Enterprise Agreement
By clicking “Agree” below, you acknowledge and accept the terms of this ENTERPRISE AGREEMENT, which incorporates by reference Terms and Conditions (available at https://livecurrence.com/strategist-terms-conditions/, and https://livecurrence.com/member-terms-conditions/) and the Privacy Notice (available at https://livecurrence.com/privacy-policy/) (collectively, the “Agreement”). This Agreement is entered into by and between Currence, Inc., a Delaware corporation (“Company”), and the party accepting these terms (“Enterprise”), and is effective as of the date this Agreement is executed by Company below or, if undated, the date on which Company accepts this Agreement as indicated in its books and records (“Effective Date”). From time to time herein, Company and Enterprise may be referred to collectively as the “Parties” and each, individually, as a “Party.” By proceeding, Enterprise confirms that it has read, understood, and agreed to be bound by this Agreement.
RECITALS
WHEREAS, Company has developed online, proprietary financial service platform, implemented as a software as a service, (the “Platform”) to facilitate monetary savings strategies by individual consumers (“Members”), including permitting strategic advisory services by such Member’s financial professionals;
WHEREAS, the Platform includes a dashboard portal (the “Portal”) through which Members may allow such Member’s financial professionals and such financial professional’s authorized professional staff (collectively, “Strategists”) to view such Member’s bank accounts, savings strategies, and other financial information; and
WHEREAS, Enterprise utilizes Strategists and desires to make available the Platform, including the Portal, to its Strategists, Members, and other Authorized Users (defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SERVICES.
(a) Service and License. Subject to the terms of this Agreement and the timely payment in full of all Fees (defined below), Company shall provide Enterprise and its Authorized Users a non-exclusive, non-assignable, and non-transferable right to access and use the Platform and Portal, including modifications or updates thereto (collectively, the “Service”) for use under the Company’s end user license agreements (“EULA”). The Service is made available to Enterprise solely as Company delivers it. Enterprise’s and its Authorized User’s access and use of the Service must comply with all other conditions set forth in all documentation provided by Company, such as user guides, help provided to Enterprise or made available by Company in any form, EULA, and any other documents governing the use of the Service as Company may from time to time designate in its sole and absolute discretion (the “Documentation”). In its sole and absolute discretion and as indicated on one or more Order Forms (defined below), Enterprise may elect to purchase the Service in such manner and by such methods made available by Enterprise.
“Order Form” means the Company’s online form Enterprise shall use to order and purchase the Service under this Agreement. Once agreed to by both Parties, an Order Form is incorporated into this Agreement. This Agreement controls if there is any conflict between a provision of this Agreement and any Order Form, unless the Order Form specifically calls to attention a departure from a provision set forth in this Agreement. Company may refuse in its sole discretion to accept any Order Form.
(b) Access.
(i) Promotional Access.
(ii) Premium Access Company may make access to the Service in one or more of the following manners (or such other options as may be offered by Company in its sole discretion, following the Effective Date):
1.b.ii.1 Access Protocol. Company may make the Service available as a stand-alone service, which shall be made available via access codes, access tokens, access links, or other similar forms of unused access protocols (each, an “Access Protocol”). Company shall create Seat Licenses in the quantity reasonably requested by Enterprise from time to time, as agreed upon in writing by the Parties.
1.b.ii.2 Technical Integration. In the future, Company may make the Services available for purchase as an integrated product to be integrated within Distribution Partner’s software programs (a “Technically Integrated Service”). If Company makes the Service available, and Enterprise elects to purchase the Service, as part of a Technically Integrated Service, Company hereby grants Enterprise a limited, non-exclusive, non-sublicensable, and non-transferable license to the Service during the Term solely to: (i) use, perform, and reproduce the Service in whole or in part solely for embedding or otherwise integrating the Service into the Technically Integrated Service; (ii) demonstrate and distribute the Service to Members or Strategists, as applicable, solely for use under the Documentation, which Enterprise shall incorporate or bundle with the Technically Integrated Service; and (iii) use, copy, reproduce, distribute, or integrate the Documentation, in whole or in part, into the documentation for the Technically Integrated Service, solely in support of the licensed use of the Technically Integrated Service by Members or Strategists, as applicable. In connection with the purchase of a Technically Integrated Service, Enterprise shall, from time to time at the reasonable request of Company, and without further consideration, execute and deliver such other written agreements governing the terms and conditions of a Technically Integrated Service.
