Specific Terms for Limited
Use Case Texting

Eltropy’s limited offer of use of the Eltropy Platform and Services set forth in the Order (the “Limited Use Case Texting”) are conditioned upon Customer’s agreement to the following terms and conditions.

1. License Grant. Subject to Customer’s compliance with the terms and conditions set forth in the Agreement, Eltropy hereby grants Customer a non-exclusive, personal, non-sublicensable, non-transferable, revocable right (the “Subscription”), during the Services Period, for Users to use the Services identified in the Order solely for Customer’s business purposes and for the use case contemplated between the parties. Use of the Services under this Order for general marketing or other purposes is strictly prohibited. The Subscription includes the right for Customer and its Users and Recipients (each as defined below) to upload, transmit and process content and other information through the Services (together with information provided by Customer for setup of the Services, the “Customer Data”).

2. Restrictions. Customer shall not: (i) make the Services available to, or use the Services for, the benefit of anyone other than Customer; (ii) modify, copy or make derivative works based on the Services or any part thereof; (iii) disassemble, reverse engineer, or decompile any part of the Services; (iv) access the Services to build a competitive product or service, or to sell, resell, license, sublicense, distribute or “white label” the Services; or (v) interfere with or disrupt the integrity or performance of the Services. Customers and Users shall use the Services only for lawful purposes, in compliance with all applicable laws.
3. Users; Recipients. The Limited Use Case Texting allows for use of the Services by a number of authorized users (designated in the Order). A “User” means an employee or independent contractor working for Customer, under Customer’s supervision and direction, at Customer’s facilities. Customer will ensure that all Users given access to the Services have the right to access the information and data made accessible to them through Customer’s use of the Services. Users are responsible for maintaining the security of their logins and passwords to the Services. Each individual receiving Text Messages from, or sending Text Messages to, Users is a “Recipient”. Customer is responsible for the acts and omissions of all Users and Recipients.
4. Payment Terms. Customer agrees to pay the fees and charges (collectively, the “Fees”) in the amounts and on the terms set forth in the Order and the other terms of the Agreement. All Fees are quoted and payable in US dollars. The Fees payable due to increases in usage may be invoiced by Eltropy as soon as such amounts may be calculated. The Fees payable for Services Periods after the initial Services Period will be invoiced prior to the Billing Due Date so that the related invoice is due on such date. All Fees are non-refundable and exclusive of any applicable sales, use, value added, withholding and other transaction related taxes. Customer will pay all such taxes levied or imposed by reason of the transactions hereunder, except for taxes based on Eltropy’s net income or related to Eltropy’s employees.
5. Term. Unless otherwise specified in the Order, this Agreement will be in effect for sixty (60) calendar days (“Services Period”) and at the end of the initial Services Period specified in the Order, the Services Period shall be automatically extended for periods of sixty days, unless sooner terminated in accordance with this section. Each party may terminate this Agreement for convenience upon written notice to the other party. This Agreement (including any rights granted pursuant to Section 1) shall immediately and automatically terminate, without notice if Customer materially breaches any provision of this Agreement. Upon the expiration of termination of this Agreement, Customer will discontinue all use of the Services. Sections 7-12 will survive termination or expiration of this Agreement.
6. Responsibilities of Customer.
   • Customer represents and warrants that (i) it has acquired all consents necessary for the use of the Customer Data under the Agreement, including consent to send and receive Text Messages as required by applicable law and (ii) that such consents allow for the texting use case contemplated herein. Customer agrees to defend, indemnify and hold harmless Eltropy against any damages (including attorney’s fees) to Eltropy caused by Customer’s failure to comply with the obligations set forth in this Section 5.
   • Customer represents and warrants that its use of the Services will comply with the Telephone Consumer Protection Act of 1991 (“TCPA”) and the Federal Communications Commission’s (“FCC”) implementing regulations and orders.
   • Customer agrees that Eltropy may use and disclose the Customer Data as set forth in the Eltropy Privacy Policy located at https://www.eltropy.com/privacy-policy/.
7. Responsibilities of Eltropy.
   • Eltropy represents and warrants that its provision of the Services will comply with the Telephone Consumer Protection Act of 1991 (“TCPA” and the Federal Communications Commission’s (“FCC”) implementing regulations and orders.
   • Eltropy agrees, for the duration of the Services Period, to provide unlimited self-serve video training.
   • Eltropy will provide best practices and guidance on how to utilize the features and functionality of the Services to assist Customers with their obligations in Section 5.
   • Eltropy may access Customer Data, in connection with monitoring the Services for technical performance, to respond to service or technical problems, to plan for service upgrades or enhancements, and as otherwise stated in the Privacy Policy. Eltropy will not otherwise monitor, edit or disclose Customer Data, without Customer’s prior permission.
8. Eltropy or its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Services, including any improvements, modifications, updates and upgrades to it. Except for those rights expressly granted in this Agreement, no other rights are granted, whether express or implied.
9. Feedback; Data. Customer may provide suggestions and other feedback (collectively, “Feedback”) to Eltropy concerning the functionality and performance of the Services. Customer agrees to assign and hereby assigns to Eltropy all right, title, and interest in and to all Feedback. Eltropy shall have the right to collect and analyze data and other information relating to Customer’s use of the Services, and Eltropy will be free to: (i) use such information and data in aggregate or other de-identified form to improve the Services and Eltropy’s other products and services; and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
10. Confidentiality. Customer will maintain the confidentiality of and not disclose to third parties (i) the terms of this Agreement, and (ii) all Feedback and functionality information and performance data relating to the Services.
11. WARRANTY DISCLAIMER. ELTROPY DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. ELTROPY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
12. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF ELTROPY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $100. IN NO EVENT WILL ELTROPY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOST PROFITS OR ANY LOSS OR MISUSE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES AND REGARDLESS OF THE BASIS OF THE CLAIM INCLUDING BREACH OF CONTRACT, TORT, INFRINGEMENT OR OTHERWISE (AT LAW OR IN EQUITY). THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13. Miscellaneous. This Agreement will be governed by the laws of the State of California without reference to any conflict of law principles. All disputes arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the state courts located in Santa Clara, County, California, and the federal courts located in the Northern District of California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Customer shall not have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of Eltropy. Eltropy may assign this Agreement as part of a corporate reorganization or in connection with a change of control, consolidation, merger, or sale of all or substantially all of its related business or assets. This Agreement, along with all related Orders, attachments, appendices, is the entire agreement between the parties relating to the subject matter hereof and supersedes any prior negotiations. No waiver or modification of this Agreement will be valid unless in writing signed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, it shall be modified to accomplish the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. All notices required or permitted to be given under this Agreement shall be sent to the mailing address noted on the Order and will be deemed to have been given as of the date delivered.