Provider Terms & Conditions
These Terms and Conditions (these “Terms and Conditions”) are by and between Ilekun Health Inc, a Delaware corporation (the “Company”) and the counterparty hereto (the “Client”). The Company and Client may be referred to in these Terms and Conditions individually as a “Party” and together as the “Parties.”
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. BY ACCESSING, DOWNLOADING, USING, PURCHASING, OR SUBSCRIBING TO THE PLATFORM OR THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.
The Company has developed certain proprietary software-as-a-service (SaaS) products, including without limitation DentalFynd (collectively with all intellectual property rights therein, as the same may be supplemented, modified, updated or enhanced from time to time, the “Platform”). The Platform includes any and all automations, API calls, webhooks, forms, templates, links, data, software, emails, communications, and all other functionality of any kind that is delivered through or by the Platform to the Client. Through the Platform or offline methods, such as by telephone, email or other electronic forms of communication separate from the Platform, the Company may provide services, including scheduling, billing, messaging, note taking, and record keeping (the “Services”).
If you are not eligible, or do not agree to these Terms and Conditions, then you do not have our permission to use the Platform. These Terms and Conditions apply to all visitors, users, and others who access the Platform and take effect when you click an “I Accept” button or checkbox presented with these Terms and Conditions or, if earlier, when you use or access the Platform or the Services (the “Effective Date”). It also applies to the extent that these Terms and Conditions are incorporated by reference into one or more order forms you signed (the “Order Form”), if applicable, which may be entered into by the Company and Client.
By using or accessing the Platform or the Services, Client confirms that Client agrees to the following terms:
- SOFTWARE; SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS.
1.1 Software Activation and Use; License. The Company shall provide remote electronic access to the Platform. Client may access the Platform by means of a client account accessed via a unique client log-in and password for such Client (collectively, the “Client Account”), which may be integrated with a Client “single sign on” system. Client may also access the Platform through electronic mail communications between Client and the Company. The Client Account shall not be available in executable object code form or in source code form. Subject and conditioned on Client’s payment of all fees and payments due hereunder or any Order Form and Client’s compliance and performance in accordance with these Terms and Conditions, the Company hereby authorizes the Client to, on a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable basis (only in accordance with these Terms and Conditions and any applicable Order Form) use the Platform during the Term (as defined below) through Client’s Client Account access.
1.2 Client Systems. The Client shall be responsible at its own expense for providing access to the internet in order to access the Platform. The Client shall be responsible for ensuring that all the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services (collectively the “Client Systems”) are free from viruses, worms, trojan horses and other malicious code. The Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Platform by any person by or through the Client Systems or any other means controlled by Client, including any: (i) results obtained from any use of the Platform; and (ii) conclusions, decisions or actions based on such use.
1.3 Updates. The Company reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Platform or Client Account.
1.4 Security. Client shall keep all passwords and usernames to its Client Account, as well as its operating systems (and passwords and usernames thereto), confidential and secure, and Client shall be solely responsible for any damage caused by unauthorized access to the Client Account or its operating systems. Client shall not share its passwords or usernames with any other persons, or otherwise provide access to the Client Account to any other person. The Company is not liable for any data uploaded by the Client to the Platform or otherwise provided by the Client to the Company (for the avoidance of doubt, Client Data does not include any publicly available information or proprietary data of Company, whether modified, transformed, or manipulated by Company or otherwise, including without limitation expertise ranking information) (the “Client Data”) or other information or data of the Client obtained by unauthorized persons due to security breaches, Client’s negligence, or breach of these Terms and Conditions by Client, nor is the Company liable for any damage or loss of Client Data for any reason other than Company’s willful misconduct. Client shall not undermine, damage or cause harm to the Platform, the Client Account, any other servers of the Company, or any other customer, client or affiliate of the Company.
1.5 Personnel and Contacts.
1.5.1 Company Personnel. Client shall provide to the Company telephone number(s) and email addresses to enable communication with an authorized representative of the Client with respect to matters pertaining to these Terms and Conditions or any applicable Order Form (and a secondary authorized representative to serve as a backup in the event that the primary authorized representative is unavailable) who shall assist the Company in identifying, verifying and resolving technical problems with the Client Account and providing the Services. Such Client authorized representative shall (i) respond promptly to any reasonable requests from the Company in connection with the Platform or the Services, (ii) shall cooperate with Company in its performance of the Services, and (iii) take all necessary steps to prevent Client-caused delays in Company’s provision of the Platform or the Services.
