Pentadata Terms of Service
Last updated December 23, 2020
Pentadata, Inc. (“Pentadata”) offers a proprietary platform that allows you and other merchants and subscribers to access fully-permissioned consumer data and information as well as receive advisor services from Pentadata (the “Platform”). Except as expressly provided herein, these Terms of Service (“Terms”) and any fully executed Pentadata order forms (an “Order Form”) contain the terms and conditions that govern your access to and use of the Platform and other websites offered by Pentadata. Your access to, review of, or use of the Platform is conditioned on your acceptance of and compliance with these Terms.
Pentadata reserves the right, in its sole discretion, to change and revise these Terms at any time by posting the changes on this page. Any changes are effective immediately upon posting to this page. The most current version will be available on the Pentadata website, and the Effective Date of the current version is at the top of this page. By continuing to access or use the Platform after those revisions become effective, you agree to be bound by the revised Terms. Pentadata may, with or without prior notice, terminate any of the rights granted by these Terms. Pentadata will provide you with any additional notices or choices with respect to such changes as required by applicable law.
- The following definitions may be used in these Terms and any Order Forms:
- “Applicable Laws” means any applicable country, federal, state, and local law, legislation, ordinance, statute, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), rule of court or directives, binding court decision or precedent. You will comply with all laws, all licenses, permits and approvals required by any government or authority, and shall comply with all applicable laws, rules, policies and procedures.
- “Authorized User” is an employee of yours that has (i) been assigned a unique username-password combination to access and use the Platform, and (ii) registered online to access and use the Platform.
- “Consumer” means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- “Generally Accepted Practices” means those levels of accuracy, quality, care, prudence, completeness, timeliness, responsiveness, resource efficiency, productivity, and proactive monitoring of service performance that are at least equal to the then-current accepted industry standards generally expected of entities performing services similar to yours.
- “Personal Data” means any information relating to a consumer.
- “Platform Data” means all information and data provided or made available to you, which may include Personal Data, transactional data, as well as other consumer information and data, any manipulation of that data and any data or information Pentadata collects, generates, or otherwise makes available on the Platform. For clarity, to the extent Platform Data contains Personal Data as defined herein, the terms related to Personal Data will also apply.
- “Protected Data” means Platform Data and all Personal Data.
- “Subscription Term” means the term of your subscription to the Platform, as defined in an Order Form, during which these Terms shall be in full effect
- SUBSCRIPTION SERVICES
- Access to the Platform. Subject to your compliance with these Terms, commencing on the launch date set forth in the Order Form and continuing throughout the remainder of the Subscription Term, you and any of your Authorized Users will have access to the Platform in accordance with and subject to these Terms. You may access and use the Platform solely for your internal business purposes and such access and use is expressly limited to the number of Authorized Users for which you have paid fees in accordance with a valid Order Form. Pentadata reserves the right to revoke access to and use of the Platform at any time, with or without cause.
- Account Registration. In order to access certain features of the Platform you or your Authorized Users must each register to create an account (“Account”) and become a Member. You may register directly via the Platform, as described herein. During the registration process, you will be required to provide certain information, including a credit card number or other payment method, and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Pentadata reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Pentadata of any unauthorized use of your Account.
- Platform Restrictions. You shall not attempt to interfere with or disrupt the Platform or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Platform). You shall not allow access to or use of the Platform by anyone other than Authorized Users. You shall not: (a) copy, modify or distribute any portion of the Platform or Protected Data; (b) rent, lease, or provide access to the Platform on a time-share or service bureau basis; or (c) transfer any of its rights hereunder (unless specified in these Terms).
- Enforcement. You shall ensure that all Authorized Users comply with the terms and conditions of this Agreement. You shall promptly notify Pentadata of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Pentadata with respect to: (a) investigation by Pentadata of any suspected or alleged violation of these Terms and (b) any action by Pentadata to enforce these Terms. Pentadata may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Pentadata reasonably determines that such Authorized User has violated these Terms. You shall be liable for any violation of these Terms by any Authorized User.
