Notice: We updated our subscriber agreement in November 2019
PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY. THIS SUBSCRIPTION AGREEMENT, TOGETHER WITH THE SUBSCRIPTION ORDER, IS A BINDING CONTRACT FOR THE USE OF THE ENTELO, INC. SERVICE.
IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT THEN DO NOT ACCESS OR USE THE ENTELO, INC. SERVICE.
Entelo Subscription Agreement
This Subscription Agreement is between Entelo, Inc., a Delaware corporation with a principal place of business at 123 Mission Street, 24th Floor, San Francisco, California 94105 (“Entelo”) and the customer identified on an executed Subscription Order (“Subscriber”), and is entered into as of the Subscription Period start date (the “Effective Date”). The “Agreement” means this Subscription Agreement together with the executed Subscription Order. The Agreement sets forth the terms under which Subscriber will be permitted to use the Service.
1.1 “Diversity” is a Service module that uses a proprietary data analysis algorithm to help Users discover candidates from underrepresented groups based on gender, ethnicity, and veteran status, directly from the Service. These candidates reside in the United States, Canada and certain other regions. If the Diversity module is listed on the Subscription Order then the Service includes Diversity.
1.2 “Entelo Data” means: (a) all data regarding job candidates provided to Subscriber by Entelo through the Service and (b) all records of actions taken by Users through the Service, provided that these records of actions taken have been de-identified and are no longer associated with a specific Subscriber or User. Entelo Data includes, for example, records of the number of job descriptions posted by a de-identified User and the number of job candidate comments posted by a de-identified User.
1.3 “Entelo Email Credits” means the maximum number of unique Entelo Data job candidate email addresses that Subscriber may access, view, download, and export to Third Party Products. This information, if applicable, is listed on the Subscription Order.
1.4 “Entelo Email Request Credits” means the right to request email addresses of job candidates whose profiles appear on the Entelo platform but whose email addresses are not already on the Entelo platform at the time of such request. This information, if applicable, is listed on the Subscription Order.
1.5 “Envoy” is a Service module that uses predictive analytics to automatically match job candidates to positions with Subscriber, then automate the email outreach process by the User to each matching candidate, and then track the candidate’s initial email response back to the User, if any. If the Envoy module is listed on the Subscription Order then the Service includes Envoy.
1.6 “Envoy Slots” means the maximum number of job listings that Subscriber and its Users may attempt to fill using Envoy. This information, if applicable, is listed on the Subscription Order.
1.7 “Hiring Manager Seat” means an individual User account intended for use by the business line hiring manager, rather than for use by a recruiter or another talent team member. The Hiring Manager Seat may include special pricing and limited functionality. This information, if applicable, is listed on the Subscription Order.
1.8 “Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
1.9 “Purpose” means to identify qualified candidates for employment with Subscriber in roles available with Subscriber.
1.10“Recruiter Seat” is another term for a standard, individual User account.
1.11 “Recruiting Manager Seat” means an individual User account which allows the User to monitor the activity of other Users and includes functionality to view and generate reports about Service activity by all Users. This information, if applicable, is listed on the Subscription Order.
1.12 “Search” is the core module of the Service. The Search module is a candidate search engine that allows the User to identify best-fit candidates from Entelo’s job candidate database more quickly. The Search module also includes a reporting framework to provide Subscriber with insights into User activity with the Service and User performance results.
1.13 “Seat(s)” refers collectively to any Recruiter Seat, Recruiting Manager Seat and Hiring Manager Seat listed on the Subscription Order.
1.14 “Service” means Entelo’s hosted employee recruiting service described on the Subscription Order.
1.15 “Subscriber Data” means all data related to the Purpose (including without limitation text, images, and files) collected or created by Subscriber and uploaded to or posted to the Service by Subscriber, including without limitation by Subscriber’s Users. Subscriber Data includes, for example, each User’s first name, last name, and work email address, and job descriptions and job candidate comments posted by Users.