(c) Implementation Help; Delivery of Service. To the extent necessary and as soon as reasonably practicable following execution of this Agreement or any updates to the Service, Enterprise shall provide Company with cooperation, assistance, information, and access reasonably necessary to initiate Enterprise’s use of the Service (collectively, the “Implementation Help”). As soon as reasonably practicable following Enterprise’s delivery of the Implementation Help, Company shall provide Enterprise with the necessary protocols to access the Service. Company may, in its sole discretion, refuse to register, or cancel login IDs to any Authorized User at any time for any reason.
(d) Updates. Company may update the Service from time to time in its sole and absolute discretion. By using the Service, Enterprise agrees to receive, without further notice or prompting, access to updated versions of the Service and related third-party software. Enterprise’s continued use of the Service constitutes acceptance of the foregoing terms.
(e) Additional Services. Notwithstanding anything to the contrary contained herein, Company shall not be obligated to provide any new products or services unless provided for in a separate written agreement among the Parties and payment of the applicable fees set forth therein.
2. FEES.
(a) Fees. Enterprise shall pay to Company for the rights granted herein the fees as set forth herein or as otherwise agreed to in writing by the Parties (the “Fee(s)”). If the Term is renewed for any Renewal Term pursuant to this Agreement, Enterprise shall pay the then-current standard fees that Company charges during the applicable Renewal Term. Notwithstanding Enterprise’s obligation to pay the Fees as set forth below and as agreed upon in writing by the Parties, all Fees are earned in full (without set-off or counterclaim) as of the effective date of each Order Form. Except in the case of termination pursuant to Section 8(c), all Fees are non-refundable and may not be pro-rated. Any payments due hereunder must be made in US dollars.
(b) Subscription Terms and Pricing. By accepting this Agreement, Enterprise agrees to a Fee of $5,000 per month, subject to a two-year (24-month) financial commitment. The following promotional discounts and financial incentives apply:
i. A 50% discount on the Fee for the first 12 months, reducing the monthly cost to $2,500 during this period.
ii. A $150 monthly subsidy per Strategist.
iii. Enterprise acknowledges that the subscription is a financially binding commitment for the Term, and early termination will not result in a refund or proration of fees.
(c) Suspension. In the event of non-payment of any Fees or other amounts payable hereunder, Company may, in addition to any other rights and remedies it may have, suspend Enterprise’s and its Authorized Users’ access to the Service upon ten (10) calendar days’ notice.
(d) Fee Modification. Company may modify its fees set forth in this agreement no more than once for any renewal period by the lower of three percent (3%) or any amount not to exceed the cumulative percentage increase of the United States Chained Consumer Price Index for Urban Consumers, published by the Bureau of Labor Statistics, United States Department of Labor (or its successor index) (the “U-CPI-U”) during the period beginning on the date of the prior increase (or, in the case of the initial increase, the Effective Date) and ending on the latest day included in the latest U-CPI-U calculation published at the time of such fee modification.
(e) Late Fees. If Distribution Partner fails to make any payment of Fees, when due, in addition to all other remedies that may be available: (i) Company may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly or the highest rate permitted under applicable law; and (ii) Enterprise shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
(f) Taxes. Fees do not include taxes (including sales, use, and VAT) or customs, duties, excise taxes, or tariffs. Federal, state and local sales, use and excise taxes and all similar taxes and duties are the sole responsibility of Enterprise, provided, that, in no event shall Enterprise pay or be responsible for any taxes imposed on, or regarding, Company’s income tax.
