BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, USING (OR MAKING ANY PAYMENT FOR) ANY SERVICES (INCLUDING, FOR AVOIDANCE OF DOUBT, THE WEBSITE) OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU: (A) AGREE TO THESE TERMS ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT; AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND USER AND ITS AFFILIATES (DEFINED BELOW) TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
1.1 Services; Order Forms. These Terms set forth the terms and conditions on which Enable may make available to User (a) the Website, (b) the Professional Services, and (c) the Hosted Services (defined below), Software (defined below), or APIs (defined below) (collectively, “Products”) (together, the Professional Services and Products are the “Services”) expressly identified in a quote, order form, statement of work, or other ordering document that (i) is agreed to by the Parties (e.g., mutually executed, or by issuance and acceptance of a purchase order) and (ii) expressly references and incorporates these Master Terms (defined below) (each, an “Order Form”) or Products otherwise made available by Enable to User under these Terms. Each Order Form is subject to the terms of, and is deemed incorporated into, these Terms.
1.2 Users. “User” means, as applicable: (a) the individual visiting the Website or (b) the organization, company or other legal entity purchasing Services or receiving Trial Offerings hereunder (“Customer”) and its Authorized Users. “Authorized User” means (i) an employee, consultant, contractor, or agent of Customer who is authorized by Customer to use the Services, for whom Customer has purchased a subscription (or, with respect to Trial Offerings for the relevant trial period, for whom Customer has been provided by Enable the right to grant individual access to the Trial Offering), and to whom Customer (or, when applicable, Enable at Customer's request) has supplied a user identification and password or (ii) a third party with which Customer transacts business to whom Customer has provided access to Customer's account on the Hosted Services (a “Collaborator”). Customer is responsible and liable for all uses of the Products and Documentation by its Authorized Users, and all actions and failures to take required actions with respect to the Products and Documentation by its Authorized Users.
1.4 Order Form Term. Unless earlier terminated in accordance with these Terms or the applicable Order Form, each Order Form will continue for the initial term specified in such Order Form (“Initial Subscription Term”). Renewal of any Order Form may be conditioned on and subject to User's agreement to changes to these Master Terms and applicable Addenda. Termination of these Terms will terminate all Subscription Terms then in effect unless otherwise specified on the applicable Order Form. Order Forms that are solely for Professional Services will remain in effect until the Professional Services are completed (unless earlier terminated in accordance with these Terms or the Order Form) and will not automatically renew, nor will any Professional Services included on any other Order Form automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Order Form. User acknowledges that its access to Services (or certain features thereof) may be automatically disabled upon expiration of the applicable Subscription Term or end of the period for which User has been granted a right to use the applicable Trial Offering.
1.5 Order of Precedence. Any conflict between an Order Form, an Addendum, or Sections 1–10 of these Terms (the “Master Terms”) will be resolved according to the following order of precedence: (1) the Order Form; (2) the Addendum; and (3) the Master Terms.
(a) Hosted Services. If an Order Form indicates that User will receive access to hosted software or a software-as-a-service product (the “Hosted Services”), then User and its Authorized Users may access and use such Hosted Services solely (i) for the Order Form Term set forth in such Order Form, and (ii) in accordance with all applicable Documentation (defined below) and the restrictions set forth in these Terms (including the applicable Order Form).
(b) API. If an Order Form indicates that User will receive access to an application programming interface, or if Enable provides credentials to User that enable User to access a Enable-provided application programming interface in connection with another Product (each, an “API”), then Enable hereby grants User a non-exclusive, non-transferable and non-sublicensable right and license under Enable's rights in that API to access and use such API solely (i) for the Order Form Term set forth in such Order Form and (ii) in accordance with all applicable Documentation and the restrictions set forth in these Terms (including the applicable Order Form). Without limiting the foregoing, User will comply with any volume or other usage-based restrictions described in an Order Form, Addendum, or Documentation.
