Terms of Service

These Terms of Service (“Terms”), including all Order Forms, addenda, exhibits and schedules hereto, as well as the Privacy Policy, Acceptable Use Policy, and Data Protection Addendum (collectively, the “Agreement”), are between the relevant Enboarder contracting entity from the table below (“Enboarder”) and entity listed on the applicable Order Form (“Customer”). Enboarder and Customer are each referred to individually as a “Party,” and collectively as the “Parties”.

 

 

THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER EXECUTES AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR ACCESSES OR USES THE SUBSCRIPTION SERVICES (the “Effective Date”). BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR ACCESSING OR USING THE SOFTWARE (DEFINED BELOW), CUSTOMER (A) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BIND THAT ENTITY; AND (C) AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS.

IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, IT MAY NOT ACCESS OR USE THE SOFTWARE.

 

1.   DEFINITIONS 

a.    “Add-Ons” means advanced functionality of the Software not included in the original Order Form, which Customer may request pursuant to section 4;

b.    “Aggregated Data” means deidentified, anonymized, or aggregated data and information derived from Customer Data and/or Customer’s use of the Online Services that does not identify Customer or include Customer Confidential Information;

c.    “Applications” means software programs provided by Customer that run on, run through, or are connected to the Software;

d.    “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.

e.    “Customer Data” means Personal Data and all other text, files, images, graphics, illustrations, information, data (including audio, video, photographs, and other content and material), in any format, provided by or on behalf of Customer that are uploaded, reside in, run on or run through, the Software;

f.    “Documentation” means Enboarder’s user manuals, handbooks, guides, Enboarder FAQs, Enboarder Academy, and other material describing the functional processes, assumptions, specifications, and principal operations of the Software;

g.    “Feedback” means all suggestions comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic, or written form) to Enboarder related to the Online Services;

h.    “Intellectual Property Rights” means all intellectual property rights throughout the world, including but not limited to, the following rights:  copyright (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notification, drawings specifications and databases); moral rights, trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information, and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing;

i.    “Log-In Credentials” means sign-in identification and password or other method of access that Enboarder provides to Customer in order to access the Software;

j.    “Malicious Code” means, without limitation, code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, bombs and trojan horses;

k.    “Online Services” means any and all of the professional services, Software, and other offerings provided by Enboarder pursuant to the Agreement, including the offerings provided through the Website, any mobile applications and APIs provided by Enboarder, and all such services and software labelled as alpha, beta, pre-release, trial, preview or otherwise;

l.    “Order Form” means an order for the Online Services signed by the Customer and accepted by Enboarder, which specifies the features of the Software and/or Services, the Subscription Period, the Subscription Fees, number of Authorized Users, and any additional terms applicable to Customer’s access to and use of the Software;

m.    “Personal Data” means Personal Data as defined in the Data Processing Agreement (“DPA”), that is uploaded to the Software by or on behalf of the Customer in connection with Customer’s use of the Online Services;

n.    “Software” means the software-as-a-service offering by Enboarder, available through https://enboarder.com/ and related services located in the https://enboarder.com/ domain and subdomains, including Add-Ons, software, code, algorithms, hosted services, mobile applications, APIs, and web interfaces that are comprised of the web-based authoring environment to create and monitor workflows. Software includes any enhancements, updates, upgrades, derivatives, or bug fixes to such Software, and any add-ons, templates and sample data sets;

o.    “Subscription Fees” means the monthly or annual fee for the Software as set out in the Order Form, or in the case of Add-Ons, as agreed upon by the Parties in writing (email is sufficient);

p.    “Subscription Period” means the period specified in the applicable Order Form, as extended under Section 15(a);

q.    “Website” means www.enboarder.com.