3. ENTERPRISE’S RESPONSIBILITIES.
(a) Restrictions. Enterprise shall comply with all applicable laws regarding its use of the Service, including ensuring that its Authorized Users comply with all applicable laws regarding their use of the Service. Enterprise and Enterprise’s Authorized Users may not, directly or indirectly:
i. use the Service for any purposes beyond the scope of the license granted in this Agreement;
ii. license, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available the Service in any way to any third party, other than an Authorized User;
iii. modify or make derivative works based upon the Service, disassemble, reverse compile, or reverse engineer any part of the Service;
iv. create Internet “links” to the Service or “frame” or “mirror” or “frame” or “mirror” any part of the Service, including any content contained in the Service;
v. disassemble, reverse-engineer, decompile, or use any other means to attempt to gain unauthorized access to, or attempt to discover, any source code, algorithms, or trade secrets underlying any part of the Service, or access it in order to copy any ideas, features, content, functions, or graphics of the Service;
vi. interfere with or disrupt the performance of the Service;
vii. send, store, or input infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material via the Service;
viii. send, store, or input any false or incorrect information into the Service;
ix. send or store malicious code via the Service; or
x. take (or cause any third party to take) any action designed to intentionally circumvent the intent of this Agreement.
A breach of any of the foregoing items shall be deemed a material breach of this Agreement.
(b) Authorized Users. “Authorized User” means (i) Enterprise’s Strategists and (ii) any other individual authorized, by virtue of such individual’s relationship to or permissions from Enterprise or Company, to access the Service in accordance with Enterprise’s rights under this Agreement, including but not limited to Members attributable to Enterprise. Enterprise acknowledges and agrees that any Authorized User’s act or omission in connection with access or use of the Service that would breach this Agreement if Enterprise committed such act or omission constitutes Enterprise’s material breach of this Agreement.
(c) Member Data. Enterprise is solely responsible for all data, information, or content provided, uploaded, recorded, or posted by its Authorized Users during and in connection with such Authorized User’s authorized use of the Service published or displayed on or through the Service (“Member Data”). Enterprise must require Authorized Users not to post, transmit, or share Member Data on the Service that such Authorized User does not have permission to post. Enterprise is solely responsible at its sole cost and expense for creating backup copies and replacing any Member Data posted or stored on the Service or otherwise provided to Company. Enterprise is solely responsible for obtaining the necessary consents from Authorized Users to share and license (as set forth in this Agreement) such Member’s Data to Company. Unless otherwise stated herein, a Member owns all right, title, and interest to and in such Member’s Member Data.
(d) Marketing Materials. Enterprise shall, in good faith and at its own expense, market, advertise, endorse, and otherwise promote the Service to Members and Strategist with good business practices, in each case using commercial reasonable efforts to maximize the use of the Service. Before Enterprise markets the Service, Enterprise shall submit all proposed Marketing Materials (defined below) related to the Platform or Portal to Company for Company’s approval, which Company may accept or reject in its sole and absolute discretion, before Enterprise uses any Marketing Materials. “Marketing Materials” means advertisements (including print, online, television, radio, or podcast), brochures, telemarketing scripts, electronic web pages, electronic web links, websites, or any other type of marketing material or interactive media, in each case that Enterprise wishes to make available, directly or indirectly, to current or prospective end-users of the Service (including Members and their Strategists) from time to time to market the Product. Company shall use commercially reasonable efforts to review and approve or provide notice of disapproval of such Marketing Materials within ten (10) business days of the date on which such Marketing Materials are submitted (or resubmitted) by Enterprise. Once Company approves Marketing Materials, Enterprise may use such Marketing Materials unless Company makes a material change to such Marketing Materials, in which case, Enterprise shall resubmit any changes to Company. Subject to this Section 3 and Section 5, Enterprise shall prominently display Company’s trademarks, as designated by Company, on all Marketing Materials when marketing the Product.
(e) Reporting. Enterprise shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security or data integrity; (ii) report to Company immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Service or any of the content in the Service that is known or suspected by Enterprise; (iii) not allow a user to impersonate another user or provide false identity information to gain access to or use the Service; and (iv) notify Company when any Authorize User is no longer a member of Enterprise within ten (10) calendar days of such Authorized User’s departure.
(f) Enterprise’s Systems. Enterprise shall provide all subscriptions and credentials necessary for Company to receive Member Data and, in the case of Enterprise’s use of the on-site software, all equipment, servers, devices, storage, other software, databases, network, and communications equipment and ancillary services needed to send data to Company (collectively, “Customer Systems”). Enterprise shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. Enterprise represents and covenants that its Customer Systems comply with applicable privacy laws. Enterprise shall be solely responsible for maintaining and managing its Customer Systems and configuring its Customer Systems in accordance with any instructions Company provides as necessary for access to the Service.
