Published and Effective as of December 14, 2022.

By indicating your acceptance of this Agreement or accessing or using the Service, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it.

Picflow offers a unique Service for creative collaboration designed to allow users to create, share, and centralize communication through an interactive online platform. This Agreement governs the use of Picflow for self-serve customers only.

Customers may access and use the Service during the Subscription Term for internal business purposes in accordance with this Agreement.

Only Users may access or use the Service. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Picflow’s breach of this Agreement). Customer will promptly notify Picflow if it becomes aware of any compromise of its User login credentials. Picflow uses User account information as described in its Privacy Policy.

Customer may designate a User as an administrator with control over Customer’s Service account, including management of Users and Customer Content. Customer is fully responsible for its choice of administrators and any actions they take.

Affiliates of the Customer may use the Service as external Users of Customer. Alternatively, an Affiliate of Customer may enter its own Order Form(s) as mutually agreed with Picflow, and this creates a separate agreement between the Affiliate and Picflow that incorporates this Agreement with the Affiliate treated as “Customer.” Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Picflow, and breach or termination of any such agreement is not breach nor termination under any other.

If you created an account using an email address belonging to your employer or other entity, you represent and warrant that you have the authority to create an account on behalf of such entity and further acknowledge that Picflow may share your email address with and control of your account may be taken over by such entity (as the “Customer”). Upon such takeover, the administrator controlling the account may be able to (i) access, disclose, restrict, or remove information from the account, (ii) restrict or terminate your access to the Service, and (iii) prevent you from later disassociating such account from the Customer.

If you are invited to another Customer’s Project, you acknowledge that your access to that Project, as well as any content you submit, will be under the sole control of that other Customer.

Through the Service, you control who you share Projects with (including making Projects public). Picflow has no liability for how others may access or use Customer Content as a result of your or your Users’ decision to share a Project.

The Service is not intended for, and may not be used by, anyone under the age of 18. Customer is responsible for ensuring that all Users are at least 18 years old.

Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to Picflow), (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (g) publish benchmarks or performance information about the Service, (h) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (i) transmit any viruses or other harmful materials to the Service, (j) allow Users to share User seats, (k) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (l) use the Service to store or transmit material which contains illegal content.

During the Subscription Term, Picflow will provide Support in accordance with the Support Policy.

Customer grants Picflow a non-exclusive, worldwide license to use, copy, store, transmit, and display Customer Content, as well as to modify or create derivative works of Customer Content when necessary for purposes such as reformatting, optimizing, or processing content to deliver and improve the Service, Support, and Technical Services. Picflow may also utilize anonymized or aggregated Customer Content for purposes such as analytics, research, and to enhance the Service. Additionally, Picflow reserves the right to reference publicly available Customer names, logos, or content shared through the Service in marketing and promotional materials. Customers may request to opt out of such promotional use by contacting Picflow.

Picflow implements reasonable technical and organizational measures to safeguard the Service and Customer Content. Details on these measures are outlined in Picflow’s Security Policy, which is incorporated by reference into this Agreement.

Each party agrees to handle personal data in compliance with applicable laws and regulations as outlined in the Data Processing Addendum. The DPA is an integral part of this Agreement and governs the processing of personal data by Picflow.

Customer is responsible for its Customer Content, including its content and accuracy, and agrees to comply with Laws in using the Service. Customer represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Customer Content with the Service and grant Picflow the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Content.

Customer must not use the Service with Prohibited Data or for High-Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Picflow is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Picflow has no liability for Prohibited Data or use of the Service for High-Risk Activities.

The Service may contain functionality allowing Customer to convert accounts previously registered by individuals using email addresses from Customer’s domain into User accounts under Customer’s control. Customer represents and warrants that it has all necessary rights and consents to the extent it converts any existing accounts registered using email addresses from Customer’s domain into accounts under Customer’s control.

Picflow may suspend Customer’s or a User’s access to and use of the Service and related services if Customer breaches Section 2.8 (Age Requirement for Users), Section 2.9 (Restrictions) or Section 5 (Customer Obligations), if Customer’s account is 10 days or more overdue or if Customer’s or User’s actions risk harm to other customers or the security, availability or integrity of the Service. Where practicable, Picflow will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Picflow will promptly restore Customer’s or User’s access to the Service in accordance with this Agreement.

Customer may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Picflow does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Content. If Customer enables a Third-Party Platform with the Service, Picflow may access and exchange Customer Content with the Third-Party Platform on Customer’s behalf.

Customer may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Picflow does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Content. If Customer enables a Third-Party Platform with the Service, Picflow may access and exchange Customer Content with the Third-Party Platform on Customer’s behalf.

For self-serve customers, subscriptions are billed on a recurring basis according to the chosen plan (e.g., monthly or annually). Customers can cancel their subscription at any time via their account settings. Cancellations take effect at the end of the current billing cycle, and no further charges will apply. If a cancellation request is made via email instead of through the account settings, the request must be submitted at least 30 days before the upcoming renewal to ensure it is processed in time.

Picflow offers a 14-day money-back guarantee for new subscriptions. After the 14-day period, no refunds or credits will be issued, including for mid-cycle cancellations.

Fees for the Service are as described during the purchase process. Customers agree to provide accurate payment information and authorize Picflow to charge the provided payment method for recurring subscriptions.