 

 2.   ACCESS AND USE

a.    License Grant. Subject to and conditioned on Customer’s payment of Subscription Fees and compliance with all other terms and conditions of this Agreement, Enboarder hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 16(b)) right to access and use the Software during the Subscription Period, solely for use by Authorized Users in accordance with the terms and conditions herein.  Such use is limited to Customer’s internal use.  Additionally, subject to the terms and conditions contained in this Agreement, Enboarder hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16(b)) license to use the Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Software.

b.    Use Restrictions. Except as expressly authorized in the Agreement or by Enboarder in writing, Customer and its Authorized Users must not, and must not permit any third party to:  (i) access or use the Software for any purpose other than Customer’s internal business purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy any Documentation or other materials provided as part of the Online Services (except as required to run the Software and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of any Software; (iv) rent, lease, loan, resell, transfer, sublicense, display, or distribute the Software to any third party; (v) use or offer any functionality of the Software on a service provider, service bureau, hosted, software as a service, or time-sharing basis, provide or permit other individuals or entities to create Internet “links” to the Software, or “frame” or “mirror” the Software on any other server, or wireless, or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer any Software of otherwise attempt to derive source code, algorithms, methods, or techniques used or embodied in the Software; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Software; (viii) remove, alter, obscure, cover or change any trademark, copyright, or other proprietary notices, labels, or markings from or on the Software; (ix) interfere with or disrupt the servers or networks connected to any website through which the Software is provided; (x) use the Software to build a similar or competitive product or service; (xi) use the Software to transmit Malicious Code; (xii) use the Software for any illegal, unauthorized or otherwise improper purposes; (xiii) attempt to download the Software; (xiv) modify or alter the Software or Documentation; or (xv) except as permitted under Section 7(c)(ii), provide or make the Website available in any manner to a third party.

 c.    Reservation of Rights. Enboarder reserves all rights not expressly granted to Customer in this Agreement.  Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Online Services.

 d.    Suspension. Notwithstanding anything to the contrary in this Agreement, Enboarder may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Online Services if:  (i) Enboarder reasonably determines that (A) there is a threat or attack on any of the Online Services; (B) Customer’s or any Authorized User’s use of the Online Services disrupts or poses a security risk to Online Services or to any other customer or vendor of Enboarder; (C) Customer, or any Authorized User, is using the Online Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Enboarder’s provision of the Online Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Enboarder has suspended or terminated Enboarder’s access to or use of any third-party services or products required to enable Customer to access the Online Services; or (iii) in accordance with Section 6.2 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”).  Enboarder shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Online Services following any Service Suspension.  Enboarder shall use commercially reasonable efforts to resume providing access to the Online Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Enboarder will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

e.    Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Enboarder may monitor Customer’s use of the Online Services and collect and compile Aggregated Data.  As between Enboarder and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Enboarder.  Customer acknowledges that Enboarder may compile Aggregated Data based on Customer Data input into the Online Services.  Customer agrees that Enboarder may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use, publish, share, distribute, or disclose such Aggregated Data for any and all purposes permitted under applicable law, including improving the Software and creating new products; provided that such Aggregated Data do not identify Customer or Customer’s Confidential Information.

f.    AI Features. Enboarder may make features powered by artificial intelligence and machine learning (“AI Features”) available to Customer, such as personalized workflows for each employee journey, guiding employees through onboarding processes, conducting check-ins with new hires at determined intervals, or coaching managers on employee feedback.  To the extent Customer elects to use any of the AI Features, Customer agrees to and accepts the AI Additional Terms of Use, available at https://enboarder.com/legal/ai-terms, which are hereby incorporated into this Agreement.