(c) Software. If an Order Form indicates that User will receive a license to downloadable software (including any mobile applications and downloadable add-ins to other Products) (“Software”), then Enable hereby grants to User and its Authorized Users a non-exclusive, non-transferable, non-sublicensable right and license under Enable's rights in such Software to install and operate such Software in accordance with all applicable Documentation and the restrictions set forth in these Terms (including the applicable Order Form). Any Enable-provided mobile applications acquired by User in connection with another Product licensed under these Terms is deemed Software licensed to User pursuant to this Section 2.1(c).
2.2 Additional Features. User acknowledges that not all of the features or functionality of the Products may be available at User's subscription level as indicated on the Order Form by the product purchased irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
2.3 Trial Offering. If User registers on Enable's website for a free trial or enters into an Order Form for free, evaluation or proof-of-concept Services (“Trial Offering”), Enable will make the Trial Offering available to User on a trial basis free of charge until the earlier of (a) the end of the free trial period set forth on the Order Form or for which User registered to use the Trial Offering, (b) the start date of any purchased subscriptions ordered by User for the applicable Services, or (c) termination by Enable in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page or applicable Order Form. Any such additional terms and conditions are incorporated into these Terms by reference. User acknowledges that Trial Offerings may be automatically disabled upon expiration of the trial period and that any data stored in such Trial Offering may become unavailable at that time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING SECTIONS 7.1, 8, AND 9 BELOW, THE TRIAL OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ENABLE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ENABLE'S LIABILITY WITH RESPECT TO THE TRIAL OFFERINGS SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, ENABLE DOES NOT REPRESENT OR WARRANT TO USER THAT: (A) USER'S USE OF THE TRIAL OFFERINGS WILL MEET USER'S REQUIREMENTS, (B) USER'S USE OF THE TRIAL OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR (C) USAGE DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE. USER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ENABLE FOR ANY DAMAGES ARISING OUT OF USER'S USE OF THE TRIAL OFFERINGS, ANY BREACH BY USER OF THIS AGREEMENT AND ANY OF USER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.4 Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, User will not, and will not permit or authorize its Authorized Users or any third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by these Terms) to use the Website, Services or the Documentation; (b) use the Website or Services to provide services to third parties (e.g., as a service bureau); (c) use the Website or Services for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of the Website or Services or use the Website or Services in a manner that Enable reasonably believes poses a threat to the security of Enable-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Website or Services (except to the extent that applicable law prevents the prohibition of such activities); or (f) use or access any Website or Services in a manner that materially impacts or burdens Enable or Enable's servers and other computer systems, or that interferes with Enable's ability to make available any Services to any third party.
2.5 Documentation. To the extent that the Services is accompanied by any Enable-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Services (“Documentation”), Enable hereby grants to User a non-exclusive, non-transferable, non-sublicensable right and license under Enable's rights in the Documentation to use such Documentation solely to enable User to exercise its rights under the applicable license to or grant of access and usage rights for such Services set forth in Section 2.1.
2.6 Third-Party Products. To the extent that the Services includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Enable provides to User or that is otherwise identified in the Documentation as being required to use properly such Services (“Third-Party Products”), the Third-Party Products and their use by User are subject to all license and other terms that accompany such Third-Party Products. User and its Authorized Users will abide by and comply with all such terms. Without limiting the foregoing, if Enable enables User to access a hosted environment offered by a third-party cloud or platform service provider, then User must agree to the applicable service provider's terms and conditions prior to accessing such hosted environment, and User will comply at all times with such terms and conditions. Certain Products may include code and components licensed under an open source license, as further described at a location specified by Enable.
2.7 Compliance with Laws. User will use the Services and Documentation in compliance with all applicable laws and regulations.
2.8 Protection against Unauthorized Use. User will prevent any unauthorized use of the Services and Documentation and will immediately notify Enable in writing of any unauthorized use of which User becomes aware. User will immediately terminate any unauthorized use by persons having access to the Services or Documentation through User, including Authorized Users.