1.16 “Subscription Fees” means the fees charged to Subscriber by Entelo in exchange for access to the Service, as set forth in a Subscription Order.
1.17 “Subscription Order” means a standard Entelo ordering document executed by the parties and setting forth the Subscription Period, number of Users, types of Seats, Envoy Slots, Entelo Email Credits, Entelo Email Request Credits, the Subscription Fees, and Service modules that Subscriber is authorized to access.
1.18 “Subscription Period” means, with respect to any Subscription Order, the period of time during which the Subscription Order is applicable, as defined by the start and end dates set forth on such Subscription Order.
1.19 “User” means any individual who uses the Service on Subscriber’s behalf or through Subscriber’s account.
2 SUBSCRIPTION ORDER.
2.1 Subscription Order. To access the Service, Subscriber must have entered into a Subscription Order with Entelo. No Subscription Order will be effective until executed by both parties, and each Subscription Order will remain valid only during its Subscription Period and as set forth in Subsection 9.2 (Renewal Term). To the extent the Subscription Agreement conflicts with the express terms of a Subscription Order, the terms of the Subscription Order will prevail.
2.2. Trial Subscription Order. If Entelo makes access to the Service available to Subscriber without charge on a trial basis for a limited period, the agreement between Subscriber and Entelo concerning the trial period and any limitations or restrictions on use of the Service, however documented, will be considered a Subscription Order, and the specified trial period will be considered the Subscription Period.
2.3 Use Limits. Entelo reserves the right to limit Subscriber’s use of the Service if Subscriber attempts to exceed the permitted number of Users, Entelo Email Credits or other usage limits listed on the Subscription Order.
3.1. Access. Subject to all terms and conditions of the Agreement, Subscriber and its Users may access the Service in accordance with the Agreement only for the Purpose during the Subscription Period. Subscriber may have only as many Seats activated for access to the Service at any time as specified in the Subscription Order. Subscriber is responsible and liable for each User’s use of the Service, including use in breach of the Agreement.
3.2 Restrictions on Seats; Seat Transfers. No Seat may be shared by more than one User. Entelo may track the usage of the Service and disallow use of more than the authorized number of Seats. Subscriber may transfer a Seat from one User to another if Subscriber advises Entelo in advance of the transfer and provides the information reasonably requested by Entelo about the new User. The transfer will be effective when Entelo returns a confirmation of the transfer via the Service or by email to Subscriber. Subscriber may transfer a particular Seat no more often than four times in any twelve-month period, unless Entelo agrees otherwise in writing.
3.3. Service Levels and Support Services. The Service will be available according to the Service levels described at Exhibit A. Subject to Customer’s payment of all applicable Fees, Entelo will provide the support services for the Service described at Exhibit B (the “Support Services”) to a reasonable number of Users for no additional charge.
3.4 Changes to the Service. Entelo continually strives to improve its products and services, and reserves the right to improve or modify the Service and its features in any manner and at any time, including during the Term, at its sole discretion; provided however that such modifications will not materially reduce the functionality of the Service to Subscriber.
3.5 Compliance with Laws. Entelo, in its provision of the Service, shall comply with all applicable laws including without limitation laws governing protection of personally identifiable information.