- Consumer Notices and Consent. You hereby represent, warrant, and covenant that you have provided all required notices and obtained all necessary consents (including notices and consents required by Applicable Laws) to permit your and Pentadata’s access to and use of the Protected Data.
- Permitted Uses of Consumer Data. Pentadata may: (a) during the Term, use Consumer Data to provide and improve the Platform; and (b) use the Consumer Data as otherwise permitted by the Consumer (collectively the “Permitted Uses”).PAYMENT
- Account Information. When you register for an Account, you will be required to provide customary billing information such as name and billing address, and to select a subscription term and the payment frequency (monthly or annual). For individual accounts you will be required to provide a credit card number. For business accounts you may provide a credit card number or, if you request payment on an invoice basis, you will be required to provide us with the necessary information to send you an invoice.
- Payment Terms. You agree to pay the applicable subscription fees and any taxes and other fees that may accrue in relation to your use of the Platform, if any. If you select an annual payment frequency, then the entire subscription fee will be payable in advance. If you select a monthly payment frequency, then you will automatically be charged the subscription fee for the subsequent month, unless you cancel your Account at least thirty (30) days before that month begins. For accounts set up on an invoice basis, you agree to pay all amounts stated in such invoices within thirty (30) days of receipt of the invoice. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
- LEGAL AND REGULATORY STANDARDS
- You represent and warrant that you comply with, and that throughout the Subscription Term, you will continue to comply with, all Applicable Laws. You acknowledge and agree that you are solely responsible for determining Applicable Laws, and you are not relying in any manner on Pentadata in this regard. This compliance covenant is in addition to Supplier’s obligations set forth the section titled “YOUR SECURITY OBLIGATIONS” below.
- If you receive, process, transmit, use, or store any Protected Data, you represent and warrant that information security procedures, processes, and systems will at all times meet or exceed all applicable information security laws, standards, rules, and requirements related to the collection, storage, processing, and transmission of payment card information, including those established by applicable governmental regulatory agencies, the Payment Card Industry (PCI), all applicable networks, and any written standards provided by Pentadata’s information security group to you from time to time.
- If neither Applicable Laws nor these Terms specifically address a particular data security or privacy issue, you will use appropriate, Generally Accepted Practices to protect the confidentiality, security, privacy, integrity, availability, and accuracy of the potentially affected Protected Data.
- You agree that, in the event of a breach of these Terms, neither Pentadata nor any relevant data contributor (which may be a natural person or business) will have an adequate remedy in damages. Pentadata or an affected data contributor shall therefore be entitled to seek injunctive or equitable relief to immediately cease or prevent the further use or disclosure of Protected Data and ensure compliance with all Applicable Laws.
- In the event and to the extent that the Applicable Laws impose stricter obligations on you than the express obligations under these Terms, you shall comply with the obligations under the Applicable Laws.
- YOUR SECURITY OBLIGATIONS
- Safeguarding Protected Data. You agree that the use, storage, and access to Protected Data shall be performed with that degree of skill, care, and judgment customarily accepted as sound, quality, and professional practices. You shall implement and maintain safeguards necessary to ensure the confidentiality, availability, and integrity of Protected Data. You shall also implement and maintain any safeguards required to be implemented by Applicable Laws.
- Such safeguards shall include as appropriate, and without limitation, the following:
- System Security. A system that is owned or operated by you and contains Protected Data (“System”) shall be secured as follows:
- You shall implement controls reasonably necessary to prevent a breach.
- The System shall use secure protocols and encryption to safeguard Protected Data in transit.
- You understand the System may be placed on a public network and shall implement safeguards reasonably necessary to protect its System from compromises and attacks. Supplier will protect the System with firewalls.
