Eltropy, Inc. SaaS Terms & Conditions

 

These SaaS Terms and Conditions (these “Terms”) are a part of the SaaS Agreement (the “Agreement”) between Eltropy, Inc. (“Eltropy”) and the “Customer” identified in an Order (defined below). The Agreement consists of the Order between Eltropy and Customer designated as the “Organizing Order ,” each additional then effective Order agreed by Eltropy and Customer, the version of these Terms in effect on the Order Effective Date of the Organizing Order and all other Eltropy-issued documents which are agreed to be part of the Agreement. Capitalized terms used but not defined herein are used as defined in the Organizing Order.

1.         ORDERS; SUBSCRIPTION; USERS; OTHER LIMITS

1.1       Generally.  Eltropy agrees to provide Customer the Services described on each Order and as further described in Eltropy’s then-current documentation, and Customer agrees to purchase and use such Services, all on the terms of the Agreement.    

1.2       Orders.  The Organizing Order and each additional SaaS Order Form provided by Eltropy and agreed by the parties, are each an “Order” and binding on the parties.  Orders are non-cancellable by Customer once accepted by Eltropy.  If an Order conflicts with the other terms of the Agreement, the Order will control, but only with respect to the matters covered thereby.

1.3       Setup and Adding Users.  “Setup” means that Eltropy has made the Services available to Customer as described on the Organizing Order.  To achieve Setup, Customer will provide Eltropy such materials and information as are requested by Eltropy.  After Setup, Customer may provision User accounts and otherwise use the Services.  Customer will be billed, at the rate defined in the applicable Order, for Users created in excess of the maximum amount allowed and defined in the applicable Order.

1.4       Subscription.  Customer is granted a limited, nonexclusive, non-transferable, non-assignable (except as provided in Section 9.2), revocable right (the "Subscription") to use the particular options and capabilities of the Services (“Features”) identified in an Order pursuant and subject to the terms and conditions of the Agreement.  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 the Setup, the “Customer Data”).  Eltropy is at all times the owner of the Services (excluding Customer Data), including the underlying software and, except for the Subscription, Eltropy retains all rights to the Services. 

1.5       Term.  The Subscription shall only be effective during the term of the Agreement (the “Term”).  Unless sooner terminated as provided in the Agreement, the Term shall commence on the Order Effective Date of the Organizing Order and end at the end of the “Initial Term” specified in the Organizing Order.  At the end of such Initial Term and each extension of the Term, the Term shall be automatically extended for additional periods of 1 year, unless Eltropy or Customer notifies the other of its election, at least 60 days prior to the end of the then-current Term, to not so extend the Term.  Any extension of the Term shall be at the rates quoted to Customer by Eltropy at least 75 days prior to the extension date.  The Subscription includes the Features identified in an Order from the start of the Services Period indicated in the related Order and, unless otherwise agreed, ends at the end of the Term.

1.6       Users and Recipients.  As of any date, each Customer employee or contractor entitled or allowed to access the Services, regardless of whether such person is actually accessing the Services at that time, is a “User.” Each Customer member responding to Text Messages from, or sending Text Messages to, Users is a “Recipient.” Customer is responsible for the acts or omissions of all Users and Recipients, including any breach of the terms of the Agreement.  Before using the Services, each User must successfully complete such training, if any, specified in the Services as being required.  Such training is provided at no additional charge.

1.7       Improvements.  The Subscription includes all future bug fixes, error corrections, new releases, updates and program improvements to the Features licensed by Customer, to the extent such improvements are generally made available to other customers for no additional fee. 

1.8       Restrictions.  Customer may only use the Services for its internal business purposes.  Customer will not, directly or indirectly, do, or allow any User or Recipient to do, any of the following: (a) 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 Services or any related software, documentation or data related to the Services or upon which the Services are based; (b) modify, translate, or create derivative works based on the Services or any such software; (c) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, including affiliates; (d) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (e) allow any third party not authorized by Eltropy to access or view the Services; or (f) obscure any proprietary notices or labels on any part of the Services.

1.9       Feedback.  If Customer notifies Eltropy of any bugs or errors that Customer identifies in the Services or otherwise provides suggestions, comments, and other feedback (individually and collectively, “Feedback”), then Customer grants Eltropy a perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use and exploit the Feedback without restriction.