2.9 Ownership; Data. As between Enable and User, User retains all right, title, and interest, including all intellectual property rights, in and to any data or information that User uploads or inputs into the Services or otherwise makes available to Enable, including in connection with User's use of the Services or receipt of Professional Services (“User Data”). User hereby grants Enable a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the User Data: (a) during the Term, for the purpose of exercising Enable's rights and performing its obligations under these Terms and (b) in perpetuity, in a form that does not identify User as the source thereof, for its business purposes, including to develop and improve Enable's products and services. User represents and warrants that User has all rights necessary to grant Enable the licenses set forth in this Section 2.9 and to enable Enable to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, Enable owns all right, title, and interest, including all intellectual property rights, in and to the Services, Documentation, Deliverables, and any improvements to any Enable products or services made as a result of Enable's use, processing, or generation of User Data. During the Term, User may request that Enable make available to User a copy of User Data stored in certain Services, and Enable may agree to do so for an additional fee.
2.10 Feedback. If User provides any feedback to Enable concerning the functionality and performance of the Services, any Documentation, or the Professional Services (including identifying potential errors and improvements), User hereby, on behalf of itself and its Authorized Users, assigns to Enable all right, title, and interest in and to the feedback, and Enable is free to use the feedback without payment or restriction.
3.1 Provision of Support and Professional Services. Subject to the terms of these Terms, Enable will use commercially reasonable efforts to provide any support, implementation, installation, configuration, customization, or other professional services expressly identified on an Order Form (which may be in the form of a statement of work) (the “Professional Services”). Support Services delivered are provided subject to the information available at https://help-center.enable.com/hc/en-us/categories/360000430378-Support
3.2 Deliverables. Enable retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Enable in connection with its performance of Professional Services (“Deliverables”). If Enable provides any Deliverables to User pursuant to the applicable Order Form, Enable hereby grants to User a non-exclusive, royalty-free, fully paid up, worldwide license under Enable's rights in the Deliverables to use and exploit such Deliverables in connection with the Services during the Term (defined below).
3.3 Modifications. The terms of this Section 3.3 will apply to any Order Form for Professional Services that does not expressly set forth a procedure in accordance with which the Parties may make changes to such Order Form. User may request a modification to the Professional Services to be performed pursuant to any particular Order Form by written request to Enable specifying the desired modifications (each a “Change Order”). Enable will, within a reasonable time following receipt of such Change Order request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Order Form. If User accepts a Change Order in writing within 10 days after receiving it, such modifications in the Change Order shall be performed under the terms of these Terms.
(a) Suitability. Enable will assign employees and subcontractors with qualifications suitable for the work described in the applicable Order Form. Enable may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
(b) User Responsibilities. User will make available in a timely manner at no charge to Enable all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of User required by Enable for the performance of the Professional Services. User is responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. User will provide, at no charge to Enable, office space, services, and equipment as Enable reasonably requires to perform the Professional Services.
(c) Non-solicitation. The employees and consultants of Enable who perform the Professional Services are a valuable asset to Enable and are difficult to replace. Accordingly, User agrees that, during the Term of these Terms, and for a period of one year after completion of the Professional Services under an Order Form, it shall not solicit for employment or engagement (whether as an employee, independent contractor or consultant) any Enable employee or consultant who performed any of the Professional Services under that Order Form. User is not restricted from hiring any personnel that respond to public job advertisements or similar general solicitations.
4.1 Fees and Payment Terms. User will pay Enable the fees and any other amounts owing under these Terms as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form, User will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. User will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Enable to collect any amount that is not paid when due. Amounts due from User under these Terms may not be withheld or offset by User against amounts due to Enable for any reason.
4.2 Taxes. Other than net income taxes imposed on Enable, User will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from these Terms. User will pay any additional Taxes as are necessary to ensure that the net amounts received by Enable after all such Taxes are paid are equal to the amounts to which Enable would have been entitled in accordance with these Terms if such additional Taxes did not exist.