Picflow warrants to Customer that: (a) the Service will perform materially as described in the Documentation and Picflow will not materially decrease the overall functionality of the Service during a Subscription Term (the “Performance Warranty”) and (b) Picflow will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”).

If Picflow breaches Section 10.1 (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Picflow will use reasonable efforts to correct the non-conformity. If Picflow cannot do so within 60 days of Customer’s warranty claim, either party may terminate the affected Order Form as relates to the non-conforming Service or Technical Services. Picflow will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are Customer’s exclusive remedy and Picflow’s entire liability for breach of the warranties in Section 10.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 (LIMITED WARRANTY), THE SERVICE, SUPPORT, TECHNICAL SERVICES AND ALL RELATED PICFLOW SERVICES ARE PROVIDED “AS IS”. PICFLOW AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS IN SECTION 3 (SUPPORT), PICFLOW DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE IN COMBINATION WITH THIRD-PARTY SERVICES USED BY CUSTOMER OR MAINTAIN CUSTOMER CONTENT WITHOUT LOSS. PICFLOW IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE PICFLOW’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.

This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.

Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

Either party may terminate this Agreement (including all Orders) at any time for any reason upon 90 days’ notice to the other party, provided (i) Customer will not be entitled to a refund of any pre-paid fees and (ii) if Customer has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.

Upon expiration or termination of this Agreement or an Order, Customer’s access to the Service and Technical Services will cease, other than limited use of the Service to export Customer Content as described in Section 4.4 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Content, which is addressed in Section 4.4). Customer Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.

These Sections survive expiration or termination of this Agreement: 2.9 (Restrictions), 4.4 (Data Export), 5 (Customer Obligations), 9.2 (Fees and Taxes), 10.3 (Disclaimers), 11.4 (Effect of Termination), 11.5 (Survival), 12 (Ownership), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 20 (General Terms) and 21 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Picflow’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Content and Customer Materials provided to Picflow. Except for Customer’s use rights in this Agreement, Picflow and its licensors retain all intellectual property and other rights in the Service, any Technical Services deliverables and related Picflow technology, templates, formats and dashboards, including any modifications or improvements to these items made by Picflow. Picflow may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. If Customer provides Picflow with feedback or suggestions regarding the Service or other Picflow offerings, Picflow may use the feedback or suggestions without restriction or obligation.

THE DISCLAIMER IN THIS SECTION 13.1 (CONSEQUENTIAL DAMAGES WAIVER) WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAWS. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, REVENUES, GOODWILL, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PICFLOW DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.

“Excluded Claims” means: (a) Customer’s breach of Sections 2.9 (Restrictions) or 5 (Customer Obligations), (b) either party’s breach of Section 15 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 14.2 (Indemnification by Customer), (d) either party’s willful misconduct or (e) Picflow’s performance of the Service that results in death, personal injury or damage to tangible property.

The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

Picflow will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Picflow resulting from the claim.

Customer will defend Picflow from and against any third-party claim to the extent resulting from Customer Content, Customer Materials or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Picflow against any damages or costs awarded against Picflow (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.

The indemnifying party’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Picflow is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

In response to an actual or potential infringement claim, if required by settlement or injunction or as Picflow determines necessary to avoid material liability, Picflow may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order Form and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Picflow’s obligations in this Section 14 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by Picflow (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by Picflow, (3) to unauthorized use of the Service, (4) if Customer settles or makes any admissions about a claim without Picflow’s prior consent, (5) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation. This Section 14 sets out Customer’s exclusive remedy and Picflow’s entire liability regarding infringement of third-party intellectual property rights.

“Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Picflow’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service. Customer’s Confidential Information includes Customer Content.

As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Picflow, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 15.

These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15.

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Picflow (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Picflow may never release, and their features and performance information are Picflow’s Confidential Information. Notwithstanding anything else in this Agreement, Picflow provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas.

Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Picflow may include Customer and its trademarks in Picflow’s customer lists and promotional materials but will cease this use at Customer’s written request.

Picflow may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. Unless a shorter period is specified by Picflow (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order. If Picflow specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Picflow of its objection to the modifications within 30 days after the date of such notice, Picflow (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or Picflow must resolve any claims relating to these terms, the Services, or the Software through final and binding arbitration, except that you or Picflow may assert claims before the courts of the Canton of Zürich, Switzerland.

Your relationship is with Nusign AG, a company incorporated under the laws of Switzerland, with its registered offices at Schöneggstrasse 5, 8004 Zürich, Switzerland, and the Services and Software are governed by the laws of Switzerland.

The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page. Either party may update its address with notice to the other party. All notices to Picflow must include a copy emailed to legal@picflow.com. Picflow may also send operational notices to Customer by email or through the Service.

This Agreement (which includes all Order Formss, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Picflow. Nonetheless, with notice to Customer, Picflow may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Picflow’s overall obligations during a Subscription Term. The terms in any past, contemporaneous or future Customer purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by Picflow; any of these documents are for administrative purposes only and have no legal effect.

Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

Picflow may use subcontractors and permit them to exercise Picflow’s rights, but Picflow remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

The parties are independent contractors, not agents, partners or joint venturers.

The Software may incorporate third-party open source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.