You should review the Agreements carefully as they include terms regarding use, fees, automatic renewals, limitations of liability, a class action waiver, and resolution of disputes by arbitration. If you don’t agree with (or cannot comply with) the Agreements, you must cease all use of the Services, and, if applicable, cancel your Account. Please see Section 19
for definitions of certain capitalized terms used in these Terms.
1. Acceptance of Agreements.
By creating an Account with us, clicking “I agree”, logging into the Site or otherwise using the Services, you, on behalf of yourself and those that you represent(“you” or “your”), acknowledge that you have read and understood the Agreements, accept the Agreements, and agree to be bound by them. If you represent a third party, such as the Customer, a legal entity or an employer, you also represent to us that you have full unconditional authority to accept the Agreements on behalf of such third party.
2. Changes to Terms.
We may, from time to time, make modification (by amendment, replacement, and/or adding new provisions) to these Terms at any time. Unless a later effective date is stated, the modified version of these Terms will be effective immediately when posted on our Site. We will provide notice of changes to the Terms by (i) posting the amended version of the Terms on our Site; (ii) posting a notice on our Site; or (iii) emailing notice to the email account associated with Customer’s Account. You are responsible to check the Site regularly for modifications of these Terms. Your continued use and/or access of any of the Services after the effective date of a modification to these Terms will be conclusive proof that you agree to be bound by the modified version of these Terms. Provided that you did not use or access the Site or Services after you received notice of changes to these Terms, if you elect to cancel your Account due to the changes to these Terms, you will be entitled to a pro-rata refund of all prepaid Service Fees if your request for cancellation clearly states that the cancellation is due to the changes to these Terms. Except as detailed in this section or a mutually agreed written amendment, these Terms may not be modified or amended.
3. Account and Users.
3.1. Your Account
. We will create a master account for each Customer (each, a “Master Account”) that will include one or more sub-Accounts for individual Users. Separate individual User Accounts may be created under a Master Account. You and all other Users must have a separate Account under a particular Master Account to access and use any of the Services. Unless waived by us in writing, all Accounts must be associated with a valid email account.
3.2. Administrative User.
Each Master Account will be assigned at least one administrative user (an “Admin”) that will control the Master Account and all User Accounts that are created for the Master Account. We will provide the initial non-public credentials for the Customer’s first Admin to authenticate the specific Admin’saccess to the Site and Services under Customer’sMaster Account. Admins may change username and passwords from the Account Settings. Customer will be responsible for (i) all Service Fees related to Admins, and (ii) all actions (and subscriptions selected) by an Admin related to the Site, the Services, the Master Account and all Accounts created for Users.
Admins may add additional users (each, a “Sub-User”) that Customer authorizes to access and use the Services under the Customer’s Master Account. An Admin must provide non-public credentials to each Sub-User to authentic the Sub-User’s access to the Site and Services under the Customer’s Master Account. Customer will be responsible for (i) all Service Fees related to Sub-Users, and (ii) all Sub-Users’actions or omissions related to the Site, the Services, and their individual Accounts.
4. License for Use.
4.1. To Customer.
Subject to the terms and conditions of these Terms, we grant to you a non-sublicensable, non-transferable, non-exclusive, revocable, limited license for Customer’s own internal use only (the “License”) to: (i) access and use the Services to which you have subscribed; and (ii) as applicable, install and use the proprietary Service Capabilities, if any, developed by us as part of or for the Services. We reserve all other rights.
4.2. From Customer.
By submitting, posting, generating, or displaying any Content on or through the Services, you give us a sublicensable, transferable, non-exclusive, royalty-free, fully paid, worldwide limited license to use, display, reproduce, publish, modify, create derivative works from, and distribute such Content as reasonably prudent or necessary to enable us to provide, maintain, protect, and improve the Services in accordance with these Terms.
4.3. License Restrictions.
The License will remain in effect during the Term only. You may use the Services only in accordance with these Terms. All other uses of the Services are prohibited. Neither you or any third party under your control may (or may attempt to): (i) reverse engineer, disassemble, decompile, tamper with, work around technical limitations, or apply any other process or procedure to derive the source code of any Software included with or available through the Services, except to the extent that applicable law permits it despite these limitations; (ii) modify, alter, tamper with, repair, or otherwise create derivative works of any Service Capability included with, for or through any of the Services; (iii) access or use a Service in a way intended to avoid incurring Service Fees; (iv) resell, transfer, sublicense, lease, lend, or rent the Service or any portion thereof to or for third parties; or (v) use the Service for or as a data center, time-sharing, or service bureau. The License is for Customer’s benefit only and not the benefit of any third party. The License is conditional on your continued compliance with all of the terms and conditions of these Terms, and will immediately and automatically terminate if you do not so comply.
5. Service Levels.
5.1. Service Level Agreement.
We are committed to the efficient delivery and performance of the Services and detail the Acceptable Service Level for the Services in the Service Level Agreement (“SLA”). Please see Schedule 1
below for the SLA.
5.2. SLA Changes.
We may change, amend, add to, replace, and/or discontinue the SLA from time to time.
6. Changes to Services.
We may add new Applications, Software, application program interface (“API”), tools, features and/or functionality (each a “Service Capability,” collectively, the “Service Capabilities”) available through the Services and/or install updates from time to time.