- You shall additionally:
- Limit administrative access to the System,
- Limit remote access to the System,
- Limit account access and privileges to the least necessary for the proper functioning of the System,
- Remove or disable applications and services that are not necessary for the proper functioning of the System,
- Use named user accounts and not generic or shared accounts,
- Use Federated Single Sign On, Kerberos, or other industry compliant services for authentication and authorization, and
- Enable an appropriate level of auditing and logging for the operating system and applications.
- The System shall allow the changing of System and user passwords.
- System Security. A system that is owned or operated by you and contains Protected Data (“System”) shall be secured as follows:
- Data Protections. You shall implement controls reasonably necessary to prevent unauthorized use, disclosure, loss, acquisition of, or access to Protected Data. This includes, but is not limited to personnel security measures, such as background checks. All transmissions of Protected Data by you shall be performed using a secure transfer method.
- Oversight. Pentadata reserves the right to request security information to confirm compliance with these Terms, as well as security information reasonably necessary to ascertain Pentadata’s own compliance with state and federal privacy and data security laws. Upon Pentadata’s request, you shall provide a copy of your most recent information security audit report, and that of any datacenter in which Protected Data is stored.
- Information Security Incident Reporting and Response. If you become aware that Protected Data may have been accessed, disclosed, or acquired without proper authorization and contrary to the these terms or any other agreement with Pentadata, you shall use reasonable efforts to promptly alert Pentadata of any Information Security Incident, and shall immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the Information Security Incident. You shall give highest priority to immediately correcting any Information Security Incident and shall devote such resources as may be required to accomplish that goal. You shall provide Pentadata information necessary to enable Pentadata to fully understand the nature and scope of the Information Security Incident. If required by Applicable Laws, you shall provide notice and credit monitoring to parties affected by any Information Security Incident. Upon request, you shall provide Pentadata information about what you have done or plan to do to mitigate any deleterious effect of the unauthorized use or disclosure of, or access to, Protected Data. In the event that an Information Security Incident requires your assistance in reinstalling software or reconstructing databases or servers, such assistance shall be provided at your sole cost and expense. Pentadata may discontinue your access to the Platform until Pentadata, in its sole discretion, determines that the cause of the Information Security Incident has been sufficiently mitigated.
- As between Pentadata and you, the Platform, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Pentadata or its licensors. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform.
- In the event of any claims that you have infringed or misappropriated the Intellectual Property Rights of any third party through the use of the Platform, Pentadata will reasonably cooperate with you in the resolution of any such claim. Such cooperation is at Pentadata’s sole discretion and may include, but is not limited to, the licensing of Pentadata’s Intellectual Property Rights to you to demonstrate non-infringement or lack of misappropriation.
- Definition. The parties may have access to each other’s Confidential Information. “Confidential Information,” as used in these Terms, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in in these Terms as confidential. Pentadata Confidential Information includes, without limitation, the Platform, and any other sensitive information whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Platform.
- Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence. The foregoing exceptions shall not apply to Personal Information or any other personally identifiable information that is protected by applicable privacy or similar laws.
- Use and Nondisclosure. During the Subscription Term and for a period of five (5) years after expiration or termination of an Order Form, or longer as required by applicable, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under these Terms. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the these Terms, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
- THE PLATFORM IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS, AND NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR PROMISES HAVE BEEN MADE BY PENTADATA TO YOU OR ANY OTHER PERSON OR ENTITY REGARDING THE ORIGINALITY, MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PLATFORM, OR ANY OTHER MATTER AND NO WARRANTY IS GIVEN THAT THE PLATFORM WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE FREE OF OMISSIONS, ERRORS, INTERRUPTIONS, OR DEFECTS.
- Disclaimer. You assume sole responsibility and liability for results obtained from the use of the Platform and for conclusions drawn from such use. Pentadata shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Pentadata by you in connection with the Platform or any actions taken by Pentadata at your direction. Pentadata shall have no liability for any claims, losses or damages arising out of or in connection with your or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Platform.
