1.1. Overview of Service; Order Forms. To receive the Service, Enable and Customer will enter into an Order Form, incorporating the Agreement (each, an "Order Form"). Customer will purchase and Enable will provide the Service as specified in an Order Form made pursuant to the Agreement. Each Order Form is made under and incorporates the Agreement.
1.2. End Users; Unauthorized Use and Access. Use of and access to the Service is permitted only by the employees or contractors of Customer with a need to use the Service in furtherance of the purpose of the Order Form ("End Users"). Customer will use its best efforts to prevent any unauthorized access or use of the Service and immediately notify Enable in writing of any unauthorized access or use that comes to Customer's attention. If there is unauthorized access or use by anyone who obtained access through Customer, Customer will take all steps necessary to terminate the unauthorized access or use within 14 days of the written notice to Enable. If Customer does not terminate the unauthorized access or use within 14 days of the written notice to Enable, Enable may suspend Customer's access to the Service without liability to Customer. Customer is responsible for any and all actions taken using Customer's account.
1.3. General Restrictions. Customer will not: (a) rent, lease, copy, resell or otherwise provide access to or sublicense any element of the Service to a third party; (b) use any element of the Service to provide, or incorporate any element of the Service into any product or service provided to, a third party or use to create a competing services; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any element of the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Enable); (e) modify any element of the Service or any Documentation, or create any derivative product from any of the foregoing; (f) remove or obscure any proprietary or other notices contained in the Service; or (g) publicly disseminate information regarding the performance of the Service. Customer's use of the Service is subject to policies made available to Customer from time to time.
1.4. Services Data. Customer agrees that Enable may use Services Data to administer the Services, and that Enable may use and retain non-personally identifiable Services Data to improve, administer and deliver Enable's and its affiliate's products and services generally. Enable may share anonymous and aggregated Services Data with other users of the Service as necessary for Enable to provide the Service. Customer represents, warrants, and covenants that: (a) it owns or otherwise has sufficient rights to the Services Data to permit it to be used as contemplated under each Order Form; (b) the provision and use of Services Data on or through the Service does not and will not violate the rights, including intellectual property rights, of any person or entity; and (c) the upload, posting or other submission of Services Data to the Services does not and will not result in a breach of contract between Customer and any third party. "Services Data" means any data or content provided by Customer or transmitted via the Service by Customer.
1.5. Indemnification by Customer. Customer will defend Enable, its affiliates and their respective officers, directors, employees, and agents from and against all claims and pay settlement amounts or damages awarded to the extent based on (a) any Services Data, or (b) Customer's use of the Service.
1.6. Services Ownership. This is a subscription agreement for the right to access and use the Service. Customer acknowledges that it is obtaining only a limited right to the Service and no ownership rights are being conveyed to Customer under this Agreement. Customer (including any End Users), from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to Enable ("Feedback"). Enable may in connection with any of its products or services freely use and otherwise exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. However, Customer and/or an End User shall not be identified as the source of such Feedback.
All fees and fee schedules, if applicable, are as set forth in the applicable Order Form. Except as expressly set forth in an Order Form all fees are non-refundable. Customer is required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Enable. If Customer is required by law to withhold any taxes against payments due, Customer must provide Enable with an official tax receipt or other appropriate documentation. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer's account is ten (10) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth in this Agreement), Enable reserves the right to suspend Customer's access to the Service without liability to Customer until such amounts are paid in full.
3.1. Term and Termination. Each Order Form is effective on the date set forth therein and automatically renews on an annual basis unless terminated as set forth below. Either Party may terminate an Order Form (including all related Order Forms) if the other Party (a) fails to cure any material breach under such Order Form (including a failure to pay fees) within twenty (20) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within sixty (60) days thereafter). As set forth in the applicable Order Form, Customer may not cancel any portion of an Order Form during the subscription term. If Enable terminates this Order Form due to Customer's non-payment, all unpaid fees for the remainder of the Subscription Term will be immediately due.
3.2. Effect of Termination. Upon any expiration or termination of an Order Form, Customer will immediately cease any and all use of and access to previously subscribed-to Service. Customer acknowledges that following termination Customer (and each End User) will have no further access to the Service. Except where an exclusive remedy is specified, the exercise of either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under an Order Form, by law, or otherwise. The following Sections will survive any expiration or termination of this Agreement: 1.4 (Services Data), 1.5 (Indemnification by Customer), 1.6 (Services Ownership), 2 (Fees and Payment; Suspension of Service), 3 (Term and Termination), 6 (Limitation of Liability), 8 (Confidential Information), and 9 (General Terms).
Enable warrants that the Service will operate in substantial conformity with the applicable Documentation. Enable's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be for Enable to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION, THE SERVICE AND ANY OTHER ENABLE OFFERING ARE PROVIDED "AS IS". NEITHER ENABLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. ENABLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ENABLE. ENABLE MAKES NO REPRESENTATIONS ABOUT ANY SERVICES DATA OR OTHER INFORMATION IN OR FROM ANY END USER. ENABLE HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY SERVICES DATA.