We reserve the right to change, discontinue, or deprecate Service Capabilities from time to time or to elect to discontinue the Services in their entirety. If we remove or discontinue a material Service Capability, Customer may (and Customer’s exclusive remedy is the option to) cancel the Master Account with a pro-rata refund of all prepaid Service Fees, provided that (i) Customer’s request for cancellation is made within 30 days that the Service Capability was removed or discontinued, and (ii) the request identifies the specific Service Capability and states that the cancellation is due to a cancellation of such Service Capability. If we elect to discontinue the Services in their entirety, Customer’s exclusive remedy will be a pro-rata refund of all prepaid Service Fees.
7. Service Fees and Payment Terms.
7.1. Service Fees.
Customer agrees to pay us all applicable Service Fees, charges, and Taxes, if any, associated with the Master Account and all User Accounts created for or under it, or otherwise caused by or related to each User’s subscription and use of the Services. The Service Fees for any User that is added to a Master Account will be prorated the first calendar month. Unless Customer and we agree in writing otherwise:(i) our then-current standard Service Fees will apply; (ii) Service Fees will be on a per User basis; (iii) Service Fees will be based on a monthly subscription for use of the Services; and (iv) all Service Fees, including any applicable Taxes, must be paid in advance. Except as specifically provided in this Agreement, there are no refunds for Service Fees. Absent clear evidence of error, our records regarding Admin’s creation of Users (both Sub-Users and other Admins) and the subscription of Services are final and conclusive. YOU RECOGNIZE AND AGREE THAT THE number OF SERVICE FEES DUE EACH MONTH WILL VARY DEPENDING ON HOW MANY USERS HAVE BEEN ADDED TO THE CUSTOMER’S MASTER ACCOUNT. THE THEN CURRENT AMOUNT OF SERVICE FEES FOR THE CUSTOMER’S MASTER ACCOUNT, AS UPDATED FROM TIME TO TIME, BASED ON THE SUBSCRIPTIONS AND NUMBER OF USERS UNDER THE MASTER ACCOUNT, IS STATED ON THE ACCOUNT SETTINGS.
7.2. Service Fee Changes.
Our current Service Fees will be listed on the Site at the time Customer’s Master Account is created and when additional Users are added to the Master Account. Absent a written agreement to the contrary, we may change the Service Fees from time to time. All Service Fee changes will be effective as of the first date of the next calendar month unless we provide notice of a later effective date. We will provide at least 10 days’ advance notice of any increases to our standard Service Fees.
7.3. Recurring Billing and Payment.
By creating a Master Account and providing or designating a Payment Method, Customer authorizes us to charge Customer the Service Fees associated with Customer’s Master Account, which includes all Service Fees associated with all individual User Accounts created for or under the Master Account. Absent a written agreement providing otherwise, the initial pro rata Service Fees for each User added to Customer’s Account will be immediately due, and thereafter, all Service Fees for A USER’S Account will be due in advance on the first day of each calendar month until the User is removed from Customer’s MASTER Account or the MASTER Account is otherwise terminated. Customer authorizes us to charge the Payment Method for all Service Fees as (or shortly after) they become due.
7.4. Payment Method.
An Admin may add the Customer’s designated Payment Method or edit the Payment Method’s information in the Account Settings. If you add a Payment Method to an Account, you represent and warrant to us that Customer authorizes the use of the Payment Method for the payment of the Service Fees pursuant to the terms of these Terms. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not edit the Payment Method information or add a new Payment Information sufficient to pay all amounts due, Customer will remain responsible for all uncollected amounts and authorizes us to continue billing the Payments Method, as it may be updated from time to time.
7.5. Delinquent Payments.
We may charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) on all late payments until paid/collected in full.
An Admin may cancel a User’s ACCOUNT for Services and or terminate the Customer’s MASTER Account at any time. To cancel a specific User’s ACCOUNT (AND subscription), an Admin must remove the User from the Customer’s list of AUTHORIZED Users IN THE ACCOUNT SETTINGS. To cancel the MASTER ACCOUNT (and all User’s subscriptions), an Admin must email us at billing@Ensight.com
. If you cancel an Account, the Account’s subscription will immediately close.
7.7. Invoice Disputes.
To the fullest extent permitted by law, Customer waives all claims relating to Service Fees (and all other amounts payable under these Terms) unless claimed in writing to us within 60 days after charged (this does not affect Customer’s rights with the credit card issuer, if applicable). All amounts payable under these Terms will be made without setoff or counter-claim and without any deductions or withholding fees.
7.8. No Refunds.
All sales and services are final and all Service Fees are fully earned upon payment. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SUBSCRIPTION PERIODS. Refunds, if any, are at our sole discretion, and at our option may be in the form of credit for Services. Nothing in these Terms obligates us to extend refunds or credit to any party.