1.5.2 Nonsolicitation of Personnel. Client agrees that during the Term of these Terms and Conditions and any applicable Order Form and for a period of twelve (12) months following the termination of the Terms and Conditions and any applicable Order Form for any reason, Client will not, directly or indirectly, (a) solicit, induce, recruit or encourage any of the Company’s employees, consultants or other service providers to terminate their relationship with the Company, or attempt to do so, whether for Client’s benefit or that of any other person or entity, or (b) solicit, divert, take away, or attempt to divert or take away, from the Company or any of its subsidiaries or affiliates the business or patronage of any of the customers, clients or active prospects, vendors or suppliers, or induce or attempt to induce any such person or entity to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates, and Client will not assist any other person or entity to do so.
1.6 Limitation.
1.6.1 Neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) have any liability or obligation to Client or any third-party based upon any reliance upon, application or use of any information or data or any reports furnished or actions taken as a result of Client’s use or access to the Platform or the Services.
1.6.2 TThe Company may develop and market new or different products or services, which use part or all of the Platform, and which perform all or a part of the functions performed by the Platform or the Services provided by the Company. Nothing contained in these Terms and Conditions shall give the Client any rights with respect to any such new or different products or services.
1.7 Additional Covenants. Client shall:
1.7.1 comply with all of the terms of these Terms and Conditions and any applicable Order Form and the terms and conditions of the Platform as in effect from time to time (and the Company shall have the right to change such terms and conditions at its sole discretion), which terms and conditions are hereby incorporated herein by reference thereto;
1.7.2 not permit any third person to use or gain access to the Platform (including the Client Account);
1.7.3 not permit any person to reproduce, rebroadcast, copy, distribute, resell or incorporate into any information retrieval system (electronic or mechanical), any information, content, form or document delivered via the Platform or the Services;
1.7.4 only use the Platform (including the Client Account) for its benefit and internal use and not in the operation of a service bureau or for the benefit of any other person or entity;
1.7.5 not use the Platform (including the Client Account), in whole or in part, for any illegal, obscene, offensive or immoral purpose;
1.7.6 not use the Platform (including the Client Account), in whole or in part, in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of the Client (collectively, the “Client Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance;
1.7.7 nsure that all Client Materials are free from viruses, worms, trojan horses and other malicious code;
1.7.8 ensure that all Client Services (as defined below) are performed in a timely manner by competent professionals with all necessary professional licensure, to highest industry standards. Without limiting the generality of the foregoing, Client Services shall only be provided by professionals licensed to practice in the state in which the patient is located;
1.7.9 ensure that Client Materials provided by Client, including but not limited to pricing information and descriptions of Client Services and Client licensure status, are true, accurate, complete, and current; and
1.7.10 honor the price for services performed by Client for third parties that are arranged through use of the Platform or the Services (the “Client Services”) listed on the Platform or otherwise quoted to the Company at the time an appointment for Client Services is scheduled, even if the price of the Client Services changes between the date and time the appointment is made and the date and time the Client Services are rendered.
1.8 Provision of Client Services; Flow of Funds. Client may, through the Platform or the Services, offer to perform the Client Services. In the event that third parties elect to receive such Client Services from Client, such third parties shall remit payment to the Company. Upon notification by Client to Company that such services have been rendered, Company shall remit the cash payments received by Company for such services, less any Fees (as defined below), to Client.
- FEES. Client shall pay all fees (the “Fees”) below and in any Order Form, subject to the terms of these Terms and Conditions. The Company reserves the right to revise the Fees set forth in these Terms and Conditions at any time in its sole discretion. The Company may offset Fees against any amounts payable by the Company to Client.
2.1 Platform Fees. Platform Fees. In partial consideration for the Client’s access to and use of the Platform and the Services, the Company shall retain 12.5% of the fees paid by the patients for Client Services and shall remit the balance to the Client.
2.2 Annual Subscription Fee. Client shall pay an annual subscription Fee of $350 (the “Annual Subscription Fee”). The Annual Subscription Fee will be debited via ACH from the Client’s account within five (5) business days of the commencement of the Initial Service Term and on the first business day of the first month of each Renewal Term (as defined below).
2.3 Cancellation Fees. The Company shall charge a cancellation fee (the “Cancellation Fee”) directly to the patient in accordance with the Company’s User Terms and Conditions, which can be located at /terms_and_conditions, as the same may be modified from time to time. The Company shall retain 12.5% of the Cancellation Fee and remit the balance to the Client.