Enable will use commercially reasonable efforts to make the Services available on a 24x7 basis. If Customer (including any End User) violates an Order Form or uses the Service in a manner that Enable reasonably believes will cause it liability, then Enable may request that Customer remedy such situation (including, as applicable, by suspending or terminating any particular End Users). If Customer fails to promptly remedy such situation then Enable may suspend Customer's access to the Service. Notwithstanding anything to the contrary in an Order Form, if there is a Security Emergency then Enable may automatically suspend use of the Service. Enable will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (a) use of the Service that does or could disrupt the Service, other clients' use of the Service or the infrastructure used to provide the Service or (b) unauthorized third-party access to the Service. Enable may update or modify the Service from time to time. Enable does not promise that any features or functionality will continue to be available. If Enable changes the Service in a manner that materially reduces its functionality, Enable will use reasonable efforts to inform Customer. If Customer provides notice within thirty (30) days following a material reduction in functionality, Customer may terminate the applicable Order Form.
EXCEPT FOR ENABLE'S OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF AN ORDER FORM, ENABLE'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ENABLE UNDER AN ORDER FORM THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. The Parties agree that the limitations specified in this Section 6 will survive and apply even if any limited remedy specified in an Order Form is found to have failed of its essential purpose.
Enable will defend Customer from and against all claims by a third party against Customer to the extent based on an allegation that Enable's technology as used to provide the Service to Customer infringes or misappropriates any copyright, trade secret, or trademark right of the third party and will pay all damages awarded to such third party or agreed to in a settlement with respect to such claim, provided that Enable will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Enable to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of the Service is (or in Enable's opinion is likely to be) enjoined due to the type of infringement specified above, if required by settlement, or if Enable determines such actions are reasonably necessary to avoid material liability Enable may, in its sole discretion: (a) substitute a substantially functionally similar service; (b) procure for Customer the right to continue using the Service; or if Enable determines (a) and (b) to be commercially unreasonable, (c) terminate an Order Form. The foregoing indemnification obligation of Enable will not apply: (1) if the Service is modified by any party other than Enable, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is combined with other non-Enable products, services or processes; (3) to any unauthorized use of the Service; (4) to any action arising as a result of Services Data or any third-party data, elements or components contained within the Service or (5) if Customer settles or makes any admissions with respect to a claim without Enable's prior written consent. Any settlement requiring Customer to admit liability requires prior written consent from Customer, not to be unreasonably withheld or delayed, and Customer may join in the defense with its own counsel at its own expense. THIS SECTION 7 SETS FORTH ENABLE'S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
"Confidential Information" means any technical and business information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party") in discussions and activities related to an Order Form, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Enable Technology, performance information relating to the Service, and the terms and conditions of an Order Form will be deemed Confidential Information of Enable. Except as expressly authorized in an Order Form, the Receiving Party will hold in confidence and not use or disclose any Confidential Information; provided, however, the Receiving Party may disclose the Disclosing Party's Confidential Information to its employees and advisors who have executed a written non-use and non-disclosure agreement in content similar to the provisions hereof and who need to have access to such Confidential Information in furtherance of the purpose of an Order Form. Notwithstanding anything in this Section 8, (i) Services Data may be used as set forth in Section 1.4, and (ii) all other usage data regarding Customer's use of the Services may be used by Enable to improve, administer and deliver is products and services generally. The Receiving Party's obligations under this Section 8 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Each Order Form will bind and inure to the benefit of each Party's permitted successors and assigns. Neither Party may assign an Order Form (including this Agreement as incorporated therein) except upon the advance written consent of the other Party, except that either Party may assign an Order Form in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such Party's assets or stock. Any attempt to transfer or assign an Order Form except as expressly authorized under this Section 9 will be null and void. If Customer is located in the United States: (i) the Enable contracting party is Enable Inc.; (ii) each Order Form will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof; and (iii) any dispute with regard to an Order Form or this Agreement shall be resolved in binding arbitration administered by JAMS in San Francisco, California. If Customer is located outside of the United States: (i) the Enable contracting party is Enable International Ltd.; (ii) each Order Form will be governed by the laws of England and Wales; and (iii) any dispute with regard to an Order Form or this Agreement shall be resolved in binding arbitration administered by the London Court of International Arbitration, in London, United Kingdom. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address, and are deemed given when sent. Notices to Enable must be sent by mail to Enable, 535 Mission street, 14 th Floor, San Francisco, CA 94105 or by email to firstname.lastname@example.org. Enable reserves the right, at Enable's discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. If you do not accept the modified Agreement, you may terminate this Agreement pursuant to Section 3.1. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Each Order Form (including all Enable policies referred to in this Agreement) constitutes the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of such Order Form. To the extent any Enable policies referenced by the main body of this Agreement conflict with this Agreement, this Agreement shall govern. In the event of a conflict between the body of an Order Form and the body of this Agreement, the body of the Order Form shall govern. If any provision of an Order Form will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that such Order Form will otherwise remain in effect. Neither Enable nor Customer will be liable for inadequate performance (except for Customer's payment obligations) to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, pandemic, riot, labor condition, governmental action, and Internet disturbance). Enable may use the services of subcontractors for performance of services under an Order Form, provided that Enable remains responsible for (i) compliance of any such subcontractor with the terms of the Order Form and (ii) for the overall performance of the Service as required under this Agreement. The Parties to each Order Form are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party's behalf without the other Party's prior written consent. There are no third-party beneficiaries to an Order Form. Without limiting this section, Customer's End Users are not third party beneficiaries to Customer's rights under an Order Form.
Last Revised: July 9, 2021