Customer is responsible for the payment of any Taxes (including any past Taxes owed but not paid by Customer, regardless whether Customer was invoiced for the Taxes) and will pay us for the Services without any reductions for Taxes. You will provide us with any information we reasonably request to determine whether we are obligated to collect Taxes from Customer. Some taxing authorities require that sales tax, based on the total purchase price, be invoiced and collected at the time of sale. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to Customer unless (and until) you provide us with legally-sufficient tax exemption certificates from the appropriate taxing authorities. If Customer is required to withhold or deduct any Taxes from its payment to us, Customer must:(i) notify us in writing regarding the requirement; (ii) provide us with appropriate documentation to support such withholdings/deductions; (iii) pay us any additional amounts necessary to ensure that the net amount that we receive, after any deductions and withholdings, equals the amount we would have received if the withholdings/deductions were not required; and (iv) provide us with an official tax receipt evidencing that the amounts withheld/deducted were paid to the appropriate taxing authority.
8. Suspensions and Removals.
8.1. Access and Use.
We may suspend your Account (and its Master Account) and your right to access or use any portion of the Services immediately if: (i) the creation of the Master Account and or your subscription for Services is (or reasonably appears to us to be) fraudulent; (ii) Customer fails to pay any amounts due under these Terms; (iii) Customer fails to add and keep at least one valid Payment Method on the Master Account; (iv) you or any User under Customer’s Master Account violate any provisions of these Terms; or (v) Customer ceases to operate in the ordinary course, makes an assignment for the benefit of creditors or similar disposition of your assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. The suspension will be lifted upon our reasonable satisfaction that the triggering issue has been resolved.
8.2. Emergency Suspension.
If a Security Concern exists in our reasonable opinion, we may immediately suspend any or all User’s access to the Services, and may also remove, as applicable, the offending item, code, Content (including Your Content and Third Party Content) until the Security Concern is resolved in our reasonable discretion.
8.3. Report Violations.
If you become aware that another User’s access or use of the Services violates these Terms, you will immediately: (i) notify us in writing regarding the violation; (ii) to the extent that you are capable (by administrative control or contractual right), immediately suspend the violating User’s access and use of the Services until such violations are corrected.
8.4. Effect of Suspension.
Users that are suspended will not be able to access or use the Services or portions thereof (including Your Content) during the suspension. Our right to suspend your or any User’s right to access or use the Services is in addition to our right to terminate your Account (and Customer’sMaster Account), pursuant to the terms of these Terms. If we suspend your right to access or use any portion or all of the Services, Customer remains responsible for all Service Fees, charges, and Taxes, if any, associated with or caused by: (i) your use of the Services, through the date of suspension, and/or (ii) your use of the Services, if any, that you continue to access or use on and after the date of suspension. Absent a Security Concern, we will not erase any of Your Content due to a suspension, but such items may be subject to deletion in the event of a termination of the Customer’s Master Account.
9. Term, Cancellation, and Termination.
These Terms will continue to apply to your use of the Site and Services until terminated by either you or us.
9.2. Cancellation or Termination For Convenience.
You may terminate these Terms (or cancel your subscription for Services) for any reason by providing us written notice. We may terminate these Terms for any reason by providing you with at least 60 days’ advance notice.
9.3. Cancellation or Termination For Cause.
9.3.1. Terminated By Either Party.
Either you or we may terminate these Terms for cause if: (i) the other party is in material breach of the Agreements and fails to cure that breach within 30 days after receipt of written notice (a “Default Notice”); or (ii) the other party is in material breach of the Agreements more than two times notwithstanding any cure of such breaches following receipt of a Default Notice.
9.3.2. Terminated By Us.
We may immediately terminate these Terms upon notice to you: (i) for cause, if any act or omission by Customer or you results in a suspension of Customer’s Master Account for more than 30 days, in which event, Customer will be responsible for all Services Fee; (ii) if our relationship with a third party vendor who provides Software or other Content, hardware, servers, data, or other technology we use to provide a Service expires, terminates, or requires us to change the way we provide, integrate, or use such items with the Services; (iii) if providing the Services to you could create, in our sole opinion, a material security risk, an economic or technical burden, or a legal/regulatory burden; or (iv) in order to comply with applicable law or a request from a controlling governing authority.
9.4. Effect of Cancellation or Termination.
Upon termination or expiration of these Terms (or the cancellation of your subscription), all of your rights under these Terms related to the Site and Services, including the License, immediately terminate; (ii) any and all unpaid Service Fees, charges, and Taxes, associated with or caused by your use of the Services are immediately due; (iii) you must delete from all of your applicable computers and equipment all Software, code, and/or APIs that were provided with or for the Services; (iv) upon request, you will use commercially reasonable efforts to return or destroy all copies of Confidential Information that are in your possession or control; and (v) you will not, and will not allow third parties under your control to access or use any of the Services. However, you acknowledge and agree that the license granted to us by you in relation to Content will continue after expiry or termination of these Terms for so long as such Content is in our possession.
9.4.2. Data Retention.
Upon termination or expiration of these Terms (or your cancellation of Customer’s Master Account), we will not erase Your Content for 12 months, but we may suspend your access or ability to extract such items until Customer pays all amounts due under these Terms. Subject to the condition stated in the preceding sentence, during this retention period, we will provide you with the same data retrieval assistance we generally make available to all of our customers. Following the expiration of the retention period, we may immediately delete any of Your Content, including any cached or back-up copies. You agree that we have no additional obligation to continue to hold, export, or return Your Content and that we have no liability whatsoever for their deletion pursuant to these terms.
