Enboarder Terms of Service
This Terms of Service, including all Order Forms, addenda, exhibits and schedules hereto which by this reference are incorporated herein (collectively, these “Terms of Service”), is between Enboarder LLC (“Enboarder”) and the customer (“Customer”) whose name appears on the Order Form regarding the Online Services and is effective as of the Effective Date set forth on the Order Form. Enboarder and Customer are each referred to individually as a "party," and collectively as the "parties."
PLEASE REVIEW THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by these Terms of Service; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction.
(a) These Terms of Service govern Enboarder’s provision of the Online Services and Customer’s access to and use of the Online Services. These Terms of Service contain the general terms and conditions applicable to all such Online Services.
(c) If you are an individual entering into these Terms of Service on behalf of an entity, such as your employer, you represent that you have the legal authority to bind that entity.
In these Terms of Service unless the context requires otherwise:
(a) “Acceptable Use Policy” means Enboarder’s Acceptable Use Policy available at http://enboarder.com/acceptableusepolicy as updated from time to time on the Website.
(b) “Add-Ons” means advanced functionality to support the Platform which Customer may request under clause 5;
(c) “Add-On Fees” means the fees for the Add-Ons published on the Website;
(d) “Applications” means software programs provided by Customer that run on or run through the Platform;
(e) “Content” 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 Customer that are uploaded, reside in, run on or run through, the Platform;
(f) “Data Protection Addendum” means Enboarder’s Data Protection Addendum attached hereto as Addendum A, including the Standard Contractual Clauses as required under Article 28 of the GDPR and incorporated by reference into these Terms of Service.
(g) “Data Protection Laws” mean any law applicable to Data Processor’s processing or use of personal data, including (to the extent applicable), the GDPR and The California Consumer Privacy Act of 2018, AB375, Title 1.81.5, including any implementing law, as amended (“CCPA”).
(h) “Documentation” means material describing the functional processes, assumptions, specifications and principle operations of the Platform which has been designated by Enboarder as the official documentation for the Platform;
(i) “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;
(j) “Fees” means the Subscription Fees and Add-On Fees;
(k) "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
(l) “Initial Subscription Period” means the period specified in the applicable Order Form;
(m) “Intellectual Property Rights” means all intellectual property rights throughout the world including but not limited to the following rights: copyright rights (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, notifications, 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.
(n) “Internal Purposes” means internal business use within Customer’s systems, networks and devices.
(o) “Log-In Credentials” means sign-in identification and password or other method of access that Enboarder provides to Customer in order to access the Subscription;
(p) “Malicious Code” means, without limitation, code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses;
(q) “Online Services” means any and all of the services, Software and other offerings provided by Enboarder pursuant to these Terms of Service, including the Subscription, 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. Online Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates and sample data sets;
(r) “Order Form” means an order for the Online Services (using Enboarder’s template) signed by the Customer and accepted by Enboarder, which specifies the Subscription, including, without limitation the number of seats or users, the Initial Subscription Period, the Subscription Fees and any additional terms applicable to the Subscription;
(s) “Payment Date” means the recurrent date (monthly or annual) for payment of the Subscription Fees as specified in the Order Form;
(t) "Personal Data" means any information relating to an identified or identifiable natural person which is uploaded to the Platform by or on behalf of the Customer in connection with the Customer's use of the Subscription;
(u) “Platform” means the workflow platform located at https://enboarder.com/ and related services located in the https://enboarder.com/ domain and subdomains, including software, code, algorithms, hosted services, and web interfaces that is comprised of the web-based authoring environment to create and monitor workflows, and the mobile-first screens that are delivered to manager(s) and employees which are part of the Online Services;
(w) “Software” means any software forming part of the Platform and/or Add-Ons;
(x) “Subscription” means the non-exclusive, non-sublicensable, non-transferable, revocable, limited right and license to access and use the Platform for an Internal Purpose during the Subscription Period as specified in an Order Form;
(y) “Subscription Fee” means the monthly or annual fee for the Subscription as set out in the Order Form, or published on the Website from time to time, which Customer must pay in advance to Enboarder in accordance with clause 6;
(z) “Subscription Period” means the Initial Subscription Period as extended under clause 18(b); and
(aa) “Website” means www.enboarder.com.
