relation to Customer’s financial condition that, in PAI’s opinion, would have a material adverse effect on Customer’s ability to perform its obligations under this Subscription Agreement; or (c) Customer becomes insolvent or fails generally to pay its debts as they become due; or (d) any bankruptcy, reorganization, arrangement of debt, insolvency or similar proceeding, or receivership law is filed by or against Customer (and if such proceeding is involuntary, it is not dismissed within 60 days after the filing thereof) or Customer takes any action to authorize any of the foregoing matters.
11. REMEDIES. If a Customer Default occurs, PAI may, in its sole discretion, exercise one or more of the following remedies: (a) declare all amounts due to PAI to be immediately become due and payable to PAI; or (b) terminate this Subscription Agreement; or (c) cancel or suspend access to, or render the Service unusable, without demand or notice and without any court order or other process of law, and no such action shall constitute a termination of the Subscription Agreement; or (d) proceed by court action to enforce performance by Customer of the Subscription Agreement and/or to recover all damages and expenses incurred by PAI by reason of any Customer Default; or (e) terminate any other agreement that PAI may have with Customer; or (f) exercise any other right or remedy available to PAI at law or in equity. Also, Customer shall pay PAI (i) all costs and expenses that PAI may incur by enforcing any of the terms, conditions or provisions of this Subscription Agreement (including reasonable legal fees and collection agency costs) and (ii) all costs incurred by PAI in exercising any of its remedies hereunder (including reasonable legal fees).
12. ASSIGNMENT. PAI shall have the unqualified right to sell, assign, grant a security interest in or otherwise convey any part of its interest in this Subscription Agreement, in whole or in part, without prior notice to or the consent of Customer. If any interests in this Subscription Agreement are sold, assigned, or otherwise conveyed, Customer agrees that PAI’s purchaser, assignee or transferee, as the case may be (“Assignee”) shall (a) have the same rights, powers and privileges that PAI has under this Subscription Agreement, (b) have the right to receive from Customer all amounts due under this Subscription Agreement, and (c) not be required to perform any obligations of PAI, other than those that are expressly assumed in writing by such Assignee. Customer agrees to execute such acknowledgements to such assignment as may be reasonably requested by PAI or the Assignee. Customer further agrees that, in any action brought by such Assignee against Customer to enforce PAI’s rights hereunder, Customer will not assert against such Assignee any set-off, defense, or counterclaim that Customer may have against PAI or any other person. Unless otherwise specified by PAI and the Assignee, Customer shall continue to pay all amounts due under the Subscription Agreement to PAI; provided, however, that upon notification from PAI and the Assignee, Customer covenants to pay all amounts due under the Subscription Agreement to such Assignee when due and as directed in such notice. Customer may not assign, transfer, sell, or pledge Customer’s rights, interests, or obligations under this Subscription without the prior written consent of PAI.
13. SURVIVAL. All representations, warranties and covenants made by Customer hereunder shall survive the cancellation or termination of this Subscription Agreement and shall remain in full force and effect. All of PAI’s rights, privileges and indemnities under this Subscription Agreement, to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the expiration or termination of such Subscription, shall survive such expiration or termination and be enforceable by PAI and PAI’s successors and assigns.
14. AGREEMENT TO ARBITRATE. In the event of a dispute which arises in connection with this Agreement which cannot be settled amicably, the Parties' exclusive remedy will be binding arbitration in Santa Clara County, California by the American Arbitration Association ("AAA") in accordance with its then-current Commercial Arbitration Rules before a single arbitrator. In connection with any arbitration, the parties will select an arbitrator with expertise relating to the subject matter herein. In the event the parties are unable to agree upon the person, the AAA will select the arbitrator according to its Commercial Arbitration Rules. Judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction thereof.
15. NOTICES. Service of all notices under this Agreement to PAI will be sent by electronic mail to paperstream@pfu-us.ricoh.com with a copy to legal@pfu-us.ricoh.com. Service of all notices under this Agreement will be delivered personally or sent by electronic mail, registered mail or courier to Customer at the address (or email address) provided to PAI by Customer on the order placed on the Site or applicable order made through PAI’s authorized Distribution Channel.