9.4.3. Survival of Terms.
The following Sections will survive expiration or termination of these Terms: Sections 3.2, 3.3, 4.2, 6, 7, 8.3, 9, 10.3, 10.4, 10.5, 10.7, 12, 13, 14, 15, 16, 17 and 18.
10. Customer Responsibilities.
10.1. Permitted Use.
Your access and use of the Servicesmust fully comply with the provisions and conditions of the Agreements.
You must adhere to all laws, rules, and regulations applicable to you (and your industry) and your use of the Services, including, as applicable, import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Asset Control, Department of the Treasury (“OFAC”).
10.3. Account Security.
You are responsible for maintaining the confidentiality of the non-public credentials that are associated with your Account (and its Master Account). Customer is responsible for all activities, including the subscription of Services, that occur under Customer’sMaster Account, regardless whether the activities are undertaken by you, Admins, your employees, your agents, or a third party (including your contractors) and we are not responsible for any unauthorized access to (and the activities undertook with) Customer’s Master Account absent clear and convincing evidence that we breached these Terms and that such breach caused the unauthorized access. You are required to take reasonable steps to prevent unauthorized access to your Account (and its Master Account) and the Services, and, further, you will cooperate with us in identifying unauthorized access or use related to your Account. You must promptly notify our customer support team in writing about any misuse (or any fact or circumstances which could reasonably be expected to result in or cause a reasonable suspicion of a misuse) of your Account (or its Master Account), authentication credentials or any Security Concerns related to the Services or an Account.
10.4. Your Content.
As between you and us, you are solely responsible for the development, content, operation, maintenance, and use of Your Content and for ensuring that Your Content complies with the Acceptable Use Policy. As between you and us, you are also solely responsible for any claims related to or stemming from Your Content and business, including all acts and transactions conducted with the Services. You will secure and maintain all rights in Your Content, as applicable, necessary for us to provide the Services to you without violating the rights of any third party or otherwise obligating us to you or any third party. We do not and will not assume any obligations with respect to Your Content other than as expressly set forth in these Terms or as required by applicable law.
10.6. Third Party Content.
Your use of any Third Party Content is at your sole risk and may be subject to separate terms and conditions, and/or fees from the applicable third parties.
10.7. Security and Backup.
You are solely responsible for creating, implementing and maintaining appropriate security, protection, and backup (with routine archiving) of Your Content. You will bear the entire risk of loss of, or damage to, any of Your Content.
10.8. Other Equipment.
As between you and us, you are responsible for the procurement, configuration, operation, performance, and security of all equipment and computing resources that you use with the Services, including any gateways or other devices you may use to access the Services.
10.9. Technical Documentation.
You must comply with the Technical Documentation, if any, that we provide related to any of the Services associated with your Account. We reserve the right to update or modify the Technical Documentation at any time.
When feasible, upgrades, patches, bug fixes or other maintenance to the Services will be scheduled for and completed after normal business hours (e.
, after 6:00 p.m., PST). You agree to collaborate and make reasonable accommodations for all maintenance to the Services, regardless of whether scheduled in advance or completed on an emergency basis.
11. Our Responsibilities.
We will provide the Services to you subject to the obligations, requirements, and conditions of these Terms.
11.2. Security and Data.
We implement and maintain reasonable and appropriate measures, internal controls, and data security routines intended to protect Your Content against accidental or unlawful access, change, loss, or disclosure. Notwithstanding any other agreement (whether written or verbal) between you and us, the preceding sentence contains our and our Affiliate’s entire obligation regarding the security of Your Content. Unless we and you have made a separate agreement otherwise, we are not obligated to provide you or your customers' notice of a security breach.
We will complete periodic backups of Your Content at our discretion for our internal operations, backups, testing, use, and fixes. Unless you have subscribed for (and we have agreed to provide) a Service which is clearly and specifically for the purpose of providing backups of Your Content, we have no responsibility to provide backups and/or archives of Your Content.
11.4. Facilities and Data.
Unless you and we have otherwise agreed in writing, we may host, access, use, process and reproduce Your Content and Third Party Content in the United States or any other country in which we or our service providers (including data centers) maintain facilities.
12.1. By Us.
We represent and warrant to you that we have full power and authority to enter into these Terms.
12.2. By Customer.
You represent and warrant to us that: (i) you will comply with all laws, rules, and regulations applicable to you (and your industry); (ii) you or your licensors own all right, title, and interest in and to Your Content; (iii) you have all rights in Your Content necessary to grant the rights contemplated by these Terms; (iv) Your Content has at all times, and will in the future be, in compliance with the Acceptable Use Policy; and (v) your use and access of the Services will comply with the Acceptable Use Policy.
