Terms of Service

Updated: December 12, 2022

These Terms of Service (“Terms”) cover every user’s and organization’s (collectively, “Customer”) use and access to the products, services, software, and websites (collectively, “Services”) provided by Pckgr. If you use Pckgr’s Software Services as the employee or affiliate of an organization, you are accepting these Terms on behalf of that organization; you represent that you have authority to bind the organization.

Section 1: Grant of License

1.1 Software Subscription. If Customer purchases a Software Subscription, Pckgr will grant the Customer unlimited access to its Software. Pckgr shall make all software, installs, and updates available via digital download; Customer may retain backup copies when applicable. However, this license does not grant Customer the right to sublicense or to use the object code of the Software.

1.2 Trial License. If Pckgr provides Customer with Software under a Trial Subscription License, then Pckgr grants Customer a non-exclusive, limited, royalty-free, non-transferable license. Trial Subscription License is not for production use. The Trial Subscription License automatically terminates on the end date of the pre-determined evaluation period. Pckgr reserves to right to immediately revoke the Trial Subscription License upon Notice to Customer.

1.3 Not For Resale License. If Pckgr provides Customer with Software under a Not for Resale License, then Pckgr grants Customer a non-exclusive, limited, royalty-free, non-transferable evaluation license. Customer shall not use the Not for Resale License for production or use with its customer. The Not for Resale License automatically terminates on the end date of the pre-determined evaluation period. Pckgr reserves to right to immediately revoke the Not for Resale License upon Notice to Customer.

1.4 Automated Software Updates. The Software will automatically use the internet to search and apply updates for the Software; updates will install automatically. Customer may disable self-updates within the Software.

Section 2: Restrictions

2.1 General License Restrictions. Customer may not use, copy, or install, or deploy the Software to more Devices than licensed device count, except as provided in Section 2.2.

2.2 Non-Transferable. Customer shall not transfer, assign or sublicense their license to any other person or organization. Any attempted transfer, assignment, sublicense or use shall void their original license.

Section 3: Ownership and Rights Reserved

3.1 Software Licensed, not Sold. The Software is licensed, not sold. These Terms do not grant the Customer any rights, title, or interest in or to Software, documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any images, video, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of Pckgr. All rights, title, and interest in and to the Software, documentation, and corresponding intellectual property shall remain the property of Pckgr.

3.2 Ownership. Pckgr reserves all rights not expressly granted in this Terms of Service. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable laws and treaties, including intellectual property laws. These Terms do not grant Customer any rights to such content, including the use of the same.

3.3 Open-Source Software. The Software contains third party software using open-source licenses that may supersede these Terms to the extent required by that open-source license. All open-source software is provided “AS IS” without any warranty. Pckgr currently uses, but is not limited to the following open-source software sources.

(a) Winget Notice and Conditions. The Software may include or utilize certain software which is owned by Winget (the “Winget Code”), the source code of which is available under the MIT License. Pckgr may make modifications to this Winget Code. The license for the Winget Code is included here as Exhibit A. Those terms are fully applicable to the use of those portions of the Software that consist of or are derived from the Winget Code.

3.4 Customer Ideas. Pckgr shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to implement in the Software any idea, feature requests, recommendation or other feedback provided by the Customer or any third party, including affiliates, relating to the operation, features, design, or functionality of the Software.

3.5 Access to the Software. To use the Software, Customer needs access to a web browser. To utilise the software, Customer needs Windows Operating System 10 or later. Customer is responsible for ensuring that its Device and software do not disturb or interfere with the operation of the Software. If any update requires changes in Customer’s Device or software, the Customer must implement these changes at their own expense. Every update shall be subject to these Terms.

3.6 Software Delivery. Pckgr will grant access to the software by providing a portal which can be accessed with a web browser. The Software will be considered accepted by Customer upon making a payment for the software.

Section 4: Confidentiality

4.1 Confidential Information. Both Pckgr and Customer shall keep confidential, and not disclose to any third party any Confidential Information which may be provided in connection with these Terms.

4.2 Compelled Disclosure. Both the Pckgr and Customer may disclose Confidential Information pursuant to applicable court order or other legal process if they are compelled by law to do so. The disclosing party must provide the other party with Notice before such mandatory disclosure to the extent legally permitted.