4.3 Professional Services Charges. Except as otherwise specified in the applicable Order Form, User will pay Enable at Enable's then-standard hourly rates as well as any other fees required by the applicable Order Form. In addition, for each Order Form including Professional Services, User will reimburse Enable for (a) reasonable travel and living expenses incurred by Enable's employees and contractors for travel from Enable's offices in connection with the performance of the Professional Services; (b) reasonable international telephone charges (if applicable) that are necessary to the performance of Professional Services under these Terms; and (c) any other expenses for which reimbursement is contemplated in the applicable Order Form. Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under these Terms and each applicable Order Form.
5.1 5.1 Term. These Terms will remain in effect until terminated in accordance with this Section 5 or with Section 10.14.
5.2 Termination for Convenience. Either Party may terminate these Terms for convenience immediately upon notice to the other Party at any time that no Order Form is in effect.
5.3 Termination for Material Breach. Either Party may terminate these Terms or one or more Order Forms if the other Party does not cure its material breach of these Terms or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Enable may immediately terminate these Terms upon notice to User if Enable reasonably believes that User has made or distributed any unauthorized copies of any Services, has violated Section 2.4, has attempted to assign or sublicense any right granted by these Terms except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Enable's intellectual property rights, including rights in and to any Services. Without limiting any other provision of this Section 5.3, if User fails to timely pay any fees, Enable may, without limitation to any of its other rights or remedies, suspend access to the Services or performance of the Professional Services under all Order Forms until it receives all amounts due.
5.4 Termination for Bankruptcy or Insolvency. Either Party may terminate these Terms or one or more Order Forms if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.
5.5 Post-Termination Obligations. If these Terms are terminated for any reason, (a) User will pay to Enable any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) User will provide Enable with a written certification signed by an authorized representative of User certifying that all use of Services and Documentation by User has been discontinued and that all Enable Confidential Information in User's possession or control has been returned or destroyed.
5.6 Survival. Notwithstanding anything to the contrary herein, Sections 1, 2.9, 2.10, 3.4(c), 4, 5.5, 5.6, 6, 7, 8, 9, and 10 will survive termination or expiration of these Terms.
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, 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. “Confidential Information” of a Disclosing Party includes such Disclosing Party's business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Enable's “Confidential Information” includes each Services, all Documentation, all Enable technical information, and all information concerning Services-related database structure information and schema. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) 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 these Terms and (b) 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 these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Enable is permitted to disclose Confidential Information of User on a need to know basis to employees, contractors, and agents of its Affiliates. User agrees that Enable may disclose User's Confidential Information to User's Collaborators through the Services. 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. “Affiliate” means a corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
7.1 Limited Enable Warranties. Enable hereby warrants, for the benefit of User only, that the Products will materially conform to the applicable Documentation (the “Product Warranty”) for a period of 30 days after the Products are first made available to User (the “Warranty Period”), provided that the Product Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Products by User or any third party or any combination of the applicable Products with APIs, software, hardware, or other technology not provided by Enable under the applicable Order Form. If any defect or error covered by the Product Warranty occurs, User will provide Enable with sufficient detail to allow Enable to reproduce the defect or error. If notified in writing by User during the Warranty Period, Enable will, at its sole option, either (a) correct such error or defect in the Products, at no cost to User and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) refund any license or subscription fees previously paid by User in connection with such Products, and User's right to use the Products will terminate. The foregoing sentence sets forth User's sole and exclusive remedy for Enable's breach of the warranty described in the first sentence of this Section 7.1. Enable is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by Products that User or any of its Authorized Users has modified, misused, or damaged.
7.2 Professional Services Warranty. Enable shall perform the Professional Services in a professional manner in accordance with industry standards. User's sole and exclusive remedy for Enable breach of the warranty described in the first sentence of this Section 7.2 is, at Enable's sole option, either (a) reperformance of the Professional Services at no cost to User and within a reasonable time, or (b) refund any fees previously paid by User in connection with such Professional Services.
7.3 Mutual Warranties. Each Party represents and warrants to the other that: (a) these Terms has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery, or performance of these Terms.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7 OR AN ORDER FORM OR ADDENDUM, ENABLE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ENABLE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ENABLE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. ENABLE DOES NOT WARRANT THAT THE SERVICES OR DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. ENABLE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY ENABLE OR ITS AGENTS OR AFFILIATES, INCLUDING ANY INFORMATION MADE AVAILABLE THROUGH THE WEBSITE, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. ENABLE EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, USER'S USE OF THE SERVICES OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.