 

 3.    CUSTOMER RESPONSIBILITIES

a.    Customer is responsible and liable for all uses of the Online Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.  Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.  Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Online Services, and shall cause Authorized Users to comply with such provisions.

b.    To receive the Online Services and access the Software, Customer must:  (i) Use the Log-In Credentials; (ii) for the duration of the Subscription Period, provide Enboarder with access to Customer’s Applications and a right to use, process, and transmit Customer Data for the purposes of providing the Online Services and for any other purposes specified in the Agreement; and (iii)  follow any operating procedures and use any third-party software as may be specified in the Documentation or as may be notified by Enboarder from time to time.

c.    Customer represents, warrants, and covenants that it and its Authorized Users will comply at all times during the Subscription Period with the Acceptable Use Policy, available at http://enboarder.com/acceptable-use as updated from time to time on the Website and incorporated by reference into the Agreement.

d.    Customer acknowledges that Customer is responsible for all hardware, software, and telecommunications services used to access and use the Online Services.

e.    Customer must remain within the scope limitations as outlined in the Order Form, which may include workflows, licenses, and text message caps. Any usage above what is accounted for in the Order Form may incur additional fees.

f.    Any violation of this Section 3 by the Customer will be considered a material breach of this Agreement and Enboarder may immediately terminate the Agreement without notice in the event of such breach.

 

 4.   ADD-ONS.

Customer may, during the Subscription Period, request the provision of Add-Ons to be included in its Order Form.  If the request for Add-Ons is agreed by Enboarder, Customer must pay Enboarder the Add-On fees at the then-current prices as outlined in the updated Order Form at the time of Customer’s request prior to the Add-On being enabled in Customer’s account.

 

 5.   FEES AND PAYMENT

a.    Fees. The Subscription Fees will be payable by Customer on or before the Effective Date and on each subsequent payment date as specified in the applicable Order Form(s) without setoff or deduction.  All payments must be made in the currency set out in the Order Form via electronic funds transfer, as per Enboarder’s instructions.  If applicable, Enboarder will issue an electronic tax invoice upon registration and then prior to each payment date.  In the event Enboarder purchases any third-party services or tools on behalf of Customer, with Customer’s prior written consent, Enboarder will pass through such costs to Customer in the month after expense was incurred, except as otherwise outlined in an Order Form.

b.    Late Payments. If Customer fails to pay any past due invoice, Enboarder may revoke or suspend the Online Services until such time as Customer pays any undisputed outstanding amounts.  Enboarder may charge interest on all past due undisputed invoices at a rate of 1.5% per month, or the highest rate allowed under applicable law, whichever is lower.

c.    Taxes. All Subscription Fees are exclusive of all applicable taxes (except for any withholding taxes and taxes based upon Enboarder’s net income), duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged, including, if applicable, Australian Goods and Services Taxes (“Taxes”) and Customer will be responsible for payment of all such Taxes and any related penalties and interest arising from the payment of or failure to pay such amounts.  If Customer is legally required to withhold any amounts to be paid to Enboarder, Customer may deduct such taxes from the amount otherwise owed and pay the tax to the appropriate taxing authority, and must provide to Enboarder on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority sufficient to permit Enboarder to establish Enboarder’s right to a credit for such taxes against Enboarder’s income tax liability.  Customer must provide Enboarder with such assistance as Enboarder may reasonably request in connection with any application by Enboarder to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.

d.    Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records during the Subscription Period and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.  Enboarder may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Enboarder with respect to any amounts due and payable during the Subscription Period, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(b).  Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter.  Such inspection and auditing rights will extend throughout the Subscription Period of this Agreement and for a period of two years after the termination or expiration of this Agreement.

 

 6.   OWNERSHIP

 a.    Online Services. Customer acknowledges that, as between Customer and Enboarder, Enboarder owns all right, title, and interest, including all intellectual property rights, in and to the Online Services and, with respect to Third-Party Tools, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Tools.

b.    Customer Data. Enboarder acknowledges that, as between Enboarder and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.  Customer hereby grants to Enboarder a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Enboarder to provide the Online Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data.

 c.    Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Enboarder by mail, email, telephone, or otherwise, suggesting or recommending changes to the Online Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Enboarder is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to Enboarder on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Enboarder is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Enboarder is not required to use any Feedback.