4 SUBSCRIBER RESPONSIBILITIES AND RESTRICTIONS.
4.1 Acceptable Use. Subscriber shall use the Service and Entelo Data only for the Purpose and in accordance with the Agreement. Subscriber shall not:
(a) upload Subscriber Data to the Service that is not related to the Purpose;
(b) use the Service, Entelo Data or Subscriber Data in violation of any applicable law or regulation;
(c) export Entelo Data out of the Service for use with any third party product other than the Third Party Products (defined below);
(d) access the Service account of any third party without permission or allow any third party to access Subscriber’s Service account;
(e) share non-public Service features or content with any third party;
(f) rent, lease, resell, sublicense, distribute, loan, distribute, timeshare, assign, or otherwise transfer access to the Service or Entelo Data, or in any other way allow third parties to exploit the Service or Entelo Data;
(g) disable or circumvent any feature of the Service that provides or enhances security, restricts access, monitors use, or enforces limitations on use;
(h) interfere with or impair the operation of the Service by any means including introduction of malware or excessive usage or network traffic;
(i) use any automated methods (including “robots” or “crawlers”) to download or “scrape” any data or materials from the Service;
(j) disassemble, decompile, reverse engineer, or translate any software related to the Service, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law;
(k) send spam or otherwise duplicative messages via the Service in violation of applicable law;
(l) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious content or materials, including material harmful to children or any content that otherwise violates the community terms for the Service published at Entelo’s website;
(m) use the Service or Entelo Data to violate third party rights, including but not limited to privacy, intellectual property and proprietary rights;
(n) use the Service to send or store material containing software viruses, worms, or other harmful computer code, file, scripts, agents or programs intended to harm computing environments, programs or data;
(o) use the Service to interfere with or disrupt the integrity or performance of the Service or the data contained therein;
(p) attempt to gain unauthorized access to the Service or its related systems or networks; or
(q) use the Service or any data or materials obtained from the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.
4.2 Misuse. In the event that Entelo reasonably concludes that Subscriber is using its instance of the Service or the Entelo Data in violation of the Agreement, Entelo may suspend Subscriber’s access to the Service without advanced notice in addition to and without prejudice to any other remedies Entelo may have, until Entelo identifies the cause of the breach or resolves the suspected breach, but not to exceed ten (10) days.
4.3 Unauthorized Access. Subscriber shall take reasonable steps to prevent unauthorized access to the Service and Entelo Data, including without limitation by protecting its passwords and other login information. Subscriber shall notify Entelo immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop such breach to the extent caused by the acts or omissions of Subscriber.
4.4 Compliance with Laws. Subscriber, in its use of the Service, shall comply with all applicable laws including without limitation laws governing protection of personally identifiable information.
4.5 Data Subject Requests. If Subscriber contacts an Entelo Data job candidate using the Service and then receives a data privacy request from that data subject or a government authority then Subscriber shall pass the request to Entelo within 24 hours so that Entelo can respond to it.
4.6 Hiring Best Practices. Subject to the terms of this Agreement, Subscriber controls the job descriptions and selection procedures it posts to the Service. It is Subscriber’s responsibility to be familiar with laws, regulations, and best practices related to hiring, including without limitation related to illegal discrimination, such as the Uniform Guidelines on Employee Selection Procedures issued by the U.S. Equal Employment Opportunity Commission.
5 FEES; PAYMENTS; TAXES.
5.1 Subscription Fees. Subscriber agrees to pay the Subscription Fees to Entelo as outlined in the Subscription Order. Subscription Fees are: (a) based on the features and modules of the Service and level of use ordered and not on actual usage and (b) non-cancelable and non-refundable, except as described at Section 9.4(b) (regarding effect of termination due to uncured and uncontested breach by Entelo). If Subscriber uses the Service in excess of the use limits described on the Subscription Order then overage fees may be payable. A description of how Entelo calculates overage fees is listed on the Subscription Order, if applicable.
5.2 Invoicing and Payment; Taxes.
(a) Entelo will invoice Subscriber in advance for Subscription Fees on the Subscription Period start date. Subscriber will pay invoices from Entelo within 30 days following Subscriber’s receipt of the invoice. All payments pursuant to the Agreement will be made in United States dollars.
(b) If Subscriber elects to pay any Subscription Fees with a credit card, then Subscriber hereby: (a) authorises Entelo to charge the Subscription Fees to such credit card account and verify that the credit card account has the necessary funds or credit available to cover Subscriber’s purchase and (b) agrees to provide Entelo with updated information regarding Subscriber’s credit card account promptly when the information changes, or on Entelo’s request.