8.1 Defense by Enable. Enable will, at its expense, either defend User from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against User alleging that User's or its Authorized Users' use of the Products, or Enable's provision of the Professional Services, infringes or misappropriates any patent, copyright, or trademark if: (a) User gives Enable prompt written notice of the Claim; (b) User grants Enable full and complete control over the defense and settlement of the Claim; (c) User provides assistance in connection with the defense and settlement of the Claim as Enable may reasonably request; and (d) User complies with any settlement or court order made in connection with the Claim. User will not defend or settle any Claim subject to indemnification under this Section 8.1 without Enable's prior written consent. User will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Enable will have sole control over the defense and settlement of the Claim.
8.2 Indemnification by Enable. Enable will indemnify User from and pay (a) all damages, costs, and attorneys' fees finally awarded against User in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by User in connection with the defense of a Claim under Section 8.1 (other than attorneys' fees and costs incurred without Enable's consent after Enable has accepted defense of the Claim); and (c) all amounts that Enable agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Enable will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of the Services in combination with other products or services not provided by Enable if such infringement or misappropriation would not have arisen but for such combination; (b) Services provided to comply with designs, requirements, or specifications required by or provided by User, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by User or its Authorized Users for purposes not intended or outside the scope of the license granted to User; (d) User's failure to use the Services in accordance with instructions provided by Enable, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Enable where such infringement or misappropriation would not have occurred absent such modification.
8.4 Remedy. If Enable becomes aware of, or anticipates, a Claim subject to indemnification under Sections 8.1 and 8.2, then Enable may, at its option (a) modify the Services that are the subject of the Claim so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice to User and refund to User any pre-paid but unused fees.
8.5 Limited Remedy. Sections 8.1, 8.2, 8.3, and 8.4 state Enable's sole and exclusive liability, and User's sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Services or the Professional Services.
8.6 Defense by User. User will defend Enable from any actual or threatened third-party Claim arising out of or based upon User's (or its Authorized Users') use of the Services, provision of the User Data, or breach of any of the provisions of these Terms, or that is an Excluded Claim, if: (a) Enable gives User prompt written notice of the Claim; (b) Enable grants User full and complete control over the defense and settlement of the Claim; (c) Enable provides assistance in connection with the defense and settlement of the Claim as User may reasonably request; and (d) Enable complies with any settlement or court order made in connection with the Claim. Enable will not defend or settle any Claim subject to indemnification under this Section 8.6 without User's prior written consent. Enable will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but User will have sole control over the defense and settlement of the Claim.
8.7 Indemnification by User. User will indemnify Enable from and pay (a) all damages, costs, and attorneys' fees finally awarded against Enable in any Claim under Section 8.6; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Enable in connection with the defense of a Claim under Section 8.6 (other than attorneys' fees and costs incurred without User's consent after User has accepted defense of the Claim); and, (c) all amounts that User agrees to pay to any third party to settle any Claim under Section 8.6.
9.1 Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, ENABLE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THESE TERMS, EVEN IF ENABLE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL ENABLE BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, THE SERVICES.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ENABLE'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY USER TO ENABLE UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).9.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ENABLE TO USER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
10.1 Relationship. Enable will be and act as an independent contractor (and not as the agent or representative of User) in the performance of these Terms.
10.2 Use of Brand Name. Enable may use the name, brand, or logo of User (or User's parent company) solely for the purpose of identifying User as a licensee or customer of Enable in a ‘customer' section of Enable's website, brochures, or other promotional materials, or as part of a list of Enable's customers in a press release or other public relations materials. Any such limited use by Enable shall include proper attribution to User or its parent company of any trademark or logo of User or its parent company, and shall in no way suggest that Enable is affiliated with, or speaking on behalf of, User or User's parent company. Any other press releases or marketing materials referring to the trademarks or logos of User shall require mutual approval in writing prior to public dissemination thereof.