 

 7.   LINKS AND THIRD PARTY TOOLS AND SERVICES

a.    Linked Sites. The Website or Software may contain links to other websites including, without limitation, social networking, blogging, and other similar sites (“Linked Sites”).  The Linked Sites are provided for Customer’s convenience only and it is Customer’s responsibility to make Customer’s own decisions about the currency, completeness, accuracy, reliability, and suitability of information contained in and use of or access to the Linked Sites.  Enboarder does not endorse, verify, represent or take any responsibility for the content of the Linked Sites.  Customer acknowledges that the Linked Sites may have different terms of use and privacy policies and Customer’s use of the Linked Sites is governed by such third party’s site terms of use and privacy policy.

b.    Link to the Website. Customer may include a link to the Website, but permission is restricted to making a link without any alteration of the relevant Website content.  Customer may not reproduce, frame or reformat the files, pages, images, information and materials from the Website on any other website of Enboarder unless express prior written permission has been obtained from Enboarder.  In no event is Customer permitted to use the Website to sell a product or service, or to increase traffic to Customer’s website for commercial reasons, such as advertising sales.  Notwithstanding the foregoing, Enboarder reserves the right to prevent linking to the Website at any time.

c.    Third-party Tools and Customer Third Parties.

 i.       Third Party Tools.  Enboarder may from time to time make third-party tools or services available to Customer on the Website or in connection with Customer’s use of the Online Services (such as for form capture) (“Third Party Tools”).  Enboarder does not control such Third Party Tools providers, and, for purposes of this Agreement, such Third Party Tools are subject to their own terms and conditions and the applicable flow-through provisions provided in Exhibit A.  If Customer does not agree to abide by the applicable terms for any such Third-Party Tools, then Customer should not use such Third Party Tools.

ii.       Customer Third Parties. The Software allows Customer to connect to or otherwise interact with one or more third-party service providers for purposes permitted by this Agreement (“Customer Third Party”).  Enboarder may suspend or terminate such interaction from time to time in its sole discretion, including as may be necessary for security or maintenance purposes or as required by applicable law.  Customer acknowledges and agrees that it is solely responsible to enter into and maintain any agreement between it and any Customer Third Party for the provision of their services, and Enboarder is not made a party to such agreement.  To the extent Customer or its Authorized Users use the Service to transmit any Customer Data to or from any Customer Third Party, Customer directs and authorizes Enboarder to provide or receive, respectively, such Customer Data to or from such Customer Third Party.  To the extent Customer uses the Service to connect or otherwise interact with any such Customer Third Party, or has identified or designated any Customer Third Party as its third-party service provider, Customer authorizes Enboarder to allow such third party to access Customer Data as necessary for Enboarder to provide the Online Services.  Customer acknowledges and agrees that Customer Third Parties are not Enboarder’s agents, that Enboarder is not responsible for their services, compliance, completeness, accuracy, actions or omissions or for their maintenance or treatment of Customer Data, that Enboarder will not be liable for and specifically disclaims liability for any damage or loss caused thereby, that access to Customer Third Parties via the Service does not imply any endorsement by Enboarder, and that any Customer Data submitted to Customer Third Parties via the Service will be governed by Customer’s agreement (if any) with such third party.  Enboarder is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by Customer Third Parties.

 

 8.   PERSONAL DATA

 a.    Data Processing. Enboarder will process and use any Personal Data in accordance with Enboarder’s Privacy Policy available at http://enboarder.com/privacy, as updated from time to time on the Website, and the DPA located at https://enboarder.com/legal/global-dpa/, the terms of which are hereby incorporated into this Agreement.  In the event of a conflict between any provisions in these Terms of Service and the DPA, the provisions of the DPA will govern and control with regard to the processing of Personal Data.  Enboarder will maintain a security program materially in accordance with industry standards that is designed to protect the security, confidentiality, and integrity of the Personal Data.

b.    Consents. Customer represents and warrants and agrees that Customer has made any disclosures to and obtained any consents from the relevant data subjects which are required under applicable Data Protection Law, as defined in the DPA, in order for the Personal Data to be lawfully uploaded to the Software and for Enboarder to process that Personal Data as contemplated by this Agreement.

