terms-and-conditions

ENVIEW CLOUD TERMS AND CONDITIONS

 

Posted: May 6, 2020

 

Effective: May 6, 2020

 

 

These Enview Terms and Conditions (the “Terms”) are between Enview, Inc., a Delaware corporation (“Enview”) and the organization agreeing to these terms (“Customer”).  This Agreement governs access to and use of the Services.  By clicking “I agree,” signing your contract for the Services, or using the Services, you agree to this Agreement as a Customer.

 

If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. If you are an End User, you are also agreeing to the End User Terms [https://enview.com/end-user-terms] on behalf of yourself. You represent and warrant that you have the authority to bind that organization to these Terms, otherwise you must not sign up for the Services.

 

1.                Services.

 

1.1            Provision.  The Agreement governs access to, and use of, the Services registered for and/or subscribed to by Customer pursuant to an Order Form or other agreement (each, an “Order”). Customer and End Users may access and use the Services in accordance with the Agreement.

 

1.2            Orders. No Order will be deemed accepted by Enview unless and until Enview accepts the applicable Order Form in writing, or actually commences providing the Service to Customer in accordance with an Order Form, other agreement or terms made available to Customer at the time of Customer’s subscription to or registration for the Services via Enview’s website (the “Site”) or otherwise (collectively, “Order Terms”). All Order Forms will reference these Terms.

 

1.3            Modifications.  Enview may update the Services from time to time.  If Enview changes the Services in a manner that materially reduces their functionality, Enview will notify Customer at the email address associated with the account, and Customer may provide notice within thirty days of the change to terminate the Agreement.  This termination right will not apply to updates made to features provided on a beta or evaluation basis.  For certain significant new features, Enview may notify Administrators or End Users of the new features via email, provided that an option to unsubscribe from receiving such emails will be available to any potential recipient.

 

1.4            Optional Features. From time to time, Enview may make available certain Optional Features.  Purchase of such Optional Features from Enview will be subject to the price quote Enview provides to Customer and the Order acceptance procedures specified hereunder, and Customer’s use of the Optional Features will be subject to the Agreement and the restrictions hereunder as if they are Services and any additional terms and conditions related to the Optional Features as specified by Enview in connection with Customer’s purchase.

 

1.5            Adding Customer End Users. If Customer desires to increase the number of Customer End Users that are permitted to use the Service, it will enter into a new Order (under the terms set forth above) for the additional number. Enview may, in its discretion, allow or require the Service Term of newly purchased subscriptions to be adjusted so as to expire or renew simultaneously with Customer’s pre-existing subscription(s).

 

2.                Customer Obligations.

 

2.1            Customer Administration of the Services.  To the extent allowed via the functionality on the Services through the Admin Console, or via written notice to Enview (including via e-mail), Customer may specify End Users and designate End Users as Administrators.  Administrators may be able to: (a) access, disclose, restrict or remove Customer Data in or from End User Accounts; and (b) monitor, restrict, or terminate access to End User Accounts, or request the same in writing to Enview.  Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts.

 

2.2            Unauthorized Use or Access.  Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services.  Each End User Account may only be provisioned to, registered and used by a single End User.  The Services are not intended for End Users under the age of eighteen (18).  Customer will not allow any person under eighteen (18) to use the Services.  Customer will promptly notify Enview of any unauthorized use of or access to the Services. Customer understands that failure to protect Account Data may allow an unauthorized person or entity to access the Services.  In addition, Customer acknowledges that Enview generally does not have access to and cannot retrieve lost Account Data.  Customer agrees that: (i) Customer is solely responsible for collecting, inputting and updating all Account Data; (ii) Enview assumes no responsibility for the supervision, management or control of Customer’s and Customer End User’ Account Data; and (iii) Enview assumes no responsibility for any fraudulent or unauthorized use of the any portion of the Service.

 

2.3            Customer Responsibilities. Customer will (i) be responsible for meeting Enview’s applicable minimum system requirements for use of the Service and any applicable Optional Features; (ii) be responsible for Customer End Users’ compliance with these Terms, the End User Terms and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (iii) use the Services and any applicable Optional Features only in accordance with the applicable documentation and any written instructions provided by Enview to Customer.