2.         PAYMENT TERMS

2.1       Generally.  Generally. Customer agrees to pay the fees and charges (collectively, the “Fees”) in the amounts and on the terms set forth in the applicable Order and the other terms of the Agreement. All Fees are quoted and payable in US dollars. Customer will pay the Fees up on receipt of the applicable invoice. 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. If Customer believes that Eltropy has billed Customer incorrectly, Customer must contact Eltropy’s billing department, 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. Otherwise, Customer will be deemed to have waived the right to receive such an adjustment or credit. All Fees are non-refundable (except as otherwise expressly provided in the Agreement) 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.     

2.2       Expenses.  Customer agrees to reimburse Eltropy for its reasonable, pre-approved, out-of-pocket travel and living expenses incurred in connection with providing training to Customer.

2.3       Timing of Invoices.  Except as set forth in the related Order, the initial fees specified in a particular Order may all be invoiced by Eltropy upon execution of such Order.  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 Annual Periods after the initial Annual Period may be invoiced such number of days prior to the Annual Billing Date so that the related invoice is due on such date.

3.         WARRANTY

3.1       Warranty.  Eltropy shall provide the Services consistent with prevailing industry standards, maintain the Services in a manner which minimizes errors and interruptions in the Services and not materially decrease the overall functionality of the Services during the then current Term.  The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Eltropy or by third-party providers, or because of other causes beyond Eltropy’s reasonable control.  Eltropy shall take all reasonable efforts to reinstate Services and minimize the impact of any downtime.  If Eltropy breaches the foregoing warranties, then, its sole obligation and Customer’s sole remedy, shall be for Eltropy, at its election, to either correct such breach within 30 days or terminate the Agreement and refund to Customer any prepaid and unused Fees. 

3.2       Disclaimers.  Except as set out in the Agreement, (a) Eltropy does not warrant that the Services will be uninterrupted, nor does it make any warranty as to the results that may be obtained from use of the Services, and (b) the services are provided “as is” and Eltropy disclaims all other warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy of information, and noninfringement.      

4.         PRIVACY; ACCEPTABLE USE; DATA RIGHTS; SECURITY

4.1       Privacy. Customer agrees to the Eltropy “Privacy Policy” located at https://eltropy.com/privacy-policy/. Eltropy may amend such policy from time to time, as set forth therein (as so amended, the “Privacy Policy”), and Customer will be deemed to have agreed to such amendments as set forth in the Privacy Policy.  Customer and Eltropy agree that Eltropy may only use the Customer Data in accordance with the Agreement and, to the extent applicable, the Privacy Policy.  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. 

4.2       Acceptable Use. Customer, Users and Recipients shall use the Services only for lawful purposes, in compliance with all applicable laws. Customer, Users and Recipients shall not access, post or transmit any Prohibited Content on or through the Services. “Prohibited Content” means content that violates the law, including content that infringes or misappropriates the rights of any third party and content that is used in violation of any license granted by the owner of such content or any content or information impersonating another person or entity.  If Eltropy learns of any Prohibited Content on the Services, Eltropy or its suppliers or licensors may remove such content from the Services or disable access to it. Customer shall be responsible for all use of the Services by Users and Recipients, regardless of whether such use is known to or authorized by Customer. The Services are provided for use in conformance with the terms and conditions of the Agreement.  Eltropy may investigate suspected violations of the Agreement.  If Eltropy becomes aware of possible violations, Eltropy may initiate an investigation, including gathering information from Customer and examining materials on Eltropy’s servers. During the investigation, Eltropy, in its sole discretion, may suspend access to the Services by Customer, Users, and Recipients and remove from the Services environment Customer Data and other materials.  If Eltropy determines, in its sole discretion, that a violation of the Agreement has occurred or Customer’s, a User’s or a Recipient’s use of the Services (a) poses a security risk to the Services or any third party; (b) may adversely impact the Services or the systems or content of any other customer; (c) may subject Eltropy, its affiliates, suppliers, services providers or licensors, or any third party to liability; or (d) may be fraudulent, then Eltropy may take responsive action, including issuance of warnings to Customer or the suspension or permanent termination of access to the Services, or any portion thereof.  