- TERMINATION.
3.1 Subject to earlier termination as provided below, these Terms and Conditions shall continue to apply to the Client so long as the Client continues to pay the Annual Subscription Fee or use the Platform. The initial term is for one (1) year (the “Initial Service Term”) and shall be automatically renewed for successive additional periods (each, a “Renewal Term”) of the same duration as the Initial Service Term (collectively, the “Term”), unless either Party provides written notice of termination at least sixty (60) days prior to the end of the then-current Initial Service Term or Renewal Term.
3.2 The Company may terminate these Terms and Conditions and Client’s access to the Platform at any time and for any reason upon notice to Client. The Company may also suspend provision of services to Client at any time, with or without cause. If the Company terminates these Terms and Conditions or Client’s access to the Platform without cause, the Company will refund a prorated portion of Client’s prepayment of Fees, if any. The Company will not refund or reimburse Client if the Company terminates these Terms and Conditions or Client’s access to the Platform for cause, including (without limitation) for a violation of these Terms and Conditions, any applicable Order Form, or any Acceptable Use Policy or similar policy that we may from time to time determine in our sole discretion. Client may terminate these Terms and Conditions and any applicable Order Form upon sixty (60) days’ notice prior to the expiration of any term of service for which Client has prepaid.
3.3 Actions Upon Termination. Upon any termination of these Terms and Conditions:
3.3.1 Client shall, at its own expense, return to the Company any Proprietary Information of the Company in its possession and shall immediately cease using any of the Platform or Client Account. In connection therewith, upon the termination/expiration date of these Terms and Conditions, or at any time thereafter, the Company shall have the right to de-activate the Client Account. For the purposes of these Terms and Conditions, “Proprietary Information” means, with respect to Proprietary Information of the Company, confidential or proprietary information, processes and material of the Company relating to or associated with the Platform that are conceived, made or possessed by the Company including without limitation: plans, designs, performance specifications, marketing plans, algorithms, Intellectual Property (as defined below), Intellectual Property Rights (as defined below), ideas, inventions, formulas, techniques, and know how as well as any of the foregoing relating to the Platform and the Client Account (and each of their respective source codes) and the Documentation (as defined below).
3.3.2 Upon the termination date of these Terms and Conditions or any applicable Order Form, or at any time thereafter, the Company shall issue an invoice to Client indicating all amounts owing as of such termination date from Client to the Company for any of the services rendered by the Company to Client under these Terms and Conditions or any applicable Order Form as of such termination date.
3.3.3 All rights and obligations of each Party hereunder shall terminate, subject to Section 6.15.
- PROPRIETARY RIGHTS; CONFIDENTIALITY.
4.1Intellectual Property Rights. The Company owns and shall remain owning the Client Account, all manuals, guidelines, reports, media and other documentation regarding the Platform or any Intellectual Property of the Company which are provided in writing or electronic format by the Company to the Client (the “Documentation”), if any, the Platform and any other software, code or configurations developed by or for the Company (collectively, the &lqduo; Intellectual Property ”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “ Intellectual Property Rights ”). Nothing in these Terms and Conditions or any applicable Order Form grants any right, title or interest in or to (including any license under) any Intellectual Property Rights, whether expressly, by implication, estoppel or otherwise. Client shall
4.4.1 not rent, lease, sublicense, distribute, transfer, copy or modify any Intellectual Property of the Company or the Platform, in whole or in part;
4.1.2 only use the Intellectual Property made available to Client by the Company for its own benefit and internal use and not for the material benefit of any other person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
4.1.3 not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code, in whole or in part, from the object code to the Platform or Client Account made available hereunder;
4.1.4 not adapt any of the Intellectual Property of the Company, in whole or in part, in any way or use it to create a derivative work;
4.1.5not remove, obscure, or alter, in whole or in part, the Company’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in or on any Intellectual Property of the Company, including without limitation any proprietary notices of any third party service suppliers to any of the foregoing;
4.1.6 not bypass or breach any security device or protection used by Platform or access or use the Platform other than by the Client Account;
4.1.7 not damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform or the Company’s provision of services to any third party, in whole or in part;
4.1.8 not remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Platform, including any copy thereof; and
4.1.9 not access or use the Platform for purposes of competitive analysis of the Platform; the development, provision or use of a competing software service or product; or any other purpose that is to the Company’s detriment or commercial disadvantage.