 

2.4            Restrictions.  Customer will not: (a) sell, resell, or lease the Services or make them available to anyone other than Customer End Users; (b) use the Services for activities where use of the Services could lead to physical damage, death, or personal injury; (c) reverse engineer the Services, or attempt or assist anyone else to do so (unless this restriction is prohibited by law); (d) use the Services, including for the export or re-export of Customer Data, in violation of Export Control Laws; (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits; or (f) establish a business account as an individual for personal, family, or household purposes.

 

2.5            Compliance.

 

(a)              Generally.  Customer and its End Users will use the Services in compliance with the Acceptable Use Policy, which is incorporated herein by reference and made a part hereof.  Customer will comply with laws and regulations applicable to Customer’s use of the Services.  Customer represents and warrants that it has all necessary rights and consent to submit Customer Data to Services to be processed as provided hereunder. Customer must satisfy itself that the Services are appropriate for its purposes, taking into account the nature of the Customer Data.

 

(b)              End Users.  Customer is responsible for use of the Services by its End Users.  Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in the Agreement and to allow Enview to deliver the Services.

 

(c)              Customer Actions.  Customer represents and warrants that (i) Customer will not take any action that would cause Enview to violate EU Data Protection Laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable anti-bribery, anti-corruption, or anti-money laundering law, and (ii) Customer Data shall not include any personal information other than information necessary for End User Accounts that are specifically requested by Enview.

 

(d)              Federal Government End Use Provisions. The Services (and applicable Optional Services) and any Software and documentation furnished by Enview in connection therewith are “commercial items,” “commercial computer software” and “commercial computer software documentation,” as those terms are used in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. Use, duplication, or disclosure by the United States Government is subject to the restrictions set forth in this Agreement and (where applicable) Enview’s end-user click-through terms.

 

3.                Customer Data.

 

3.1            Customer Data Limitations.  Enview and its Subcontractors will only access, use, store, and transfer Customer Data to deliver the Services and to fulfill Enview’s obligations and enjoy Enview’s rights under the Agreement.  Any Enview personnel who have access to Customer Data will be bound by appropriate confidentiality obligations.

 

3.2            Security Measures.  Enview will use industry standard technical and organizational security measures to transfer, store, and process Customer Data, including encryption of Stored Data.  Enview will provide Customer with at least sixty days prior notice if Enview updates its security measures in a manner that materially diminishes the administrative, technical, or physical security features of the Services taken as a whole.  Within five business days of receipt of this notice, Customer may elect to terminate the Agreement and associated Orders by providing written notice to Enview.

 

3.3            Third-Party Requests.

 

(a)              Customer Responsibility.  Customer is responsible for responding to Third-Party Requests via its own access to information.  Customer will seek to obtain information required to respond to Third-Party Requests and will contact Enview only if it cannot comply with the Third-Party Request despite diligent efforts.

 

(b)              Enview Responsibility.  If Enview receives a Third-Party Request, Enview will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) notify Customer of Enview’s receipt of a Third-Party Request; (ii) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to respond to the Third-Party Request.  If Enview is prohibited from notifying Customer of a Third-Party Request or Customer fails to promptly respond to any Third-Party Request, then Enview may, but will not be obligated to do so, to the extent permitted by applicable law.

 

(c)              Customer Data Sharing.  The Services may enable End Users to share Customer Data, including to other Customer End Users.  Recipients of shared Customer Data may access, view, download, and share this Customer Data, including in and through their own Services accounts.  Customer understands: (a) it is solely Customer’s, and its End Users’, choice to share Customer Data; (b) Enview cannot control third parties with whom Customer or any End User has shared Customer Data; and (c) Customer and its End Users are solely responsible for their use of the Services, including any sharing of Customer Data through the Services.

 

4.                Data Transfers.

 

4.1            Data Transfer. Customer agrees that Enview and its Subcontractors may transfer Customer Data to and access, use, and store Customer Data in locations other than Customer’s country.

