1. PLATFORM AND SUPPORT.
1.1 Subject to the terms of this Agreement, EK grants Client a non-exclusive, non-transferable, non-sublicensable, revocable right to use the EntityKeeper Platform (“Platform”) during the Term of this Agreement for Client’s internal business purposes only.
1.2 Subject to the terms hereof, EK will provide Client with reasonable technical support services during normal business hours (Monday-Friday from 9am-5pm ET) by emailing firstname.lastname@example.org or reaching out to the EK Primary Contact.
2. CLIENT DATA AND CLIENT RESPONSIBILITIES.
2.1 Client Data. Client shall own all right, title and interest in and to all data provided by Client (“Client Data”). Client grants EK a worldwide, royalty-free, non-exclusive, perpetual license to access and use Client Data to provide the Platform (including any services requested through the Platform) to Client and to monitor and improve the Platform during the Term. Without limiting the foregoing, in addition to any other rights to use Client Data in this Agreement, EK may use Client Data (1) for its internal business purposes, including to improve, administer and deliver the Platform, and (b) to create aggregate and anonymous data, which EK shall own and is permitted to use for any purpose.
2.2 Data Requirements. Client is responsible for ensuring that Client Data does not violate any applicable law (including any consents required under applicable data privacy laws) or infringe the rights of any third parties. While EK will not verify the Client Data or EK’s right to use the Client Data pursuant to this Agreement it retains the right to return to Client or delete or destroy any Client Data that violates this Agreement or is otherwise objectionable or inappropriate, as determined by EK in its sole discretion. Client agrees and acknowledges that it will not provide to EK any medical or healthcare data.
2.3 Restrictions and Responsibilities.
2.3.A Client will not, directly or indirectly:
1. reverse engineer, crawl, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”);
2. remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software; or fail to preserve all copyright and other proprietary notices in all copies Company makes of the Software
3. modify, translate, or create derivative works based on the Platform or any Software (except to the extent expressly permitted by EK or authorized herein);
4. use the Platform or any Software for timesharing or service bureau purposes;
5. sell, market, license, sublicense, distribute or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; or
6. seek to obtain intellectual property protection on the Platform or Software, or any part thereof; or remove any proprietary notices or labels.
2.3.B Client is responsible for all activity related to Client’s account, including but not limited to, actions of Client’s employees, owners, officers, directors, contractors, subsidiaries, vendors, and third-party agents.
2.3.C Further, Client may not remove or export from the United States or allow the export or re-export of the Platform, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3.D Client represents, covenants, and warrants that Client will only use the Platform in compliance with this Agreement and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless EK and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from Client’s violation of the foregoing. Although EK has no obligation to monitor Client’s use of the Platform, EK may do so and may prohibit any use of the Platform it believes may be in violation of the foregoing.
2.3.E Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers internet service providers, and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account or the Equipment. For the avoidance of doubt, EK shall not have any liability or responsibility to the extent Client is unable to access or use the Platform as a result of any failure, degradation, non-performance or other issue relating to Client’s Equipment.
FOR PURPOSES OF THESE TERMS AND CONDITIONS AND SOLELY TO OBTAIN CLIENT DATA FOR YOU AT YOUR REQUEST FROM A THIRD PARTY OR THIRD PARTY SITE, YOU GRANT US A LIMITED POWER OF ATTORNEY, AND APPOINT US AS YOUR ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND RE-SUBSTITUTION, FOR YOU AND IN YOUR NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO ACCESS THIRD PARTY SITES, SERVERS OR DOCUMENTS, RETRIEVE INFORMATION AND USE YOUR INFORMATION WITH THE FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN CONNECTION WITH SUCH ACTIVITIES, AS FULLY TO ALL INTENTS AND PURPOSES AS YOU COULD DO IN PERSON. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE ARE ACCESSING AND RETRIEVING YOUR CLIENT DATA FROM THIRD PARTY SITES AT YOUR DIRECTION, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY. YOU AGREE THAT THIRD PARTY ACCOUNT PROVIDERS SHALL BE ENTITLED TO RELY ON THE FOREGOING AUTHORIZATION, AGENCY AND POWER OF ATTORNEY GRANTED BY YOU.