16. MISCELLANEOUS.
(a) Governing Law. Any dispute arising out of or related to these terms shall be governed by the internal laws of the State of California, without regard to or application of its choice of law rules or conflicts of laws principles. In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Santa Clara County, California, and both you and us agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims or disputes.
(b) Credit Review. Customer consents to a reasonable credit review by PAI for the subscription to the Service.
(c) Captions and References. The captions contained in this Subscription Agreement are for convenience only and shall not affect the interpretation of this Subscription Agreement or any Subscription. All references in this Subscription Agreement to Sections and Exhibits refer to Sections hereof and Exhibits hereto unless otherwise indicated.
(d) Entire Agreement; Amendments. This Subscription Agreement and the Terms of Sale (if applicable), executed by both PAI and Customer shall constitute the entire agreement between PAI and Customer relating to the subscription for the Service, and supersede all prior agreements relating thereto, whether written or oral, and may not be amended or modified except in a writing signed by the parties hereto. Where there may be a conflict between the Subscription Agreement and the Terms of Sale, the Subscription Agreement shall control. Where there may be a conflict between the Subscription Agreement and the applicable EULA, the EULA shall control.
(e) No Waiver. Any failure of PAI to require strict performance by Customer, or any written waiver by PAI of any provision hereof, shall not constitute consent or waiver of any other breach of the same or any other provision hereof.
(f) Invalidity. If any provision of this Subscription Agreement shall be prohibited by or invalid under law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Subscription Agreement.
(g) Counterparts. This Subscription Agreement may be executed in counterparts, which collectively shall constitute one document.
(h) PAI Reliance. PAI may act in reliance upon any instruction, instrument or signature reasonably believed by PAI in good faith to be genuine. PAI may assume that any employee of Customer who executes any document or gives any written notice, request or instruction has the authority to do so.
(i) Force majeure. Neither Party will be liable for damages or have the right to terminate this Agreement for any delay or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions, wars, insurrections, pandemics or epidemics, natural disasters, such as earthquakes, hurricanes or floods and/or any other cause beyond the reasonable control of the Party whose performance is affected.
17. DEFINITIONS. All capitalized terms used in this Subscription Agreement have the meanings set forth below or in the Sections of this Subscription Agreement referred to below:
“Agreement” or “Subscription Agreement” has the meaning specified in the preamble hereof.
“Assignee” means any assignee of all or any portion of PAI’s interest in this Subscription Agreement, whether such assignee received the assignment of such interest from PAI or a previous assignee of such interest.
“Claims” means all claims, actions, suits, proceedings, costs, expenses (including, without limitation, court costs, witness fees and attorneys’ fees), damages, obligations, judgments, orders, penalties, fines, injuries, liabilities and losses, including, without limitation, actions based on PAI’s strict liability in tort.
“Customer” has the meaning specified in the preamble hereof.
“Customer Default” has the meaning specified in Section 10.
“Distribution Channel” means PAI’s channel of resellers, distributors, or other partners authorized by PAI to sell PAI’s products and services in the contiguous forty-eight (48) United States, Alaska, and Hawaii.
“End User License Agreement” or “EULA” has the meaning specified in Section 5(b).
“Fees” has the meaning specified in Section 3(a).
“Initial Term” has the meaning specified in Section 2.
“PAI” has the meaning specified in the preamble hereof.
“Renewal Term” has the meaning specified in Section 2.
“Service” has the meaning specified in Section 1.
“Site” has the meaning specified in the preamble hereof.
“Software” means cloud-based software or cloud-based services, copies of computer software programs owned or licensed by PAI, and any disks, CDs, or other media on which such programs are stored or written.
“Software Offerings” has the meaning specified in Section 3(c).
“Subscription Term” has the meaning specified in Section 2.
“Taxes” means all license and registration fees and all taxes (local, state and federal), fees, levies, imposts, duties, assessments, charges and withholding of any nature whatsoever, however designated (including, without limitation, any value added, transfer, sales, use, gross receipts, business, occupation, excise, personal property, real property, stamp or other taxes) other than taxes measured by PAI’s income.
“Terms of Sale” means the terms that apply to all offers, sales and purchases of products from the Site or otherwise as indicated in a separate order form, and is entered into by and between PAI and Customer.