 

5.                Payment.

 

5.1            Fees.  To the extent there are any Fees that apply to the Services (and, if applicable, any Optional Features), Customer will pay Enview all such Fees for the Services according to the prices quoted to Customer by Enview, in U.S. dollars and pursuant to the payment terms indicated on the Order.  Customer authorizes Enview to charge Customer for all applicable Fees using Customer’s selected payment method.  Fees are non-cancellable and non-refundable except as required by law or as otherwise specifically permitted in the Agreement. Customer agrees that Customer’s purchase of subscriptions for the Service hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Enview regarding future functionality or features.

 

5.2            Taxes.  Fees are exclusive of taxes and Customer is responsible for all Taxes.  Enview will charge Taxes when required to do so.  If Customer provides Enview with a valid exemption certificate, Enview will not collect the taxes covered by that certificate.

 

5.3            Withholding Taxes.  Customer will pay Enview net of any applicable Withholding Taxes.  Customer and Enview will work together to avoid any Withholding Tax if exemptions, or a reduced treaty withholding rate, are available.  If Enview qualifies for a tax exemption, or a reduced treaty withholding rate, Enview will provide Customer with reasonable documentary proof.  Customer will provide Enview reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.

 

5.4            Auto-renewals and Trials.  IF THE CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN AN INITIAL TRIAL OR FREE PERIOD AND THE CUSTOMER HAS ALREADY PROVIDED A METHOD OF PAYMENT TO ENVIEW FOR THE SERVICES, ENVIEW MAY CHARGE SUCH METHOD OF PAYMENT AUTOMATICALLY AT THE END OF THE TRIAL OR THE THEN-CURRENT TERM FOR THE INITIAL SERVICES TERM OR RENEWAL TERM, UNLESS THE CUSTOMER NOTIFIES ENVIEW THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL IN ACCORDANCE WITH THIS AGREEMENT.  Enview may revise Services rates by providing the Customer at least thirty days’ notice prior to the next charge.

 

6.                Suspension.

 

6.1            Of End User Accounts by Enview.  If an End User: (a) violates the Agreement; or (b) uses the Services in a manner that Enview reasonably believes will cause it liability, then Enview may request that Customer suspend or terminate the applicable End User account.  If Customer fails to promptly suspend or terminate the End User account, then Enview may do so.

 

6.2            Security Emergencies.  Notwithstanding anything in the Agreement, if there is a Security Emergency, Enview may automatically suspend use of the Services without prior notice to Customer.  Enview will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

 

7.                Intellectual Property Rights.

 

7.1            Reservation of Rights.  Except as expressly set forth herein, the Agreement does not grant: (a) Enview any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Services or Enview trademarks and brand features.

 

7.2            Limited Permission.  Customer grants Enview (a) the limited rights that are reasonably necessary for Enview to deliver the Services, and (b) Training Rights.  This limited permission also extends to Subcontractors.

 

7.3            Suggestions.  Enview may perpetually use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions on the Services that Customer or End Users may send Enview or post in Enview’s forums without any obligation to Customer.

 

7.4            Training Rights. Enview shall own and Customer hereby assigns and agrees to assign to Enview all rights, title and interest in and to any and all Improvements and any and all Intellectual Property Rights embodied therein.

 

7.5            Customer IP. Subject to Section 7.4, Customer shall own the Results.

 

8.                Term.

 

8.1            Agreement Term.  The Agreement will remain in effect for the Term.

 

8.2            Services Term.  Enview will deliver the Services to Customer for the Services Term, unless the Agreement is terminated as set forth herein.

 

8.3            Automatic Renewals.  Unless otherwise specified in the Order, following the Initial Services Term or a Renewal Term, the subscription to the Services will automatically renew for a Renewal Term, unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the then-current Services term.