4.2 Proprietary and Confidential Information. Client (the &lqduo;Receiving Party&rqduo;) agrees that all Proprietary Information of the Company (the &lqduo;Disclosing Party&rqduo;) which has heretofore been disclosed and which will hereafter be disclosed to the Receiving Party, or of which the Receiving Party may otherwise attain knowledge during the Term, in oral, written or other tangible form, shall be deemed to be confidential information and the sole property of the Disclosing Party. These Terms and Conditions shall govern all communications between the Parties that are made during the Term.
4.2.1 The Receiving Party shall keep all Proprietary Information of the Disclosing Party as well as the financial terms of these Terms and Conditions and any applicable Order Form (collectively, the &lqduo;Confidential Information&rqduo;) strictly confidential and shall not disclose, distribute or disseminate in any way to any third party any of the Confidential Information. Furthermore, the Receiving Party shall not utilize for the Receiving Party’s own benefit or the benefit of any third Party: (i) any Proprietary Information of the Disclosing Party disclosed by the Disclosing Party or by any person associated with the Disclosing Party; (ii) any Proprietary Information of the Disclosing Party of which the Receiving Party attains knowledge in connection with these Terms and Conditions and any applicable Order Form; or (iii) any information, processes, inventions, intellectual property or the like generated by the Receiving Party based in whole or in part on the Proprietary Information of the Disclosing Party, including, without limitation, any improvements, analyses, compilations, studies or other documents or records prepared or generated from such Proprietary Information of the Disclosing Party, which foregoing materials shall be deemed part of the Proprietary Information of the Disclosing Party. The Receiving Party shall protect the Proprietary Information of the Disclosing Party as well as the financial terms of these Terms and Conditions or any applicable Order Form by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information as Receiving Party uses to protect its own Proprietary Information of a like nature and as it uses to protect the financial terms of these Terms and Conditions or any applicable Order Form. Notwithstanding the foregoing, the Receiving Party shall have the right to disclose any financial terms of these Terms and Conditions or any applicable Order Form: (x) to its legal and financial advisors who are under a legal obligation of confidentiality or (y) to its trustees, officers, directors, members, managers, representatives, agents and employees, on a need-to-know basis, provided that each of the foregoing are under a legal obligation of confidentiality.
4.2.2 Notwithstanding anything in these Terms and Conditions to the contrary, the Receiving Party may disclose the Proprietary Information of the Disclosing Party as well as the financial terms of these Terms and Conditions or any applicable Order Form to the extent that such disclosure is required by an order of a court, administrative agency or governmental authority, or by any law, rule or regulation, or by subpoena, discovery request, summons or other administrative or legal process, or by any formal or informal investigation by any governmental agency or authority; provided, however, that, unless prohibited by law: (i) the Receiving Party shall give prompt written notice of any such request or requirement to the Disclosing Party; (ii) the Receiving Party shall give the Disclosing Party prior written notice of the Confidential Information it believes it is required to disclose; and (iii) the Receiving Party shall use its reasonable efforts to cooperate, to the extent practicable, with the Disclosing Party to avoid or minimize such disclosure or to obtain confidential treatment thereof or other protective order.
4.2.3 The Receiving Party’s obligations under this Section 4.2 shall terminate when, the Receiving Party, upon seeking to avoid the Receiving Party’s obligations hereunder, can prove by clear and convincing documentary evidence that: (i) with respect to disclosure of any financial terms of these Terms and Conditions or any applicable Order Form, such financial terms have entered the public domain; or (ii) with respect to any Proprietary Information of the Disclosing Party, such Proprietary Information (A) was in the public domain at the time of disclosure to Receiving Party by Disclosing Party, (B) entered the public domain without violation of these Terms and Conditions or any other confidentiality obligation subsequent to the time of disclosure to Receiving Party by Disclosing Party, (C) was communicated to the Receiving Party by a third party, free of any obligation of such third party to maintain the confidentiality of such, or (D) was independently developed by Receiving Party using no amount of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, specific information shall not be deemed to be within any of the foregoing exceptions merely because it is in the scope of more general information within any such exceptions, and a combination of features shall not be deemed to be within any such exceptions merely because individual features are within such exceptions.