(c) Subscriber is responsible for payment of all sales, use and other taxes for the Service except for taxes on gross proceeds or income that are levied on Entelo.
6 SOCIAL MEDIA SERVICES AND THIRD-PARTY SOFTWARE PRODUCTS.
6.1 Social Media. Using the Service dashboard, Subscriber in its sole discretion may choose to authorize the Service to connect to third-party social media services such as Twitter (“Social Media Services”). If Subscriber authorizes the Service to connect to Social Media Services, then data associated with specific job candidates made publicly available by the job candidates and provided by the Social Media Service will be framed and displayed by the Service for Users, but will not be processed or stored by the Service.
6.2 Third Party Software Products. Using Service tools and features, Subscriber in its sole discretion may choose to authorize the Service to connect to recruiting software products licensed separately by Subscriber such as Subscriber’s applicant tracking software product (“Third Party Products”). Subscriber may authorize the Service to export Subscriber Data and Entelo Data (subject to Entelo Email Credits limits) to Third Party Products. In addition, Subscriber may authorize the Service to import data from Third Party Products to the Service and this imported data is “Subscriber Data.”
7 SUBSCRIBER DATA AND SYSTEMS PROTECTION.
7.1 Subscriber Data. Entelo shall use Subscriber Data provided under the Agreement solely to provide the Service and Support Services to Subscriber in accordance with the Agreement. Entelo has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Subscriber Data, protect against anticipated threats or hazards to the security or integrity of Subscriber Data, and protect against unauthorized access to or use of Subscriber Data (both by Entelo employees and by third parties). All facilities used to store and process Subscriber Data under the Agreement will adhere to reasonable security standards no less protective than the security standards at facilities where Entelo stores and processes its own information of a similar type. “Industry standard systems” and “reasonable security standards” as used in this Section mean the systems and standards described at www.entelo.com/security.
7.1 Subscriber Systems. Entelo will at all times take appropriate measures, including implementing industry standard systems and reasonable security standards, designed to ensure that in the course of providing the Service, Entelo does not allow Subscriber’s computing systems to be exposed to unauthorized physical access, logical access or software viruses, worms, or other harmful computer code, file, scripts, agents or programs intended to harm computing environments, programs or data.
8 CONFIDENTIAL INFORMATION.
8.1 Definition. “Confidential Information” means: (a) in the case of Subscriber, all Subscriber Data, and (b) in the case of Entelo, any and all non-public features of the Service including, without limitation, the pricing plans and features, the Subscription Order form, and all pages and materials on the Entelo website that are accessible only after logging in. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving party’s possession at the time of disclosure without an obligation of confidentiality; (ii) is independently developed by receiving party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of wrongdoing by receiving party; or (iv) is approved for release in writing by disclosing party.
8.2 Confidentiality Restrictions. Receiving party shall not use Confidential Information for any purpose other than to provide, facilitate, access or use the Service as allowed under the Agreement. Receiving party shall not disclose Confidential Information: (a) to any employee or contractor of receiving party unless such person needs access in order to provide, facilitate the access or use the Service and is subject to a nondisclosure agreement with receiving party; or (b) to any other third party without disclosing party’s prior written consent, or as expressly permitted under the Agreement. Receiving party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. With respect to each item of Confidential Information, the obligations of this Subsection will continue for five years after the date of disclosure.
8.3 Exceptions. Notwithstanding the provisions of Subsection 8.2, receiving party may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority, provided that receiving party shall, to the extent allowed by law, give disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure by lawful means, at disclosing party’s expense.
9 TERM AND TERMINATION.
9.1 Initial Term. The initial term of the Agreement (the “Initial Term”) is the Subscription Period for the initial Subscription Order. The Initial Term and the Renewal Term(s) (if any) are referred to collectively as the “” Subscriber may execute multiple Subscription Orders under the Agreement, and each Subscription Order has its own Subscription Period.