Section 5: Fees, Payments, and Refunds

5.1 Software Subscription Fees. Customer shall pay all charges specified within every invoice. All charges are quoted and payable in United States dollars unless designated otherwise on the invoice. All payment obligations are non-cancellable, except as provided in Section 5.5.

5.2 Invoicing and Payment. Customer is responsible for providing complete and correct billing information. Invoices are due net 30 days unless stated otherwise in the invoice. Any terms and conditions on any purchase order are not a part of these Terms, nor are they binding on Pckgr.

5.3 Overdue Payments and Software Suspension. Customer shall pay a late fee equal to an 18% APR for any balance that is over 30 days overdue. Pckgr, may, in its sole discretion, suspend the Customer’s access to the Software for any Overdue Invoice without limiting its other rights and remedies. Pckgr shall unsuspend Customer’s access to Software upon full payment of Overdue Invoice.

5.4 Taxes. Pckgr will collect sales tax, where applicable, starting August 15, 2022.

5.5 Refund. All refund requests must be made within 30 days of purchase. Pckgr wants you to be 100% satisfied with our Services. If you are less than satisfied or believe there has been an error in billing, please contact our Customer Service Department by emailing [e-mail]. Pckgr will offer Customer a full refund if Customer requests a refund within the 30 day window to try and facilitate the refund process. Provided however that Pckgr cannot ensure that Customer will comply with this section.

5.6 Requesting Refund. When contacting us, please include all details relating to the Software you have purchased so that we can ensure you are completely satisfied with your experience. Pckgr, at its discretion, will seek to solve the issue, provide a refund, or offer a credit that can be used for future Software.

5.7 Third-Party Refund Exception. Pckgr does not offer refunds on payments submitted to other third parties with a role in processing Customer’s order, such as a reseller.

Section 6: Service Level Agreement

6.1 Purpose. Pckgr will use commercially reasonable efforts to make its Application Packaging and Deployment Service is available. This Section sets minimum levels of service for its Application Packaging and Deployment Service.

6.2 Monthly Uptime Targets. Monthly uptime targets are calculated based on calendar months.

Monthly uptime targets are as follows:

• Less than 99.0% but greater than or equal to 95.0% = 10% Service Credit

• Less than 95.0% but greater than or equal to 90.0% = 25% Service Credit

• Less than 90.0% = 50% Service Credit

6.3 Remedy. The Service Credit set forth in this Section are Customer’s sole remedy for performance below the set targets. Customer must submit a claim within the following calendar month where Pckgr failed to meet the uptime target.

6.4 Credit Claim Process. Customer must submit a claim to Pckgr within one calendar month of the failure to meet a monthly uptime target. Claims must be submitted to Pckgr’s chatbot or email. Customer’s claim must let Pckgr know that 1) it is inquiring about a “SLA Credit Request,” 2) identify the billing cycle where Pckgr failed to meet its monthly uptime target, and 3) provide evidence that Pckgr failed to meet the monthly uptime target (e.g., a PDF of the relevant uptime report).

6.5 Customer Credits. Pckgr shall issue any Service Credit within 60 days of Customer’s submission via the Contact Us Form. Service Credits cannot be turned into cash back; Service Credits can only be used for future services with Pckgr.

6.6 Exclusions. Pckgr shall not issue Service Credits for any unavailability, suspension, or termination of its packaging or deploying Service due to either 1) factors outside Pckgr’s reasonable control, or 2) that result from any actions or inactions of Customer, or 3) that result from Customer’s equipment or software malfunction. Claims that are not submitted by Customer according to Section 6.4 will disqualify Customer from receiving a Service Credit.

Section 7: Limitation of Liability and Indemnification

7.1 Limitation of Liability. In no event will Pckgr be held liable to Customer or any third party for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use or inability to use the program or for any claim by any other party even if Pckgr has been advised of the possibility of such damages. Pckgr’s entire liability with respect to its obligations under these Terms or otherwise with respect to the Software shall not exceed the amount paid by the Customers to Pckgr. Customer will not rely on Pckgr for projects with potential damages in excess of Pckgr’s public liability insurance amount.

