Envoy User Agreement
Last Updated: October 16, 2018
This User Agreement (“Agreement”) is entered into by and between Appropos, LLC, a Michigan limited liability company, d/b/a Envoy (“Envoy”) and any individual, company, or entity specified in any Order or SOW (“Customer”) prior to Customer’s use of the Subscription Service. This Agreement governs the use of the Subscription Service, any Professional Services, and any other products or services received from Envoy by Customer, whether on a free or paid basis (collectively, the “Services”). By accessing, viewing, or using the Services, Customer acknowledges that Customer has read, understands, and agrees with this Agreement. If Customer is a direct competitor to Envoy, Envoy reserves the right to disallow Customer’s access to the Services at any time in its sole discretion.
1.1 Subscription Service. Subject to the terms and conditions set forth in this Agreement, and in consideration of the fees specified in any Order, Envoy hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license for Customer’ Users to access and use the Subscription Service during the Term for Customer’s internal business purposes in accordance with Appendix A – Service Level Expectations. Envoy may in its sole discretion delegate its responsibilities hereunder to qualified subcontractors.
1.2 Professional Services. Subject to the terms and conditions set forth in this Agreement, and in consideration of the fees specified in any applicable Order or SOW, the parties may agree for Envoy to provide Professional Services. The specifications for Professional Services, if any, will be as set forth in an Order or SOW. Envoy hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer’s Users to access and use Work Product resulting from Professional Services during the Term for Customer’s internal business purposes, pursuant to the terms and conditions of this Agreement.
1.3 Customer Obligations. Customer is solely responsible for providing all hardware, software, or internet connectivity needed for Customer Users to access and use the Subscription Services, such as mobile devices, desktop or laptop computers, and web browsers. Any failure or delay by Envoy to perform the Services is not a breach to the extent that such failure or delay is caused by an act or omission of Customer or Customer’s hardware, software, or internet connectivity. Customer acknowledges and agrees that Envoy will exert commercially-reasonable efforts to maintain the compatibility of Envoy with the latest versions released for general availability of Microsoft Internet Explorer, Firefox, Chrome and Safari web browsers (and such other web browsers that may be subsequently adopted at the level of the foregoing browsers), Apple iOS, and one (1) prior major release of all the foregoing.
2.0 Use of the Subscription Service; Restrictions.
2.1 Conditions. Envoy’s provision of the Subscription Service is conditioned on Customer’s acknowledgement and agreement to the following:
(a) Certain types of information included in the Customer Content may be subject to specific laws (e.g., laws regarding personally identifiable information, payment card information, protected health information, etc.). Customer, not Envoy, is responsible for compliance with any such laws. Without limiting the foregoing, Customer represents and warrants that, if required for compliance with applicable law, Customer will provide any required notice to, and obtain any required consent from, individuals and/or other entities related to the Customer Content and any personal or otherwise protected information included therein.
(b) All Customer Content stored utilizing the Subscription Service is maintained in encrypted form (in transit and at rest) and Envoy does not access Customer Content except: (i) as requested by Customer to enable the provision of customer support; and (ii) as necessary for Envoy to (1) comply with applicable law or legal proceedings, or (2) investigate, prevent or act against suspected abuse, fraud or violation of this Agreement. For the avoidance of doubt, Envoy will treat as confidential any Customer Content accessed pursuant to this section. Unless prohibited by law, if Envoy receives a request from an individual to access, amend, or delete their personal information stored as Customer Content or Account Information provided by Customer, Envoy will refer such requests to Customer. Customer will be responsible for responding to such requests as required by applicable law, and Envoy will provide Customer with reasonable support as necessary to facilitate Customer’s response.
(c) The Subscription Service facilitates the sharing of information within Customer’s organization and potentially outside of Customer’s organization. Between Customer and Envoy, Customer has the exclusive control over the distribution of and access to the Customer Content.
2.2 Login Credentials. Each set of login credentials for the Subscription Service may be used only by a single, individual Customer User, and Customer User accounts may not be shared by multiple individuals. In the event of any account sharing, Envoy may adjust the fees owed to Envoy under this Agreement or any Order accordingly, including adjustments on a retroactive basis. Notwithstanding the foregoing, if a Customer User leaves the employ of Customer or changes roles such that the Customer User no longer needs access to the Subscription Service account, such account may be transferred to a new Customer User for the remainder of that account’s subscription without incurring any additional fee provided that Customer notifies Envoy of the transfer and a new username and password are created for the new Customer User. Customer agrees to promptly notify Envoy of any unauthorized access or use of the Subscription Service which Customer becomes aware. Customer will be responsible for all use and misuse of the Subscription Service that occurs under Customer Users’ login credentials, and for any breach of this Agreement by any Customer Users. In no event will Envoy be liable for any losses or damages of any kind related to any unauthorized access or use of the Subscription Service.
