Enable Terms of Service

This Terms of Service is between the Enable entity identified on the Order Form (“Enable”) and the legal entity signing the Order Form referencing the Agreement (“Customer”). The Terms of Service, the Enable Privacy Policy and any other applicable polices (collectively, the “Agreement”) govern the use of the Service, may be updated from time to time, and can be found at https://enable.com/corporate/termsandconditions/.

1. Service and users

   1. Order Forms and Excess Usage. To receive the Service, Enable and Customer will enter into an Order Form (“Order Form”). Each Order Form is made under and incorporates the Agreement.  Unless otherwise stated on an Order Form, Customer has access only to 1 production instance.  If Customer uses any of the Services in excess of limitations specified on an executed agreement, or for which Customer has not previously paid, Enable will invoice Customer at Enable’s then current price within 30 days of overage.  Such excess usage will be charged at Enable’s then-current prices.
   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”). In case of any unauthorized access to the Service or use by anyone who obtained access through Customer, Customer will immediately notify Enable in writing and will take all steps necessary to terminate the unauthorized access or use within 14 days of the written notice to Enable, otherwise 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.  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 a competing service, or incorporate any element of the Service into any product or service provided to a third party to create 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 extentexpressly permitted by applicable law (and then only upon advance notice in writing 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.
   3. 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. Enable may share anonymous and aggregated Services Data with other users of the Service as necessary for Enable to provide the Service.  “Services Data” means any data or content provided by Customer or transmitted via the Service by Customer.  
   4. Services Data Sharing. If Customer Services Data is shared, at Customer’s discretion, with a Third Party Services Provider, Enable is no longer responsible for confidentiality, security, modification, damage, or deletion of Customer Services Data after the Services Data Transfer to the Third Party Services Provider.
   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. 
   6. Services Ownership. Customer acknowledges that it is obtaining only a limited right to the Service and not ownership rights under this Agreement.  Customer (including any End Users), from time to time, may submit comments, information, questions, data, ideas, process descriptions, or other information to Enable (“Feedback”).
      Enable may in connection with any of its products or services freely use any Feedback without restriction or obligation in any manner. However, Customer and/or an End User shall not be identified as the source of such Feedback. 
   7. Third-Party Products. Customer agrees that third-party products are governed by separate agreements between Customer and the applicable third party and Enable has no obligation or liability to Customer in respect thereof. Customer is solely responsible for procuring Third-Party Products at Customer’s cost and expense and for compliance with any applicable agreements governing same. Customer may disclose, transfer, or instruct Enable to disclose or transfer, Customer Services Data to a third party, and upon such disclosure or transfer Enable is no longer responsible for the security or confidentiality of such Content outside of the Enable Cloud Services.  “Third-Party Products” means any products and services supplied by third parties to Customer for use in connection with the Enable Cloud Services, including, without limitation, any products identified in the Documentation as being compatible with the Enable Cloud Services. 

2. Fees & payment; suspension of service

   1. 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 responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding (accompanied by official tax receipt or appropriate documentation). If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Enable reserves the right to suspend Customer’s access to the Service without liability to Customer until such amounts are paid in full. 

3. Term and termination

   1. Term and Termination. Each Order Form is effective on the date set forth therein and automatically renews on an annual basis unless terminated with a 90 day advance notice in writing. Either party may terminate an Order Form (including all related Order Forms) if the other party fails to remedy any material breach under such Order Form (including a failure to pay fees). As set forth in the applicable Order Form, Customer may not cancel any portion of an Order Form during the subscription term.  
   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). 

4. Limited warranty and disclaimer

   1. 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 MAKE 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. 

5. Service availability

   1. 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 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 or changes 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.  

6. Limitation of liability

   1.  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.  Each party’s total cumulative liability for all other claims arising out of or relating to this Agreement will not be more than the 3x the fees paid or payable by Customer to Enable in the 12 month period immediately before the claim. 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. 

7. Indemnification

   1. 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; (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.   

8. Confidential information

   1. “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. The Receiving Party shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) not to disclose or use any Confidential Information of the Disclosing Party except as reasonably necessary to perform the Recipient’s obligations or to exercise the Recipient’s rights under this Agreement or with the Discloser’s prior written permission. Either party may disclose Confidential information on a need to know basis to its affiliates, advisors, contractors and service providers, who are bound by confidentiality obligations at least as restrictive as those in this section. 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. Notwithstanding anything in this Section 8, (i) Services Data may be used as set forth in Section 1.3, 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. 

9. General terms

   1. 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) without 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 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 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 in Canada each Order Form will be governed by the laws of the Province of Ontario and Canada without regard to conflicts of laws provisions thereof, and any dispute with regard to an Order Form or this Agreement shall be resolved in binding arbitration administered by JAMS in Toronto, Canada. If Customer is located outside of the United States or Canada, 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 sales.ops@enable.com. Enable reserves the right, at Enable’s discretion, to change this Agreement on a going-forward basis at any time and 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. 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.   

Last Revised: MARCH 14, 2023