 

 9.   CUSTOMER DATA

 a.    Use of Customer Data. Customer hereby grants Enboarder a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Customer Data solely for the purpose of providing the Online Services to Customer, and the right to create anonymized and/or aggregated versions of all or any portion of the Customer Data to create Aggregated Data to improve the Online Services.  Enboarder shall be the sole owner of all Aggregated Data and may use, publish, share, distribute, or disclose such Aggregated Data for any and all purposes, provided that no Personal Data can be separated from the anonymized and/or aggregated data and identified as originating from Customer.

b.    Customer Data Warranty and Obligations. Customer represents, warrants, and agrees that Customer owns or otherwise has all necessary rights and consents in and relating to the Customer Data so that, as received by Enboarder and used in accordance with this Agreement, the Customer Data will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.  Customer acknowledges and agrees that Customer is solely responsible for all Customer Data and for Customer’s conduct while using the Online Services.  Customer acknowledges and agrees that:  (i) Customer will evaluate and bear all risks associated with Customer’s use and distribution for all Customer Data; (ii) Customer is responsible for protecting and backing up the Customer Data; (iii) Customer is responsible for protecting the confidentiality of all content in Customer’s possession and control; and (iv) under no circumstances will Enboarder be liable in any way for any Customer Data, including but not limited to, any errors or omissions in any Customer Data, or any loss or damages of any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Customer Data.  Customer has full discretion and control regarding how to store, protect, remove or delete any Customer Data from the Software and Enboarder will have no liability for any damages caused by Customer’s deletion or removal of or failure to store or protect Customer Data.

 

 10.   SECURITY

a.    Information Security. Enboarder will employ security measures in accordance with Enboarder’s data privacy and security procedures as described in the DPA.

b. Data Breach Procedures. Enboarder maintains a data breach plan in accordance with the DPA and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).

c.    Customer Control and Responsibility. Customer has and will retain sole responsibility for:  (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Online Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Log-In Credentials; and (e) all access to and use of the Online Services and Documentation directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Log-In Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

d.    Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:  (a) securely administer the distribution and use of all Log-In Credentials and protect against any unauthorized access to or use of the Online Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Online Services.

 

 11.   WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

a.    No Warranty Regarding Website. No representation or warranty (express or implied) is made as to the currency, completeness, accuracy, reliability, suitability, and/or availability of any information on the Website.

 b.    Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:  (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has, and throughout the Subscription Period will retain, the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

c.    Limited Warranty. Subject to Sections 11(d), 11(e), and 11(f), during the Subscription Period, Enboarder will use commercially reasonable efforts to ensure that the Software will operate in accordance with the applicable Documentation.

d.    Remedies. If the Software fails to operate in accordance with the applicable Documentation during the Subscription Period and Customer notifies Enboarder in writing of this failure, Enboarder, at its cost, will correct the failure provided that Enboarder may decline to correct the failure if such correction cannot be completed in a commercially reasonable manner but in such event, Customer may terminate this Agreement and recover a pro-rata portion of any pre-paid Subscription Fees associated with the portion of the Subscription Period after the effective date of such termination.  This Section 11(d) states Enboarder’s sole liability and Customer’s exclusive remedy for any breach of Section 11(c).

e.  The warranty in Section 11(c) will not apply if the failure of the Software resulted from use of the Software by Customer or its Authorized Users not in conformance with the Documentation or this Agreement, Customer’s combination of the Software with any other software, or a defect in or failure of any device, communications link or software used to access the Software.

f.    DISCLAIMER. EXCEPT AS SET FORTH IN SECTIONS 11(b) AND 11(c), THE ONLINE SERVICES ARE PROVIDED “AS IS” AND ENBOARDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW.  ENBOARDER SPECIFICALLY DOES NOT WARRANT THAT THE ONLINE SERVICES OR ANY RESULTS OF THE USE THEREOF WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SOFTWARE WILL BE ERROR-FREE, VIRUS-FREE, SECURE, FREE OF HARMFUL CODE, ACCURATE, RELIABLE, COMPLETE, OR UNINTERRUPTED.