3. Payment of Fees.
3.1 Client will pay EK the then applicable fees described in the Order Form and any other fees required under the terms of this Agreement (“Fees”). If Client’s use of the Platform exceeds the entity threshold set forth on the Order Form, Client will be contacted to upgrade to the next Service Plan and Client agrees to pay the additional fees in accordance with the payment provisions herein, commencing on the next monthly payment date. EK reserves the right to change the Fees or applicable charges and to institute new Fees or charges, at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior written notice to Client (which may be sent by email). If Client believes that EK has billed Client incorrectly, Client must contact EK in writing no later than sixty (60) days after the billing statement in which the error or problem appeared in order to receive an adjustment or credit.
3.2 Platform Billing
3.2.A Monthly Billing. For Clients on a monthly billing schedule, the Monthly Platform Fee is payable on the day the Client opted into service and on that day of each calendar month thereafter. Amounts not received by the tenth (10th) day from the due date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorney’s fees, and may result in immediate termination or suspension of access to the Platform. The Monthly Platform Fee is exclusive of applicable taxes. Client shall be responsible for all taxes associated with the Platform, including but not limited to sales and use, excise, state and local privilege tax and VAT, but excluding U.S. taxes based on EK’s net income.
3.2.B Annual Billing. For Clients on an annual billing schedule, the Annual Platform Fee is payable on the day the Client opted into service and on that day of each calendar year thereafter. Amounts not received by the tenth (10th) day from the Due Date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorney’s fees, and may result in immediate termination or suspension of access to the Platform. The Annual Platform Fee is exclusive of applicable taxes. Client shall be responsible for all taxes associated with the Platform, including but not limited to sales and use, excise, state and local All Fees are non-refundable; provided, however, that if Client terminates the Agreement due to a material breach by EK as described in Section 6 herein, EK will refund Client any Platform Fee payment it received that is allocable to the remainder of the month or year, as applicable based on billing cadence, following the termination date.
3.2.C EK Corporate Services Billing. For Clients using EK Corporate Services, an invoice will be sent to the Client for each order placed through Client’s account. Amounts not received by the tenth (10th) day from the due date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorney’s fees, and may result in immediate termination or suspension of access to the Platform. The EK Corporate Service Fees are exclusive of applicable taxes. Client shall be responsible for all taxes associated with the Corporate Service Fees, including but not limited to sales and use, excise, state and local privilege tax and VAT, but excluding U.S. taxes based on EK’s net income.
3.3 During the Term, Client may engage EK to provide additional services and analysis as may be agreed upon by the parties in writing, which may be billed separately and subject to any additional terms and conditions as agreed upon by Client and EK. In addition, Client may order corporate services through the Platform and Client is responsible for all costs and fees incurred in connection with orders placed through Client’s account as set forth in Section 3.2.C.
4. PROPRIETARY RIGHTS.
4.1 EK shall own and retain all right, title and interest in and to (a) the Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, templates, methodologies, or other technology developed in connection with Client support services, and (c) all intellectual property rights relating to any of the foregoing. To the extent Client now or hereinafter acquires any right, title or interest in the foregoing, Client hereby assigns all such right, title and interest to EK. Except for the license rights expressly granted to Client herein, no other rights in or to the Platform, Software, or any other intellectual property of EK are granted to Client herein.
4.2 Notwithstanding anything to the contrary, EK shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and EK will be free to (i) use such information and data to improve and enhance the Platform and for other internal development, diagnostic and corrective purposes in connection with the Platform.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of EK includes, but is not limited to, non-public information regarding features, functionality and performance of the Platform and Software. Confidential Information of Client includes non-public data provided by Client to EK to enable Client’s use of the Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in providing the Platform or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public (through no actions of Receiving Party), or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party as evidenced by contemporaneous written records. Notwithstanding the restrictions in Section 5, if the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information by law, such as in response to a subpoena or requirement of any regulator, court, arbitral, administrative, or legislative body, the Receiving Party must: where reasonably possible and permitted, immediately provide written notice to the Disclosing Party of the required disclosure to give the Disclosing Party an opportunity to move for a protective order or otherwise prevent the disclosure; disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.