3. LICENSE GRANT
Customer’s Subscription is subject to and governed by the terms and conditions in these Terms of Service, including those in the applicable Order Form. In the event of a conflict between the terms in an Order Form and these Terms of Service, the terms in the Order Form will control with respect the Subscription provided under such Order Form. The Subscription is granted subject to and conditional on Customer’s compliance with these Terms of Service and those in the applicable Order Form and upon payment of the Subscription Fees in accordance with clause 6.
4. USE OF THE SUBSCRIPTION
(a) To receive the Subscription, Customer must:
(i) use the Log-In Credentials;
(ii) for the duration of the Subscription Period, provide Enboarder with access to and a right to use, process, and transmit Customer’s Content and Customer’s Applications for the purposes of providing the Subscription and for any other purposes specified in these Terms of Service; and
(iii) follow any operating procedures and use any software as may be specified in the Documentation or as may be notified by Enboarder from time to time.
(b) It is a condition of Customer’s Subscription that Customer complies at all times with the Acceptable Use Policy.
(c) Customer acknowledges that Customer is responsible for all hardware, software and telecommunications services used to access and use the Subscription.
Customer may during the Subscription Period request the provision of Add-Ons to be included as part of the Subscription. If the request for Add-Ons is agreed by Enboarder, Customer must pay Enboarder the Add-On Fees at the times set out in clause 6. These Terms of Service will govern Customer’s use of and access to such Add-Ons.
6. FEES AND PAYMENT
The Subscription Fees and Add-On Fees will be payable by Customer on or before the Effective Date and on each subsequent Payment Date. All payments must be made in United States dollars via electronic funds transfer, as per Enboarder’s instructions.
6.2 Late Payments
If Customer fails to pay any past due invoice, Enboarder may revoke or suspend the Subscription until such time as Customer pays any outstanding amounts. Enboarder may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.
All Subscription Fees and Add-On Fees are exclusive of all applicable taxes (except for any withholding taxes and taxes solely based on 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 (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.
7. OWNERSHIP AND LICENSE RESTRICTIONS
(a) The Subscription is a temporary right to access and use the Platform and Enboarder, its suppliers or its licensors, retain and reserve all rights including all Intellectual Property Rights, in and to the Platform. For the avoidance of doubt, Enboarder will own all rights, including all Intellectual Property Rights, in any features or functionality of the Platform or the Subscription which are the result of Feedback provided to Enboarder by the Customer and Customer agrees that Enboarder is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in such features or functionality in any form and any medium (whether now known or later developed), without credit or compensation to Customer..
(b) Subject to the license granted under clause 4(a)(ii), Customer and its Licensors will retain all Intellectual Property Rights in and to its Content and Applications.
7.2 License Restrictions
(a) Restrictions: Except as expressly authorized in these Terms of Service or by Enboarder in writing, Customer must not, and must not permit any third party to:
(i) access or use the Subscription for any purpose other than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes);
(ii) copy any materials provided as part of the Subscription (except as required to run the Subscription 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 Subscription to any third party;
(v) use or offer any functionality of the Subscription 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 Subscription, or "frame" or "mirror" the Subscription on any other server, or wireless or Internet-based device;
(vi) decompile, disassemble, translate or reverse-engineer any Software or otherwise attempt to derive source code, algorithms, methods or techniques used or embodied in the Subscription;
(vii) disclose to any third party the results of any benchmark tests or other evaluation of the Subscription,
(viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Subscription;
(ix) interfere with or disrupt servers or networks connected to any website through which the Subscription is provided;
(x) use the Subscription to build a similar or competitive product or service;
(xi) use the Subscription to transmit Malicious Code;
(xii) use the Subscription 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 clause 8.2, provide, or make the Website, available in any manner to a third party.
(b) Other Parties: Any employee, consultant, contractor or agent hired to perform services for Customer may operate the Subscription on Customer’s behalf solely under these Terms of Service, provided that:
(i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of these Terms of Service on the same basis as applicable to Customer;
(ii) such use is only in connection with Customer’s Internal Purposes;
(iii) such use does not represent or constitute an increase in the scope of the licenses provided in these Terms of Service; and
(iv) Customer remains fully responsible and liable for any and all acts or omissions by such third parties related to these Terms of Service.
(c) Immediate Termination: Any violation of this clause 7.2 by the Customer will be considered a material breach of these Terms of Service and Enboarder may immediately terminate these Terms of Service without notice in the event of such breach.
