Terms of Service

1) Definitions.  As used in this Agreement:

1.1 "Confidential Information" means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.   Customer Data is the Confidential Information of Customer.  Confidential Information of Enterpret includes information derived from or concerning the Enterpret Service, the Enterpret Platform, the Documentation and the terms of this Agreement.

1.2 “Customer Data” means any information submitted by Customer through the Enterpret Service or provided by Customer to Enterpret as part of the Enterpret Service, including any support tickets, development requests or other feedback related to Customer’s products and services.

1.3 “Documentation” means any user manuals, handbooks, and online materials provided by Enterpret to Customer that describe the features, functionality or operation of the Enterpret Platform. 

1.4 “Enterpret Platform” means the technology, including hardware and software, used by Enterpret to deliver the Enterpret Service to Customer.

1.5 “Enterpret Service” means the on-line service delivered by Enterpret to Customer using the Enterpret Platform as described in the applicable Order.

1.6 “Integrated Channel” means any application, data services, software, or service made available by a third party (a “Third Party Provider”) with whom Customer has a valid account and that is integrated with the Enterpret Service.

1.7 “Named Users” means Customer’s employees, representatives, consultants, contractors, agents or advertisers identified as a Named User in an Order, authorized to access the Enterpret Service.

1.8 “Order” means any written order executed by the parties referencing this Agreement that identifies the Enterpret Services to be made available.  The initial Order is attached hereto as Exhibit A.

2) Enterpret Service

2.1 Subscription to the Enterpret Service.  Subject to the terms and conditions of this Agreement, Enterpret hereby grants to Customer a non-sublicensable, non-transferable (except as provided in Section 12), non-exclusive subscription to access and use the Enterpret Service by the Named Users set forth in the applicable Order solely for Customer’s internal business purposes and not for resale or to provide services to third parties.

2.2 Support.  Enterpret shall provide support for the Services as set forth in Exhibit A. 

3) Onboarding

Enterpret will use commercially reasonable efforts to assist Customer in the initial set-up of the Enterpret Service comprised of (i) assistance in identifying and integrating with Integrated Channels, (ii) identifying user feedback categories and subcategories relevant to Customer’s business, and (iii) configuring the Enterpret Service accordingly.  Unless otherwise agreed, all onboarding services shall be provided remotely. Such shall be subject to the hours cap identified in the relevant Order.  Customer agrees to reasonably cooperate with Enterpret in the provision of such services and provide timely responses to Enterpret’s reasonable requests.

4) Customer’s Use of the Enterpret Service

4.1 Access and Security Guidelines.  Each User will be provided access to and use of the Enterpret Service through a designated email address (“UserID”). Customer is responsible for (i) obtaining and maintaining any equipment, (ii) maintaining the confidentiality and security of their equipment, account login and password, API key, and any other credentials (“Security Credentials”), and (iii) all activities that occur using their Security Credentials unless due to the negligence or willful misconduct of Enterpret or its personnel. Customer may not disclose their Security Credentials to any third party except as expressly authorized in writing by Enterpret. Customer agrees to promptly notify Enterpret of any unauthorized use of its Security Credentials, account or any other breach of security. Enterpret reserves the right to access a Customer account in order to respond to requests for technical support. Enterpret shall comply with the security obligations of Section 6.2 while performing technical support obligations.    

4.2 Restrictions. Customer will not, and will not permit any User or other party to: (a) use the Enterpret Service to harvest, collect, gather or assemble information or data regarding other Enterpret customers without their consent; (b) access or copy any data or information of other Enterpret customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Enterpret Service or the data contained therein; (d) harass or interfere with another Enterpret customer’s use and enjoyment of the Enterpret Service; (f) reverse engineer, disassemble or decompile any component of the Enterpret  Platform; (g) interfere in any manner with the operation of the Enterpret Service, or the Enterpret Platform or the hardware and network used to operate the Enterpret Service; (h) sublicense any of Customer’s rights under this Agreement, or otherwise use the Enterpret Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the Enterpret Platform; or (j) otherwise use the Enterpret Service in any manner that exceeds the scope of use permitted under Section 2.1.  

4.3 Integrated Channels.

• (a) Access. If Customer connects or integrates, or requests Enterpret to connect or integrate with, any Integrated Channel, Customer represents and warrants that it is entitled to disclose any log-in information provided by Customer in connection therewith and/or to grant Enterpret access to Customer’s account governing its use of the Integrated Channel (a “Third Party Account”), including, but not limited to, for the use of the purposes described herein, without breach by Customer of any terms and conditions that govern its use of the applicable Third Party Account and without obligating Enterpret to pay any fees or making Enterpret subject to any usage limitations imposed by such Third Party Providers.  By granting Enterpret access to Third Party Accounts, Customer understands that Enterpret may access Customer Data stored in its Third Party Account so that it may be used in accordance with the terms of this Agreement.  Customer represents and warrants that it is in good standing with respect to each Third Party Account to which it grants Enterpret access hereunder.
• (b) Availability. Customer acknowledges that each Third Party Account, including the Integrated Channels that are made available by Third Party Providers and that the access to and use of such Third Party Accounts, including the availability thereof and uptimes related thereto, is solely determined by the relevant Third Party Providers. Enterpret will have no liability to Customer for any unavailability of any Integrated Channels, or any Third Party Provider’s decision to discontinue, suspend or terminate any Integrated Channel.