7.2 Indemnification. Customer and Pckgr agree to indemnify, defend, and hold harmless the other party, its officers, directors, employees, agents, and third parties, for any losses, costs, liabilities, and expenses (including reasonable attorney’s fees) relating to or arising out of Customer’s inability to use the Software, the other party’s violation of these Terms or the rights of a third party, or the other party’s violation of any applicable laws, rules, or regulations. The indemnified party reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the other party, in which event the other party will fully cooperate in asserting any available defenses.

Section 8: Termination

8.1 Mutual Termination. These Terms are effective until terminated by either party. Either party may terminate these terms at any time by providing Notice to the other party.

8.2. Customer’s Obligation Upon Termination. Upon termination, Customer shall destroy all copies of Software and obtained packages and give Notice to Pckgr certifying that all copies have been destroyed.

8.3 Pckgr Termination. Pckgr may terminate these Terms for any reason, including but not limited to Customer’s breach of these Terms.

8.4 Payment after Termination. Termination of these Terms for any reason shall not affect any payment obligations due under these Terms.

8.5 Surviving Provisions. All provisions relating to confidentiality, proprietary rights, non-disclosure, and limitation of liability shall survive any termination of these Terms.

Section 9: General

9.1 Warranty Disclaimer. Pckgr represents that the Software will operate as it is advertised. Pckgr does not represent that its Software is or warrant that future versions of its Software will be error-free. The Software is provided “AS IS” without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose and without warranty as to the performance or results you may obtain by using the Software.

Customers are responsible for determining the appropriate use of the Software and assume all of the risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations.

9.2 Changes to Terms. Pckgr reserves the right to change the Terms. The most current version of these Terms will supersede all previous versions. Pckgr encourages you to periodically review the Terms to stay informed of our updates.

9.3 Governing Law. These Terms will be construed and enforced in accordance with, and governed by, the State of Victoria, Australia laws without giving effect to principles of conflicts of law. Customer and Pckgr unconditionally waive all rights to a trial by jury for any dispute arising in connection with these Terms.

9.4 Customer Identification. Customer permits Pckgr to use Customer’s logo(s) for the purpose of customer identification in sales presentations and/or marketing materials. However, Customer may revoke this permission by giving Notice to Pckgr.

9.5 Contact Us. Pckgr welcomes your questions or comments regarding the Terms:

Attn.

Legal Dept.

Email: [e-mail]

Section 10: Definitions

Confidential Information: Any non-public information disclosed by one party to this contract to the other party, either directly or indirectly, (including, without limitation, pricing, trade secrets, product roadmaps, services, customers, Software, inventions, engineering, hardware information, marketing or financial information), which is designated as “Confidential,” “Proprietary” or an alike designation, or should reasonably be understood to be confidential or proprietary information given the nature of the information and the circumstances of disclosure.

Customer: Every person and company that purchases a Software Subscription, is granted a Not for Resale License or a Trial License, uses any of Pckgr’s Software, or agrees to these Terms.

Devices: Every device owned or under governance by Customer that can be affected by Pckgr’s Software.

Packaging and Deployment: Pckgr’s catalog of applications.

Not for Resale License: A license provided to Customer for evaluation in a lab environment.

Notice: Formal, written notice, can be provided via email to [e-mail]. Pckgr may provide formal written notice to Customer at the address or email address provided on the Customer’s invoices.

Overdue Invoice: Anything payment that is more than 30 days overdue.

Service Credit: A dollar credit, calculated as set forth above, that Pckgr may credit back to an eligible Customer account.

Software: Any software and all cloud-based services provided by Pckgr.

Software Subscription: Any software and all cloud-based services provided by Pckgr, on an annual licensing model, allowing the Customer to pay a per-device or per description of service fee. The Customer will pay the initial subscription fee upfront and is entitled to use the Software during the subscription term.

Taxes: All taxes, levies, duties or similar governmental assessments in any type, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.

Trial Subscription License: A license provided to Customer for evaluation prior to purchase or implementation.

Section 11: Exhibit of Licenses

Exhibit A: In reference to Winget open-source software used. MIT License Copyright (c) Microsoft Corporation. All rights reserved. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.