(g) Enterprise Representative. Enterprise shall designate a primary point of contact (the “Enterprise Representative”) to act as its authorized liaison with Company. The Enterprise Representative shall be responsible for:
i. Serving as the primary contact for all communications between Enterprise and Company regarding the Service, including technical support, billing, and compliance matters;
ii. Overseeing the management of Enterprise’s Authorized Users, ensuring compliance with the terms of this Agreement, and facilitating access to the Service as needed;
iii. Reporting any service-related issues, coordinating troubleshooting efforts with Company, and ensuring that necessary information is provided to resolve any technical or operational concerns in a timely manner;
iv. Ensuring that Enterprise and its Authorized Users adhere to all applicable terms of this Agreement, including payment obligations, data security policies, and usage guidelines; and
v. Acting as Enterprise’s authorized representative for making requests, approvals, or modifications related to the Service, subject to any internal limitations set by Enterprise.
Enterprise shall notify Company in writing of the name and contact information of the designated Enterprise Representative within five (5) business days of accepting this Agreement. Enterprise may update the designated representative at any time by providing written notice to Company.
4. COMPANY’S RIGHTS AND OBLIGATIONS.
(a) Performance and Support. Company shall provide the Service in a professional manner consistent with reasonable, generally accepted industry standards. Company shall undertake commercially reasonable measures to assure system availability.
(b) License for Member Data. Enterprise grants to, and shall ensure that any Member attributable to Enterprise grants to, Company a royalty-free, nonexclusive, worldwide license (with the right to sublicense through multiple tiers) to use, copy, store, process, transmit, and display Member Data. The Service depends on the availability and the accuracy of the Member Data. Company assumes no responsibility for verifying the accuracy or completeness of Member Data. Enterprise consents to storing all Member Data in the United States of America.
(c) Injunctions of the Service. If the Service becomes or, in Company’s sole opinion, is likely to become the subject of any injunction preventing use of the Service as contemplated in this Agreement, Company may, in its sole option: (i) obtain the right to continue using the Service or (ii) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If neither (i) nor (ii) is possible or reasonably feasible, then Company may immediately terminate this Agreement without liability.
(d) Relationship with Members and Strategist. If a Member or Strategist is no longer associated with Enterprise, Company, in its sole discretion, may continue providing access to the Service to such Member or Strategist, as applicable. Enterprise acknowledges and agrees that if a Member or Strategist is no longer associated with Enterprise, Enterprise shall not take any action that prohibits, hinders, interferes with or causes such Member or Strategist, as applicable, to decrease or alter its current or future business relationship with Company.
5. Ownership; Data.
(a) Intellectual Property. Except for the limited rights and licenses expressly granted under this Agreement, Enterprise acknowledges and agrees that nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Enterprise or any third party any intellectual property rights or other right, title, or interest in or to any of the Service. Enterprise acknowledges and agrees that Company or its licensors shall own all right, title and interest in, to, and under all intellectual property rights in the Service, and any suggestions, enhancement requests, feedback, or recommendations provided by Enterprise or its Authorized Users relating to the Service (the “Feedback”), including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how, and other trade secret rights, and all other intellectual property rights, derivatives, or improvements thereof. Enterprise shall assign and hereby assigns to Company all right, title, and interest in, to, and under, and Company is free to use, without any attribution of compensation to Enterprise, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback for any purpose whatsoever. Enterprise does not acquire any rights in the Service, express or implied, other than those expressly granted in this Agreement, and all rights not expressly granted to Enterprise are reserved by and inure to the benefit of Company. Except for the limited rights and licenses expressly granted under this Agreement, this Agreement is not a sale and does not convey to Enterprise any rights of ownership in or related to the Service.
(b) Aggregated Data. Enterprise authorizes Company to compile Aggregated Data (defined below) and such Aggregated Data shall be proprietary to Company. To the extent necessary, Enterprise hereby assigns to Company all right, title, and interest in, to, and under the Aggregated Data. “Aggregated Data” means any technical, statistical, or analytical data, gathered or generated directly by the Service or by use of the Service that Company collects, gathers, and aggregates periodically as part of its ordinary business operations. Aggregated Data is data that Company (and its affiliates, licensors, and agents) may use to monitor and improve any of its products and services, for benchmarking purposes, or to provide customized services or technologies to other enterprises or consumers. Aggregated Data shall include any de-identified Member Data. Company collects and uses this data in accordance the Privacy Policies and in accordance with applicable data protection laws.