2.3 Prohibited Use. Customer will not, and will ensure that Customer Users do not: (a) “frame,” distribute, resell, or permit access to the Subscription Service by any third party other than for its intended purposes; (b) use the Subscription Service other than in compliance with applicable laws; (c) interfere with the Subscription Service or disrupt any other user’s access to the Subscription Service; (d) reverse engineer, attempt to gain unauthorized access to the Subscription Service, or attempt to discover the underlying source code or structure of the Subscription Service; (e) submit to the Subscription Service any content or data that violates the Acceptable Use Policy, as updated by Envoy from time to time (a current version of which can be found at www.envoyplatform.com/acceptable-use-policy) (“Acceptable Use Policy”); (f) submit to the Subscription Service any malware or any unauthorized feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Subscription Service; or (g) use any robot, spider, data scraping tool, extraction tool, or similar mechanism with respect to the Subscription Service. Customer shall be responsible for Customer Users’ compliance with this Agreement, including this Section 2.3.
2.4 Account Information. Account Information will be provided to Envoy by Customer Users, but Customer may provide certain Account for Customer Users when configuring Customer’s account. If Account Information is provided by Customer, Customer represents and warrants that: (a) Customer has provided all required notice to Customer Users pursuant to applicable law; and (b) Customer has all rights, permissions, and consents necessary: (i) to provide the Account Information to Envoy; and (ii) for the display of such Account Information within the Subscription Service. Per Section 2.1(b) above, Envoy will refer to Customer any requests related to the Account Information that was provided by Customer, and will provide Customer reasonable assistance to facilitate Customer’s response to such requests, unless prohibited by law.
2.5 Use of Mobile App. The Subscription Services may also be accessed via the Mobile App and this Agreement shall apply to use of the Subscription Services via the Mobile App. Envoy grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable, limited license to download, install, and use the Mobile App for Customer’s personal and internal business purposes strictly in accordance with this Agreement. Envoy may deploy changes, updates, or enhancements to the Mobile App at any time. Envoy may provide maintenance and support for the Mobile App. Customer acknowledges that Apple (for iOS Mobile Apps) does not have an obligation to furnish any maintenance and/or support services in connection with the Mobile App. By downloading the Mobile App, and/or opting-in through notification settings, Customer authorizes Envoy to send Customer (including via email and push notifications) information regarding the Subscription Service and the Mobile App, such as: (a) notices about Customer’s use of the Subscription Service and the Mobile App, including notices of violations of use; (b) updates to the Subscription Service and Mobile App and new features or products; and (c) promotional information and materials regarding Envoy’s products and services. Customer can adjust messaging preferences or unsubscribe to some messaging by following instructions provided by Envoy. Envoy reserves the right to suspend or terminate Customer’s access to the Mobile App at any time based on the status of Customer’s account under this Agreement. Customer understands that if its account is suspended or terminated, Customer may no longer have access to the content that is stored within the Subscription Service. Apple (for iOS Mobile Apps) will have the right to enforce this section against Customer as a third party beneficiary thereof.
3.0 Customer Content; Account Information; Processing of Data.
3.1 Disclosure. The Subscription Service is designed to facilitate collaboration and sharing of Customer Content among Customer Users and, if elected by Customer Users, with third parties. Customer will own all Customer Content. As specified in Section 2.4 above, use of the Subscription Service also entails disclosure of some Account Information (e.g., name and email address) to other users. Envoy will not be responsible for any distribution, publication, display, or other disclosure of Customer Content or Account Information by Customer Users via the Subscription Service. Envoy does not provide the Customer Content or Account Information, does not review it for accuracy, and makes no representations or warranties regarding it. The Subscription Service may facilitate transactions between Customer and Customer Users, but Envoy is not a party to any such transactions.
3.3 Service Providers. In addition, Envoy may allow third-party service providers to process Customer Content and Account Information in connection with Envoy’s provision of the Subscription Service. By entering into this Agreement, Customer authorizes such processing by such third-party service providers.
3.4 Security. Envoy will provide and maintain commercially reasonable information security policies and safeguards, which include technical and organizational measures, designed to preserve the security, integrity, and confidentiality of the Customer Content and to protect it against unauthorized access and information security threats.