4.3       Data Rights.

(a)       Ownership.  As between Eltropy and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data, subject to the terms of the Agreement. 

(b)       Data Use.  Customer hereby grants to Eltropy a non-exclusive, worldwide, royalty-free right to:

(i)         during the Term, use, store, copy, transmit, modify, create derivative works of, sublicense and display the Customer Data to provide the Services, including to respond to service or technical problems, to confirm compliance with the terms of the Agreement, or otherwise at the Customer’s direction, request or as expressly permitted;

(ii)       during and after the Term, create data derived or inferred from the Customer Data and collect and analyze information related to Customer’s, Users’ and Recipients’ use of the Services (collectively, “Usage Data”).  Eltropy may use Usage Data only in aggregate or other de-identified form and only to test, develop, improve and enhance the Services and for other development, diagnostic and corrective purposes in connection its products and services and the products and services of its affiliates.  Eltropy also may disclose Usage Data solely in aggregate or other de-identified form in connection with its business.

(c)        Representations.  Customer represents and warrants that (i) it has all right, power, and the authority necessary for the collection, transmission, use, and processing of the Customer Data as contemplated by the Agreement; (ii) it has acquired all consents necessary for use of the Customer Data under the Agreement, including consent to send and receive Text Messages; and (iii) the Customer Data does not contain any health records or health information. Customer is solely responsible for the accuracy, content, and legality of all Customer Data.

(d)       User and Recipient Rights.  Customer agrees, to the extent required by applicable law, that it will notify Users and Recipients about the transmission and use of their data to Eltropy and other third parties as permitted herein and obtain any consent needed to permit such transmission.  Customer will reimburse Eltropy for any expenses reasonably incurred by Eltropy (including reasonable attorneys’ fees) by reason of its compliance with Customer’s instructions in the event of a dispute concerning the ownership, custody or disposition of Customer Data, as well as Eltropy’s reasonable fees incurred in complying with any data subject rights (such as providing a copy of, or destroying, any such data) exercised by or on behalf of any User or Recipient.

(e)       Additional Terms.  Each of Eltropy and Customer agree to provide additional commitments regarding Customer Data protections if requested by the other party in accordance with applicable law.  Such additional terms shall be set forth in a separate mutually acceptable “Data Processing Agreement.”

4.4       Data and System Security.

(a)       Information Security Management. Eltropy represents and warrants that it and its affiliates and representatives have implemented, currently maintain, and will maintain throughout the Term, a comprehensive, written information security program designed to protect Customer Data and prevent a security breach, which includes administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of Customer Data; (ii) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (iii) protect against unauthorized access to or use of Customer Data which could result in harm or issues to Customer or any of its clients, agents, or employees.  The information security program will be kept current based on changes in applicable legal and regulatory requirements related to privacy and data security, best practices and industry standards, including (A) the Gramm-Leach Bliley Act; (B) the regulations of the National Credit Union Administration (“NCUA”) contained in 12 CFR (Code of Federal Regulations) part 748 and its Appendix A – Guidelines for Safeguarding Member Information and B – Guidance on Response Programs for Unauthorized Access to Member Information and Member Notice; and (C) the Fair and Accurate Credit Transactions Act Pub. Law 108-159 as it pertains to the destruction/disposal of records (16 CFR 682) and 12 CFR part 749 – Records Preservation Program and Record Retention. 

(b)       Independent Assessments. Eltropy will engage a reputable independent third party organization to conduct each year, at Eltropy’s cost and expense, an independent assessment of the security of the Services.  Remediation of significant vulnerabilities must be performed and then confirmed by an independent third party.

(c)        Notice of Breach.  If Eltropy becomes aware of a breach of security of an Eltropy system or database that contains Customer Data, or actual loss or theft of any such data, or access by any unauthorized third party to such data, then Eltropy shall immediately so notify Customer and furnish all available information regarding such breach sufficient for Customer to evaluate the likely consequences and any legal or regulatory requirements arising out of the event.   Eltropy shall not knowingly allow any security breach or suspicious activity to persist for any amount of time or for any reason, except as required by law, or as deemed reasonably necessary by Eltropy to determine the identity of the perpetrator and stop such breach or suspicious activity.  Eltropy will continuously update Customer on developments relating to such security incidents or data breaches.  Without limiting the foregoing, Eltropy also shall assist Customer in meeting the requirements of Appendix B of NCUA Regulation 748. 