10.3 Assignability. Neither Party may assign its right, duties, or obligations under these Terms without the other Party's prior written consent, which consent will not be unreasonably withheld or delayed, except that Enable may assign these Terms to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which these Terms relates. A Change of Control shall be deemed to cause an assignment of these Terms. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
10.4 Export. User will comply with all applicable export and import laws, rules, and regulations in connection with User's activities under these Terms. User acknowledges that it is User's responsibility to obtain any required licenses to export and re-export Services. The Services, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User represents and warrants that the Services are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
10.5 U.S. Government Restricted Rights. The Services are commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the User is the U.S. Government or any contractor therefor, User will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
10.6 Subcontractors. Enable may utilize subcontractors or other third parties to perform its duties under these Terms so long as Enable remains responsible for all of its obligations under these Terms.
10.7 Notices. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the applicable Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 10.7. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.
10.8 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under these Terms (except for failure to make payments when due) on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control (“Force Majeure”), so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10.9 Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, except in the event that a User is based in the United Kingdom, as indicated by the invoicing address shown on the Order Form, then these Terms will be interpreted, construed and enforced in all respects in accordance with the laws of the United Kingdom, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.10 Waiver. The waiver by either Party of any breach of any provision of these Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such Party's right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
10.11 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Services under these Terms is found to be illegal, unenforceable, or invalid, User's right to use Services will immediately terminate.
10.12 Interpretation. For purposes of these Terms, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in these Terms will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in these Terms are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of these Terms or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
10.13 Notice Regarding Apple. This Section 10.13 applies to the extent that the Product licensed to User is a mobile application on an iOS device. User acknowledges that these Terms are between User and Enable only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Product or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Product. If the Product fails to conform to any applicable warranty, User may notify Apple and Apple will refund any applicable purchase price for the mobile application to User; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Product. Apple is not responsible for addressing any claims by User or any third party relating to the Product or User's possession and / or use of the Product, including: (a) product liability claims; (b) any claim that the Product fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Product and / or User's possession and use of the Product infringes a third party's intellectual property rights. User agrees to comply with any applicable third party terms when using the Product. Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and upon User's acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as a third party beneficiary of these Terms. User hereby represents and warrants that: (a) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) User is not listed on any U.S. Government list of prohibited or restricted parties.
10.14 Amendment. For (a) Users of the Trial Offerings or Website and (b) Collaborators' use of the Services, Enable reserves the right to change these Terms on a going-forward basis at any time upon notice to User, and such modifications are effective upon User's acceptance of the modified Terms or continued use of the Website or Services after the modified Terms have been presented to User. For paid Services (which excludes, for avoidance of doubt, the Website and Trial Offerings), (i) Enable may change these Terms effective immediately on a going-forward basis upon notice to User if there is a change in applicable law that affects Enable's performance hereunder and (ii) Enable may, in its discretion, change these Terms on a going-forward basis upon at least 30 days' notice to User; provided, that in the case of each of (i) or (ii), if such changes adversely affect User's rights or obligations hereunder, User may elect to terminate these Terms and all Order Forms hereunder within 30 days of receipt of Enable's notice of such changes. Except as expressly permitted in these Terms, these Terms may be amended only by a written agreement signed by authorized representatives of the Parties. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10.15 Entire Agreement. These Terms, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. These Terms supersede, and the terms of these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to these Terms being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Enable that are not described in an Order Form or otherwise provided pursuant to these Terms and with respect to which User has executed a separate agreement with Enable that remains in effect. No employee, agent, or other representative of Enable has any authority to bind Enable with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Terms. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of these Terms. Enable will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to these Terms (whether or not it would materially alter these Terms) that is proffered by User in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Enable specifically provides a written acceptance of such provision signed by an authorized agent of Enable. Any purchase order submitted by a User pursuant to an Order Form is for confirmatory purposes only and any terms in such a purchase order that are different from or in addition to these Terms are not binding on Enable.
Last Revised: May 7, 2020