 

9.                Termination.

 

9.1            Termination for Cause.  Either party may terminate the Agreement, including all Orders, if: the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice thereof; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. In the event of termination of the Agreement for Customer’s material breach, Customer shall remain responsible for the Fees through the end of the then-current Services Term. Enview may terminate this Agreement and suspend Customer’s access to the Services if required to do so by law or for a violation by Customer of the Acceptable Use Policy.

 

9.2            Termination for Convenience: Customer may terminate the Agreement for any reason or no reason with thirty (30) days prior written notice to Enview; provided that Customer shall remain responsible for the Fees through the end of the then-current Services Term.

 

9.3            Effects of Termination.  If the Agreement expires or is terminated: (a) except as set forth in this Section, the rights and licenses granted by Enview to Customer will cease immediately; (b) Customer may, prior to termination, request reasonable additional time (not to exceed thirty (30) days) to export its Stored Data, provided that Enview may charge Customer for this extended access based on Enview’s then-current standard fees; and (c) Enview will delete any End User Accounts and Stored Data in Customer’s account in a commercially reasonable period of time following receipt of an Administrator’s request to do so prior to termination of the Services, subject to the rights granted to Enview hereunder.  Enview may make instructions available to Customer regarding how to submit the Administrator request described in clause (c) of the previous sentence and Customer is responsible for following these instructions to initiate a deletion.

 

9.4            Survival.  The following sections will survive expiration or termination of the Agreement: 3.3 (Third Party Requests), 5 (Payment), 7 (Intellectual Property Rights), 9.2 (Effects of Termination), 9.3 (Survival), 10 (Indemnification), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Disputes), and 14 (Miscellaneous).

 

10.            Indemnification.

 

10.1         By Customer.  Customer will indemnify, defend, and hold harmless Enview from and against all claims, liabilities, damages, losses, penalties, expenses and costs (including settlement costs and reasonable fees and expenses of attorneys and other professionals) arising out of any Claim against Enview and its Affiliates regarding: (a) Customer Data; or (b) Customer’s, or Customer’s End Users’ use of the Services in violation of the Agreement or the End User Terms.

 

10.2         By Enview.  Enview will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any Claim against Customer to the extent based on an allegation that Enview’s technology used to deliver the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party.  In no event will Enview have any obligations or liability under this section arising from or relating to: (a) use of any Services in a modified form or in combination with materials not furnished by Enview; and (b) any content, information, or data provided by Customer, End Users, or other third parties.

 

10.3         Possible Infringement.  If Enview believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Enview may: (a) obtain the right for Customer, at Enview’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.  If Enview does not believe the options described in this section are commercially reasonable, then Enview may suspend or terminate Customer’s use of the affected Services, with a pro-rata refund of prepaid fees for the Services.

 

10.4         General.  The party seeking indemnification will promptly notify the other party of the Claim and cooperate with the other party in defending the Claim.  The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.  THE INDEMNITIES ABOVE ARE ENVIEW AND CUSTOMER’S ONLY REMEDY UNDER THE AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

 

11.            Disclaimers.

 

11.1         Generally.  THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER CUSTOMER NOR ENVIEW, ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT.  CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.

 

12.            Limitation of Liability.

 

12.1         Security and Other Risks. Customer acknowledges that, notwithstanding the security features of the Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure.  Enview will have no liability on account of any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Services is not guaranteed to operate without interruptions, failures, or errors. If Customer or Customer End Users use the Service in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and shall indemnify Enview and hold it harmless against those risks.

 

12.2         Limitation on Indirect Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ENVIEW OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR ENVIEW AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THE AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

12.3         Limitation on Amount of Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, ENVIEW’S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED TEN THOUSAND US DOLLARS ($10,000 USD).

 

13.            Disputes.

 

13.1         Informal Resolution.  Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Section 14.6.  If a dispute is not resolved within thirty days of notice, Customer or Enview may bring a formal proceeding.

 

13.2         Arbitration.  Customer and Enview agree to resolve any claims relating to the Agreement or the Services through final and binding arbitration, except as set forth below.  The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules.  The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.

 

13.3         Exception to Arbitration.  Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above.  Both Customer and Enview consent to venue and personal jurisdiction there.

