Terms and Conditions
‍Pasito, Inc., a Delaware corporation (“Pasito”), has developed and makes available, among other things, a SaaS-based benefits decisions support and communications platform (the “Pasito Product”).  These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Pasito, and the counterparty identified as the customer in the applicable Order Form (“Customer”).  These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”.  You are accepting and agreeing to these Terms and Conditions on behalf of your employer or other entity or organization that you represent, and the term “Customer” under this Agreement will be such employer or other entity or organization, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity or organization to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity or organization.


‍1. Definitions
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‍1.1 The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity’s management.

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Pasito Product accounts, including from Third-Party Platforms.

“Documentation” means Pasito’s standard usage documentation for the Pasito Product.

“Order Form” means an order form, quote or other similar document, or online order, that sets forth the specific Pasito Product and pricing for the Pasito Product (including in relation to overages), permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties.

“Third Party Platform” means any product, add-on or platform not provided by Pasito that Customer uses with the Pasito Product.

“User” means anyone that Customer allows to use its accounts for the Pasito Product, consisting of (a) employees and contractors of Customer and (b) others if permitted in this Agreement, the Documentation or an Order Form.


‍2. Pasito Product
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‍2.1     Provision of Pasito Product.  Subject to this Agreement, Pasito will make the agreed-upon features of the Pasito Product (as set forth in the applicable Order Form) available to Customer pursuant to this Agreement, the SLA located at https://pasito.ai/SLA and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Pasito Product for its internal business purposes.  Customer may permit Users to use the Pasito Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Pasito Product and for their compliance with this Agreement.

2.2.    Data Security. Pasito will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Pasito will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Security, Privacy & Responsible AI at Pasito page located at https://pasito.ai/security (the “Security and AI Page”) posted as of the date of the applicable Order Form (and as the Security Page may be updated by Pasito in a manner that does not materially decrease the applicable protections).

2.3    Customer Responsibilities; User Information; Text Messaging
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(a)Customer acknowledges that Pasito’s provision of the Pasito Product is dependent on Customer internally promoting the Pasito Product and providing all reasonably required cooperation (including the prompt provision of benefits package information, secure login credentials for benefits enrollment or administration platform, personnel and cooperation as reasonably required), and Customer will provide all such cooperation in a diligent and timely manner.

(b)Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Pasito Product and notify Pasito promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Pasito Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Pasito Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Pasito will have no liability for such failure (including under any service level agreement).

(c)Customer acknowledges that any content, materials, data, or other information that Users provide to Pasito through the Pasito Product is confidential information of such Users and will not be transmitted to Customer in a manner that is personally identifiable.

(d)Various portions of the Pasito Product (including Pasito’s microsite and decision support products) are certified as accessible based on the Web Content Accessibility Guidelines (“WCAG”). Pasito shall have no liability or other responsibility for the foregoing in the event Customer adds content, branding and/or other information to the foregoing that results in a failure to meet such WCAG standards.

(e)The Pasito Product includes SMS functionality in order for Customer’s employees to receive text messages with various details regarding their benefits packages. It is Customer’s sole responsibility to obtain all necessary consents from its employees to send text messages regarding the Pasito Product, and Pasito shall have no liability with respect to the foregoing.

2.4     Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Pasito and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

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‍3. Fees

3.1    Fees. Customer will pay Pasito the fees set forth in the applicable Order Form.  Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.  If Customer disputes an invoice in good faith, it will notify Pasito within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable.  Pasito may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

3.2   Late Payment.  Pasito may suspend access to the Pasito Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.  If Pasito has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Pasito.

3.3  Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Pasito.  Customer will not withhold any Taxes from any amounts due to Pasito.

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‍4. Proprietary Rights

4.1  Proprietary Rights.  As between the parties, Pasito exclusively owns all right, title and interest in and to the Pasito Product, System Data and Pasito’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Pasito Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information.  “System Data” means data collected by Pasito regarding the Pasito Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Pasito Product. Pasito may use artificial intelligence (“AI”) to better service Customer and Customer’s employees. Pasito does not train AI models on personal information. For more information on Pasito’s AI practices, reference Security, Privacy & Responsible AI at Pasito located at https://pasito.ai/security (the “Security and AI Page”).

4.2   Feedback.  Customer may from time to time provide Pasito suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Pasito Product.  Pasito will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Pasito will have the full, irrevocable and unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Pasito will not publicly identify Customer as the source of Feedback without Customer’s permission.

4.3  Product Improvement and Aggregated Statistics. Customer further agrees that Pasito has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Pasito Product and shall be free (during and after the term hereof) to (a) use such data and other information to improve Pasito’s products and services (including the Pasito Product), and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.