12.3. Trade Restrictions Representations.
You represent and warrant to us that you and each of your subsidiaries, predecessors, direct and indirect owners, as applicable, have at all times been, and will in the future be, in compliance with the requirements of Executive Order No. 133224, 66 Fed. Reg. 49079 (September 25, 2001) and other similar requirements contained in the ruled and regulations of the OFAC and in any enabling legislation regarding the same (collectively, the “Orders”). After due investigation and inquiry, you have no knowledge or notice of any fact or circumstances which could reasonably be expected to result in: (i) any action, proceeding, investigation, charge, claim, report or notice being filed, commenced or threatened against any of them alleging any failure to comply with the Orders; or (ii) the imposition of any civil or criminal penalty against any of them for any failure to comply with the Orders. You further represent and warrant to us that you and each of your subsidiaries, predecessors, direct and indirect owners, as applicable, are neither owned nor controlled by, nor acts for or on behalf of, any person or entity on the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or any other similar list from a controlling governing authority.
13. Intellectual Property and Proprietary Rights.
13.1. Our Proprietary Rights
. Except as expressly set forth herein, nothing in these Terms grants you, Customer, or your Affiliates any rights, implied or otherwise, to any of our Intellectual Property Rights or the Services, and you hereby disclaims any interest. As between you and us, we or our Affiliates or licensors own and reserve all right, title, and interest in and to the Services and our Content.
13.2. Your Proprietary Rights.
As between you and us, you own all right, title, and interest in and to Your Content, and except as expressly set forth herein, nothing in these Terms grants us any rights, implied or otherwise, to Your Content.
13.3. Third Party Requests.
We may disclose Your Content to comply with any request from a controlling government entity or a regulatory body (including law enforcement, subpoenas, or court orders).
13.4. Feedback and Suggestions.
If you provide any Suggestions to us or any of our Affiliates, even if you designate the information as confidential, we and our Affiliates may use the information without restriction, and you irrevocably assign to us all rights, title, and interests in and to the Suggestions.
If you provide us consent to disclose that you are one of our customers, we may state publically that you are our customer and may include your name, logos, and/or trademarks in a list of our customers, online or in promotional materials. However, neither you nor we may issue a press release with respect to these Terms without the mutual written consent. You may not make any public communication regarding your use of the Services nor use our name, logos, or trademarks without our prior written consent.
The Services are provided “as is” and “where is.” We and our affiliates and licensors make no representation or warranty of any kind, whether express, implied, statutory or otherwise, and to the maximum extent permitted by applicable law, we disclaim all warranties, including without limitations warranties of merchantability, fitness for a particular use, satisfaction quality, noninfringement, quiet enjoyment, usage of trade, course of dealings, or any warranty or representation that a Service, Content, Software, or Third Party Content will be secure, timely, error-free, free of VIRUSES OR harmful components, or uninterrupted. WE ALSO HEREBY DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE OR SHIPMENT OF YOUR CONTENT OR THIRD PARTY CONTENT BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS. YOU ARE SOLELY RESPONSIBLE FOR APPLYING APPROPRIATE SECURITY MEASURES TO YOUR CONTENT AND THIRD PARTY CONTENT, INCLUDING ENCRYPTING SENSITIVE CONTENT.
15. Limitations of Liability.
15.1. Limitation on THE Amount of Liability.
To the maximum extent permitted by applicable law, in any case, our and our affiliates and licensor’s aggregate liability under these Terms is limited TO the amount that CUSTOMER actually paid us for YOUR USE OF THE Service(s) that gave rise to the liability during the 2 months immediately preceding when the liability first arose. This limitation on the amount of liability applies to all claims, whether under contract, tort, or any other theory of LIABILITY AND REGARDLESS WHETHER THE LIABILITY ARISES FROM DAMAGES OR AN AWARD OF ATTORNEYS’ FEES AND COSTS.
15.2. Limitations on Liability and Damages.
to the maximum extent permitted by applicable law, EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY,WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, punitive, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS INTERRUPTION, GOODWILL, RELIANCE, USE, OR LOSS OF DATA OR BUSINESS INFORMATION). Further, WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE for any damages, compensation, OR reimbursement arising or in connection with: (i) your or any User’s inability to ACCESS AND OR use the Services or any CONTENT, for any reason; (ii) aN INTERRUPTION, suspension OR CESSATION of your or anY User’s access to or use of the Services ORContent, FOR ANY REASON; (iII) a SUSPENSION OR termination of ANAccount; (Iv) a change, discontinuANCE, or DEPRECATION OF any of the Services (or all of the Services) or change or removAL OF ANY SERVICE CAPABILITIES; (v) scheduled and unscheduled interruptions or outages, for any reason, (vi) cost of procurement of substitute services or goods; (vii) any investments or expenditures; (VIII) any change, loss, deletion, damage, failure, disclosure, or unlawful (or unauthorized) access to any Content, including Your Content and THIRD PARTYCONTENT; (iX) ANY BUGS, VIRUSES, MALICIOUS CODE, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (X) ANY ERRORS OR OMISSION IN ANY CONTENT OR FOR ANY LOSS OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF AND CONTENT posted, emailed, transmitted or otherwise made available via the services. LIABILITY IS SO LIMITED AND EXCLUDED, WHETHER based on warranty, contract, tort, or any other legal theory, and whether or not WE are advised of the possibility of such damages.