8. LINKS AND TOOLS
8.1 Linked Sites
(a) The Website may contain links to other websites including, without limitation, social networking, blogging and other similar sites (Linked Sites).
(b) 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.
(c) Enboarder does not endorse, verify, represent or take any responsibility for the content of the Linked Sites.
8.2 Link to the Website
(a) Customer may include a link to the Website, but permission is restricted to making a link without any alteration of the relevant Website contents. Permission is not granted to reproduce, frame or reformat the files, pages, images, information and materials from the Website on any other website unless express prior written permission has been obtained from Enboarder.
(b) 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.
(c) Enboarder reserves the right to prevent linking to the Website at any time.
8.3 Third party tools
(a) Enboarder may provide the use of third party tools on the Website or in connection with Customer’s use of the Subscription (such as for form capture). Such tools are provided "as is" and without warranty of any kind.
9. TCPA CONSENT
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 Subscription, Customer expressly consents to be contacted by Enboarder, its agents, representatives, affiliates, anyone calling on its behalf for any and all purposes arising out of or relating to the Subscription, at any telephone number Customer provides, or physical or electronic address Customer provides or at which Customer may be reached. Customer agrees Enboarder may contact Customer in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by Customer or someone else. In the event that an agent or representative calls, he or she may also leave a message on Customer’s answering machine, voice mail, or send one via SMS messages (including text messages). Customer consents to receive SMS messages (including text messages), calls, messages (including prerecorded and artificial voice and autodialed) or other messaging from Enboarder, its agents, representatives, affiliates, anyone calling on its behalf at the specific number(s) Customer has provided to Enboarder, or numbers Enboarder can reasonably associate with Customer’s account (through skip trace, caller ID capture or other means), with information or questions about the Subscription. Customer certifies, warrants and represents that the telephone numbers that Customer has provided to Enboarder are Customer’s contact numbers. Customer represent that Customer is permitted to receive calls at each of the telephone numbers Customer has provided to Enboarder. Customer agrees to promptly alert Enboarder whenever Customer stops using a particular telephone number. Customer’s cellular or mobile telephone provider will charge Customer according to the type of plan Customer carries. Customer also agrees that Enboarder may contact Customer by e-mail, using any email address Customer has provided to Enboarder or that Customer provides to Enboarder in the future. Enboarder may listen to and/or record phone calls between Customer and its representatives without notice to Customer as permitted by applicable law. For example, Enboarder listens to and record calls for quality monitoring purposes.
10. PERSONAL DATA
10.1 Data Processing
Customer represents, 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 Laws in order for the Personal Data to be lawfully uploaded to the Platform and Enboarder to process that Personal Information as contemplated by these Terms of Service.
11.1 Use of Content
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 Content solely for the purpose of providing and improving the Subscription, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Content. Enboarder may use, publish, share, distribute, or disclose such Content on an aggregate basis or in a de-identified manner that does not allow personal data about Customer to be separated from the aggregate data and identified as originating from Customer.
11.2 Content Warranty and Obligations
Customer represents, warrants and agrees that Customer has all rights to provide the Content and other materials that Customer provides or makes available to Enboarder. Customer acknowledges and agrees that Customer is solely responsible for all Content and for Customer’s conduct while using the Subscription. Customer acknowledges and agrees that:
(a) Customer will evaluate and bear all risks associated with Customer’s use and distribution of all Content;
(b) Customer is responsible for protecting and backing up the Content;
(c) Customer is responsible for protecting the confidentiality of all Content in Customer’s possession and control; and
(d) under no circumstances will Enboarder be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damages or any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Content. Customer has full discretion and control regarding how to store, protect, remove or delete any Content and Enboarder will have no liability for any damages caused by such deletion or removal of or failure to store or protect Content.
Customer agrees to provide Enboarder with feedback. Enboarder, in its sole discretion, may or may not respond to Customer’s feedback or promise to address all of Customer’s feedback in the development of future features or functionalities of the service or any related or subsequent versions of such service. Customer assigns, at no charge, all rights, title and interests in feedback to Enboarder, and agrees that Enboarder is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the feedback (including any implementation thereof recommended by you). Customer further warrants that Customer’s feedback is not subject to any license terms that would purport to require Enboarder to comply with any additional obligations with respect to any service that incorporates Customer’s feedback.
