Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “I AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT.
This agreement is between Enfocus Solutions Inc., a Delaware corporation (Enfocus Solutions), and the entity or individual agreeing to these terms (Customer).
1) Web-based Software as a service. This agreement provides Customer access to a proprietary web-based software service as specified on the order and as further outlined at: www.enfocussolutons.com. Enfocus Solutions will provide this functionality through a URL within a hosted server environment under the terms below (Service). This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
- Authorized Subscriber means a named individual authorized to access the Service by Customer with a username and login. Each Authorized Subscriber requires a seat subscription.
2) USE OF SERVICE.
a). Enfocus Solutions Responsibilities. Enfocus Solutions must provide customer support for the Service under the terms of Enfocus Solutions’ Customer Support Policy, which is located at www.enfocussolutions.com/support, and is incorporated into this agreement for all purposes.
b). Customer Responsibilities. Customer (i) is solely responsible for Customer Data (defined below) and all activity in its account in the Service, (ii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Enfocus Solutions promptly of any such unauthorized access, and (iii) may use the Service only in accordance with the Service’s user documentation and applicable law.
c). Restrictions: Customer may not (i) sell, resell, rent or lease the Service or the Enfocus Solutions Content, (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Service, or (iv) attempt to gain unauthorized access to the Service or their related systems or networks.
d). Customer Owned Data. All data uploaded and inputted by Customer remains the sole property of Customer, as between Enfocus Solutions and Customer (Customer Data). Customer grants Enfocus Solutions the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export Customer Data from within the Service in CSV or PDF format. Notwithstanding the foregoing, Enfocus Solutions may use aggregate and non-identifiable data during and after the term of this agreement for support, enhancement and any other business purpose.
e). Trial. If Customer has registered for the Service without a fee, then a 30-day trial will apply. If Customer does not cancel the trial account before the end of the trial period, Customer’s account will be converted to a paid account and its credit card will be charged for the applicable annual fee. At the end of the trial period the Customer Data will be destroyed, unless Customer account is converted to a paid account.
f). Enfocus Solutions Content License. All content and information provided by Enfocus Solutions as part of the Service which is branded with Enfocus Solutions brands or subject to the copyright of Enfocus Solutions (such as templates, checklists, mindmaps, among other things), and all third-party content or information provided as part of the Service (collectively Enfocus Solutions Content), are licensed to Customer on a per Authorized Subscriber basis. Subject to the terms of this agreement, Enfocus Solutions hereby grants the Authorized Subscriber a non-exclusive, non-transferable revocable license to:
(i) print the Enfocus Solutions Content for their individual use and for use by other Authorized Subscribers, in each case for the benefit of the project;
(ii) share the Enfocus Solutions Content with stakeholders, and other Authorized Subscribers, on the project; and
(iii) modify, distribute and copy the Enfocus Solutions Content, solely for Customer’s project related purposes.
In no event may Customer use, print, share, modify, distribute or copy any Enfocus Solutions Content on a standalone basis for a commercial purpose.
g). Safeguarding Data. Enfocus Solutions will implement industry standard or better administrative, technical, and physical safeguards, to secure its facilities and systems from unauthorized access, and secure the Customer Data.
h). Employee and Third-Party Access. Customer may allow its employees and third parties to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and any third party.
i). Communications. Enfocus Solutions may communicate with Customer through its account or through other means (including without limitation email, phone, mail or overnight courier service) about Customer’s account. Enfocus Solutions has no liability arising from Customer’s failure to maintain accurate contact or other information with Enfocus Solutions.
3) Payment Terms. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.
a). Credit Card Payments. If a credit card account is being used, Enfocus Solutions may obtain preapproval for an amount up to the amount of the order. Customer must pay for the Service online, and Enfocus Solutions may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to Enfocus Solutions. If Customer wants to designate a different credit card or if there is a change in Customer’s credit card status, Customer must change its information in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, Enfocus Solutions may suspend, terminate, or both (without liability) Customer’s use of the Service upon 5 days notice sent to Customer via email (using its email address in the Service).
4) WARRANTY DISCLAIMER. Enfocus Solutions DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE MAY BE INTERRUPTED OR CONTAIN AN ERROR. Enfocus Solutions DOES NOT GUARANTY THAT THE SERVICE CANNOT BE compromised. Enfocus Solutions does not warrant that the Enfocus Solutions content is complete, accurate, timely or without error.
5) MUTUAL CONFIDENTIALITY.
a). Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Enfocus Solutions’ Confidential Information includes without limitation the Service, and its user interface design and layout.
b). Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c). Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.
d). Disclosure Required by Law. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order to prevent the disclosure.
6) Proprietary Rights.
a). Reservation of Rights by Enfocus Solutions. The software, workflow processes, user interfaces, designs, know-how, Enfocus Solutions Content, and other technologies provided by Enfocus Solutions as part of the Service are the proprietary property of Enfocus Solutions and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Enfocus Solutions. Enfocus Solutions reserves all rights unless expressly granted in this agreement.
b). Customer Restrictions. Customer may not:
i. Reverse engineer the Service;
ii. Remove or modify any proprietary marking or restrictive legends in the Service; or
iii. Access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c). Feedback: By submitting ideas, suggestions or feedback to Enfocus Solutions regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information; and Customer hereby grants Enfocus Solutions an irrevocable, royalty-free and fully paid perpetual license to use such items for any business purpose.
7) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
a). Exclusion of Certain Damages. Enfocus Solutions IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, LOST PROFITS, ANY damage associated with THE RESULTING PROJECTS FROM USE OF THE SERVICE, AND ANY FAILURE OF DELIVERY OF THE SERVICE).
b). Limitation of Liability. Enfocus Solutions’ liability for DIRECT damages ARISING OUT OF OR relatED TO This Agreement (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed the actual amount paid by CUSTOMER within the preceding 12 months UNDER THIS AGREEMENT.
8) TERM, Termination, RETUrn OF DATA AND Suspension of Service.
a). Term. This agreement continues for the duration specified on the order
b). Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period if the breach has not been cured.
c). Return or Destroy Enfocus Solutions Property Upon Termination (except for Enfocus Solutions Content). Upon termination of this agreement for any reason, Customer must pay Enfocus Solutions any amounts owed, and destroy or return all property of Enfocus Solutions (except that if this agreement terminates other than by Enfocus Solutions for material breach on the part of Customer, any Enfocus Solutions Content, already downloaded by Customer, remains governed by the license to such content above and the other terms of this agreement). Customer will confirm its compliance with this destruction or return requirement in writing upon request of Enfocus Solutions.
d). Return of Customer Data.
i. For a period of 60 days after termination, Enfocus Solutions will, upon request, make the Service available for Customer to download the Customer Data in the formats specified in Section 2(d).
ii. After such 60-day period, Enfocus Solutions has no obligation to maintain the Customer Data and may destroy it.
e). Suspension of Service for Violations of Law. Enfocus Solutions may immediately suspend the Service and remove applicable Customer Data if it in good faith believes that, as part of using the Service, Customer may have violated a law. Enfocus Solutions may try to contact Customer in advance, but it is not required to do so.
9) Governing Law AND FORUM. This agreement is governed by the laws of the State of Texas without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Bexar County, Texas. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
a). By Enfocus Solutions For Infringement. If a third-party claims that the Service (other than related to the Customer Data) infringes that party’s patent, copyright or other proprietary right, Enfocus Solutions will defend Customer against that claim at Enfocus Solutions’ expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Enfocus Solutions, provided that Customer (i) promptly notifies Enfocus Solutions in writing of the claim; and (ii) allows Enfocus Solutions to control, and cooperates with Enfocus Solutions in, the defense and any related settlement.
If such a claim is made, Enfocus Solutions could continue to enable Customer to use the Service or to modify it. If Enfocus Solutions determines that these alternatives are not reasonably available, Enfocus Solutions may terminate the Service (without any liability to Customer) upon notice to Customer and with the return of any prepaid and unused fees. This indemnity does not apply to the extent of any technology not provided by Enfocus Solutions.
b). By Customer. Customer hereby indemnifies, defends and holds harmless Enfocus Solutions from all third-party claims or demands, and associated damages, losses, costs and expenses (including without limitation attorneys fees and costs) sustained or incurred by Enfocus Solutions, arising from an alleged infringement of the Customer Data of any copyright, trade secret, or other right, or relating to Customer’s use of the Service.
11) MISCELLANEOUS OTHER TERMS.
a). Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
b). Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
c). No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
d). Independent Contractors. The parties are independent contractors with respect to each other.
e). Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
f). No Additional Terms. Enfocus Solutions rejects additional or conflicting terms of any Customer form-purchasing document.
g). Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h). Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement, will survive.
i). CISG Not Apply. The Convention on Contracts for the International Sale of Goods does not apply.