9.2 Renewal Term. Unless either party provides notice in writing at least thirty (30) days before the last day of the Initial Term or then-current Renewal Term, as appropriate, that such party does not wish to renew the Agreement, the Agreement will automatically renew for successive additional terms equal in length to the Initial Term or one year, whichever is greater (each, a “Renewal Term”).
9.3 Termination for Breach. Either party may terminate the Agreement and all Subscription Orders upon notice if the other party materially breaches the Agreement, provided that: (a) such party gives 30 days notice to the breaching party describing the manner in which the Agreement has been breached, and (b) the breach remains uncontested and uncured during such notice period. Notwithstanding the foregoing, Entelo may suspend access to the Service by Subscriber as described at Subsection 4.2 (Misuse).
9.4 Effect of Termination or Expiration.
(a) At any time following the termination or expiration of the Agreement, Entelo may irrevocably delete any and all information associated with Subscriber’s account, including Subscriber Data. In addition, following the termination or expiration of the Agreement, Entelo shall irrevocably delete Subscriber Data to the extent required by applicable data protection laws. However, Entelo will assist Subscriber in exporting Subscriber Data from the Service for thirty (30) days following the termination or expiration of the Agreement, if Subscriber requests this assistance prior to the termination or expiration of the Agreement.
(b) If the Agreement is terminated by Subscriber pursuant to Subsection 9.3 (Termination for Breach) due to an alleged breach by Entelo which Entelo does not either contest or cure, then Entelo shall refund the prepaid, unused fees for the remainder of the Subscription Period.
9.5 Survival. Provisions of the Agreement that by their nature are intended to survive will continue to apply in accordance with their terms including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnity obligations, limitations of liability and the general provisions of Section 15.
10 INTELLECTUAL PROPERTY.
10.1 Proprietary Rights.
(a) Ownership of the Service. The Service, related documentation and the look and feel of the Service, including any custom fonts, graphics and button icons, are the exclusive property of Entelo and constitute valuable intellectual property and proprietary materials of Entelo protected by United States copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Subject to the limited rights expressly granted in the Agreement, Entelo reserves all right, title and interest in and to the Service and related documentation, including all Intellectual Property Rights. Subscriber may not copy, imitate, modify, create derivative works of, or use the Service or related documentation, in whole or in part, without Entelo’s prior written consent.
(b) Ownership of Entelo Data. Subject to the limited rights granted to Subscriber in the Agreement, as between the parties, Entelo owns all Intellectual Property Rights and all right, title and interest in the Entelo Data.
(c) Ownership of Subscriber Data. Entelo asserts no ownership rights in Subscriber Data. Subject to the limited rights granted to Entelo in the Agreement, Subscriber owns all Intellectual Property Rights in the Subscriber Data and all right, title and interest in the Subscriber Data.
10.2 No Transfer of Intellectual Property. No rights are granted to either party except as expressly set forth in the Agreement. Except as expressly set forth in the Agreement, nothing in the Agreement grants any license to, or transfers any right, title or interest in or to, the Service, Entelo Data, Subscriber Data, the Confidential Information of either party, or any patents, copyrights, trade secrets, logos, trademarks, trade names or service marks of either party, whether by implication, estoppel, or otherwise.
10.3 License to Entelo Data. Subject to the terms of the Agreement, Entelo grants Subscriber a non-exclusive, non-transferable, non-sublicensable, worldwide, fully-paid, royalty-free license to download, copy, and use the Entelo Data solely for the Purpose. The term of the foregoing license shall be the period necessary for Subscriber’s internal business purposes, not to exceed ten (10) years. This Subsection 10.3 shall survive the termination or expiration of the Agreement.