13. SECURITY, VIRUSES, ERRORS AND AVAILABILITY
(a) Customer acknowledges that:
(i) the internet is an insecure public network which means that there are risks that information sent to or from the Online Services may be intercepted, corrupted or modified by third parties; and
(ii) files obtained from or through the Online Services may contain Malicious Code.
(b) Customer bears the risks and responsibility for any loss or damage caused, directly or indirectly, by the risks described in this clause 13, and Enboarder accepts no liability for any interference with, or damage to, Customer’s computer system, device, software, Content or other data occurring in connection with Customer’s access or use of the Online Services.
Notwithstanding the foregoing, considering the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Enboarder shall implement appropriate technical and organizational measures to ensure a level of security of the processing of Personal Data appropriate to the risk. Enboarder shall maintain and follow written security policies that are fully implemented and applicable to the processing of personal data. At a minimum, such policies will include assignment of internal responsibility for information security management, devoting adequate personnel resources to information security, carrying out verification checks on permanent staff who will have access to the personal data, conducting appropriate background checks, requiring employees, vendors and others with access to personal data to enter into written confidentiality agreements, and conducting training to make employees and others with access to the personal data aware of information security risks presented by the processing.
14. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
(a) 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) Subject to clauses 14(d), 14(e) and 14(f), Enboarder will use commercially reasonable efforts to ensure that the Subscription will operate in accordance with the applicable Documentation.
(c) Each party represents and warrants that it has full right, power, and authority to enter into these Terms of Service and to perform its obligations and duties under these Terms of Service, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order or decree by which such party is bound.
(d) If the Subscription (including the functionality of the Platform) 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 these Terms of Service and recover a pro-rata portion of the Subscription Fees paid by Customer that are attributable to the failed Service. This clause 14(d) states Enboarder’s sole liability and Customer’s exclusive remedy for any breach of clause 14(b).
(e) The warranty in clause 14(b) will not apply if the failure of the Subscription resulted from improper use or a defect in or failure of any device, communications link or software used to access the Subscription.
(f) EXCEPT AS SET FORTH IN CLAUSE 14(b) AND 14(c), ENBOARDER DISCLAIMS ANY AND ALL 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 SUBSCRIPTION WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SUBSCRIPTION WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED.
15.1 Claims Against Customer. Enboarder will defend, at its own expense, 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 from liability incurred by Customer to the extent arising from 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) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Online Services.
15.2 Enboarder Indemnity Limits. Notwithstanding the foregoing, Enboarder will have no obligation under clause 15.1 or otherwise with respect to any infringement claim based upon: (i) any use of the Online Services not expressly permitted under this Agreement; (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; or (iii) any modification of the Online Services by any person other than Enboarder or its authorized agents or subcontractors (collectively, “Excluded Claims”). Enboarder will have no obligation under Section 15.1 or otherwise with respect to any claim based upon the use by Customer of any Content uploaded or accessed through the Online Services to the extent such claim is not based on the Online Services itself. Section 15.1 states Enboarder’s sole liability and Customer’s exclusive remedy for all third party claims.
15.3 Claims Against Enboarder. Customer will defend, at its own expense, and hold Enboarder harmless against any claim, suit or action against 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 use of any Content, (iv) Customer’s products or services, or (v) Excluded Claims (each, a “Enboarder Claim”), and Customer will indemnify Enboarder harmless from liability incurred by Enboarder that is specifically attributable to such Enboarder Claim or those costs and damages agreed to in a monetary settlement of such Enboarder Claim.
15.4 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 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.
In this clause:
(a) “Confidential Information” means information disclosed by a party in connection with the provision or use of the Online Services that either:
(i) is designated as confidential by the Discloser at the time of disclosure; or
(ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Enboarder’s Confidential Information also includes the Platform, the Subscription and terms and conditions upon which Enboarder is providing the Online Services to the Customer;
(b) "Discloser" means a party which discloses Confidential Information to the other party;
(c) "Recipient" means a party which receives Confidential Information disclosed by the other party.
16.2 Use of Confidential Information
A Recipient may not use Confidential Information in any way for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, these Terms of Service or as otherwise authorised in writing by the Discloser.
16.3 Disclosure of Confidential Information
(a) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and
(b) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in clause 16.2 and Recipient will remain responsible and liable for each such person’s compliance with these Terms of Service.
