TERMS OF SERVICE PENGU B.V.
These Terms of Service govern your use of the website located at https://www.pengu.co/ and any related services provided by Pengu B.V.
By accessing https://www.pengu.co/, you agree to abide by these Terms of Service and to comply with all applicable laws and regulations. If you do not agree with these Terms of Service, you are prohibited from using or accessing this website or using any other services provided by Pengu B.V..
Pengu B.V. will notify its customers when any changes to these Terms of Service occur.
These Terms of Service were last updated on 25 January 2023.
1. Limitations of Use
By using this website, you warrant on behalf of yourself, your users, and other parties you represent that you will not:
1.1 remove any copyright or other proprietary notations from any materials and software on this website;
1.2 transfer the materials to another person or “mirror” the materials on any other server;
1.3 knowingly or negligently use this website or any of its associated services in a way that abuses or disrupts our networks or any other service Pengu B.V. provides;
1.4 use this website or its associated services to transmit or publish any harassing, indecent, obscene, fraudulent, or unlawful material;
1.5 use this website or its associated services in violation of any applicable laws or regulations;
1.6 use this website in conjunction with sending unauthorized advertising or spam;
1.7 harvest, collect or gather user data without the user’s consent; or use this website or its associated services in such a way that may infringe the privacy, intellectual property rights, or other rights of third parties.
2. Intellectual Property
The intellectual property in the materials contained in this website are owned by or licensed to Pengu B.V. and are protected by applicable copyright and trademark law. We grant our users permission to download one copy of the materials for personal, non-commercial transitory use.
This constitutes the grant of a license, not a transfer of title. This license shall automatically terminate if you violate any of these restrictions or the Terms of Service, and may be terminated by Pengu B.V. at any time.
3. Liability
Our website and the materials on our website are provided on an ‘as is’ basis. To the extent permitted by law, Pengu B.V. makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property, or other violation of rights.
In no event shall Pengu B.V. or its suppliers be liable for any consequential loss suffered or incurred by you or any third party arising from the use or inability to use this website or the materials on this website, even if Pengu B.V. or an authorized representative has been notified, orally or in writing, of the possibility of such damage.
In the context of this agreement, “consequential loss” includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
4. Accuracy of Materials
The materials appearing on our website are not comprehensive and are for general information purposes only. Pengu B.V. does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on this website, or otherwise relating to such materials or on any resources linked to this website.
5. Right to Terminate
We may suspend or terminate your right to use our website and terminate these Terms of Service immediately upon written notice to you for any breach of these Terms of Service.
Refunds/ Money back in lieu of shortfall in Guaranteed cost savings:
At the end of the subscription term, in the event the savings accrued to you of the services rendered by us fall short of the guaranteed cost savings obligations, you are entitled to receive a refund to the extent of the difference between the guaranteed cost savings amount and the actual savings accrued. This refund shall become payable at the end of the subscription term. However, the total amount of refund shall be limited to the actual amount received from you by us. Apart from this clause and unless otherwise specified in these Terms of Service, all services dee are non-refundable. No refunds shall be issued for partial use or non-use of the Platform or Services.
6. Charges and payment
All charges associated with your account shall be as specified in the relevant order form. The service specified in the relevant order form shall be applicable to the spend bracket. In case your actual spend exceeds the spend bracket specified in the relevant order form during the subscription term, then the services fee shall be re-negotiated between you and us through a new order form or by way of an amendment to the existing order form. The services fee is due in full and payable when you subscribe to the platform and services.
7. Contractual relationship
The contractual relationship between the Client and Pengu B.V. is governed, in descending hierarchical order, by the following documents:
The quote (the "Quote")
- It is established on the basis of the Customer's needs.
- The Customer must accept via Docusign or written signature. This acceptance implies acceptance of the Terms of Service in their version in force at the date of the Quotation.
- In case of contradiction, the Quotation prevails over the Terms of Service.
8. Savings
Savings shall be calculated in one or more of the following ways, in a cumulative manner:
8.1 In case of upgrading or downgrading of software license(s), the savings shall be the decrease in existing prorated contract value or unit rates being paid by the customer enabled through Pengu’s involvement and efforts.
8.2 In case of new procurements or ‘as is’ renewals, the savings shall be the difference between first quote obtained from the vendor and the final price negotiated through Pengu’s involvement and efforts.
8.3 In case of duplicate software(s) or under-utilized or unused tools of the customer identified by Pengu through its SaaS market expertise and/ or technical/ usage analysis and communicated to the customer, specifically suggesting the customer for cancellation or downgrading such software(s) and the customer, triggered by Pengu’s identification of such software(s), thereupon either cancels or downgrades such software(s), savings shall be the actual money saved by the customer as a result of such cancellation or downgrades.
8.4 Waived off charges by the vendor and other benefits of renewals (like user or usage reductions) directly enabled by Pengu through its involvement and efforts.
8.5 Savings for cloud hosting (AWS, GCP, Azure) realized through Pengu B.V recommended partners minus the fees of these partners contribute to the total savings generated during the contract term.
9. Term and Termination
9.1 The Subscription Term shall be set forth in a relevant Order Form.
9.2 Your Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term.
9.3 If your Order Form indicates that there is an automatic renewal. The renewal term will be 12 months from the date of renewal.
9.4 If the pricing as stated on https://www.pengu.co/ is higher than the initial price on the Order Form, Pengu B.V. reserves the right to increase pricing for the renewal term accordingly.
10. Governing Law
These Terms of Service are governed by and construed in accordance with the laws of the Netherlands. You irrevocably submit to the exclusive jurisdiction of the courts in that country.