Unless prohibited by applicable law, you will indemnify, defend, and hold harmless us, our Affiliates, and our licensors (and the respective employees, agents, officers, directors, members, managers, and owners of us, our Affiliates, and our licensors) from and against all damages, liabilities, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim concerning or arising from (each a “Third Party Claim”): (i) Your Content (including any damage caused by malicious or harmful code included in Your Content) or any allegation or claim that Your Claim infringes or misappropriated a third party’s Intellectual Property Rights or makes unlawful or unauthorized use of a third party’s trade secrets; (ii) your access or use of the Services or any Software or other Content available from or through the Services, including any use in violation of the Acceptable Use Policy; (iii) your breach of any representation, warranty, or other provision ofthese Terms; (iv) your violation of any law, rule, or regulation applicable to you (or your industry); (v) a dispute between you and any of your customers; and/or (vi) a dispute regarding or arising from any acts or omissions of any of your current or former employees or contractors.
We will promptly notify you of a Third Party Claim, but our failure to provide prompt notice will only reduce your obligations to the extent that such failure substantially prejudices your ability to defend the Third Party Claim. You will have control over the defense and may select your own counsel, however, at our election, we may select separate counsel to defend us at our expense. You may settle the Third Party Claim in your discretion, provided that any settlement which requires us to admit any liability or wrongdoing will require our prior written consent at our sole discretion. Further, any settlement which requires us to pay any money or incur any obligations may not be made without our prior written consent.
17. Dispute Resolution.
17.1. Governing Law.
These Terms, including related issues, and any dispute of any sort that might arise between you and us regarding or stemming from these Terms are governed by the laws of the State of Delaware, without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, the laws of the United States govern, and (ii) if you are a state or local government entity in the United States, the laws of your local state govern.
You agree that as a condition for you to bring any legal claim against us (regardless whether brought as a complaint or a counterclaim) relating in any way to these Terms or the Services, you must have provided us a Default Notice within 60 days that you first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to your claim.
17.3. Time Limitation.
Any claim against us must be filed within 1 year that you first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to your claim.
17.4. Class Action Waiver.
We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
17.5. Small Claims.
Any dispute relating in any way to these Terms or the Services where a party seeks aggregate relief of $7,500 or less
will be adjudicated in any small claims court in Allegheny County, Pennsylvania and both you and we consent to exclusive jurisdiction and venue in those courts for such disputes.
17.6. Other Claims; Arbitration.
Any dispute relating in any way to these Terms or the Services where a party seeks aggregate relief in excess of $7,500
will be adjudicated by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Both you and we consent to exclusive jurisdiction and venue in such arbitration proceedings for such disputes. The place of the arbitration shall be in the Pittsburgh, Pennsylvania metropolitan area. Both you and we will select a single arbitrator who is acceptable to the parties. If you and we cannot reach agreement on a single arbitrator within thirty (30) days in which arbitration is demanded by the initiating party, you and we will each appoint an arbitrator and the two arbitrators selected will then select a third arbitrator. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. As used in these Terms, “costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees.
17.7. Equitable Relief.
We may seek injunctive or other relief (without the necessity of posting a bond or demonstrating actual monetary damages) in any state, federal, or national court of competent jurisdiction for any actual or alleged unauthorized access or use of the Services or an infringement of our, our Affiliates, or any third party’s intellectual property or other proprietary rights.
18.1. No Exclusivity.
We are free to offer the Services to other customers. Nothing in these Terms shall be interpreted to create any type of exclusivity for your use or access to the Services.
18.2. Entire Agreement.
These Terms sets out all of the terms and is the entire agreement between you and us regarding its subject matter. The provisions, if any, located at a URL referenced in these Terms, as may be amended from time to time, are hereby incorporated by this reference. These Terms supersedes all prior or contemporaneous representations, communications, understandings, or agreements between you and us, whether written or verbal, regarding its subject matter. In entering these Terms, you have not relied on, nor will you any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in these Terms. We will not be bound by, and specifically object to, any term, condition, obligation, or other provision which is different from or in addition to the provisions of these Terms (regardless whether it would materially alter these Terms) and which is submitted by you in an order, receipt, acceptance, confirmation, correspondence, or other document.
All communications and notices to be made or given pursuant to these Terms must be in the English language. If we provide a translation of the English language version of these Terms or any notice, the English language version will control if there is any conflict.
We may provide notices regarding us, our Site, and/or the Services by posting a notice on our Site and such notices will be effective when posted on the Site. We may also provide any notice to you regarding or pursuant to these Terms by emailing a message to the email address associated with your Account. You are solely responsible for ensuring that the email account associated with your Account is accurate and current, and you agree that any notice sent by email to such email address will be effective when sent, whether or not you actually receive the email. To give us a notice regarding these Terms, the Services, or your Account, you must provide the notice by emailing a message to our support team at support@Ensight.com. Any such notice will be deemed effective 3 business days after it was received.
18.5. Force Majeure.
We, our Affiliates and licensors, will not be liable for any failure or delay in performance of any obligation under these Terms where the failure or delay results from circumstances beyond our reasonable control, including acts of God, fire, explosion, earthquake, flood, storms or other elements of nature, blockages, embargoes, riots, acts of civil or military authority, war, terrorism (including cyber terrorism), labor disputes, strikes, acts or omissions of internet traffic carriers, internet service disruptions; utility failures, systemic electrical, telecommunications or other industrial disturbances, or actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services) (each an “Uncontrollable Event”).