16.4 Confidentiality Period
Irrespective of any termination of these Terms of Service, Recipient’s obligations with respect to Confidential Information under these Terms of Service expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets where such obligations will be perpetual).
(a) Exclusions: These Terms of Service impose no obligations with respect to information which:
(i) was in Recipient’s possession before receipt from Discloser;
(ii) is or becomes a matter of public knowledge through no fault of Recipient;
(iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or
(iv) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.
(b) Return or Destruction of Confidential Information: Upon termination of these Terms of Service or written request by Discloser, the Recipient must:
(i) cease using the Confidential Information; and
(ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.
17. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ENBOARDER BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, CONTENT, APPLICATIONS, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE USE OR PERFORMANCE OF THE SUBSCRIPTION. WITHOUT LIMITING THE FOREGOING, ENBOARDER WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA, CONTENT OR APPLICATIONS ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE PLATFORM OR SUBSCRIPTION, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA, CONTENT OR APPLICATIONS ON OR THROUGH THE PLATFORM OR SUBSCRIPTION. ENBOARDER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER’S, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ENBOARDER FOR THE SUBSCRIPTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT GAVE RISE TO SUCH CAUSE OF ACTION.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. 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.
18. SUBSCRIPTION PERIOD AND TERMINATION
(a) Unless earlier terminated in accordance with these Terms of Service, the Initial Subscription Period will commence on the Effective Date and end on the term set forth in the applicable Order Form.
(b) The Initial Subscription Period 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 thirty (30) days prior to expiration of the Initial Subscription Period or any subsequent 12-month period, as appropriate.
(c) Without limiting any other right or remedy Enboarder may have against Customer arising out of or in connection with these Terms of Service, Enboarder may, at its option, terminate Customer’s Subscription with immediate effect by giving Enboarder prior written notice if:
(i) Customer fails to comply with the Acceptable Use Policy when accessing or using the Subscription;
(ii) Customer commits a material breach of any terms in these Terms of Service where that breach is not capable of remedy; or
(iii) Customer breaches any other provision of these Terms of Service and fails to remedy that breach within 14 days after receiving notice requiring Customer to do so.
(d) If Customer’s Subscription is terminated under clause 18(c), Enboarder will not be liable and Customer will not be entitled to any refund of any part of the Fees previously paid.
(e) Immediately upon termination of these Terms of Service:
(i) all Order Forms and licenses granted under these Terms of Service will immediately terminate and Customer must immediately cease all use of the Subscription;
(ii) Customer must destroy or, upon Enboarder’s request, return to Enboarder the Confidential Information that is in Customer’s possession or control; and
(iii) any and all of Customer’s payment obligations under each Order Form will immediately become due. Upon Enboarder’s request, Customer must certify in writing that it has returned or destroyed all copies of Enboarder’s Confidential Information.
(f) Clauses 1, 6, 7, 9, 11, 13 - 19, will survive termination of these Terms of Service.
(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 the United States and any other country (“Export Laws”) where Customer uses or accesses any portion or functionality of the Subscription. Customer represents and warrants that Customer is not:
(i) located in, or a resident or a national of, a restricted country; or
(ii) 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 and warrants that Customer must not export, re-export, ship, or transfer the Subscription to any restricted countries or restricted end users or use the Subscription in any restricted countries or for any purposes prohibited by the 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 Export Laws may vary depending on the specific Subscription and may change over time, and that, to determine the precise controls applicable to the Subscription, 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 and novation: Customer may not assign, delegate or transfer these Terms of Service or give or transfer the Subscription, Documentation or an interest in them to another individual or entity, in whole or in party, by agreement, operation of law or otherwise. Any attempt to assign these Terms of Service 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 these Terms of Service. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties’ permitted successors and assigns.
(d) Severability: These Terms of Service are declared to be severable. If a court of competent jurisdiction holds any part of these Terms of Service 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 these Terms of Service 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 of a breach of a term of these Terms of Service 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 these Terms of Service will not be interpreted as a waiver of that term.
(f) Governing law and jurisdiction: These Terms of Service will be governed by and construed in accordance with the laws of the State of Texas, 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 these Terms of Service (collectively, an “Action”) must be brought only in a court of competent jurisdiction in Austin, Texas. 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 neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods will apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
Data Protection Addendum