 

 12.   INDEMNIFICATION

 a.    Claims Against Customer. Enboarder will defend, indemnify, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Online Services, when used as expressly permitted by this Agreement, infringes the Intellectual Property Rights of such third party (“Customer Claim”), and Enboarder will indemnify Customer for any amounts awarded against Customer in judgment or settlement of such Customer Claim.  If Enboarder receives prompt notice of a Customer Claim that, in Enboarder’s reasonable opinion, is likely to result in an adverse ruling, then Enboarder may:  (i) obtain a right for Customer to continue using the Online Services at issue; (ii) modify such Online Services to make it non-infringing; (iii) replace such Online Services with a non-infringing version; or (iv) terminate this Agreement and/or provide a reasonable depreciated or pro-rata refund of amounts prepaid for the allegedly infringing Online Services.

b.    Enboarder Indemnity Limits. Notwithstanding the foregoing, Enboarder will have no obligation under Section 12(a) or otherwise with respect to any infringement claim based upon:  (i) any use of the Online Services and/or Documentation not expressly permitted under this Agreement or contrary to the instructions given to Customer by Enboarder; (ii) any use of the Online Services in combination with products, equipment, software, or data not made available by Enboarder if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (iii) Customer’s use of the Online Services or Documentation after notice of the alleged or actual infringement from Enboarder or any appropriate authority; (iv) any modification of the Online Services or Documentation by any person other than Enboarder or its authorized agents or subcontractors; or (v) any third-party tools, links, or websites (collectively, “Excluded Claims”).  Enboarder will have no obligation under Section 12(a) or otherwise with respect to any claim based upon the use by Customer of any Customer Data uploaded or accessed through the Online Services to the extent such claim is not based on the Online Services itself.  Sections 12(a) and 14 state Enboarder’s sole obligation and liability and Customer’s exclusive remedy for all third-party claims.

c.    Claims Against Enboarder. Customer will defend, indemnify, and hold Enboarder harmless against any claim, suit, proceedings, or losses against or damages, expenses, and costs (including without limitation court costs and reasonable legal fees) incurred by Enboarder brought by a third party to the extent that such claim, suit or action arises from:  (i) Customer’s failure to comply with or violation of any applicable law or regulation; (ii) Customer’s infringement of any third party’s Intellectual Property Right; (iii) Customer’s provision of or use of any Customer Data; (iv) Customer’s products or services; or (v) Excluded Claims (each, an “Enboarder Claim”).

d.    Procedure. The foregoing obligations are conditioned on the party seeking indemnification:  (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at the other party’s request and expense, assisting in such defense.  Neither party may make any public announcement of any claim, defense, or settlement without the other party’s prior written approval.  The indemnifying party may not settle, compromise, or resolve a claim without the consent of the indemnified party, if such settlement, compromise, or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

 

 13.   CONFIDENTIALITY. 

From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”).  Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.  The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.  On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.  Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

 

 14.   LIMITATION OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:  (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT PRODUCTS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO A PARTY’S FRAUD OR WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR, WITH RESPECT TO CUSTOMER, CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ENBOARDER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy.  Where Australia law is the governing law under this Agreement, (a) to the extent applicable law including Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) prohibits any limitation on liability herein, the Parties agree that such limitation will be automatically modified, but only to the extent required to make the limitation compliant with applicable law; and (b) Enboarder limits its liability for any failure to comply with a consumer guarantee under the Australian Consumer Law to, at its options, supplying the relevant services again or paying the cost of having the services supplied again.