(d)       Passwords. Customer is responsible for maintaining the confidentiality of any password(s) and access codes given to access the Services and is fully responsible for all activities that occur under those usernames, password(s) and access codes, including assigning access privileges to Users and Recipients.  Customer agrees to notify Eltropy immediately of any unauthorized use of its password(s), and to take reasonable measures to disable accounts and/or generate new passwords in a timely manner.  Customer shall be solely responsible for the security of its usernames and passwords. Continued failure by Customer to maintain password security may result in the suspension or termination of the Services.

(e)       Customer System Security. Customer shall not compromise the security of the Services or any other system.  Customer’s or any User’s or Recipient’s use or distribution of tools designed for compromising security is strictly prohibited, including password guessing programs, cracking tools or network probing tools.  Eltropy reserves the right to release identification information of Customer, Users and Recipients, if Customer or such User or Recipient is involved in violations of security, to systems administrators at other services environments in order to assist them in resolving security incidents.  Eltropy shall also fully cooperate with law enforcement authorities in investigating suspected lawbreakers. The Subscription does not grant Customer, and Customer hereby waives any right of physical access to, or physical possession of, any servers, equipment, real or personal property, or other assets.

(f)        System Monitoring.  Eltropy and its suppliers and licensors may, from time to time, monitor the Services electronically and access and disclose any information as permitted or required by any law or regulation, to operate the Services properly, or to protect itself or other customers. Eltropy shall fully cooperate with law enforcement authorities in investigating suspected violators.

5.         CONFIDENTIALITY

5.1       Proprietary Information Defined.  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 Disclosing Party or its affiliates, customers or suppliers and their respective businesses (“Proprietary Information”).  Proprietary Information of Eltropy includes (a) the Services and any and all other information relating to or contained in the Services, including information relating to the performance, capabilities and content of the Services (but excluding Customer Data); (b) Usage Data; and (c) any and all information relating to the future or proposed products, services or business operations of Eltropy or its suppliers or licensors.  Proprietary Information of Customer includes Customer Data, but does not include Usage Data.  The Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can document (A) is or becomes generally available to the public through no fault of the Receiving Party; or (B) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; or (C) was independently developed by the Receiving Party by persons who did not have access to any Proprietary Information of the Disclosing Party; or (D) was rightfully disclosed to the Receiving Party without restriction by a third party. 

5.2       Protection of Proprietary Information. The Receiving Party agrees: (a) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party, and (b) except in performance of the Services or as otherwise permitted herein, not to use or divulge to any third person any such Proprietary Information.  Each party will only disclose the Proprietary Information of the other to such of its employees and contractors who are required to have the information in connection with the Agreement and who have signed a confidentiality agreement at least as protective as this Section 5.  In addition, Eltropy may use and disclose Customer Data to the extent set forth in the Privacy Policy.  This Section shall not preclude disclosure of Proprietary Information to the extent required to be disclosed by applicable law; provided that the Receiving Party will provide prompt notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.  Following the termination of the Agreement, each party will return or destroy, within 30 days of termination, all copies of the Proprietary Information disclosed by the other party, except for a limited number of electronic backup copies of such information as are automatically created and retained by the receiver’s standard backup processes and systems for purposes of disaster recovery.

5.3       Terms of the Agreement.  Each party agrees to keep confidential and not to disclose the terms and conditions of the Agreement to any third party other than (a) in confidence to its affiliates, actual or potential investors, banks, lawyers, accountants and other professional advisors; (b) in connection with the enforcement of its rights under the Agreement; (c) as may be required by law, including in connection with the requirements of a public offering or securities filing; and (d) in confidence in connection with a merger or acquisition or a proposed merger or acquisition.      