 

13.4         NO CLASS ACTIONS.  Customer may only resolve disputes with Enview on an individual basis and will not bring a claim in a class, consolidated or representative action.  Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.

 

14.            Miscellaneous.

 

14.1         Terms Modification.  Enview may revise this Agreement from time to time and the most current version will always be posted on the Site.  If a revision, in Enview’s sole discretion, is material, Enview will notify Customer (by, for example, sending an email to the email address associated with the applicable account or posting a notification in the Services).  Other revisions may be posted to the Site, and Customer is responsible for checking these postings regularly.  By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement.  If Customer does not agree to the revised Agreement terms, Customer may not use the Services anymore and may terminate the Services within thirty days of receiving notice of the change. Notwithstanding the foregoing, upon a transition from an initial trial or free period to a paid subscription, the then-current version of this Agreement on the effective date of such paid subscription shall apply without further notice to Customer.

 

14.2         Entire Agreement.  Except for any Customer Agreement referenced in the Order, the Agreement supersedes any prior agreements or understandings between the parties, and constitutes the entire agreement between the parties related to such subject matter.  All attachments to these Terms, the Customer invoices, Order Terms and Order Forms executed by the parties, are hereby incorporated into the Agreement by this reference.

 

14.3         Interpretation of Conflicting Terms.  If there is a conflict between the documents that make up the Agreement, the End User Terms or any Customer Agreement, the documents will control in the following order: the invoice, the applicable Order Form or Order Terms, any Customer Agreement referenced in the Order, these Terms, the End User Terms; provided however that no term in any invoice, Order Terms, Service Addendum, Order Form, or End User Terms will be deemed to amend these Terms unless such term references a specific provision in these Terms and provides that it is amending only that specific provision of these Terms and only with respect to Services performed pursuant to such invoice, Order Terms, Service Addendum or Order Form.  The terms and conditions of the Agreement will be considered the confidential information of Enview, and Customer will not disclose the information to any third parties.  Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void.  If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.

 

14.4         Governing Law.  The agreement will be governed by California law except for its conflicts of laws principles.

 

14.5         Severability.  If any provision of this Agreement shall be held invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the parties’ fundamental intentions hereunder, and the remaining provisions shall not be affected or impaired.

 

14.6         Notice.  Notices must be sent via email, 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 Enview must be sent to Enview Legal at legal@enview.com, with a copy to Enview, Inc., 164 Townsend St., Unit 11, San Francisco, CA 94107, attn.: Legal Department.

 

14.7         Waiver.  Waiver of any term or provision of this Agreement or forbearance to enforce any term or provision by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Agreement.

 

14.8         Assignment.  Customer may not assign or transfer the Agreement or any rights or obligations under the Agreement without the written consent of Enview, except that Customer may assign the Agreement together with any Customer Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to Enview.  Enview may freely assign the Agreement or any rights or obligations under the Agreement without providing notice to Customer. Any impermissible attempt to transfer or assign this Agreement is void.

 

14.9         No Agency.  Nothing in this Agreement shall in any way be construed to constitute either party or any such party’s employee or contractor as an agent, employee or representative of the other party, but Enview shall perform the Services as an independent contractor.  Neither party nor any such party’s employees and contractors have any authority to bind the other party by contract or otherwise

 

14.10      Force Majeure.  Except for payment obligations, neither Enview nor Customer will be liable for inadequate or delayed performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, epidemic or pandemic, governmental action, and Internet disturbance).

 

14.11      No Third-Party Beneficiaries.  There are no third-party beneficiaries to the Agreement.  Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under the Agreement.

 

14.12      Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

 

14.13      Publicity. Each party shall have the right to publicly announce the existence of the business relationship between parties. In addition, during the Service Term, Enview may use Customer Marks on the Site and marketing materials to identify Customer as Enview’s customer, provided that Enview shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer Marks.

 

15.            Definitions.

 

Acceptable Use Policy” means the Enview acceptable use policy set forth at the following link, or other link that Enview may provide: https://enview.com/acceptable-use.