5) Fees, Payment and Suspension of Services

Customer will pay Enterpret the fees for the Enterpret Service (“Fees”) in accordance with the Order.  Unless otherwise stated in the Order, all Fees will be billed in advance on an annual basis and are due within thirty (30) days of receipt of invoice, unless otherwise agreed by the parties. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Enterpret’s income.  Enterpret reserves the right (in addition to any other rights or remedies Enterpret may have) to discontinue the Enterpret Service and suspend Customer’s access to the Enterpret Service if any Fees set forth in any Order are more than thirty (30) days overdue until such amounts are paid in full.  Customer shall maintain complete, accurate and up-to-date Customer billing and contact information.

6) Confidential Information

6.1 Confidentiality Obligations. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement.  The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the Enterpret Service. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in a reasonable manner.  Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information.  The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, or (c) is independently developed by the receiving party.  The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.

6.2 Enterpret’s Security Commitment.  Throughout the term of the Agreement and at all times while Customer’s Confidential Information is in the possession or under the control of Enterpret, Enterpret shall establish and maintain a comprehensive written data security program that includes administrative, technical and physical policies, procedures and safeguards for the protection of Customer Confidential Information.  Enterpret’s data security program shall be designed specifically to (1) ensure the security, integrity, availability and confidentiality of Customer’s Confidential Information, (2) protect against any anticipated threats or hazards to the security or integrity of Customer’s Confidential Information, and (3) protect against the destruction, loss, unauthorized access to or alteration of Customer’s Confidential Information.  At Customer’s request, and if available, Enterpret shall provide a copy of its then current SOC 2 report, or a substantially equivalent report.

7) Ownership and Data

7.1 Enterpret Platform and Technology.  Customer acknowledges that Enterpret retains all right, title and interest in and to the Enterpret Platform and all software and all Enterpret proprietary information and technology used by Enterpret or provided to Customer in connection with the Enterpret Service (the “Enterpret Technology”), and that the Enterpret Technology is protected by intellectual property rights owned by or licensed to Enterpret. Other than as expressly set forth in this Agreement, no license or other rights in the Enterpret Technology are granted to the Customer.  Customer hereby grants Enterpret a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Enterpret Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Named Users, relating to the Enterpret Service.  Enterpret shall not identify Customer as the source of any such feedback.

7.2 Customer Data.  Customer retains all right, title and interest in and to the Customer Data.  Customer hereby grants to Enterpret a non-exclusive, worldwide, royalty-free and fully paid up license to: (a) access and use Customer Data to provide the Enterpret Services to Customer; and (b) use Customer Data on an aggregated and/or anonymized basis for its internal business purposes, including to improve the Enterpret Services or Enterpret’s other products or services; provided, that, the license grant in subpart (b) shall be perpetual and irrevocable.  Enterpret acknowledges and agrees that Customer Data is the Confidential Information of Customer. Customer will not provide, post or transmit any Customer Data that:  (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) protected health information or personal information relating to children under 13 years old.

8) Term and Termination

8.1 Term

• ‍‍(a) Agreement Term. The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with the terms herein.
• (b) Order Term. Unless otherwise stated in an Order, each Order will have an initial term of one (1) year (the “Initial Subscription Term”), and will automatically renew for successive one (1) year (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the relevant Order’s “Subscription Term”) unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.  Enterpret reserves the right to increase the Fees applicable to any renewal term upon written notice to Customer, provided, such notice is given at least sixty (60) days prior to such renewal term.‍
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8.2 Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach.  Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to Enterpret under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party.  Enterpret agrees that upon expiration or termination of this Agreement, Enterpret will remove all Customer Data from the Enterpret Platform and all Customer access to the Enterpret Service will cease.   Sections 1, 6, 7, 8.2, 9.2, 10-12 will survive the termination of this Agreement.

9) Warranty; Disclaimer

9.1 Limited Warranty.  During the Term, Enterpret warrants that the Enterpret Service, when used as permitted by Enterpret and in accordance with the Documentation, will operate as described in the Documentation in all material respects. If Customer notifies Enterpret of any breach of the foregoing warranty, Enterpret shall, as Customer’s sole and exclusive remedy, provide the support services described in Section 2.2.  