If we reasonably believe that any of Your Content and/or Third Party Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates the terms of the Agreement (“Prohibited Content”), we may disable access to or remove the Prohibited Content from the Services, pursuant to the S. Digital Millennium Copyright Act (DMCA), or to comply with the law or any judicial, regulatory or other government order or request. In the event that we disable access to or remove Prohibited Content without prior notice, we will provide prompt notice to you unless prohibited by law.
18.7. No Waiver.
Neither you nor we will be deemed to have waived any rights by not exercising (or delaying the exercising) any rights provided under these Terms. All waivers by us must be in writing to be effective.
You may use the Confidential Information only as permitted by these Terms. You will take all commercially reasonable efforts to avoid the unauthorized use, disclosure, dissemination, exploitation, or copying of any part of the Confidential Information, and will take, at a minimum, the measures you take to protect your own confidential or proprietary information. During the Term only, you may use the Confidential Information as reasonably needed for your use of the Services, but you will not disclose the Confidential Information during the Term nor at any time during the 3 year period following the end of the Term without our prior written consent, unless disclosure is required due to Legal Process. If disclosure is required by Legal Process, you will use commercially reasonable efforts to: (i) promptly notify us of the required disclosure before making the disclosure; and (ii) if applicable, comply with our reasonable requests regarding any lawful efforts to oppose the disclosure.
We may assign these Terms, including our respective rights and obligations, to an Affiliate or a third party at our discretion. You may not assign these Terms, in whole or in part, or delegate or sublicense any of your rights and/or obligations under these Terms, without our written consent. Any other attempt to assign or transfer is void. Subject to the restrictions provided in the preceding two sentences, these Terms will be binding upon, and inure to the benefits of the parties and their respective successors and assigns.
18.10. No Agency.
You and we are independent contractors. Nothing in these Terms will be interpreted to create an agency, partnership, or joint venture. We may develop (or have developed) or assist third parties with their development of products, services, Content, concepts, systems, and/or techniques that are similar to or compete with your products, services, Content, concepts, systems, and/or techniques.
18.11. No Third Party Beneficiaries.
Nothing in these Terms shall be interpreted to create or confer any rights or benefits for any third party.
18.12. S. Government Rights.
The Services are developed solely at private expense and, as may be provided to the U.S. Government, are provided with the same rights and restrictions generally applicable to the Services. As provided to the U.S. Government, if applicable, the Service is provided as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data,” within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto. If you are using the Services on behalf of the U.S. Government and the terms of these Terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Services.
18.13. Construction and Interpretation.
No inference in favor of, or against, us shall be drawn from the fact that we drafted all or any portion of these Terms. The titles and captions in these Terms are for convenience of reference only and do not define, limit or control the scope, intent or effect of any part of these Terms. As used in these Terms, words of masculine, feminine or neuter gender shall mean and include the correlative words of the other genders, and words importing the singular number shall mean and include the plural number, and vice versa.
If any part of these Terms is held to invalid, illegal, or unenforceable, such portion(s) will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid, illegal, or unenforceable portions will be severed from these Terms and the remaining portions of these Terms will remain in full force and effect.
18.15. Conflicting Terms.
If there is a conflict between these Terms or any other written agreement between you and us (“Other Agreement”) regarding the subject matter of these Terms, the documents will control (but only to the extent of such conflict) in the following order: (i) the Other Agreement, if any; then (ii) these Terms.
Any reference in these Terms to “day” will be a calendar day.
The words “include” and “including” mean “including but not limited to”.
“Acceptable Use Policy” means the policy, as it may be updated by us from time to time, currently available at http://www.Ensight.com/legal, or an alternate site we identify.
“Account” means an account with us for the access and use of the Services, subject to terms of the Agreements as may be applicable.
“Account Settings” means those portions of the Site that are only accessible to Admins for the administration of the Customer’s Master Account.
“Affiliate” means any individual, corporation, association or other entity that directly or indirectly controls, is controlled by or is under common control with the party in question. As used in this Agreement, the term “Control” (including the terms “controlling” and “controlled by” and “under common control with”) means either: (i) the actual power to direct or cause the direction of the management and policies of the other party, (ii) employing the other party; or (iii) ownership of more than 50% of the voting interests of the other party.
“API” means an application program interface.
“Application” or “Applications” means any web, mobile, or other application(s)that are created for the Services, including any source code written by or for us to be used with the Services.
“Confidential Information” means all nonpublic information disclosed to you (or any of your Affiliates) by us, our Affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or would normally under the circumstances be considered confidential information. Confidential Information includes: (i) nonpublic information relating to our or our Affiliate’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that we are obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between you and us or our Affiliates. Confidential Information does not include information that: (a) you can show by documentation that you already knew prior to our disclosure; (b) you can show by documentation that becomes public through no fault of you; (c)you can show by documentation was independently developed by you, or that was lawfully given to you by a third party who did not acquire or disclose the same by wrong or tortious act.
“Content” means, unless the context requires otherwise, Software (including machine images), APIs, code, software libraries, command line tools, other related technology, data, text, files, audio, video, images and/or other content.
“Customer” is the party that has financial responsibility for your Account and the Master Account that it is under, whether that party is you, your employer, or a third party.