6. Representations and Warranties.
(a) Each Party represents and warrants to the other that:
i. The Party is duly organized, validly existing and in good standing under the laws of the state of its formation, with all the requisite legal power and authority to own and operate its properties and to carry on business as now being conducted or has conducted in the past and is qualified to do business and is in good standing as a foreign entity in each state or other jurisdiction in which the nature of its properties, assets or business require such qualification and in which, the failure to so qualify could have a material adverse effect on its business;
ii. The Party has not entered into any other contract or obligation that will interfere with the Party’s ability to perform its obligations under this Agreement;
iii. The Party has all right, title and interest in and to its assets necessary to perform this Agreement, and all licenses, permits and governmental authorizations necessary to perform its obligations under this Agreement;
iv. The Party has not assigned, delegated, sold, pledged, or otherwise transferred any intellectual property rights or other ownership rights to its properties in a manner that interferes with such Party’s obligations, representations, warranties or covenants under this Agreement and will not do so while this Agreement is in effect; and
v. The Party is not a named party in a lawsuit or arbitration that may jeopardize such Party’s professional licenses, legal or regulatory status or otherwise prevent it from conducting its current business.
(b) Enterprise further represents and warrants that:
i. It shall comply with all applicable laws during the Term (defined below) and during such time as Authorized Users access and use the Product;
ii. It has the right to disclose and provide to Company any data provided through its use and access of the Product;
iii. No materials of any kind submitted as Member Data or otherwise posted, transmitted, or shared on or through the Product violates or infringes on any intellectual property, privacy, personal, proprietary, or other right of any third party, or contain inaccurate, false, misleading, obscene, libelous, defamatory, or otherwise unlawful material;
iv. Enterprise’s and its Authorized Users’ use of and access to the Product complies with all applicable laws, rules, and regulations, including but not limited to all applicable local, state, national, and foreign laws related to data privacy and the transmission of technical or personal data, including personally identifiable information, and the securities laws of all applicable jurisdictions; and
v. All data provided by any Authorized User is accurate and correct in all respects.
7. CONFIDENTIALITY.
(a) Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) that a reasonable person should understand to be confidential or proprietary, whether or not marked as “Confidential.” Confidential Information does not include information that: (i) is, or becomes, publicly available through no fault of the Receiving Party; (ii) was lawfully known, without any obligation to keep such information confidential, by the Receiving Party prior to its receipt from the Disclosing Party, as evidenced by written records predating the disclosure; (iii) is lawfully received from a source that is not prohibited from disclosing or using such information on account of a legal, contractual, or fiduciary duty or obligation; or (iv) is independently developed by the Receiving Party without breaching this Agreement or relying on, referencing, or using the Disclosing Party’s Confidential Information, as evidenced by contemporaneous written records.
(b) Protection of Confidential Information. The Receiving Party must use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than a reasonable degree of care used by the Disclosing Party): (i) not to use any of the Disclosing Party’s Confidential Information for any purpose outside this Agreement’s scope; and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to the Disclosing Party’s Confidential Information to those of its and its affiliates’ employees and contractors who have a bone fide need to access the Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Agreement. Neither Party may disclose the terms of this Agreement or any Order Form to any third party other than the Party’s affiliates, legal counsel, and accountants without the other Party’s prior written consent. A Party that makes any such disclosure to its affiliate, legal counsel, or accountant remains responsible for that affiliate’s, legal counsel’s, or accountant’s compliance with this Section 7.
(c) Compelled Disclosure. If required to comply with a court order or other demand by a governmental authority, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the applicable governmental authority, but only to the extent legally required to satisfy such order or demand. Before disclosing any of the Disclosing Party’s Confidential Information to such governmental authority, the Receiving Party must: (i) seek the highest level of protection afforded to such Confidential Information by such governmental authority; and (ii) give the Disclosing Party enough prior notice to provide a reasonable chance to seek a protective order or other remedy to protect the confidentiality of such information. Receiving Party will cooperate fully with Disclosing Party to obtain such protective order or other remedy.