- EXCEPT AS EXPRESSLY PROVIDED ABOVE, PENTADATA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE PLATFORM WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED ABOVE, PENTADATA DISCLAIMS ANY WARRANTY THAT THE PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PENTADATA FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PLATFORM AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PENTADATA FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PENTADATA OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
- INDEMNIFICATION AND LIMITATION OF LIABILITY
- Indemnification by You. You shall defend, indemnify, and hold harmless Pentadata and its officers, directors, employees, agents, successors, and permitted assigns from and against all third-party claims, suits, or other actions and all losses, liabilities, costs, expenses, and damages (including but not limited to reasonable attorneys’ fees, and all costs and expenses associated with data breach response and notification obligations) arising from or related to (i) any breach of Applicable Laws, including without limitation privacy and data security laws and regulations, by you, your Authorized Users or other employees or agents; (ii) any breach of these Terms or an Order Form by you, your Authorized Users or other employees or agents; or (iii) your access to or use of the Platform or Protected Data. Your obligations under this section are contingent upon: (a) Pentadata providing you with prompt written notice of such claim; (b) Pentadata providing reasonable cooperation to you, at your expense, in the defense and settlement of such claim; and (c) you having sole authority to defend or settle such claim.
- Indemnification by Pentadata. Pentadata shall defend (or settle) any suit or action brought against you to the extent that it is based upon a claim that the Platform infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against you. Pentadata’s obligations under this section are contingent upon: (a) you providing Pentadata with prompt written notice of such claim; (b) you providing reasonable cooperation to Pentadata, at Pentadata’s expense, in the defense and settlement of such claim; and (c) Pentadata having sole authority to defend or settle such claim. In the event that Pentadata’s right to provide the Platform is enjoined or in Pentadata’s reasonable opinion is likely to be enjoined, Pentadata may obtain the right to continue providing the Platform, replace or modify the Platform so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate the Order Form without liability to you. THE FOREGOING STATES THE ENTIRE OBLIGATION OF PENTADATA AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM. Pentadata shall have no liability under this to the extent that any third-party claims described herein are based on use of the Platform in a manner that violates these Terms or the instructions given to you by Pentadata.
- LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS OR A BREACH SECURITY OR CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY IINCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
- Notwithstanding any other provisions of these Terms, in no event shall Pentadata’s aggregate liability to you and any third party in connection with these Terms, any Order Form, or your access to and use of the exceed the total monthly subscriptions fees paid by you in the twelve month period preceding the claim or action, regardless of the form or theory of the claim or action.
- Acknowledgement. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
- Governing Law. These Terms and all matters arising out of or relating to these Terms shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to these Terms shall be brought exclusively in the state or federal courts located in the Northern District of California. Pentadata and you hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
- Waiver. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach.
- Notices. Written notices may be sent via first-class mail to 851 Burlway Avenue, Suite 711, Burlingame, California 94010 or via the Contact Us Page. You agree that Pentadata may send notices to you regarding your use of the Platform by means of electronic mail, a general notice posted on the Platform, or by written communication delivered either by overnight courier or U.S. mail to your email or mailing address as appearing in our records from time to time.
- Severability. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms shall remain in full force and effect.
- Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and such party continues to use commercially reasonable efforts to resume performance.
- Relationship Between the Parties. Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
- Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Pentadata’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Pentadata may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Entire Agreement. These Terms together with any duly executed Order Forms constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms. These Terms may not be modified or amended except in a writing signed by a duly authorized representative of each party.
- Non-Exclusive Remedies. Except as set forth herein, the exercise by either party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
- Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of these Terms may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
- No Third-Party Beneficiaries. These Terms intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to these Terms may enforce them.
- Headings. The headings in these Terms are for the convenience of reference only and have no legal effect.
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HOW DO I CONTACT PENTADATA?
Feel free to contact Pentadata with any questions you have about these Terms. We can be reached by phone at 650-393-4177, by email at info@Pentadatainc.com and the following mailing address:
851 Burlway Avenue, Suite 711, Burlingame, California 94010