“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
“Legal Process” means a request for disclosure of data made pursuant to law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
“Payment Method” means a current, valid, accepted method of payment, such as an active credit or debit card or bank account.
“Security Concern” means any item, code, Content, or use or access of the Services which could result in: (i) unauthorized access to the Services or Content, (ii) a security risk to the Services or any third party, (iii) subjecting us, our Affiliates, our customers, or any third party to liability, or (iv) a disruption of: (a) the Services, (b) use and or access of the Services by us, our customers, you, or third parties, and or (c) our network or servers used to provide the Services.
“Service Credit” means a dollar credit against future Service Fees, as calculated pursuant to the terms of the SLA, that a Customer’s Master Account may be eligible for under the terms of the SLA.
“Service Fees” means the applicable fees for Service(s) and any applicable Taxes.
“Service Level Agreement” or “SLA” is located below in Schedule 1
“Software” means any downloadable tools, software development kits or other such proprietary computer software.
“Suggestions” means all suggested improvements to or feedback regarding the Site and or Service that you provide to us.
“Taxes” means any federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes (other than our income tax), fees, duties, or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Services.
“Technical Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services that we may provide and/or update from time to time.
“Term” means the period of time from the date when you first accepted these Terms to the date when these Terms are terminated pursuant to the provisions of the Agreements.
“Third Party Content” means Content made available to you by any third party for or in conjunction with the Services.
“User” refers to all Admins and Sub-Users, and all other parties that access or use the Site or Services under or through Customer’s Master Account.
“Your Content” means Content you or another User (i) install or run on the Services; (ii) cause to interface with the Services, and/or (c) input, add, edit or upload to the Services under your Account or otherwise transfer, process, use or store in connection with your Account.
Service Level Agreement (SLA)
A. Acceptable Service Level. We will use commercially reasonable efforts to make the Services associated with your Account available to you with a Monthly Uptime Percentage of at least 9%, during eachcalendar month
(the “Acceptable Service Level”). In the event that we do not meet the Acceptable Service Level, Customer will be eligible to receive a Service Credit as described in this SLA.
B. Monthly Uptime Percentage.
As used in this SLA: (i) “Monthly Uptime Percentage” is calculated, for each Service separately, by subtracting from 100% the percentage of minutes during the applicable calendar month in which a particular Service was in a state of Unavailability; and (ii) “Unavailability” means when all running instances of a Service within our control have no external connectivity for 1 minute or longer and the lack of such connectively is not a result of or during Excluded Downtime. As applicable, the Services will be assumed to have been 100% available during any period of time that you did not have an Account or your Account was suspended.
C. Excluded Downtime.
As used in this SLA, “Excluded Downtime” refers to Service downtime or performance issues: (i) that result from maintenance or updates of the Services, Service Capabilities, or any of our networks or services used to provide the Services, but limited to no more than 1 hour of such maintenance in a calendar month; (ii) that result from any maintenance or updates which you request and/or preapprove; (iii) that result from a suspension or termination of Services, in accordance with the terms of the Agreement; (iv) caused by an Uncontrollable Event; (v) that result from any actions or inaction of you or any third party; and/or (vi) that result from Your Content, third-party equipment, or any of your equipment, or other technology (other than third-party equipment within our direct control).
D. Service Credits.
Your exclusive remedy for all matters stemming from or relating to the Acceptable Service Level will be eligible for Service Credits pursuant to this SLA. The Service Credits are based on the Service Fees that Customer paid for the Services that failed to meet the Acceptable Service Level during the subject calendar month (“Paid Fees”). The amount of the Service Credits is the mathematical product of (i) Paid Fees, multiplied by (ii) the applicable Service Credit Percentage for the Monthly Uptime Percentage during the subject month. The Service Credit Percentage for those Monthly Uptime Percentages which trigger Service Credit eligibility is as follows:
For Monthly Uptime Percentage: Service Credit Percentage:
Less than 99.5% but equal or greater than 99.0% 10%
Less than 99.0% but equal or greater than 95.0% 20%
Less than 95.0% 30%
E. Request for Service Credits.
To receive Service Credits due to our failure to meet the Acceptable Service Level for a particular calendar month, Customer must notify us of the Customer’s eligibility for Service Credits by the 15th
day of the following month. A notice must be sent by an Admin and include: (i) the words “Service Credit Claim” in the subject line;(ii) a summary of the incident(s) of Unavailability and those Users which were impacted; and (iii) a copy of screenshots, logs and lists of dates and times, if any, to substantiate incidents of Unavailability. All notices must be made in good faith and you agree to provide us reasonably cooperation and assistance in our efforts to research the incidents and duration of reported Unavailability. If a failure to meet the Acceptable Service Level is confirmed by us following your notice, we will immediately issue you the eligible Service Credits. Absent manifest error, our internal records, logs, and calculation of Monthly Uptime Percentage will be deemed accurate and conclusive.
F. Use of Service Credits.
Issuance of Service Credits alone will not entitle Customer to a refund. Instead, issued Service Credits will be first applied and credited against Service Fees as they become due. If Customer’s Account is terminated before all Service Credits are exhausted, we will issue Customer a refund for the balance of the Service Credits within 30 days following Customer’s written request.
This SLA applies separately to each Account.