3.5 Treatment at Termination. Upon request to Envoy at any time during the Term, Customer may request a backup that includes all then-current Customer Content in JSON format. Upon the effective date of termination, Envoy has no obligation to retain, and may delete, Customer Content.
3.6 Ownership. As between the parties, Customer retains all right, title, and interest in and to all Customer Content. Customer represents and warrants that it has all rights, permissions, and consents necessary: (a) to submit all Customer Content to the Subscription Service; (b) to grant Envoy the limited rights to process Customer Content as set forth in this Agreement; and (c) for any transfer or disclosure of Customer Content among or by Customer Users.
4.0 Additional Products and Services.
4.1 Online Training. Customer may have access to the Training Resources. In such case, Envoy hereby grants Customer a worldwide, revocable, non-exclusive, non-sublicensable, non-transferable right to access and use the Training Resources during the Term for Customer’s internal business purposes, pursuant to the terms and conditions herein. Customer acknowledges that the Training Resources are subject to change, and Envoy does not guarantee the availability of any content. The Training Resources are not part of the Subscription Service.
4.2 Third-Party Applications. Third-party applications and web services, including without limitation, payments made to Envoy that are facilitated through a third party payment processing service, may be available to Customer for use with the Subscription Service. These applications and services are provided by third parties and are not part of the Subscription Service, except where otherwise specified. Third-party applications and services are subject to any end user license agreements that accompany them, and Envoy shall have no liability whatsoever with respect to any third-party applications and services.
4.3 Envoy API. Envoy may make an application programming interface (“API”) available to Customer enabling Customer to create and access Customer Content via Customer’s own application. During the Term, Envoy grants Customer a non-exclusive, non-sublicensable, non-transferable license to use the API solely for Customer’s internal use. Customer shall not use the API to access data or an Envoy account belonging to a third party unless Customer has entered into Envoy’s Third-Party Application Developer Agreement and Envoy has provided Customer with an application ID for authentication purposes.
5.0 Fees and Payment.
5.1 Fees. In consideration of the Services, Customer will pay the fees specified at the time of purchase or renewal. Unless otherwise specified in an Order, Envoy may raise the price for Services, in its sole discretion, for any Renewal Terms; provided, however, that such price increase shall not exceed the greater of 5% per year or the rate of inflation as measured by the U.S. Bureau of Labor Statistics CPI-U. If Customer selects an annual Subscription Term for an Order: (a) Customer may elect to pay the total fees for the Subscription Service at the outset in lieu of being invoiced or charged on a monthly basis; or (b) Customer will be invoiced or charged on a monthly basis for the Subscription Service, even if Customer has terminated the Order or otherwise changed its subscription plan. Customer will reimburse Envoy for reasonable, out-of-pocket expenses incurred by Envoy in the course of providing Professional Services. All fees are nonrefundable once paid, except as expressly otherwise provided in this Agreement or the applicable SOW or Order.
5.2 Payment. Customer agrees to promptly notify Envoy of any changes to its billing information. If Customer uses a credit card to make payment hereunder, Customer authorizes Envoy to charge such credit card on a recurring basis for all applicable fees and taxes. If Customer is invoiced for fees and taxes, all amounts are payable in U.S. dollars net fifteen (15) days from the date of the invoice per the invoice instructions unless otherwise specified. Items purchased via an Order, and all renewals, shall be payable in advance. Items purchased via SOW shall have the applicable invoicing instructions included in the SOW. Envoy reserves the right to correct any billing errors or mistakes that Envoy identifies even if Envoy has already issued an invoice or received payment. Customer agrees to notify Envoy about any suspected billing errors or mistakes within fifteen (15) days after the relevant invoice or charge date; failure to do so will result in waiver of Customer’s right to dispute such errors or mistakes. Except as prohibited by law, Envoy may charge a late fee on past due amounts of the lesser of: (a) 1.875% per month compounded monthly; or (b) the maximum amount permitted by law. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Envoy to collect any amount that is not paid when due. Envoy may accept payment in any amount without prejudice to Envoy’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Envoy by Customer may not be withheld or offset against amounts due or asserted to be due to Customer from Envoy. Other than income taxes imposed on Envoy, Customer shall be responsible for the payment of all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this Agreement. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way affect or delay Customer’s obligation to pay any amounts due hereunder.
