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.
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
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.
3.1 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
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.
PRIVACY; ACCEPTABLE USE; DATA RIGHTS; SECURITY
4.1 Privacy. Customer
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
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
otherwise monitor, edit, or disclose Customer Data, without Customer's prior
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
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:
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;
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.
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
(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.
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
(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.
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.
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 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
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
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.
7.1 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.
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.
9.1 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.
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
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
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.
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
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
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.
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.