6. TERM AND TERMINATION.
The Term and and renewals are as set forth in the Client Order Form. Further, either party may terminate this Agreement, if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice of the breach (or without notice in the case of nonpayment). Upon termination (i) Client shall pay all outstanding Fees through the end of the current Term (or if Client terminates due to a material breach by EK, through the date of termination), (ii) EK will return all Client Data to Client, at Client’s expense, or erase or otherwise destroy all Client Data if so directed by Client (with the exception of (1) automatically generated computer back-up or archival copies generated in the ordinary course of EK business, provided that such information shall remain subject to the confidentiality provisions herein until such information is automatically destroyed and (2) Client Data that has been aggregated, anonymized, or usage data collected by EK as permitted by this Agreement), and (iii) Client’s right to use the Platform will terminate. All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, ownership, proprietary rights, confidentiality, indemnity, warranty disclaimers and limitation of liability.
7. WARRANTY AND DISCLAIMER.
7.1 Client. Client represents and warrants that (i) it holds all rights and authority to engage in, and to authorize EK to engage in, the activities contemplated hereunder; (ii) the execution, delivery and performance of this Agreement, will not violate any existing law, rule, regulation, corporate document, order, determination or award of any governmental authority or arbitrator, applicable to Client and this Agreement and is a legal, valid and binding obligation of Client, enforceable in accordance with its terms; and (iii) Client is authorized to furnish the Client Data for use in the Platform and that the Client Data (and the provision of the Client Data) does not violate any law or infringe the rights of any third party.
7.2 EK. EK warrants that the Platform will be in substantial conformity with the description in the Order Form. In the event of a breach of this warranty, EK will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Client, or if EK determines such remedy to be impracticable, either party may terminate the Agreement pursuant to Section 6 hereunder. The foregoing shall be Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section 7.2. This warranty shall not apply: (i) unless Client makes a claim within 30 days of the date on which Client first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications or third party hardware, software or services.
7.3 Limitations and Exclusions. EK DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM AND CONTENT PLATFORM ARE PROVIDED “AS IS” AND EK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Client Indemnification. Client will defend, indemnify and hold harmless EK and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees from and against any and all claims or other actions arising from Client’s breach of this Agreement or any third party claims with respect to EK and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees’ use of Client Data (provided such use is in accordance with this Agreement). EK will give Client prompt notice of any such claim and Client shall have the option to assume the defense of the claim. EK will not be responsible for any settlement it does not approve in writing.
8.2 EK Indemnification. EK will defend, indemnify and hold harmless Client from and against any and all claims or other actions by any third party alleging that the Platform, when used as authorized under this Agreement, infringes a United States patent, copyright or trademark. Client will give EK prompt notice of any such claim and EK shall have the option to assume the defense of such claim. Client will not be responsible for any settlement it does not approve in writing.
9. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EK AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OWNERS, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EK’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO EK FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. DISPUTE RESOLUTION.
The parties will use commercial best efforts to resolve any disputes by working together in good faith. Any dispute, claim, or breach of this Agreement that cannot be resolved with good faith negotiations shall be finally settled by binding arbitration conducted in the English language, in Charlotte, North Carolina, USA, under the commercial arbitration roles of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in the amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this section, each party shall have the right to institute judicial proceedings against the other party or any party acting by, through, or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction, or similar equitable relief.
11. MODIFICATIONS TO THESE TERMS AND CONDITIONS.
We reserve the right at any time and from time to time to revise these Terms and Conditions, and therefore we suggest that you check this link from time to time. We may notify you of any changes at the email address associated with your account. If you do not agree to the changes after receiving notice of the changes, you may stop using the Platform and terminate your account. Your continued access or use of the Platform indicates your agreement to be bound by any such changes.
This Agreement is not assignable by Client, except with prior written consent from EK. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Each party will be excused for any failure or delay in its performance resulting from causes beyond its control, including, but not limited to, electric or other power failure, acts of God or of the public enemy, war, riot, civil disorder, embargo, fire, flood or strikes (however, this shall not apply to payment obligations hereunder). This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications of this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind EK in any respect whatsoever. All notices under this Agreement will be in writing to the Primary Contact listed on the Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Unless informed to the contrary by Client in writing, EK may use Client’s logo, name, and use case in EK’s public facing marketing materials. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provision. This Agreement may be executed in any number of counterparts, all of which taken together shall be deemed an original and shall constitute one and the same document, and a signature delivered electronically or by facsimile or e-mail shall have the same force and effect as an original.