4.2.4 Use of Name. The Company may use (a) Client’s name, (b) the name of any employee, student or agent of Client, or (c) any trademarks, service marks or trade names owned or controlled by Client, on the Platform, as part of the Services, and in any sales, promotional, advertising or other publication.
4.2.5 License to Client Data. Client hereby grants to the Company a royalty-free, worldwide, non-exclusive, assignable, sublicensable and transferable license to use the Client Data and Client Input Data to provide the Services and access to the Platform to Client (and such other Parties as the Client may direct the Company through the Platform) during the Term. Client acknowledges and agrees that such use of Client Data and Client Input Data may include the disclosure, promulgation and/or transmission of Client Data and Client Input to third party vendors or service providers of the Company. For the purposes of these Terms and Conditions, &lqduo;Client Input Data&rqduo; means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from the Client by or through the Platform or the Services or that incorporates or is derived from the processing of such information, data or content by or through the Platform.
- DISCLAIMER, LIMITATION OF LIABILITY, INDEMNITY
5.1 Disclaimer. THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE AND TITLE), THAT THE SERVICES (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTS FURNISHED BY THE PLATFORM OR THE COMPANY TO CLIENT (IN ORAL OR WRITTEN FORM), THE PLATFORM (IN WHOLE AND IN PART), THE CLIENT ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO CLIENT, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE CLIENT’S USE OF THE CLIENT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT: (I) THE PLATFORM MAY REQUIRE JUDGMENTS TO BE MADE THAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND (II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPED BY THE PLATFORM.
5.2 Sharing of Information. THE PLATFORM IS DESIGNED TO ALLOW CLIENT TO SHARE INFORMATION WITH THIRD PARTIES THAT ALSO USE THE PLATFORM. ANY DECISIONS TO SHARE INFORMATION THROUGH THE PLATFORM WILL ALLOW THE RECIPIENT OF SUCH INFORMATION TO OBTAIN, USE, COPY AND DISTRIBUTE SUCH INFORMATION WITHOUT ANY LIMITATION OF CONFIDENTIALITY, CARE OR OTHERWISE. CLIENT EXPRESSLY ASSUMES THE RISK AND ANY ATTENDANT CONSEQUENCES OF ANY SUCH SHARING OF INFORMATION THROUGH THE PLATFORM AND IN CONNECTION WITH THE SERVICES. THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT TO CLIENT’S DECISION TO SHARE INFORMATION THROUGH THE PLATFORM AND IN CONNECTION WITH THE SERVICES, AND CLIENT EXPRESSLY ACKNOWLEDGES SUCH DISCLAIMER.
5.3 Limitation of Liability.IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID TO THE COMPANY THAT REPRESENT THREE (3) MONTHS WORTH OF FEES PAID TO COMPANY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
5.4 Client hereby irrevocably agrees to indemnify, defend and hold the Company, its affiliates, directors, officers, employees and agents harmless from and against any and all loss, costs, damages, liabilities and expenses (including attorneys’ fees) arising out of or related to any claim arising from or related to (i) Client’s use of the Platform, (ii) Client’s receipt of the Services, (iii) Client’s breach or alleged breach of these Terms and Conditions, (iv) Client’s provision of Client Services (or failure to provide Client Services) and/or (v) Client’s Client Data.
- MISCELLANEOUS TERMS
6.1 Assignment. Client shall not assign, transfer, sublicense, or otherwise dispose of these Terms and Conditions (or any rights or benefits hereunder), in whole or in part, or delegate is obligations under these Terms and Conditions, in whole or in part, to any other person without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed; provided that: (a) any such assignment/delegation with written consent does not release the assigning/delegating Party from any of its obligations under these Terms and Conditions unless such written consent so states; and (b) the rights of any permitted assignee hereunder shall be subject to any and all set-offs, counterclaims and other comparable rights arising hereunder. Any assignment/delegation of rights/obligations of any of these Terms and Conditions contrary to the above shall by null and void and of no force or effect.
6.2 No Joint Venture, Partnership, Employment or Agency Relationship. Client agrees that no joint venture, partnership, employment, or agency relationship exists between Client and Company as a result of these Terms and Conditions, use of the Platform or performance of the Services. Company’s performance of the Services, operation of the Site and enforcement of these Terms and Conditions are subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of Company’s right to comply with governmental, court and law enforcement requests or requirements relating to Client’s use of the Platform or receipt of the Services, or information provided to or gathered by Company with respect to such use or receipt. If any part of these Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
6.3 Governing Law; Jurisdiction Venue; Disputes. These Terms and Conditions are deemed to have been entered in the State of Delaware, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Venue and jurisdiction for any action or claim brought under these Terms and Conditions or any applicable Order Form shall be in the courts with proper jurisdiction located in the State of California, and the Parties expressly submit themselves to the personal jurisdiction of such courts.