6.         INDEMNITY

6.1       Indemnity.  Eltropy agrees to (a) defend or, at its option, to settle, any third party claim (a “Claim”) brought against Customer asserting that the Services infringe any patent or copyright, or misappropriate any trade secret, of any third party; and (b) indemnify and hold Customer harmless against all damages and costs finally awarded against Customer under any such Claim or agreed upon in settlement thereof.  Customer agrees to (1) defend or, at its option, to settle, any Claim brought against Eltropy asserting that the Customer Data or any other materials Customer or any User or Recipient provides to Eltropy or uploads to, or transmits through, the Services: (A) infringe any patent or copyright, or misappropriate any trade secret of a third party or otherwise violate any third party proprietary rights, or rights of privacy and publicity; or (B) have been collected, processed or provided to Eltropy in violation of applicable U.S. or foreign laws or regulations, including applicable data protection legislation or commitments; and (2) indemnify and hold Eltropy harmless against all damages and costs finally awarded against Eltropy under any such Claim or agreed upon in settlement thereof. 

6.2       Process.  The parties agree that each indemnifying party’s obligations under Section 6.1 are subject to the indemnified party under such section taking all reasonable steps to mitigate any potential expenses and providing the indemnifying party with (a) prompt written notice of any such Claim, or possibility thereof; (b) sole control and authority over the defense or settlement of such Claim; and (c) proper and full information and assistance, at the indemnifying party’s expense, to settle or defend any such Claim.

6.3       Potential Claim.  If the Services are, or in Eltropy’s opinion might be, held to infringe as set forth above, Eltropy may, at its sole option and expense procure for Customer the right to use such infringing Services as provided herein or replace or modify such items so as to avoid infringement.  If neither of such alternatives is, in Eltropy’s opinion, commercially reasonable, Customer’s right to use and access the infringing Services will terminate.  In such a case, Eltropy’s sole remaining liability, in addition to its obligation to reimburse awarded damages and costs as set forth above, will be to refund to Customer any related prepaid and unused Fees.

6.4       Exceptions.  Notwithstanding the provisions of Section 6.1, Eltropy assumes no liability for infringement claims arising from (a) the combination of the Service with products not provided by Eltropy; (b) any portion of the Services consisting of Customer Data or other Customer, User, Recipient or third party materials; or (c) use of the Services in a manner other than for which they were designed. 

6.5       No Other Liability.  This Section 6 states the entire liability and obligations of each party, and the exclusive remedy of the other party, with respect to any actual or alleged infringement of any patent, copyright, trade secret, trademark or other intellectual property right by the Services or Customer Data.

7.         TERMINATION

7.1       Termination for Cause.  In addition to any other remedies it may have, either party may also terminate the Agreement upon notice, if the other party materially breaches the Agreement and fails to cure such breach within 30 days (10 days in the case of payment breach) after a party notifies the other party of such breach.

7.2       Effect of Termination.  Upon the termination or expiration of the Agreement for any reason, (a) the Subscription and Customer’s and each Users’ and Recipients’ right to access the Services and all licenses granted hereunder immediately terminate; and (b) Eltropy and its licensors shall have no obligation to maintain any Customer Data.  If Eltropy terminates the Agreement due to Customer’s breach, then, in addition to Eltropy’s other remedies, Customer shall pay all amounts under the Agreement which would have been payable through the end of the Term (assuming the number of Users and Text Message usage is not reduced).  Upon the termination or expiration of the Agreement Customer may download a copy of all Customer Data then in the Services’ databases in a standard machine readable format.  The expiration or termination of the Agreement will not (i) affect Customer's obligation to pay all amounts due to Eltropy accrued prior to termination (or, where applicable, after termination), nor (ii) entitle Customer to reimbursement or refund of any amounts already paid to Eltropy. In addition, Sections 1.9, 2, 4.3, 5, 6, 8 and 9 will survive the expiration or termination of the Agreement.

8.         LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for breach of or liability under Section 5 or 6,  fraud,  bodily injury of a person, or, to the extent it may not be disclaimed or limited, gross negligence or willful misconduct (collectively, “Exclusions”), neither party, nor its officers, affiliates, representatives, contractors or employees shall be responsible or liable with respect to the Services or any other subject matter of the Agreement under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology, or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; or (c) for any matter beyond such party’s reasonable control. For all other claims, except for Exclusions and Customer’s obligation to pay fees hereunder, neither party shall be liable under the Agreement, in the aggregate, for any amounts that exceed the Fees paid by Customer to Eltropy in the 12 months prior to the act that gave rise to the most recent such liability, in each case, whether or not the party has been advised of the possibility of such damages. 