 

 15.   SUBSCRIPTION PERIOD AND TERMINATION 

a.    Subscription Period. Unless earlier terminated in accordance with this Agreement, the Subscription Period will commence on the Effective Date set forth in the applicable Order Form and will automatically renew for additional periods of 12 months, unless a Party provides written notice to the other Party of its intention not to renew at least 30 days prior to expiration of the then-current Subscription Period. Upon renewal, Enboarder reserves the right to increase the subscription fees outlined in the current Order Form by seven percent (7%) for the same subscription and pricing structure. Discounts or promotional offers applied previously may not apply at renewal.

b.    Enboarder Termination Rights. Without limiting any other right or remedy Enboarder may have against Customer arising out of or in connection with this Agreement, Enboarder may, at its option, terminate this Agreement with immediate effect by giving Customer prior written notice if:  (i) Customer fails to comply with the Acceptable Use Policy when accessing or using the Software; (ii) Customer commits a material breach of any terms in this Agreement where that breach is not capable of remedy; or (iii)  Customer breaches any other provision of this Agreement and fails to remedy that breach within 14 days after receiving notice requiring Customer to do so.  If Enboarder terminates the Agreement under this Section 15(b), Enboarder will not be liable and Customer will not be entitled to any refund of any part of the Subscription Fees previously paid.

c.    Customer Termination Rights. Customer may, at its option, terminate this Agreement with immediate effect by giving Enboarder prior written notice if Enboarder commits a material breach of any terms in this Agreement where that breach is not capable of remedy or breaches any other provision of this Agreement and fails to remedy that breach within 30 days after receiving notice requiring Enboarder to do so.  If Customer’s Subscription is terminated under this Section 15(c), Enboarder will refund to Customer a prorated portion of any prepaid amounts of Subscription Fees for the portion of the Online Services after the effective date of such termination.

d.    Termination for Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:  (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

e.    Effect of Termination. Immediately upon termination of this Agreement:

i.      all Order Forms and licenses granted under this Agreement will immediately terminate and Customer must immediately cease all use of the Software;

ii.     each Party must destroy, or upon the disclosing Party’s request, return to the disclosing Party the Confidential Information of the other party that is in the receiving Party’s possession or control;

iii.  Customer will be responsible for any pre-approved, non-cancelable third-party costs or expenses committed to by Enboarder on Customer’s behalf prior to the effective date of termination; and

iv.  except as expressly provided in Section 15(c), any and all of Customer’s payment obligations under each Order Form will immediately become due and payable.  Upon Enboarder’s request, Customer must certify in writing that it has returned or destroyed all copies of Enboarder’s Confidential Information.

f.    Survival. Sections 1, 2, 5, 6, 9, 10, 11, 12 – 16 will survive termination of this Agreement.

 

 16.   GENERAL 

a.    Compliance with Laws. Customer must comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of any country where Customer uses or accesses any portion or functionality of the Online Services.  Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Online Services outside the original country in which Customer is subscribed.  Customer represents and warrants that Customer is not  located in, or a resident or national of, a restricted country or on any of the relevant U.S. Government lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List.  Customer further represents, warrants, and covenants that it will not export, re-export, ship, or transfer the Software to any restricted countries or restricted end users or use the Software in any restricted countries or for any purposes prohibited by applicable export laws, including but not limited to, nuclear, chemical, missile, or biological weapons related end uses.  Customer understands that the requirements and restrictions of the applicable export laws may vary depending on the specific Software and may change over time, and that, to determine the precise controls applicable to the Software, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.

b.    Assignment. Customer may not assign, delegate or transfer any of its rights or delegate any of its obligations hereunder to another individual or entity, in whole or in part, by agreement, operation of law or otherwise, without the prior written consent of Enboarder.  Any attempt to assign this Agreement other than as permitted herein will be null and void.  Customer acknowledges that Enboarder may assign, subcontract, or delegate any of its rights or obligations under this Agreement.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.