8. TERM AND TERMINATION.
(a) Term; Termination. The term of this Agreement shall commence as of the Effective Date and continue for twenty-four (24) months thereafter (“Initial Term”) and shall automatically renew for successive twelve (12)-month periods (each, a “Renewal Term” (if any), and together with the Initial Term, the “Term”), unless either Party gives written notice to the other Party of non-renewal at least thirty (30) calendar days’ prior to termination of the Initial Term or the then-current Renewal Term, if applicable. The termination of on Order Form (or the election not to renew such Order Form) shall not terminate this Agreement or any other Order Forms then in effect.
(b) Termination for Breach. Either Party may terminate this Agreement without penalty if: (i) 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; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
(c) Effect of Termination.
i. Access to and Use of Service. Upon expiration, suspension, or termination of this Agreement (collectively, “Termination”) for any reason, (A) the right of Enterprise, Strategist, and Members to access and use the Service shall immediately terminate and (B) Enterprise shall cooperate with Company to advise Strategists and Members that such Strategists and Members may continue to use the Service if such Strategists or Members pay to Company the then-stated retail price and sign the then-current EULA.
ii. Fees. Upon Termination, Enterprise shall remain obligated to pay any and all accrued or payable Fees, including all Fees that would have been payable to Company through the date of the expiration of the then-current Term.
iii. Data. Upon Termination of this Agreement, Enterprise’s right to use any Member Data shall immediately terminate. If a Strategist affiliated with Enterprise terminates or suspends his or her use of the Service pursuant to any authorization by Enterprise under this Agreement, then Enterprise’s right to use any Member Data associated with any Strategist and Member affiliated with such Strategist shall immediately terminate. If a Member affiliated with Enterprise terminates or suspends his or her use of the Service pursuant to any authorization by Enterprise under this Agreement, then Enterprise’s and such Member’s Strategist’s right to use any Member Data associated with such Member shall immediately terminate.
9. GENERAL PROVISIONS.
(a) Limited Warranty.
i. MEMBER LIMITED WARRANTY. COMPANY PROVIDES WARRANTIES TO THE MEMBERS AND STRATEGISTS, IF ANY, ONLY AS SET FORTH IN ITS END USER LICENSE AGREEMENT. ENTERPRISE AGREES NOT TO MAKE OR ISSUE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO MEMBERS AND STRATEGISTS OR ANY OTHER THIRD PARTY THROUGH ANY MEDIUM WITH RESPECT TO THE SPECIFICATIONS, FEATURES, WARRANTIES, OR CAPABILITIES OF THE SERVICE THAT ARE INCONSISTENT WITH THE REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS SPECIFICALLY STATED IN THE EULA.
ii. Service Warranty. Company represents and warrants to Enterprise that the Service will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. Enterprise’s exclusive remedy for breach of the foregoing limited warranty shall be for Company to update and correct such Service not in compliance with such specifications and requirements, at no cost to Enterprise. The foregoing limited warranty shall not apply to performance issues or defects in the Service that result from factors outside Company’s reasonable control, that resulted from any actions or inactions of Enterprise or its Authorized Users, or that resulted from Enterprise’s equipment or any third Party equipment not within the control of Company. For the avoidance of doubt, Company is not responsible for, and makes no warranties related to, any compliance with financial regulations or internal Enterprise policies.
EXCEPT AS SET FORTH IN THIS SECTION 8(A), ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET ENTERPRISE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN ENTERPRISE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
(b) LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. COMPANY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY ENTERPRISE TO COMPANY DURING THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. The allocations of liability in this section represent the agreed and bargained-for understanding of the Parties. The limited remedies set forth in this Agreement shall apply notwithstanding the failure of their essential purpose.
(c) Indemnification by Enterprise. Enterprise shall indemnify, defend, and hold harmless Company and its affiliates, officers, managers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, and other costs of defense, arising from or related to: (i) any actual or alleged breach of any representations and warranties of Enterprise or its Authorized Users; (ii) Enterprise’s or its Authorized Users’ unauthorized use of the Service; (iii) Enterprise’s or its Authorized Users’ actual or alleged violation of any right of any third party; or (iv) Enterprise’s or its Authorized Users’ breach of this Agreement.
(d) Survival. Any rights or obligations of the Parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration.
(e) Dispute Resolution. If any controversy or claim arises relating to this Agreement, the Parties will first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within thirty (30) days of when one Party first notifies the other of the controversy or claim, then either Party may elect to pursue other legal proceedings.
(f) Non-Solicitation; Non-Competition. Enterprise agrees that during the Term of this Agreement and for twelve (12) months thereafter, or, in the alternative, in the event any reviewing court finds twelve (12) months to be overbroad in duration and unenforceable, for the Term of this Agreement and for nine (9) months thereafter, or, in the alternative, in the event any reviewing court finds nine (9) months to be overbroad in duration and unenforceable, for the Term of this Agreement and for six (6) months thereafter, solicit for employment or retention as an independent contractor any employee, independent contractor, or former employee or independent contractor of Company, who provided any services pursuant to this Agreement. “Solicit” shall not be deemed to include advertising in newspapers or trade publications available to the public. Enterprise shall not, during the Term of this Agreement, and for twelve (12) months thereafter, or, in the alternative, in the event any reviewing court finds twelve (12) months to be overbroad in duration and unenforceable, for the Term of this Agreement and for nine (9) months thereafter, or, in the alternative, in the event any reviewing court finds nine (9) months to be overbroad in duration and unenforceable, for the Term of this Agreement and for six (6) months thereafter, develop, produce, market, distribute, license, sell, or otherwise make available anywhere in the United States in stand-alone, bundled, or any other form, any product or services, or any product components, that may or do compete with the Service or enter into any agreement or transaction, or engage in any act or practice, to the detriment or the competitive or commercial disadvantage of Company.
(g) Assignment. Enterprise shall not assign this Agreement or its rights and obligations (including, without limitation, any assignment that occurs by operation of law) without the prior written consent of Company, which consent may be withheld in Company’s sole and absolute discretion. “Assign” for purposes of this Agreement includes reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities or assets of Enterprise and expressly includes any change in control of at least a majority of the voting securities of Enterprise. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding upon the Parties and their respective successors and assigns.
(h) Governing Law. This Agreement is made under, and must be construed in accordance with, the laws of the state of New Jersey, exclusively, without giving effect to any choice or conflict of law provision of any jurisdiction. The Parties agree to the exclusive jurisdiction and venue of the state and federal courts located in New Jersey for any dispute or claim relating to this Agreement.
(i) Severability. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, and the remainder of such provision and this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
(j) Entire Agreement. This Agreement (including the Exhibits attached hereto) (i) represents the entire understanding between the Parties hereto with respect to the subject matter set forth herein, (ii) supersedes all negotiations, agreements, contracts, commitments and understandings, both verbal and written between Company and Enterprise, (iii) and does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order or any other instrument of Enterprise. No modifications, additions, or amendments to this Agreement or any Exhibit shall be effective unless made in writing as an amendment to this Agreement or any Exhibit and signed by duly authorized representatives of the Parties. If Enterprise delivers this Agreement or any Exhibit to this Agreement and Company does not receive all the pages of this Agreement or Exhibit from Enterprise, Company may supply the missing pages to this Agreement or Exhibit that conform to the final agreement agreed to by the Parties.
(k) Headings. The headings and captions of this Agreement are inserted for convenience and do not define, limit, or describe the scope and intent of this Agreement or any particular section, paragraph, or provision.
(l) Waiver. Waiver of a breach of this Agreement shall not constitute waiver of another breach. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
(m) Notice. Any notice required or permitted hereunder shall be given by electronic mail, in person, or by United States certified mail, return receipt requested, and shall be addressed as set forth on the signature page or to such other address as the Parties shall notify each other in writing. Such notice shall be deemed delivered, given, and received: (1) upon dispatch, if delivered by electronic mail (provided there has been no “bounceback” or other evidence the transmission was not received by the intended recipient); (2) upon receipt, if delivered in person; or, (3) if mailed, three (3) days after such notice is actually mailed in accordance herewith.
(n) Pronouns. Whenever the context of this Agreement permits, the masculine gender shall include the feminine and neutral genders, and any reference to the singular or plural shall be interchangeable with the other.
(o) Time is of the Essence. Time is of the essence of every provision of this Agreement that specifies a time for performance.
(p) Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute the same instrument.
(q) Recitals. The Recitals to this Agreement are an integral part of, and by this reference are incorporated into, this Agreement.