9.2 Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE ENTERPRET SERVICE, ENTERPRET PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) ENTERPRET AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10) Indemnity

10.1 By Enterpret.  If any action is instituted by a third party against Customer based upon a claim that the Enterpret Service or Enterpret Platform, as delivered, infringes any third party’s intellectual property rights, Enterpret shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement.  If the Enterpret Service or Enterpret Platform is enjoined or, in Enterpret’s determination is likely to be enjoined, Enterpret shall, at its option and expense (a) procure for Customer the right to continue using the Enterpret Service, (b) replace or modify the Enterpret Platform or Enterpret Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Enterpret Service and refund any amounts previously paid for the Enterpret Service attributable to the remainder of the then-current term.  This Section sets forth the entire obligation of Enterpret and the exclusive remedy of Customer against Enterpret for any claim that the Enterpret Service infringes a third party’s intellectual property rights.‍

10.2 By Customer. If any action is instituted by a third party against Enterpret relating to Customer’s breach of Sections 4.3 or 7.2, Customer will defend such action at its own expense on behalf of Enterpret and shall pay all damages attributable to such claim which are finally awarded against Enterpret or paid in settlement of such claim. This subsection states the sole and exclusive remedy of Enterpret and the entire liability of Customer for the claims and actions described herein.‍

10.3 Procedure.  Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.

11) Limitation of Liability

EXCEPT AS SET FORTH IN THIS SECTION 11, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ENTERPRET OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT.  IN NO EVENT SHALL ENTERPRET’S OR CUSTOMER’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY ENTERPRET FROM CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO PAYMENT, CONFIDENTIALITY AND INDEMNITY OBLIGATIONS.  THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.

12) General Provisions

Enterpret may use Customer’s name and logo on Enterpret’s website and identify Customer as a customer of Enterpret.  Neither party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Any attempted assignment or transfer in violation of the foregoing will be null and void.  Customer agrees that Enterpret may subcontract certain aspects of the Enterpret Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Enterpret of any of its obligations hereunder.  This Agreement will be governed by and construed in accordance with the laws of the Delaware, without regard to its conflicts of laws principles.  Excluding actions seeking solely equitable relief, any dispute, claim or controversy arising out of or relating to this Agreement shall be finally determined by binding arbitration administered by the Rules of JAMS in Wilmington, Delaware before one (1) arbitrator.  Any notice under this Agreement must be given in writing to the other party at the address set forth above.  Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service. This Agreement and the exhibits attached hereto (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. Only a writing signed by both parties may modify it.  In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

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EXHIBIT A – ENTERPRET SUPPORT

1. Service Support. Subject to the terms of this Agreement, Enterpret shall use commercially reasonable efforts to (a) maintain the security of the Enterpret Service; and (b) provide email technical support Monday through Friday, 8am – 6pm ET, excluding Indian national holidays.  Enterpret will use commercially reasonable efforts to correct all Errors in the Enterpret Service reported by Customer in writing to Enterpret. Enterpret will utilize remote diagnostic procedures whenever possible for Error diagnosis and bug fixes and/or workaround to correct the Error (“Error Correction”). Enterpret may not issue Error Corrections for all Errors.  “Error” means a reproducible failure of the Enterpret Service to substantially conform to the Documentation.  During the Term, Enterpret may, in its sole discretion, provide Customer with updates, upgrades, enhancements, and any other improvements that Enterpret generally offers to other customers of the Enterpret Service.‍
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2. Support Exclusions. Enterpret shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) any problems which are not Errors; (b) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Enterpret; (c) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Enterpret Services, Enterpret Platform, or Documentation; (d) problems or Errors caused by Customer’s, Named Users’, or other third party’s products, services or equipment.  Any use of or reliance on data or data output contained in the Enterpret Services is Customer’s or Named User’s sole responsibility.‍
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3. Service Availability.  The Enterpret Service will, subject to the exceptions listed below, be available [99.5]% of the time during any full calendar month (“Scheduled Availability”).  The Scheduled Availability of the Enterpret Service for a given month will be calculated as follows (rounded to the nearest one tenth of one percent): Availability % = 100% x (Total Minutes in the Month – Total Minutes Unavailable in the Month)/Total Minutes in the Month. Scheduled Availability Time does not include: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Services issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Enterpret (such as internet outages or outages with respect to Customer’s network or internet access).  Enterpret shall use reasonable efforts to provide advance notice by email of any scheduled service disruption.‍
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4. Services Credit. Customer's sole and exclusive remedy, and Enterpret’s entire liability, in connection with any unexcused downtime shall be that for each period of downtime lasting longer than four hours, Enterpret will credit Customer 5% of the Fees for each incident; provided that no more than one such credit will accrue per month. Downtime shall begin to accrue as soon as Customer (with notice to Enterpret) recognizes that downtime is taking place, and continues until the availability of the Enterpret Service is restored.  In order to receive downtime credit, Customer must notify Enterpret in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) month of Fees in any one (1) calendar month in any event.  Enterpret will only apply a credit to the month in which the incident occurred.  Enterpret’s blocking of data communications or other services in accordance with its policies shall not be deemed to be a failure of Enterpret to provide adequate service levels under this Agreement.
   
   

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