5. Confidentiality; Restrictions

5.1  Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information: (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors, or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

5.2  Technology Restrictions.  Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Pasito Product; (b) attempt to probe, scan or test the vulnerability of the Pasito Product, breach the security or authentication measures of the Pasito Product without proper authorization or wilfully render any part of the Pasito Product unusable; (c) use or access the Pasito Product to develop a product or service that is competitive with Pasito’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Pasito Product or otherwise offer the Pasito Product on a standalone basis; or (e) otherwise use the Pasito Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.


6. Warranties and Disclaimers

6.1  Mutual.  Each party warrants that: (a) it has the legal power and authority to enter into this Agreement; and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Pasito Product.

6.2  Pasito.  Pasito warrants that the Pasito Product will perform materially as described in the Documentation and Pasito will not materially decrease the overall functionality of the Pasito Product during the applicable subscription term (the “Performance Warranty”).  Pasito will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Pasito fails to do so within thirty (30) days after Customer's warranty report (“Fix Period”), then either party may terminate the applicable Order Form as it relates to the non-conforming Pasito Product, in which case Pasito will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term. To receive this remedy, Customer must report a breach of warranty in reasonable detail within thirty (30) days after discovering the issue in the Pasito Product. These procedures are Customer’s exclusive remedies and Pasito’s sole liability for breach of the Performance Warranty.

6.3  Customer.  Customer warrants that it has all rights necessary to provide all Customer Data hereunder, and to permit Pasito to use the same as contemplated hereunder.

6.4  DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER ACKNOWLEDGES THAT THE PASITO PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S HUMAN RESOURCES AND BENEFITS ADMINISTRATION SYSTEMS AND PROCESSES.  PASITO DOES NOT REPRESENT OR WARRANT THAT THE PASITO PRODUCT WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE PASITO PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE, TAX ADVICE, INVESTMENT ADVICE, INSURANCE ADVICE OR LEGAL COUNSEL.  PASITO IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

6.5  BETA PRODUCTS.  FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH PASITO WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY PASITO. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”.  PASITO DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO.  CUSTOMER OR PASITO MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.


7. Indemnification

7.1  Indemnity by Pasito.  Pasito will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Pasito Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved in writing by Pasito) in connection with any such Claim; provided that: (a) Customer will promptly notify Pasito of such Claim; (b) Pasito will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Pasito may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, conditioned or delayed unless it unconditionally releases Customer of all related liability); and (c) Customer reasonably cooperates with Pasito in connection therewith.  If the use of the Pasito Product by Customer has become, or in Pasito’s opinion is likely to become, the subject of any claim of infringement, Pasito may at its option and expense: (i) procure for Customer the right to continue using and receiving the Pasito Product as set forth hereunder; (ii) replace or modify the Pasito Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Pasito will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by: (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Pasito Product by Customer not in accordance with this Agreement; (C) modification of the Pasito Product by or on behalf of Customer; (D) Customer Data, or (E) the combination, operation or use of the Pasito Product with other products or services where the Pasito Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Pasito’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2  Indemnification by Customer.  Customer will defend Pasito against any Claim made or brought against Pasito by a third party arising out of the Excluded Claims, and Customer will indemnify Pasito for any damages finally awarded against Pasito (or any settlement approved in writing by Customer) in connection with any such Claim; provided that: (a) Pasito will promptly notify Customer of such Claim; (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Pasito’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Pasito of all liability); and (c) Pasito reasonably cooperates with Customer in connection therewith.


8. Limitation of Liability

8.1   EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.


9. Termination

9.1  Term.  The term of this Agreement will commence on the Order Form Effective Date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

9.2   Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event: (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach; or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.3  Survival.  Upon expiration or termination of this Agreement: (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below; and (b) each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.


10. General

10.1  Insurance.  Pasito shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense Professional Errors and Omissions and Cyber Liability coverage covering the Pasito Product, with coverage limits of not less than $5,000,000 aggregate.

10.2  Publicity.  Pasito may use Customer’s name and trademarks in its marketing materials, presentations, website, and other publicity, unless the applicable Order Form expressly states otherwise.

10.3    Assignment.  Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to an affiliate or to a successor to all or substantially all of its stock, assets or business related to this Agreement.  Any attempted assignment by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.4    Amendment.  Pasito reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal.  Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.

10.5    Waiver.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.6    Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.7    Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.8    Governing Law.  This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.9    Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the Customer may be sent to the Customer address listed on the applicable Order Form or email address provided by Customer when Customer creates its Pasito Product account. Notices to Pasito must be sent to the following, or such other address designated pursuant to this Section:
Pasito, Inc. c/o &CO
220 9th St, Suite 282
Jersey City, NJ 07302
Attn: Legal Notices

10.10    Entire Agreement.  This Agreement (consisting of these Terms and Conditions and each Order Form) comprises the entire agreement between Customer and Pasito with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Pasito, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.  In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall control.

10.11  Force Majeure.  Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.12   Interpretation.  For purposes hereof, “including” means “including without limitation”.