10.4 License to Subscriber Data. Subject to the terms of the Agreement, Subscriber grants Entelo a non-exclusive, non-transferable, worldwide, fully-paid, royalty-free license during the Term to, and to permit Entelo’s subprocessors to, use, copy, distribute, modify for transmission and display, publicly perform, and publicly display Subscriber Data solely for the purpose of providing the Service to Subscriber and Users.
10.5 License to Browser Extensions. Entelo grants Subscriber’s Recruiter Seat Users a non-exclusive, non-transferable, non-sublicensable, worldwide, fully-paid, royalty-free license during the Term to download, copy, and use browser extensions provided by Entelo as part of the Service, for User’s internal use of the Service only.
10.6 Logo Usage. Entelo may use Subscriber’s name and logo in listings of Entelo’s customers on the website located at www.entelo.com and in other public statements or disclosures for the purposes of marketing the Service; provided Subscriber may require Entelo to cease or modify any use of Subscriber’s name or logo that is misleading or tends to dilute Subscriber’s brand.
11 WARRANTIES; DISCLAIMERS.
11.1 Mutual Warranties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Agreement.
11.2 Subscriber Warranties. Subscriber further represents and warrants that: (a) it has accurately identified itself and it has not provided any inaccurate information about itself; (b) if Subscriber is an individual then Subscriber is 18 years or older; and (c) it has not previously been suspended or removed from the Service.
(a) Data Accuracy Disclaimer. Some features of the Service operate by searching, collecting and organizing data publicly available on the Internet, which may not be accurate or complete, while other features of the Service operate by applying analytical tools to Entelo Data and Subscriber Data. Entelo is not responsible or liable for the accuracy of any Entelo Data or Subscriber Data, or the results of the Service’s analysis of either. Subscriber assumes sole responsibility for Subscriber’s use of all such information.
(b) Services Disclaimer. SUBSCRIBER ACCEPTS THE SERVICE “AS IS,” AND ENTELO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ENTELO DOES NOT WARRANT THAT THE SERVICE OR THE INFORMATION OBTAINED THROUGH OR STORED ON THE SERVICE IS ACCURATE, CURRENT, FREE OF ERRORS OR OMISSIONS, SECURE, RELIABLE, OR ACCESSIBLE AT ANY PARTICULAR TIME.
(c) Security Disclaimer. No security measure is perfect or impenetrable, and hosting data online involves risks of loss, corruption, unexpected unavailability, and unauthorized disclosure or exposure of such data. ENTELO IS NOT RESPONSIBLE FOR ANY LIMITATIONS IN THE SERVICE RESULTING FROM PROBLEMS INHERENT IN THE USE OF THE INTERNET WHICH ARE BEYOND ENTELO’S CONTROL.
12 ENTELO INDEMNIFICATION.
12.1 Defense. Entelo will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber: (a) arising out of Entelo’s gross negligence or willful misconduct, or (b) alleging that Subscriber’s use of the Service infringes or misappropriates such party’s Intellectual Property Rights, if: (i) Subscriber gives Entelo prompt written notice of the Claim; (ii) Subscriber grants Entelo full and complete control over the defense and settlement of the Claim; (iii) Subscriber provides assistance in connection with the defense and settlement of the Claim as Entelo may reasonably request; and (iv) Subscriber complies with any settlement or court order made in connection with the Claim (for example, relating to the future use of any infringing Service). Subscriber will not defend or settle any Claim without Entelo’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Entelo will have sole control over the defense and settlement of the Claim; provided that Entelo may not agree without Subscriber’s prior consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of Subscriber.
12.2 Indemnification. Entelo will indemnify Subscriber from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 12.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 12.1 (other than attorneys’ fees and costs incurred without Entelo’s consent after Entelo has accepted defense of the Claim); and (c) all amounts that Entelo agrees to pay to any third party to settle any Claim under Section 12.1. In addition to its indemnity obligations described in this Subsection, in the event of any Claim of infringement or misappropriation, Entelo may, at its option: (i) obtain a license to permit Subscriber the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative; or (iii) terminate the Agreement by providing notice to Subscriber.