6.4 Irreparable Harm. Each Party acknowledges that any breach of its obligations with respect to Sections 1.5.2 and/or 4 may cause the other Party irreparable harm or injury for which there are inadequate remedies at law and that such other Party may be entitled to equitable relief in addition to all other remedies available to it. Each Party agrees that, if a court of competent jurisdiction determines that such Party has breached, or attempted or threatened to breach, its obligations pursuant to Section 4, the other Party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved Party.
6.5 Force Majeure. The Company shall not be liable to the Client for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A &lqduo;Force Majeure Event&rqduo; is any event beyond the control of the Company which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, defects or inefficiencies in Client’s software, defects or inefficiencies in computer equipment or hardware of Client, or any delay to the extent caused by the acts or omissions of Client.
6.6 Binding. These Terms and Conditions shall be binding on the Parties, their affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each Party warrants that the undersigned representative of such Party is authorized to consent to these Terms and Conditions on behalf of such Party.
6.7 Complete Understanding. These Terms and Conditions, including any applicable Order Form which is incorporated herein by reference, constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the Parties relating to the subject matter hereof.
6.8 Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms and Conditions shall remain in full force and effect.
6.9 Amendments. The Company expressly reserves the right to modify these Terms and Conditions at any time in its sole discretion by including such alteration and/or modification in these Terms and Conditions, along with a notice of the effective date of such modified Terms and Conditions. By Client’s continuing use of the Platform or the Services, Client consents to any updates to the Company’s Terms and Conditions that may be published on the Company’s website or the Platform from time to time. If Client objects to the updated Terms and Conditions, as Client’s exclusive remedy, Client may discontinue use of the Platform and the Services and choose not to renew, including cancelling any terms set to auto-renew.
6.10 Privacy Policy. Client hereby consents to the Company’s privacy policy, located at /privacy_policy, which describes Company's privacy practices and is incorporated by reference herein. By Client’s continuing use of the Platform, Client consents to any updates to the Company's privacy policy that may be published on the Company's website or the Platform from time to time.
6.11 Independent Contractors. The Company, and its personnel, contractors and agents, in their performance under these Terms and Conditions, are acting as independent contractors and not as employees or agents of the Client. Under no circumstance will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.
6.12 Notices. Any notice provided pursuant to these Terms and Conditions shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if sent via electronic mail, one (1) day after confirmed email transmission; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to the applicable Party at its respective address as may be designated on notice to the other Party pursuant these notice provisions. Notwithstanding the foregoing, all billing, invoicing and collections notices to Client may be made by electronic mail to the electronic mail address provided by Client to the Company.
6.13 Cumulative Rights and Remedies. The rights and remedies of the Company provided for under these Terms and Conditions are neither exclusive nor mutually exclusive, and the Company shall be entitled to resort to any such rights and remedies, or any other remedy available to the Company at law or in equity, or some or all in any combination, at its discretion.
6.14 Rules of Usage. In these Terms and Conditions, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by these Terms and Conditions, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) &lqduo;hereunder,&rqduo; &lqduo;hereof,&rqduo; &lqduo;hereto,&rqduo; and words of similar import shall be deemed references to these Terms and Conditions as a whole and not to any particular section or other provision hereof; (g) &lqduo;including&rqduo; (and with correlative meaning &lqduo;include&rqduo;) means including without limiting the generality of any description preceding such term; (h) &lqduo;or&rqduo; is used in the inclusive sense of &lqduo;and/or&rqduo;; (i) with respect to the determination of any period of time, &lqduo;from&rqduo; means &lqduo;from and including&rqduo; and &lqduo;to&rqduo; means &lqduo;to but excluding&rqduo;; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to &lqduo;person&rqduo; or &lqduo;persons&rqduo; means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.
6.14 Survival. In addition to all other provisions which expressly survive termination/expiration of these Terms and Conditions, or whose context requires such survival, the following provisions shall specifically survive termination of these Terms and Conditions: Sections 1.5.2, 3.3, 4, 5 and 6, notwithstanding anything in these Terms and Conditions to the contrary.
Last updated: August 2022