 

Account Data” means the account and contact information submitted to the Services by Customer or End Users.

 

Administrator” means a Customer-designated technical End User who administers the Services to End Users on Customer’s behalf, through multiple tiers.

 

Admin Account” means an administrative account provided to Customer by Enview for the purpose of administering the Services.

 

Admin Console” means the online tool provided by Enview to Customer for use in administering the Services.

 

Affiliate” means any entity that controls, is controlled by or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.

 

Agreement” means, collectively, these Terms, Order Terms and each applicable Order Form entered into by the parties.

 

Claim” means a claim by a third party, including a regulatory claim or penalty.

 

Customer Agreement” means a written agreement between Enview and Customer executed by the parties’ authorized representatives relating to the subject matter hereof that is specifically referenced in the Order.

 

Customer Data” means Stored Data and Account Data.

 

Customer Marks” means Customer’s name, trademarks, and logos.

 

Effective Date” means the date specified in the applicable Order.

 

End Users” means users of Customer’s Services account.  End Users may include Customer’s and its Affiliate’s employees and consultants.

 

End User Account” means a Enview hosted account established by Customer through the Services for an End User.

 

EU Data Protection Laws” means, to the extent in force and applicable from time to time, those laws implementing the EU General Data Protection Regulation (2016/679) and any implementing laws in each EU member state.

 

Optional Features” means services or features listed on the Site or otherwise not contemplated in the Order, which list may be updated from time to time by Enview, provided that features incorporated in the Services as of the Effective Date will not be transitioned to the Optional Features list during the Term.

 

Export Control Laws” means all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.

 

Fees” means the amounts specified to Customer by Enview for the Services in the applicable Order.

 

Improvements” means all Inventions that are conceived, reduced to practice or made by or on behalf of Enview alone or jointly with others that result from or that are related to Training Rights, including all Intellectual Property Rights therein.

 

Initial Services Term” means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth in the Order.

 

Inventions” means technology, know-how, trade secrets, works of authorship, materials, notes, records, data, designs, ideas, inventions, improvements, devices, developments, discoveries, processes, methods, techniques, whether or not patentable or copyrightable.

 

Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, intellectual property rights, proprietary rights, and other similar rights.

 

Order Form” means the ordering document, or order page, for the Services.

 

Provisioning Date” is the date upon which Enview makes the Services available to Customer.

 

Renewal Term” means, unless otherwise agreed to in writing by the parties, the twelve-month renewal term following either the Initial Services Term, or a previous Renewal Term.  Renewal Terms are set forth in the Order.

 

Results” means the results or reports generated specifically for Customer through Customer’s use of the Services, excluding any and all Improvements.

 

Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to deliver the Services; or (ii) unauthorized third-party access to the Services.

 

Services” means the services ordered by Customer in the Order.

 

Services Addendum” means a document attached to an Order Form that lists particular Services and includes terms and conditions specific to those Services.

 

Services Term” means the Initial Services Term and all Renewal Terms for the applicable Services.

 

Service Limits” means rate, storage, End User or other limits on Customers use of the Services as described in the applicable Order.

 

Stored Data” means the files uploaded to the Services by Customer or End Users.

 

Subcontractor” means an entity to whom Enview subcontracts any of its obligations under the Agreement.

 

Taxes” means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), levy, duty or other charge of any kind or nature assessable by any local, state, provincial, federal or foreign jurisdiction, excluding tax that is based on Enview’s net income, associated with the Services, including any related penalties or interest.

 

Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of all applicable Services Terms; or (ii) the Agreement is terminated as set forth herein.

 

Third-Party Request” means a request from a third-party for records relating to an End User’s use of the Services including information in or from an End User Account, or from Customer’s Services account.  Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User’s authorized representative, permitting a disclosure.

 

Training Rights” means the right to use Stored Data for the improvement of Services and Enview’s proprietary algorithms, including without limitation, the right to use Stored Data for training or improvement of Enview’s algorithms.

 

Withholding Taxes” mean any income taxes that are imposed on Enview in which Customer is required by law to withhold or deduct on the payment to Enview.