ENDURTECH™ ("ENDURTECH.COM") IS THE DEVELOPER OF THE CUSTOMER RELATIONSHIP MANAGEMENT (CRM) AND CONTENT MANAGEMENT SYSTEM (CMS) TOOLS AND SERVICES KNOWN AS "EMPLAWCMS", WHICH IS DESIGNED TO ASSIST COMPANIES MANAGE THEIR ONLINE BUSINESS OPERATIONS AND CUSTOMER BASES.
FOR MARKETING PURPOSES, EMPLAWCMS ("EMPLAWCMS.COM") IS THE DISTRIBUTOR OF THE ABOVE MENTIONED PRODUCT(S) AND SERVICE(S).
IF YOU PURCHASE A SUBSCRIPTION TO ENDURTECH'S "EMPLAWCMS" SERVICES, THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") ESTABLISHES THE TERMS AND CONDITIONS FOR THE USE OF THOSE SERVICES.
TO PURCHASE OUR SERVICES, YOU ARE REQUIRED TO FILL OUT AND SUBMIT AN ORDER FORM WHICH INDICATES YOUR DESIRE TO USE OUR SERVICES. THE ORDER FORM CANNOT BE SUBMITTED UNLESS YOU ACCEPT THIS ENTIRE AGREEMENT AND THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU ALSO CONSENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A COMPETITOR OF ENDURTECH OR EMPLAWCMS, EXCEPT WITH OUR PRIOR WRITTEN CONSENT IN WHICH YOU DISCLOSE YOUR STATUS AS A COMPETITOR OR POTENTIAL COMPETITOR. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THE SERVICES' AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
This Agreement is effective between You and Us as of the date of Your accepting this Agreement, Registering or Purchasing Service(s).
Table of Contents
2. Purchased Services
3. Use of Services
4. Fees and Payment for Purchased Services
5. Proprietary Rights
7. Warranties and Disclaimers
8. Limitation of Liability
9. Term and Termination
10. Notices, Governing Law and Jurisdiction
11. General Provisions
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Endurtech.com" ("Endurtech™") is a sole proprietorship established in the State of Florida which develops, markets and sells Services based upon its products, including the product known as "EmpLawCMS" or "Employment Lawyers Content Management Solutions" whose Services are marketed and provided through the website listed below.
"Malicious Code" means software viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the Web-based order document for purchasing the Services hereunder, that is submitted by You and accepted by US as part of your registering as a customer for the Services.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial or other promotion.
"Services" means the online, Web-based applications and platform of the EmpLawCMS provided by Endurtech via http://www.endurtech.com, EmpLawCMS via http://www.emplawcms.com, and/or other designated websites as described in the User Guide, that are ordered by You as part of a free trial or under an Order Form.
"User Guide" means the online user guide for the Services of EmpLawCMS, accessible via http://www.endurtech.com or via http://www.emplawcms.com, as updated from time to time.
"Users" means individuals authorized to use the Services, either for their own benefit or for whom subscriptions to a Service have been purchased. Users may include Your employees, consultants, and contractors.
"We", "Us" or "Our" means Endurtech, which is the provider of the Services under the product known as "EmpLawCMS".
"You" or "Your" means the individual, company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You with respect to the Purchased Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Form during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Us regarding future functionality or features.
2.2. User Subscriptions. Services are purchased as User subscriptions and may be accessed only by the person or entity named on the Order Form or Your employees, consultants and contractors. You agree that You (and Your employees, consultants and contractors) shall not use the Services for any purpose other than to assist you in the management of your company's web site(s). You also agree that each subscription for a company shall be utilized for only one company respectively.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall: (i) provide to you Internet Web access to the Services as set forth in this Agreement and in the User Guide; (ii) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if available and purchased separately, (iii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services)), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iv) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space. Any such limitations are specified in the User Guide.
3.4. Service Analyses. We shall have the right to access and analyze Your use of the Services in order to ensure that such usage is in accordance with the provisions of this agreement, and to assist Us in providing You with sufficient data storage and workflow efficiencies.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. User Fees. You shall pay all fees specified in the Order Form. Except as otherwise specified herein or in the Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancelable, and fees paid are non-refundable. Monthly User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof.
4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, and You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 9.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance of each month or other term of Service. You are responsible for maintaining complete and accurate billing and contact information in the Services.
4.3. Suspension of Service and Acceleration. If any monthly or other payment request is rejected by Your credit card company, we shall notify you by email (to the email address provided in the Order Form) of such occurrence, and if such payment is not made within 10 days of such notice, We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full.
4.4. Payment Disputes. We shall not exercise Our rights under Section 4.3 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
4.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against the fees based on Our income, property and employees.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
5.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, relating to the operation of the Services.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide, and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 9.3 (Termination for Cause) and Section 9.4 (Refund or Payment upon Termination) below.
7.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. LIMITATION OF LIABILITY
8.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. TERM AND TERMINATION
9.1. Term of Agreement. This Agreement commences on the date You submit your Order Form (part of which order is the acceptance of this Agreement), and continues until the User subscription granted in accordance with this Agreement has been terminated.
9.2. Term of User Subscriptions.
a. Monthly User subscriptions are provided on a monthly basis. A monthly User subscription purchased by You commences on the date stated in the Order Form and continues until the same numerical day of the following month. All monthly User subscriptions shall automatically renew on the same numerical day of each month for additional monthly periods unless either party gives the other notice of non-renewal at least 5 days before the end of the then current month. The fee for each monthly renewal term shall be the same as that for the previous month unless We have given You at least 30 days written notice of a pricing increase, in which case the pricing increase shall be effective upon the next month's renewal and thereafter.
b. Other subscriptions, including, but not limited to, special subscriptions, shall be determined by Endurtech on a case-by-case basis.
9.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 10 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of the subscription after the effective date of termination. Upon any termination for cause by Us, we shall retain all fees paid for the pre-paid monthly subscription period. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in either comma separated value (.csv), Excel, RTF, HTML or PDF format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
9.6. Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Limitation of Liability), 9.4 (Refund or Payment upon Termination), 9.5 (Return of Your Data), 10 (Notices, Governing Law and Jurisdiction) and 11 (General Provisions) shall survive any termination or expiration of this Agreement.
10. NOTICES, GOVERNING LAW AND JURISDICTION
10.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You shall be addressed to the person named in the Order Form unless Endurtech is notified in writing (by email or otherwise) of the change in the contact/responsible person.
10.2. Governing Law and Jurisdiction. The applicable governing law with respect to this Agreement shall be that of the State of Florida without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts thereof.
10.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11. GENERAL PROVISIONS
11.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5. Serviceability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment)
11.7. Assignment. 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 (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of the subscription after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.