9.         MISCELLANEOUS

9.1       Severability.  If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. 

9.2       Assignment.  The Agreement is not assignable, transferable or sublicensable by Customer, including by operation of law, except with Eltropy’s prior written consent.  Eltropy may assign and delegate its rights and obligations under the Agreement without consent, in connection with a merger, acquisition, reorganization, or other sale of all or substantially all of its business or assets relating to the Agreement.  Any attempted assignment in violation of the foregoing is void.

9.3       Entire Agreement.  The Agreement constitutes the entire, final, and complete agreement between the parties with respect to the subject matter hereof.  The preprinted terms and conditions contained in any purchase order, order acceptance or other document submitted by either party (other than Orders) and not specifically reference in the Agreement will be of no effect, notwithstanding any contrary provisions in such terms.  Except as expressly provided herein, no modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, shall be effective unless in writing signed by both parties.  

9.4       No Agency.  No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and Customer does not have any authority of any kind to bind Eltropy in any respect whatsoever. 

9.5       Force Majeure.  Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, epidemics, orders or restrictions, or any other reason where failure to perform is beyond the control of, and not caused by the negligence of, the non-performing party.

9.6       Construction.  The Agreement is the result of negotiations among, and has been reviewed by, Eltropy and Customer.  Accordingly, the Agreement shall be deemed to be the product of both parties, and no ambiguity shall be construed in favor of, or against, either party.

9.7       Export Controls.  Customer may not remove or export from the United States or allow the export or re-export of the Services 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. 

9.8       Notices.  All notices under the Agreement shall 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.  Such notices shall be sent to the address indicated on the Organizing Order or to such other address as the addressee will have last furnished in writing to the addressor. To escalate support, Customer should contact Customer Success:  Support@Eltropy.com.

 

9.9       Governing Law; Jurisdiction; Prevailing Party.  The Agreement shall be governed by the laws of the State of California, without regard to conflict of laws provisions. Subject to Section 9.10, any suit under the Agreement (other than to enforce a judgment or award) will be brought in the federal or state courts in the districts which include Milpitas, California.  Customer agrees and submits to the personal jurisdiction and venue of such courts.  In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs, including expert witness fees, and attorneys’ fees. 

9.10    Arbitration.  Any dispute or claim arising out of or in connection with the Agreement will be finally settled by binding arbitration in Milpitas, California, USA (or at such other location as the parties may agree) under the then prevailing Comprehensive Arbitration Rules of JAMS by one arbitrator appointed in accordance with those rules.  The arbitrator will be chosen from a panel of arbitrators with substantive knowledge relevant to the subject matter of the dispute.  The arbitrator will apply the laws specified in Section 9.9 to the merits of any dispute or claim.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The arbitrator may grant permanent injunctions or other relief in such dispute or claim; provided that the arbitrator may not grant licenses to any intellectual property owned by either party nor may the arbitrator award punitive damages.  Notwithstanding the foregoing, without breach of this arbitration provision either party may apply to any court of competent jurisdiction for temporary injunctive relief, to collect any amounts owed by the other party under the Agreement, or to enforce such party’s intellectual property rights.

9.11    Publicity.  The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Order Effective Date of the Organizing Order.  Eltropy may include Customer’s name and logo on lists of customers of the Services, including Eltropy’s website.  Customer also agrees to reasonably cooperate with Eltropy to serve as a reference account upon request. 

9.12    Other Interpretive Provisions.  References in the Agreement to “Sections” are to sections herein unless otherwise indicated.  The words “include” and “including” and words of similar import when used in the Agreement shall not be construed to be limiting or exclusive.  For purposes of the Agreement, the word “will” shall be equivalent in meaning to the word “shall,” both of which describe an act or forbearance which is mandatory under the Agreement.  Except as provided in a particular context, the word “or” when used in the Agreement may mean each as well as all alternatives.  Headings in the Agreement are for convenience of reference only and are not part of the substance hereof. 

9.13    Counterparts.  Orders may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.