TERMS AND CONDITIONS
These Terms and Conditions (the “Terms”) govern your access to and use of the internet-based services offered by Endor Labs Inc. (the “Company”) at and through the website https://www.endorlabs.com/ or as otherwise made available by the Company (the “SaaS Services”). PLEASE READ THESE TERMS CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE “CUSTOMER” or “YOU”) AND THE COMPANY WHICH GOVERNS YOUR USE OF THE SAAS SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SAAS SERVICES. YOUR USE OF THE SAAS SERVICES, OR YOUR SIGNING AN ORDER FORM (AN “ORDER FORM”) REFERENCING THESE TERMS, CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS.
SAAS SERVICES; SUPPORT; LICENSE
1.1 SaaS Services. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the SaaS Services. As part of the registration process, Customer will identify at least one administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
1.2 Support. Subject to the terms hereof, Company will provide Customer with the SaaS Services and reasonable technical support services during the Company’s standard business hours and adhere to the service and support obligations set forth in the Service Level Agreement found at https://www.endorlabs.com/sla, which are incorporated into this Agreement by reference.
1.3 License Grant. To the extent the Company delivers to Customer any software, documentation or data related to the SaaS Services (“Software”), the Company grants to Customer a nonexclusive, irrevocable, worldwide right and license, during the Term, to access, install, if necessary, use, execute, store, perform and display such Software and its documentation required to permit Customer to make full and proper use of the SaaS Solution.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 General Restrictions. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Services and notify Company promptly of any such unauthorized access or use. Customer shall not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SaaS Services or any Software; modify, translate, or create derivative works based on the SaaS Services or any Software (except to the extent expressly permitted by Company or authorized within the SaaS Services); use the SaaS Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Customer shall not (a) sell, resell, rent or lease the SaaS Services, (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the SaaS Services for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data, (c) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the SaaS Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (e) interfere with or disrupt the integrity or performance of the SaaS Services or third-party data contained therein, (f) access or use the SaaS Services in order to build a similar or competitive product or SaaS Services, (g) disclose any review of the SaaS Services to any third party without Company’s prior written approval, (h) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information, or (i) attempt to gain unauthorized access to the SaaS Services or their related systems or networks. Except as expressly stated herein, no part of the SaaS Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the SaaS Services and notify Company promptly of any such unauthorized access or use.
2.2 Compliance with Applicable Laws. Customer represents, covenants, and warrants that Customer will use the SaaS Services only in compliance with applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Section 2 or otherwise from Customer’s use of SaaS Services. Although Company has no obligation to monitor Customer’s use of the SaaS Services, Company may do so and may prohibit any use of the SaaS Services it believes may be (or alleged to be) in violation of this Section 2.
2.3 Third Party Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.4 Suspension. Company may suspend provision of the SaaS Services if: (i) the SaaS Services are being used in material violation of this Agreement; (ii) suspension of the SaaS Services is necessary to protect Company’s network or Company’s other customers; (iii) the use of the SaaS Services by Customer may expose Company or its affiliates to liability; or (iv) suspension is required by law.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Obligations and Exclusions. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the SaaS Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the SaaS Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the SaaS Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. If the Receiving Party is compelled by law to disclose Proprietary Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.
3.2 Proprietary Rights. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the SaaS Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with any additional services or support, (c) any data that is based on or derived from the Customer Data and provided to Customer as part of the SaaS Services, and (d) all intellectual property rights related to any of the foregoing.
3.3 Service Improvements. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the SaaS Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the SaaS Services and for other development, diagnostic and corrective purposes in connection with the SaaS Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Company shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the SaaS Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the SaaS Services.
3.4 Publicity. Customer agrees that Company has the right to reveal the fact that Customer is using the SaaS Services, including by displaying Customer’s name and logo in Company’s website and other marketing materials.
4. PAYMENT OF FEES
4.1 Fees. Customer will pay Company the then applicable fees described in the Order Form for the SaaS Services in accordance with the terms therein (the “Fees”). On a quarterly basis, Company will perform an audit to determine if Customer is in compliance with the license usage limits of this Order. Upon completion of an audit, Company will notify Customer of any additional licenses that need to be purchased to bring the license usage into compliance. Any such additional licenses will be billed as of the audit date, co-terminus with and incorporated into the Order Form, and charged at a pro-rated amount based on a 10% premium on the annual per unit extended price of the Order Form.
Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. All fees under this Agreement are nonrefundable except as otherwise set forth herein.
4.2 Payment Terms. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer shall, within 15 days of receipt of the applicable invoice (the “Dispute Period”), provide Company a reasonably detailed written explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, Customer remains obligated to pay Company for all portions of the applicable invoice that are not under reasonable and good faith dispute. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of SaaS Service. Customer shall be responsible for all taxes associated with SaaS Services other than U.S. taxes based on Company’s net income.
4.3 Taxes. The Fees and any other amounts due are exclusive of any export, withholding, federal, state and local taxes, duties or excises. If Company pays any such taxes, duties or excises, Customer shall reimburse Company for such taxes, duties or excises, other than taxes on Company’s net income.
5. TERM AND TERMINATION
5.1 Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), as follows:
(i) if the other party materially breaches any of the terms or conditions of this Agreement; or
(ii) if the other Party makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within one hundred twenty (120) days after such filing.
Customer will pay in full for the SaaS Services up to and including the last day on which the SaaS Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTIES AND DISCLAIMER
6.1 Representations. Each party hereby represents and warrants to the other party that: (a) it is a legal entity duly organized and validly existing under the laws of its relevant jurisdiction; (b) it has the full right, power and authority to enter into this Agreement; (c) this Agreement is a valid and binding obligation of such party; (d) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder; and (e) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws.
6.2 Warranties. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the SaaS Services in a manner which minimizes errors and interruptions in the SaaS Services. SaaS Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
6.3 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SAAS SERVICES, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CUSTOMER SHOULD NOTE THAT IN USING THE SAAS SERVICES, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER COMPANY’S CONTROL (SUCH AS A THIRD-PARTY SERVERS AND THE INTERNET). COMPANY MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURES.
Customer shall indemnify and, at Company’s option, defend Company and its affiliates, and its and their respective employees, contractors, agents, representatives, successors, and assigns from and against any damages and costs resulting from a third-party claim based on any use of the Customer Data in accordance with this Agreement.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY BE LIABLE TO THE CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
9.1 Independent Contractors. The relationship between the parties established under this Agreement is that of independent contractors, and no agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
9.2 Severability; Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order Form or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.
9.3 Modification. Company reserves the right to alter the terms of this Agreement at any time. If the alterations constitute a “material change” to the Agreement, Company will notify Customer. What constitutes a “material change” will be determined at Company’s sole discretion, in good faith and using common sense and reasonable judgment, but will only include those changes that materially affect Customer’s use of the SaaS Services or rights under this Agreement. Notice will be considered to have been delivered once sent. Customer agrees to review the latest version of the Agreement on the Company’s website periodically to remain aware of any non-material modifications to the Agreement about which Customer is not alerted by the Company. The Agreement available on the web site will be dated so as to make clear what version is currently in force. Any use of the SaaS Services after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer's sole remedy should Customer not agree with the altered Agreement shall be to cease Customer's use of the SaaS Services and to comply with Customer's termination obligations outlined in Section 5 of this Agreement.
9.4 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
9.5 Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 Governing Law and Venue. This Agreement is governed by and will be construed in accordance with the laws of the State of California, without regard to conflict of law principles. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All SaaS Services are provided hereunder are “commercial items” as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101. In addition, any Software covered under this Agreement is also "commercial items" as that term is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Supported Software and any other software and documentation covered under this Agreement with only those rights set forth herein. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in San Francisco County, California, and the parties expressly consent to personal jurisdiction and venue therein.
9.8 Compliance with Export Laws. Customer may not remove or export from the United States or allow the export or re-export of the SaaS Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
9.9 Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party may directly or indirectly solicit, any employee or contractor of the other party; provided, however, that nothing herein will prevent a party from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business or who approaches the other party on a wholly unsolicited basis.
9.10 Force Majeure. Except for the obligation to pay sums due hereunder, neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control.
9.11 Disputes. If a dispute should arise between the parties relating to the Agreement, the parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to reduce the obligations and liabilities of the parties or be deemed a waiver by either party hereto of any remedies to which such party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one party notifies the other party of such dispute, then either party may initiate litigation per the terms of this Agreement.
9.12 Anticorruption Laws. Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA") and the U.K. Bribery Act of 2010 (“UKBA”) and agrees to comply with its terms as well as any provisions of local law related thereto. Customer further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the Services. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or antibribery law