5.3 Refunds. If Customer terminates this Agreement for Envoy’s uncured breach pursuant to Section 6.4, Customer will be entitled to a prorated refund of prepaid, unused fees for the Subscription Service. If Customer terminates an SOW or an Order for Professional Services pursuant to Section 10.3, Customer will be entitled to a prorated refund of the prepaid, unused fees for the Professional Services. There shall be no refunds if Customer terminates this Agreement for any other reason or if Customer breaches this Agreement and Envoy elects to terminate this Agreement.
5.4 Free Access. If Customer is provided with access to any Service at no charge, Customer acknowledges that (a) the version available to Customer may not include or allow access to all features and functionality available to paid subscribers and (b) the Service is made available to Customer on an “as is” basis without any warranty, support, maintenance, or other obligation of any kind. Envoy may terminate Customer’s free access to any Service at any time, unless otherwise specified. Any use of a Service at no charge is at Customer’s sole risk and responsibility.
5.5 Cardholder Data. Cardholder Data (“CHD”) shall have the then-current meaning given it by the Payment Card Industry Security Standards Council. The parties agree and acknowledge that Envoy shall not collect, receive, process, transmit, store or maintain any CHD of Customer, or any of Customer’s employees, business customers, or representatives. For the avoidance of doubt, it is not a breach of the foregoing for Envoy to store the full name of a Customer User or any portion thereof. Envoy outsources payment card functions and payment processing to a third party or parties and Envoy shall have no liability whatsoever with respect to any payment processing or such third-party services.
6.0 Term and Termination.
6.1 Term. This Agreement will remain in effect throughout the Term unless earlier terminated as set forth herein.
6.2 Term; Auto-Renewal of Orders. Each Order remains in effect for the initial subscription term (“Initial Term”) specified therein and any subsequent renewal periods (each a “Renewal Term”), and collectively with the Initial Term, the “Term”). AFTER THE INITIAL TERM OF AN ORDER ENDS, ORDERS WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM. Notwithstanding the foregoing, any non-subscription items purchased via an Order will not automatically renew.
6.3 Term of SOWs. Each SOW remains in effect for the period specified therein. If no period is specified, the SOW will terminate once the Professional Services set forth in the SOW have been completed.
6.4 Termination; Suspension. Either party may terminate this Agreement immediately if the other party breaches any material provision of an applicable Order, SOW, or this Agreement, and fails to cure that breach within thirty (30) days of written notice from the non-breaching party identifying the breach. In addition, Envoy may suspend Customer’s access to the Subscription Service immediately if: (a) Customer fails to make a payment when payment is due; or (b) Customer has (or Envoy reasonably suspects that Customer has) breached Section 2.3 or misappropriated or infringed Envoy’s intellectual property or proprietary rights.
6.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all Services, Orders, and SOWs under this Agreement will terminate; (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 6.6 below); (c) Customer will remain obligated to pay for Services rendered through the effective date of termination; and (d) Customer will not be entitled to any refund of fees (except as set forth in Section 5.3 above). Upon termination by either party, Customer and Customer Users will immediately cease all use of the Services, and each party will promptly return the other party’s property, data, and information, and will destroy all copies. Thereafter, Envoy will have no obligation to retain Customer’s data or information.
6.6 Survival. The following sections will survive termination or expiration of this Agreement: 3.5 (Treatment at Termination), 3.6 (Ownership), 4.2 (Third-Party Applications), 5.1 (Fees) (with respect to amounts that are accrued but unpaid as of the effective date of termination), 5.2 (Payment), 5.4 (Free Access), 6.6 (Survival), 7 (Proprietary Rights), 8 (Confidentiality), 10 (Representation and Warranties; Disclaimer); 11 (Limitation of Liability), 12 (Indemnification), 14 (Non-Solicitation), 15 (Notices), 17 (Entire Agreement), and 18 (General).
7.0 Proprietary Rights
Envoy retains all right, title and interest in and to: (a) the Services, Work Product (except for any Customer confidential information used to develop the Work Product), and the technology and software used to provide them, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Customer Content and Account Information) made available through the Services. Except for the licenses as set forth in this Agreement, this Agreement does not convey all or any part of Envoy’s intellectual property or proprietary rights to anyone, including Customer. All rights in or to the Services not expressly granted herein are reserved. Customer may not reverse engineer the Services, attempt to do so, or assist others in doing so. Customer may not grant third parties access to the Services without Envoy’s prior written consent. The Subscription Service will be made available to Customer as and only as a remotely-hosted service. Customer agrees that Envoy will have a perpetual right to use and incorporate any suggestions, enhancement requests, recommendations, ideas for improvement, and other feedback (collectively, “Feedback”) that Customer or a Customer User provides to Envoy regarding the Services without any obligation of compensation and that Envoy may freely use and incorporate Feedback into the Services.