c.    Entire Agreement. This Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties in connection with its subject matter.  In the event of a conflict between the terms in an Order Form and these Terms, the terms in the Order Form will control with respect to the Online Services provided under such Order Form solely with respect to the conflicting provision(s). These Terms govern over any linked governing terms of service in an Order Form. No additional or different terms set forth in any purchase order, invoice, or instrument issued by a Party in connection with this Agreement will be binding upon the other Party except to the extent expressly acknowledged by the Parties in writing. Enboarder’s clicking any buttons or any similar action, such as clicking “I Agree” or “Confirm,” to utilize Customer’s software or webpage for the placement of orders, is NOT an agreement to Customer’s terms and conditions. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF ENBOARDER HAS THE AUTHORITY TO BIND ENBOARDER BY THE ACT OF CLICKING ANY BUTTON OR SIMILAR ACTION ON CUSTOMER’S WEBSITE OR PORTAL. Enboarder’s acceptance of Customer’s purchase order does not constitute Enboarder’s acceptance of Customer’s purchase order terms and conditions.

d.    Severability. This Agreement is declared to be severable.  If a court of competent jurisdiction holds any part of this Agreement void, invalid, or unenforceable, it is severed and will be deemed to be omitted to the extent that it is void, invalid, or unenforceable, and the remainder of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

e.    Waiver. A waiver by either Party in respect to a breach of a term of this Agreement by the other Party will not be taken to be a waiver in respect of any other breach.  The failure to enforce any term of this Agreement will not be interpreted as a waiver of that term.

f.    Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 13 (Confidentiality) or, in the case of Customer, Section 2 (Access and Use), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

g.    Modifications. Customer acknowledges and agrees that Enboarder has the right, in its sole discretion, to modify these terms from time to time, and that modified terms become effective on posting. Customer is responsible for reviewing this website from time to time and becoming familiar with any modifications. Customer’s continued use of the Software after the effective date of the modifications will be deemed acceptance of the modified terms.

h.    Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws as listed below under “Governing Law” as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that any action, proceeding, controversy, or claim between them arising out of or relating to this Agreement (including non-contractual disputes or claims, collectively, an “Action”) must be brought only in a court of competent jurisdiction within the state of the primary place of business of the defendant.  Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, regardless of the countries in which the parties do business or are incorporated.

 

 

17.   TCPA CONSENT

The Online Services contain a feature that allows Customer to enable Authorized Users to receive notifications through the Software via email, phone calls, and SMS messages (“Software Alerts”).  Notwithstanding any current or prior election to opt in or opt out of receiving automated telephone calls, SMS messages or other messaging from Enboarder, its agents, representatives, affiliates, anyone calling on its behalf regarding the Online Services, in the event Customer enables Software Alerts, Customer expressly consents to, and represents that it has obtained its Authorized Users consent to, being contacted by Enboarder, its agents representatives, affiliates, anyone calling on its behalf using automated dialing technology for any and all purposes arising out of or relating to the Online Services, at any telephone number Customer or an Authorized User provides, or physical or electronic address Customer or an Authorized User provides or at which Customer or an Authorized User may be reached.  Message and data rates may apply.  Customer agrees to promptly alert Enboarder whenever Customer stops using a particular telephone number or remove such number from the Software.  Enboarder may listen to and/or record customer service phone calls between Customer and Enboarder without notice to Customer as permitted by applicable law.  For example, Enboarder listens to and records customer service calls for quality monitoring purposes.  Customer may opt-out of recording such calls with Enboarder at any time.

 

 

Exhibit A – Third-Party Tools Pass-Through Terms

These Third-Party Tools Pass-Through Terms apply to certain technologies or features licensed from third-parties that are provided with, or utilized by, the Software, as established in the Terms.

Customer’s use of the Third Party Tools is subject to the following pass-through terms: