End User Service Agreement
This is a Terms of Service Agreement between Endpoint Utility LP., located at 789 Aspen Grove St., Whitefish, Montana, 59937, USA (hereinafter referred to as “Provider”, “us”, or “we”) and you that governs all access to and use of our Services (the “Agreement” or “Terms”). This Agreement applies to Provider’s subscription-based managed technology services as provided through the website, www.endpointutilitycorp.com, or otherwise provisioned by us including software, software updates, software upgrades, documentation, and content (e.g., audio and visual information) contained or made available to you in the course of your using the services (collectively referred to as the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY. THE SERVICES MAY HAVE OTHER POSTED NOTICES. ALL SUCH NOTICES ARE INCORPORATED BY REFERENCE INTO THIS AGREEMENT. BY CLICKING A BUTTON DENOTING ACCEPTANCE OF THIS AGREEMENT AND/OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT CLICK THE BUTTON ACCEPTING THIS AGREEMENT OR USE THE SERVICES.
“You” and “your” means you, your company, your employees, and your agents whom you have designated as authorized users of the Services and your account or who have accessed the Services through your login credentials. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement.
1. Definitions.
“Affiliate” or “Affiliates” means, any legal entity that Provider holds, directly or indirectly, more than 50% (fifty percent) of the shares or voting rights of such legal entity.
“Confidential Information” means any information or data disclosed by either party marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances of disclosure. However, “Confidential Information” does not include any information which (a) is in the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is or was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Data” means all data of whatsoever nature including all personal data by and within the scope of any applicable privacy and data protection laws.
“Documentation” means the Licensor documentation which is made available to you in connection with the provision of the Services under this Agreement.
“Fees” means the fees paid by you in connection your access and use of the Services.
“Hardware” means the physical parts or components of a computer owned or licensed by Provider and provisioned to you during the Subscription Term. “Hardware” includes without limitation, desktop computer, laptop computer, monitor, keyboard, mouse, other peripherals, and all components contained therein.
"Intellectual Property Rights" means all intellectual property rights of whatever nature, including without limitation (i) all patents and other patent rights, including divisional and continuation patents and utility models; (ii) rights in inventions whether patentable or not; (iii) the trade marks, rights in trademarks and service marks, logos, slogans, corporate, business and trade names, trade dress, brand names and other indicia of origin; (iv) rights in designs, topography rights, rights in circuit layouts and maskworks; (v) all copyright of whatever nature and in whatever medium embodied, whether now known or later developed, for their full terms including any extensions and renewals, including the rights of reproduction, distribution, preparation of derivative works, public display, public performance, and making available; (vi) moral and economic rights of authors and inventors; (vii) rights in internet domain names, reservations for internet domain names, uniform resource locators and corresponding internet sites; (viii) rights in databases, data collections, platforms, applications and computer software (including source code); and (ix) know-how, show-how, trade secrets and confidential information, in each case whether or not registered and including applications for registration of any of these and the right to apply for the registration of any of these, all claims for past infringements, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
“Legacy Software” means, if applicable, the legacy software or other software environment that will be replaced by the Software;
“License Keys” means a software licensing management and security tool or other device that allows you to access the Software, which tool or other device may have an expiration date;
“License Version Management” means the generation of the License Keys to meet your version requirements during the Term;
“Licensed Level” means the specified level at which you are authorized to execute or run the Software chosen by you at the time of your signup for the Services;
“Licensor” means the master licensor of the Software or Provider, in the case of Hardware;
“Licensor Materials” means any software, programs, tools, systems, data, Licensor or Provider Confidential Information or other materials made available by Licensor or Provider to you in the course of the performance of this Agreement including the Services and Documentation, as well as any information, materials or feedback provided by you to Provider or Licensor relating to the Services or Documentation.
“Masked” means to render unusable, unreadable or indecipherable to an unauthorized person (which for the purposes of this Agreement shall include Provider) through a security technology or methodology generally accepted in the field of information security.
“Mixed Landscape” means a software landscape that comprises the Software, Legacy Software and/or software that is substantially similar in nature to the Software but was not provisioned by Provider.
“Modifications” means (i) a change to the delivered source code or metadata; or (ii) any development, other than a change to the delivered source code or metadata, that customizes, enhances, or changes existing functionality of the Software, including, but not limited to, the creation of any new application program interfaces, alternative user interfaces or the extension of the Software data structures; (iii) any other change to the Software using or incorporating any Licensor Materials; or (iv) any creation, modification, enhancement or customization of the Software.
“New Release” means (i) a major release that includes architectural changes and may be identified by a change of the release numeral to the left of the decimal point in the naming convention of the Software; (ii) a minor release that includes improvements and bug corrections and may be identified by the release numeral to the right of the decimal point in the naming convention of the Software; and (iii) a maintenance release indicating a bug correction or patch and may be identified by a change of the release numeral two digits to the right of the decimal point in the naming convention of the Software or otherwise designated as such by the Licensor.
“OEM” means the original equipment manufacturer of the Hardware.
“Representatives” means (i) employees of you or Provider; (ii) attorneys, accountants, or other professional business advisors; and, (iii) employees of any entity who are directly involved in the performance of obligations under this Agreement;
“Services” means the Software, Hardware and related managed services (if any) provisioned to you by Provider during the Subscription Term.
“Software” means the software identified at the time of your signup for the Services or otherwise provisioned to you by Provider during the Subscription Term;
“Territory” means the country in which you have a registered address.
“Third Party Software” means those items of Software that are not Provider Software.
“Third Party Platform(s)” means any software, software-as-a-service, data sources or other products or services not provided by Provider that are integrated with or otherwise accessible through the Services.
“Use” means to (i) activate the processing capabilities of the Software; (ii) load, execute, access, employ the Software or display the information resulting from such capabilities; and (iii) make backup copies of the Software for recovery and cold stand by purposes only.
“Use Rights” means the use rights governing Use of the Software as determined by Licensor which you are required to accept prior to accessing the Software (or as otherwise displayed on Provider’s Third-Party Terms page located at: https://endpointutilitycorp.sharepoint.com/:w:/s/euc_sm/EUiSfDf4XDZCqxo20tJKBHYB4BKKF0CatYCMLeS4MhmC-g
“User Materials” means the Data or information submitted by you to the Services.
“Work Product” means any and all deliverables, information, documentation, modifications or enhancements to the Software and other materials created, developed, reduced to practice, or otherwise or produced hereunder (whether as individual items or a combination of components and whether or not the applicable services are completed) by Provider or Licensor, and all rights of patent, copyright, trademark, trade secret and other proprietary rights therein and thereto. Work Product shall not include User Materials or information generated from your use of the Software which shall be your proprietary information and exclusive property.
2. Software.
Subject to the terms and conditions of this Agreement (including any Use Rights), Provider will make the Services available to you, and hereby grants you a non-exclusive, non-transferable, license to Use the Software, Hardware, Documentation and Licensor Materials during the Subscription Term (as defined in Section 13.2 below) for your internal business operations.
2.1. Provider shall install or assist you to install the Software exclusively on Provider Hardware, unless otherwise agreed to in writing by Provider. During the applicable Subscription Term you are entitled to access and Use the Software using License Keys provided by Provider.
2.2. You are not permitted to (i) Modify, adapt, translate, process, arrange or otherwise rework the Software or make derivative works of the Software; nor (ii) reproduce the results achieved from any of these acts. Any unauthorized works listed in (i) or (ii) above developed by you and the Intellectual Property Rights embodied therein, shall be the sole and exclusive property of Provider or Licensor or their respective Affiliates and you hereby assign all rights in them (including moral rights) to Provider or Licensor or their designated Affiliates. To the extent that the Intellectual Property Rights embodied therein are not to be transferred by operation of law, Provider or Licensor and its Affiliates shall be granted exclusive rights to use such unauthorized works to the widest extent lawfully possible.
2.3. With Provider’s prior written consent, you may permit service providers to access the Services solely for the purpose of providing facility, implementation, systems, application management or disaster recovery services (“Permitted Uses”) to you in connection with you internal business operations, provided that: (i) prior to such access, the service provider and you have concluded a written agreement requiring the service provider to comply with the terms of this Agreement; (ii) you maintain appropriate Licensed Level, to permit the employee(s) of such service provider to access the Software; (iii) under no circumstances may such service provider Use the Services outside of the Permitted Uses; and (iv) you shall be responsible for any additional software, migration tools, or third party software needed to effect such transition. Upon request of Provider, you shall provide written confirmation to Provider that items (i)-(iii) have been fulfilled.
3. Hardware.
3.1. Subject to the terms of this Agreement, Provider may provision to you one or more units of Hardware during the Subscription Term. Provider shall retain full ownership of and title to the Hardware, and all Intellectual Property Rights therein, including all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights.
3.2. You agree to: (a) ensure that the Hardware is maintained in good working condition (e.g., as specified by Provider, which may include, without limitation, environmental specifications); and (b) not assign, pledge, transfer, encumber, or grant any security interest in the Hardware to any third party in any manner whatsoever, nor attempt to do any of the foregoing. While the Hardware is in you possession, you assume and will bear all risk of damage, loss, theft, or destruction of the Hardware. If the Hardware is damaged (reasonable wear and tear excepted), you will notify Provider and Provider will repair or restore the Hardware at your cost so that the Hardware is returned to good working order, condition, and repair. If the Hardware is lost, stolen, destroyed, or damaged beyond repair, you will pay to Provider the full, then-current published list price of the Hardware, as communicated by Provider. Within five (5) business days of the termination of this Agreement, you will return all Hardware to Provider. If you fail to redeliver the Hardware as set forth in this Section 3, you agree to pay to Provider, the full then-current published list price of the Hardware or if any individual Hardware component is unavailable, the list price of any available functionally equivalent component. Terms of the license to Use the Software included on the Hardware are set forth in Section 2.
4. Services.
4.1. Your Obligations. You are responsible for obtaining and maintaining any equipment and any ancillary services needed to connect to, access or otherwise use the Services which are not provisioned by Provider as part of the Services (e.g. power source, internet connection, etc.). The provision of the Services by Provider to you is subject to (i) your compliance with the terms and conditions contained in this Agreement, including without limitation, all applicable Use Rights; and (ii) the limitations, if any, imposed on such Services or specified by Provider in writing. Neither Provider or the Licensor will be responsible under this Agreement for: (a) the modification, enhancement or other improvement of the Software to fit your business requirements; (b) the correction of any program errors as a result of misuse of the Software by anyone other than Licensor and/or Provider; or (c) preparation or conversion of data into the form required for use with the Software.
4.2. No Personal Sensitive Information. Except as otherwise expressly agreed by Provider in writing, you specifically agree not to use the Services to collect, store, process or transmit any personal sensitive information, including without limitation, credit card, heath, financial, biometric data or other information considered sensitive under applicable data protection laws. You acknowledge that Provider is not a payment card processor and that the Services are not PCI DSS compliant. Except for Provider’s obligations pursuant to this Agreement, you shall be responsible for any personal sensitive information that you inadvertently submit to the Services, and Provider will treat such submissions as User Materials as defined in this Agreement such that Provider is not subject to any additional obligations that apply to Sensitive Personal Information
4.3. Support Services. You may be entitled to receive technical support as part of the Services provisioned by Provider for the duration of the Subscription Term in accordance with the terms, conditions, procedures and limitations set forth in Provider’s Support Services policy located at: [INSERT HYPERLINK] (“Support Services”).
4.4. Third Party Platforms. The Services may support integrations with certain Third Party Platforms that you may choose to integrate with the Services. Provider does not endorse or recommend any Third Party Platform and you are responsible for investigating the quality or suitability of each Third Party Platform. To enable the Services to access and receive your information from a Third Party Platform, you may be required to input your credentials for such Third Party Platform. By enabling use of the Services with any Third Party Platform, you authorize Provider to access your accounts with such Third-Party Platform for the purposes described in this Agreement. For any third party service that you use or integrate with the Services, or that Provider integrates for you at your request, you represent and warrant to Provider that you have the necessary rights and licenses from the third party service provider to use their services as integrated with the Services. You are responsible for complying with any relevant terms and conditions of such Third-Party Platforms and for maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. You acknowledge and agree that Provider has no responsibility or liability for any Third-Party Platform, or how a Third-Party Platform uses or processes your Data after such is exported to a Third-Party Platform. Provider cannot ensure that the Services will maintain integrations with any Third-Party Platform and Provider may disable integrations of the Services with any Third-Party Platform at any time with or without notice to you. TO THE EXTENT A YOU USE ANY FEATURES IN THE SERVICES THAT INTEGRATE WITH A THIRD-PARTY PLATFORM YOU AGREE THAT PROVIDER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE THIRD PARTY PROVIDER, AND AS BETWEEN YOU AND PROVIDER, THE THIRD PARTY PLATFORM IS PROVIDED AS-IS. TO THE EXTENT THAT YOU REQUEST THAT PROVIDER INTEGRATE WITH SUCH THIRD PARTY PLATFORM’S BETA OR PRE-RELEASE FEATURES (“THIRD PARTY BETA RELEASES”), PROVIDER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH PROVIDER’S PARTICIPATION IN SUCH THIRD PARTY BETA RELEASES OR YOUR USE OF SUCH INTEGRATED FEATURES.
5. Warranties.
5.1. Warranty. You hereby warrant that you have the right to enter into this Agreement and the individual electronically accepting this Agreement on its behalf is authorized to accept this Agreement and legally bind the party. You further warrant that: (i) anyone who uses the Services (whether locally or remotely) shall do so on your behalf and shall comply with all applicable laws, regulations and the terms of this Agreement; (ii) your Use of the Services shall be in accordance with the terms of this Agreement; (iii) your Use of the Software shall not exceed the Licensed Level; (iii) Legacy Software (if any) shall be uninstalled and promptly terminated; (iv) it shall reproduce all copyright notices and other legends of ownership on each copy or partial copy of the Software; (v) it will not disassemble, reverse engineer or decompile, nor otherwise create or attempt to create the source code from the object code of the Software in any manner; (vi) it will not Use any Third Party Software contained in or provided with the Software independently of the Software; (vii) it will not run a Mixed Landscape (unless previously approved by Provider in writing); and (viii) it will not use Licensor Materials to (a) provide services to third parties; (b) lease, loan, resell, sublicense or otherwise distribute Licensor Materials; (c) make any Use of or perform any acts with respect to Licensor Materials other than as expressly permitted in terms of this Agreement and any applicable Use Rights; or (ix) Use Software components other than those specifically identified in the applicable Order Form.
5.2. Provider Warranty. Provider warrants that it shall perform the Support Services with professional skill, diligence and care by qualified personnel in accordance with the terms and conditions set forth Provider’s Support Services policy. Provider’s sole liability (and your sole and exclusive remedy) for any breach of this warranty will be, at no charge to you, for Provider to use commercially reasonable efforts to correct the reported non-conformity re-perform the Support Services, or if Provider determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and you will receive as your sole remedy a refund of any fees you have pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. This limited warranty set forth in this Section 6.2 will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
5.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS”. NEITHER PROVIDER NOR ITS LICENSORS MAKE ANY OTHER REPRESENTATIONS, WARRANTIES (EXPRESS OR IMPLIED), CONDITIONS OR GUARANTEES WITH RESPECT TO THE SERVICES AND ANY OTHER MATERIALS OR SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF (I) MERCHANTABILITY; (II) MERCHANTABLE OR SATISFACTORY QUALITY; (III) FITNESS FOR A PARTICULAR PURPOSE; (IV) PERFORMANCE, DEALING, USE OR TRADE; (V) NON-INFRINGEMENT OF THIRD PARTY RIGHTS; FURTHER, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT (VI) THE SERVICES WILL OPERATE UNINTERRUPTED; (VII) THE SERVICES WILL BE FREE FROM MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT SUCH PERFORMANCE; OR (VIII) THAT THE SERVICES (INCLUDING THE APPLICATIONS CONTAINED IN THE SOFTWARE) ARE DESIGNED TO MEET ALL OF YOUR BUSINESS REQUIREMENTS.
6. Fees, Payment and Taxes.
6.1. Fees. The provision of the Services by Provider to you shall, at all times, be subject to the payment of the Fees in accordance with this Section 7. Except as otherwise expressly set forth in this Agreement, all Fees are non-refundable.
6.2. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
6.2.1. Recurring Billing Authorization. You agree to maintain a valid Credit Card within your user account dashboard within the Services (“Dashboard”) at all times during your Subscription Term. By providing the Credit Card information through the providers Third Party Software and agreeing to purchase any Services, you hereby authorize Provider (or its designee) to automatically charge your Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any). You acknowledge and agree that the amount billed and charged each month may vary depending on you use of the Services and may include subscription fee adjustments charged in advance for the remainder of your applicable billing period and overage fees for the prior month.
6.2.2. Foreign Transaction Fees. You acknowledge that for certain Credit Cards, the issuer of your Credit Card may charge a foreign transaction fee or other charges.
6.2.3. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, you remain responsible for any amounts not remitted to Provider and Provider may, in its sole discretion, (i) invoice you directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by you (if applicable) or (iii) terminate this Agreement.
6.2.4. Changing Credit Card Information. At any time, you may change your Credit Card information by entering updated Credit Card information via the “Settings” provided within the Third Party Software.
6.2.5. Termination of Recurring Billing. You may terminate its Subscription Term in accordance with Section 13 (Term, Termination and Effect of Termination). Upon any termination or expiration of the Subscription Term, Provider will charge your Credit Card (or invoice you directly) for any outstanding fees for your use of the Services prior to such termination, after which Provider will not charge your Credit Card for any additional fees for the terminated Subscription Term.
6.3. Fee Increases. Upon written notification to you at least thirty (30) days prior to the expiration of the then existing Subscription Term (or Renewal Term), Provider reserves the right to increase the Fees during any Renewal Term. Provider’s written notification may be provided to you by way of email or a notification on your Dashboard.
6.4. Late Payment. Except as expressly provided for in this Agreement, you shall not be entitled to a refund of any Fees. Any late payment of Fees in terms of this Agreement shall accrue interest at a rate of five (5%) percent per annum from the date on which payment was due.
6.5. Suspension. In the event that you fail to make payment of the Fees within five (5) business days of the applicable payment due date, Provider shall be entitled to suspend your Use of and access to the Services.
6.6. Taxes. Provider's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You responsible for paying all Taxes associated with its purchases hereunder. If payment has been made and it is subsequently determined that Provider has the legal obligation to pay or collect Taxes for which you are responsible under this section, Provider will invoice you and you will pay that amount unless you provide Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Provider is solely responsible for taxes assessable against it based on its income, property and employees.
7. Confidentiality. Each party will use the Confidential Information of the other solely in accordance with the provisions of this Agreement and will not disclose, or permit Confidential Information to be disclosed, directly or indirectly to any third party without the other’s prior written consent, except as otherwise permitted herein. Either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations at least as stringent as those herein; or as required by law, in which case the party disclosing the other’s information to any third party will (if permitted by law and to the extent practicable) (a) provide the other with (I) prior written notification thereof and (II) the opportunity to contest such disclosure; and (b) use reasonable efforts to minimize such disclosure. Each party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations set forth herein.
8. Intellectual Property Rights. The Software, the Licensor Materials, Modifications and all Intellectual Property Rights embodied in the foregoing, shall be the sole and exclusive property of the Licensor or its Affiliates, or their licensors. All rights not expressly granted in this Agreement are reserved by the Licensor. You undertake, while this Agreement is in force and at any time thereafter, not to challenge the right, title and interest (including the Intellectual Property Rights) of the Licensor and/or its Affiliates in respect of the Software, nor to assist any third party directly or indirectly to do so. You shall promptly notify Provider if it becomes aware of any third party that has acquired or markets, sells or uses the Software or Licensor Materials without authorization. In such event, you must reasonably assist Provider or Licensor in the pursuance of its rights.
9. Indemnification.
9.1. Provider Indemnification. Provider shall defend you against claims brought against you to the extent that such claim: (i) is brought by a third party owner of the intellectual property giving rise to the claim; and (ii) alleges that you Use of the Software in accordance with the terms and conditions of this Agreement constitutes a direct infringement or misappropriation of a copyright, trademark, trade secret right or U.S. Patent. Subject to the Limitation of Liability set forth in Section 10.1, Provider shall pay damages finally awarded against you (or the amount of any settlement Provider enters into) with respect to such claim.
9.1.1 Provider shall have no obligation under Section 10.1 if the claim results from (i) Software, Hardware or Documentation that has been altered or Modified by anyone other than the Licensor; or (ii) failure to use a New Release promptly provided by the Licensor or Provider if such infringement or misappropriation could have been avoided by use of the New Release; or (iii) unlicensed activities by you; or (iv) failure to Use the Software in accordance with the terms of this Agreement. Further, Provider shall have no obligation under Section 10.1 for a claim that could have been avoided if you had not used the Software, Hardware or Licensed Materials in combination or conjunction with any software, hardware, data or systems not provided by the Licensor or stipulated in the Documentation. Provider will not indemnify you for any infringement claim based on: (i) a patent that you were aware of prior to the effective date of this Agreement; or (ii) your actions prior to the effective date of this Agreement.
9.1.2 If an infringement or misappropriation of the intellectual property rights of a third party by the Software in accordance with Section 10.1 above is alleged or, in the reasonable opinion of Provider, an infringement or misappropriate of the intellectual property rights of a third party is likely to occur or be alleged, Provider may, at its discretion (i) procure for you the continued right to Use the Software at no additional cost to you; (ii) modify the Software or substitute alternative substantially equivalent non-infringing programs and supporting Documentation for the Software; or (iii) if none of the foregoing alternatives can be achieved at a reasonable cost, Provider may terminate the Agreement and refund the Fees paid by you less an appropriate amount covering the period of actual use of the Software by you.
9.1.3. The provisions of Section 10 state the sole, exclusive and entire liability and obligation of Provider to you, and your sole remedy with respect to any claims of infringement of third-party Intellectual Property Rights that may arise or in any way related to the Software, Licensor Materials or Documentation. The liability limitations contained in Section 10.1 shall apply to all claims made under Section 9.1. Any limitations to the liability and obligations of Provider and/or Licensor shall also apply for the benefit of Provider and/or Licensor’s Affiliates and their respective licensors (if applicable).
9.2. User Indemnification. You will defend Provider, its officers, employees, agents and subcontractors, from any and all claims, demands, suits or proceedings brought against Provider by a third party arising from or relating to (i) User Materials; or (ii) Use of the Services other than in accordance with the terms and conditions of this Agreement. You shall pay damages finally awarded against Provider (or the amount of any settlement you enter into) with respect to such claim.
9.3. Indemnity Requirements. The Party seeking indemnity under this Section 10 ("Indemnitee") must give the other Party ("Indemnitor") the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.
10. Limitation of Liability and Exclusions.
10.1. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PROVIDER WILL NOT BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR ERROR OR INTERRUPTION OF USE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT EXCEED THE CUMULATIVE FEES PAID OR PAYABLE BY YOU UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE CLAIM.
10.2. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer, warranties or exclusion of damages is intended by the Parties to be severable and independent of any other provision and shall be enforced as such. This Section 10 shall apply even if an exclusive remedy afforded to you under the Agreement has failed its essential purpose.
11. Data Masking. You hereby warrant that any and all Data provided by you to Provider shall be transmitted to Provider in Masked format. You hereby indemnify Provider, its Affiliates or the Licensor, including their officers, employees, agents and subcontractors, from and against any and all claims, liabilities, losses, damages and costs arising from or relating to Data that is shared by you with Provider in a format other than Masked format.
12. Data Protection. Notwithstanding the conditions set out in Section 11, Provider or Licensor expressly reserve the right to collect, process and store Data relating to your use of the Software, Hardware, Documentation or Licensor Materials. For the avoidance of doubt the Parties record that it is not the intention under this Agreement for Provider or Licensor to process User Materials. Rather, processing of User Materials may take place only in exceptional circumstances as an incidental effect of Provider or Licensor’s performance of its contractual duties. To the extent either Provider or Licensor does process User Materials, such processing shall maintain industry standard safeguards for the protection of User Materials. Those safeguards will prevent access, use, modification and disclosure of User Materials except (i) as compelled by law or (ii) as you expressly permits in writing.
13. Term, Termination and Effect of Termination.
13.1. Term of Agreement. This Agreement takes effect on the date you first access the Services and will remain in effect until your subscription expires or is otherwise terminated in accordance with terms of this Agreement.
13.2. Subscription Term. Except as otherwise agreed to in writing by Provider, your initial Subscription Term shall be thirty (30) days from the earlier of the date of your acceptance of this Agreement or your use of the Services (“Initial Term”) and shall renew on a monthly basis thereafter until terminated in accordance with the terms of this Agreement (each a “Renewal Term”).
13.3. Termination for Cause. Either party may terminate this Agreement and any active Subscription by written notice to the other party in the event that such other party (i) materially breaches this Agreement and does not cure such breach (to the extent capable of cure) within thirty (30) days of such notice or (ii) is a party to a bankruptcy or other insolvency proceeding, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of such party's insolvency, or is otherwise unable to perform under this Agreement.
13.4. Effect of Termination. Termination due to your breach will not relieve you of the obligation to pay any fees accrued or payable to Provider as of the date of the termination and will become immediately due and payable. You will be required to make payment of the full amount owing to Provider within thirty (30) days of termination of this Agreement. In the event of for cause termination of this Agreement by you in accordance with Section 14.3, you shall be entitled to receive a pro rata refund for any prepaid unused portion of the Services. Upon the expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to you under this Agreement will immediately terminate and you shall immediately cease use of the Services as well as all Licensor Materials and Confidential Information.
14. Return or Destruction of Licensor Materials. Within thirty (30) days of termination or expiration of this Agreement, you agree to destroy or, upon Provider’s request, deliver to Provider all copies of the Licensor Materials, Documentation or Confidential Information.
15. Assignment and Delegation. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld), except that Provider may assign this Agreement in its entirety without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. You agree that Provider may have any of its obligations performed through an Affiliate of Provider.
16. Notices. All notices to Provider which are required to be given under this Agreement will be in writing and will be deemed to be duly given when delivered in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery to Endpoint Utility Corp., 789 Aspen Grove St., Whitefish, Montana, 59937, Attn: Legal with a copy, which shall not constitute notice, to legal@endpointutilitycorp.com. All notices to you may be sent to the email address you used to register your account and access the Services.
17. Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including but not limited to earthquake, flood, or other natural disaster, “acts of God”, pandemic or similar outbreak, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. A party whose performance is affected by a Force Majeure Event (the “Affected Party”) shall promptly notify the other party of the Force Majeure Event, its effect on the party’s performance and its expected duration. The Affected Party shall use reasonable efforts to overcome the effects of the Force Majeure Event, mitigate the other party’s damages and continue to perform its obligations under this Agreement to the extent possible. If any failure or delay caused by a Force Majeure Event continues for fifteen (15) days or longer, the other party may terminate this Agreement, without cost or liability, upon notice to the Affected Party and receive a refund of any pre-paid fees for any performance not yet delivered.
18 Interpretation. Headings in this Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under this Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
19. Entire Agreement. This Agreement constitutes the entire, conclusive and complete statement of agreement between the Provider and you in respect of the subject matter hereof. All other representations, discussions and written communications (whether such be master services agreements, statements of work, purchase orders, terms and conditions attaching to orders or hyperlinked terms incorporated by reference) are superseded by this Agreement and the Parties disclaim any reliance on such representations, discussion and/or written communications.
20. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Montana, USA, exclusive of its rules governing choice of law and conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of the State of Montana and the parties hereby consent to the personal jurisdiction of these courts. In the event of actual or threatened breach of confidentiality obligations, the non-breaching party may seek specific performance, immediate injunctive and other equitable relief in any competent court without prejudice to any other rights or remedies.
21. General. You agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. You authorize Provider and its Affiliates to store and use your business contact information wherever Provider does business, in connection with Provider’s products and services or in furtherance of Provider’s business relationship with you.
22. Amendments. From time to time, Provider may amend these Terms in its sole discretion. Provider will post the amended terms on the www.endpointutilitycorp.com website and will further notify you of any material changes by promptly sending an email or posting a notice in your Admin Account. By continuing to access or use the Services after Provider has provided you with such notice of a change, you are indicating that you agree to be bound by the modified Terms. Any renewed subscription will be governed by Provider’s then-current Terms.
Support Services
These terms and conditions govern Endpoint Utility Corp.’s (“Provider”) provision of technical support for the Services under the Agreement. Subject to your payment of all Fees due in accordance with the Agreement, Provider shall provide the following Support Services beginning on the date Provider first provisions your access to the Services and continuing throughout the Subscription Term and any Renewal Terms.
1. General
Provider shall, during the Term, provide you with (i) access to New Releases of the Software, as well as tools and procedures for upgrades licensed to you (“Maintenance”); and (ii) remote technical support for the Software (“Support”). Maintenance and Support are collectively referred to as “Support Services”.
All requests for Support will be logged directly with Provider as set forth in these Support Services terms. You will not have direct access to Support Services from the Licensor or OEM.
For the avoidance of doubt, Provider or Licensor will not support: (i) software which has been altered or modified by anyone other than Provider; (ii) a release of the Software that has not been approved for general availability; (iii) problems caused by your negligence, misuse, or hardware malfunction; (iv) use of Software inconsistent with the Documentation (e.g., Software not installed on supported systems in accordance with the Documentation); or (v) (except as otherwise set forth in Section 7 below) Hardware. Support Services do not include information or assistance on technical issues related to the debugging, installation, administration, and use of your computer systems and enabling technologies including, but not limited to, databases, computer networks, communications, hardware, hard disks, networks, and printers; to assist you in isolating the cause of a problem with the Software, Provider may request that you (i) allow Provider or Licensor to remotely access the system; and (ii) send your information and data to Provider or Licensor as necessary for Provider or Licensor to provide the Support Services;
Provider or Licensor shall have the sole and exclusive right, title and ownership of any Work Product and all ideas, concepts or other intellectual property rights related in any way to the Work Product, techniques, knowledge or processes of the Support Services, whether or not developed for you.
The provision of the Support Services is subject to: (i) payment of the Fees; (ii) you providing an adequate description of any Support Service problem as contemplated in Section 4 below; (iii) you using supported versions of the Software as provided by Provider; (iv) you providing reasonable cooperation to Provider; and (v) any Support Service problem being reproduced in the Software on a standalone basis.
2. Support Services
Support Services shall address (i) any technical questions that you may have regarding the use and operation of the Software; as well as (ii) any problems that you may experience when using or operating the Software (the “Support Objectives”).
3. Technical support
Provider shall provide a telephone support desk staffed by support personnel who shall be available on business days (Monday to Friday, excluding public holidays) during the hours of 8am – 8pm Eastern Standard Time to address the Support Objectives.
Office Hours: 8AM - 8PM EST
After Hours Support and Emergency Escalation: (406) 884-2420
Email: support@endpointutilitycorp.com
4. Process to follow when logging a call for Support Services:
Should you experience any problems relating to the Software and require Support Services, you are to follow the procedure set out in this Section 4.
A Designated Contact (as defined below) shall forward a detailed problem description (in English) to the email address identified in Section 3 above and shall include available information to best describe the issue. The following information shall, where possible, be included in the problem description:
the impact the problem has on your environment and business;
relevant database or system logs; product version information; screen prints of error messages displayed or any other attachments that could help to process the support message such as trace files or reports;
system and product configuration including configuration files;
hardware specifications, operating system version and patch levels;
complete and accurate environmental and technical details pertaining to the issue;
if necessary, core dumps, trace analyses, system logs and stack traces;
any recent changes that may have contributed to the problem. (“Support Request”)
Should you require urgent assistance, the Designated Contact (as defined below) may, depending on the time of day, call the Office hours contact number or the after-hours contact number described in Section 3 above.
Upon receiving a Support Request, Provider shall (i) log the Support Request with the call logging system; (ii) assign a priority in accordance with the Priority table set forth below and (iii) assign appropriate personnel to the Support Request for resolution (“Support Personnel”). The Support Personnel will call you within the timeframe allocated to the priority of your case.
Priorities are assigned based on problem urgency and the effect the situation has on your business as determined by Provider with reference to the problem description recorded in the Support Request. The priorities are as follows:
You agree: not to contact Licensor or any technical engineers directly; and to follow the agreed procedures set out herein in order to allow for correct problem recording and management of client feedback. The initial response means (i) an acknowledgement of receipt a Support Request; and (ii) (if necessary) a request for additional information, including without limitation, additional logs, version information, or business impact (“Initial Response”).
The priority of the case will determine the targeted Initial Response time as described in the table above. The Support Request must record the impact the problem has on your environment. The problem description in the Support Request will allow the Support Personnel to best address the problem for your business.
5. Maintenance upgrades and installations
Maintenance and Documentation shall be made available by Provider to you for the Term. Provider shall provide you with telephone support for Maintenance upgrades or installations.
Onsite support and/or training services for Maintenance upgrades and/or installation (if applicable) does not form part of the Fees and, if required by you, shall be quoted for separately.
6. Responsibilities
You will furnish Provider with contact details for three designated contacts (“Designated Contacts”). The Designated Contacts shall be persons properly trained in the operation and Use of the Software. Only Designated Contacts are entitled to submit Support Requests to Provider in accordance with these Support Services terms.
7. Hardware
If, in the course of providing Support Services, Provider determines that technical issues exist with respect to any Hardware, Provider will, at its option: (a) repair or replace the non-conforming Hardware; or (b) refund you the pro rata portion of the Fees paid for the remaining period of the Term in respect of the applicable non-conforming Hardware in exchange for a return of such non-conforming Hardware. Notwithstanding the foregoing, repair or replacement of any Hardware is subject to the existence of a valid OEM provided warranty term covering the applicable Hardware. For clarity, Provider will not be responsible for the repair or replacement of any non-conforming Hardware following the expiration of any applicable OEM provided warranty term.
8. Exclusions
Support Services do not include any Third Party Software, Third Party Platform or support services for hardware not provided by Provider in connection with the Services, nor support of any enhancements to any of the foregoing. Upon request and if available, Provider will provide you with contact information for applicable third party support service suppliers. Provider will not be responsible for correcting any errors not reproducible by it on the unmodified Software or errors caused by: (a) use of the Software in a manner for which it was not designed or approved by Provider or the Licensor; or (b) accident, negligence, or misuse of the Software. Support Services do not include usage, integration, interoperability and operations questions or issues.