12.3 Exclusions from Obligations. Entelo’s indemnity obligation does not extend to any claims arising out of or related to: (i) a combination of the Service with products or services not provided by Entelo, or (ii) Subscriber’s use of the Service in breach of the Agreement.
12.4 Limited Remedy. The provisions of this Section set forth Entelo’s sole and exclusive obligations and Subscriber’s sole and exclusive remedy with respect to actual or alleged infringement of third party Intellectual Property Rights by the Service.
13 SUBSCRIBER INDEMNIFICATION.
13.1 Defense. Subscriber will, at its expense, either defend Entelo from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Entelo (the “Indemnified Party”) that arises out of: (a) Subscriber’s gross negligence or willful misconduct or (b) Subscriber’s violation of Subsection 4.1 (Acceptable Use), if: (i) Entelo gives Subscriber prompt written notice of the Claim; (ii) Entelo grants Subscriber full and complete control over the defense and settlement of the Claim; (iii) Entelo provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (iv) Entelo complies with any settlement or court order made in connection with the Claim. Entelo will not defend or settle any Claim without Subscriber’s prior written consent. Entelo will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim; provided that Subscriber may not agree without Entelo’s prior consent (not to be unreasonably witheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of Entelo.
13.2 Indemnification by Subscriber. Subscriber will indemnify Entelo from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Entelo in any Claim under Section 13.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Entelo in connection with the defense of a Claim under Section 13.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 13.1.
14 LIMITATION OF LIABILITY.
14.1 Disclaimer of Indirect Damages. Except as stated in Section 14.3, neither party shall be liable for any indirect, incidental, consequential, special, exemplary or punitive damages (including loss of use, data, business or profits) regardless of the theory of liability.
14.2 Cap on Liability. Except as stated in Section 14.3 and except for each party’s liability for damages related to claims that are the subject of indemnification under the Agreement, neither party shall be liable for aggregate damages in excess of the fees paid or payable by Subscriber under the Agreement during the twelve months prior to the event giving rise to liability, regardless of the theory of liability. Each party’s total liability for damages related to claims that are the subject of indemnification shall not exceed One Million Dollars ($1,000,000).
14.3 Exclusions. The limitations of liability set forth in Sections 14.1 and 14.2 do not apply to either party’s gross negligence, intentional misconduct, or liability for death or personal injury. The limitations of liability set forth in Section 14.2 do not apply to: (a) either party’s liability for misappropriation of the other party’s intellectual property or (b) Subscriber’s misuse of Entelo Data.
14.4 Independent Allocation of Risk. The limitations and exclusions of this Section apply even if the liable party has been advised of the possibility of such damages, even if the damages were foreseeable and even if a limited remedy fails of its essential purpose. Each provision of the Agreement that provides for a disclaimer of warranties, exclusion of damages or limitation of liability is to allocate the risks of the Agreement between the parties. This allocation of risk is reflected in the pricing offered by Entelo to Subscriber and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of the Agreement. If applicable law limits the application of the provisions of this Section then the limitations will apply to the maximum extent permissible.
15 GENERAL PROVISIONS.
15.1 DPA. If the Subscriber Data includes “personal data” as this term is used in the EU General Data Protection Regulation 2016/679 then the parties shall execute the Data Processing Agreement (Standard Contractual Clauses) in the form attached at Exhibit C.
15.2 Governing Law; Venue. The Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Subscriber and Entelo agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
15.3 Amendments. The Agreement may not be amended other than by a written instrument executed by authorized representatives of each party.
15.4 Waiver. A party’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default.
15.5 Severability. If any part of the Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect.
15.6 Interpretation. Use of paragraph headers in the Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of the Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
15.7 Assignment. Neither party may assign the Agreement without the other party’s express written consent, except to the assigning party’s successor by way of merger, acquisition, reorganization, or sale of stock or assets.
15.8 Notices and Contact Information. Except as otherwise set forth in Subsection 3.2 (regarding Seat transfers), each party will send notices made pursuant to the Agreement in writing by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party on an applicable Subscription Order, or to such updated address as the party provides by notice in accordance with this Subsection. Notice will be deemed given when actually received by the other party, or when delivery is refused. Subscriber questions or communications regarding Entelo, the Service, or the Agreement can be sent to email@example.com but will not serve as notice under the Agreement.
15.9 Independent Contractors. The relationship between the parties is that of independent contractors. Neither party is or will represent itself as the agent of the other.
15.10 Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than Subscriber’s failure to make payments when due, will constitute a breach of the Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
15.11 Injunctions. Each party agrees that breach of the provisions of Subsections 4.1 (Acceptable Use), 8.2 and 8.3 (regarding confidentiality) would cause the injured irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the injured party will be entitled to injunctive relief against such breach or threatened breach, without the necessity of proving actual damages or posting a bond or other security. This Subsection shall not be taken to limit either party’s right to injunctive relief related to breach of a section of the Agreement not listed in this Subsection.
15.12 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument.
15.13 Entire Agreement. The Agreement constitutes the entire and exclusive understanding and agreement between Subscriber and Entelo regarding Subscriber’s use of and access to the Service and Entelo Data. This Agreement prevails over any conflicting or additional terms of any quote, order, invoice or other communication. This Agreement supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof.
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Service Level Agreement
System Availability. Entelo will make the hardware and software that enable the Service (collectively, the “System”) available 99.5% of the time each calendar month, excluding System Maintenance and time during which the System is unavailable as a result of a failure or defect arising out of a Force Majeure event, as measured in minutes by Entelo (such time, the “Availability Target”).
Entelo shall calculate the actual percentage availability of the System on a monthly basis (such percentage, “System Availability”) using the following formula:
[(Actual Availability divided by Total Scheduled Availability) multiplied by 100%].
The following definitions will apply with respect to the calculation of Service Availability:
“Actual Availability” means Total Scheduled Availability minus Downtime, in minutes.
“Downtime” means the time (in minutes) that users of Entelo are not able to: (a) access the System, (b) perform ordinary functions to use the Service in accordance with its documentation, or (c) utilize the System for normal business operations due to failure, malfunction or delay. Downtime does not include any unavailability of the System due to System Maintenance or a failure or defect arising out of a Force Majeure event.
“System Maintenance” means the time (in minutes) that the System is not accessible to Entelo users due to scheduled maintenance of the Entelo website, including for System maintenance and upgrades. Entelo will provide Subscriber with at least forty-eight (48) hours’ prior notice of any scheduled maintenance. Any system unavailability (except due to a Force Majeure event) during a period where Entelo fails to provide at least forty-eight (48) hours’ prior notice shall be excluded from System Maintenance and shall be considered downtime. Entelo will strive to perform all system maintenance between 9 p.m. PST to 6 a.m. PST. System Maintenance hours outside of this window shall not exceed 24 hours during a calendar month.
“Total Scheduled Availability” means 7 days per week, 24 hours per day in minutes.
If the Service availability fails to meet the Service Availability level requirements in this Exhibit then Entelo will be required to provide Subscriber with credits on payments as follows: 1% off the monthly value for each tenth of a percent below the Service Availability level experienced during such month.
Entelo will make the following Support Services available to Subscriber.
(a) Entelo will make technical support available to customers, including Subscriber, by email or in-app chat eight (8) hours per day, five (5) days per week.
(b) Entelo’s “Customer Success” team will provide customers with remote assistance for help in using and operating the Service and will accept reports of errors or defects in the Service from Users.
Entelo will ensure that each employee or contractor performing any maintenance and support services are experienced, knowledgeable and qualified in the use, maintenance and support of the Service.