8.1 Confidential Information. “Confidential Information” means all non-public information of or about Envoy or Customer, as the case may be (“Disclosing Party”) disclosed to the other party (“Receiving Party”) by the Disclosing Party or its affiliates, employees, contractors or agents, in the past, present, or future, whetherorally or in writing, that is either marked or designated as confidential or is identified in writing as confidential or proprietary within fifteen (15) days of disclosure to the Receiving Party or that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed.Confidential Information shall include, but not be limited to, all non-public information regarding pricing, trade secrets, know-how, technology, designs, specifications, documents, data, databases, procedures, processes, software, source code, object code, executables, configurations, potential or existing customers, suppliers, contractors, potential or existing business transactions or arrangements with customers or other third parties, the existence and terms of this Agreement, and the fact that discussions concerning a prospective business relationship are occurring or have occurred, but excludes any information that: (1) is or has become generally known to the public without violation of any restriction on disclosure; (2) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (2) is or was lawfully received from a third party not subject to any restriction on the disclosure of such information.
8.2 Use and Disclosure of Confidential Information. The Receiving Party: (a) will not use Confidential Information of the Disclosing Party for any purpose except in connection with this Agreement; (b) will not disclose, give access to, or distribute any of the Confidential Information of the Disclosing Party to any third party, except to the extent expressly authorized in a separate written agreement signed by the Disclosing Party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions the Disclosing Party takes to preserve its own confidential information of a similar nature) to keep the Confidential Information of Disclosing Party confidential. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as this Agreement. The Receiving Party will be responsible for its Representatives’ disclosure or use of the Disclosing Party’s Confidential Information in violation of this Section 8. The Receiving Party will immediately notify the Disclosing Party upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section 8, by the Receiving Party or its Representatives. The Receiving Party’s (and its Representatives’) obligations under this Section 8 shall survive the termination of this Agreement until such time as the Disclosing Party no longer keeps such information confidential.
8.3 Return of Materials. Upon written request by the Disclosing Party, the Receiving Party will: (a) either return or destroy all documents and media in its possession or control that contain the Confidential Information; and (b) certify its compliance with this Section 8.3 in writing. Notwithstanding the foregoing, the Receiving Party will not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with the Receiving Party’s security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup will remain subject to this Section 8.
8.4 Intellectual Property; No Obligation to Disclose. The Disclosing Party retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information.
8.5 Required Disclosures. The Receiving Party may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, the Receiving Party will (except to the extent prohibited by law or legal process from doing so): (a) give the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in Disclosing Party’s efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.
8.6 Injunctive Relief. Envoy and Customer acknowledge that any actual or threatened breach of this Section 8 may cause irreparable harm to the non-breaching party, the extent of which may be difficult to ascertain, and that the non-breaching party would not have an adequate remedy at law in the event of such an actual or threatened breach. Accordingly, the non-breaching party shall be entitled to seek injunctive relief against any actual or threatened breach of this Section 8, in addition to all remedies available to the non-breaching party at law and/or in equity, without the necessity of proving actual or monetary damages.
10.0 Representations and Warranties; Disclaimer; Security.
10.1 Authority Warranty. The individual consenting to this Agreement represents and warrants that he/she has the necessary authority to enter into this Agreement on behalf of himself/herself or the entity he/she is representing, as applicable. If such individual is accepting this Agreement in connection with Customer’s use of the Services on behalf of any entity, Customer acknowledges and agrees that this Agreement will be enforceable against such entity.
10.2 Limited Warranty for Subscription Service. If Customer has paid fees under this Agreement for the Subscription Service, and subject to any Force Majeure Event(s), Envoy represents and warrants that the Subscription Service will operate substantially as described in the online product descriptions written or created by Envoy and made available on the Site. Customer must notify Envoy in writing of any alleged failure by Envoy to comply with this warranty within thirty (30) days of such failure. Upon receipt of such notice, Envoy will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the applicable Order and issue a prorated refund for the terminated portion of the Subscription Services. The foregoing sets forth Customer’s exclusive rights and remedies and Envoy’s sole liability for breach of the limited warranty specified herein.
10.3 Limited Warranty for Professional Services. If Customer has paid fees under this Agreement for Professional Services, Envoy represents and warrants that the Professional Services will be provided in a competent and workmanlike manner in accordance with the Order or SOW, as applicable. Customer must notify Envoy in writing of any alleged failure by Envoy to comply with this warranty within thirty (30) days following delivery of the Professional Services. Upon receipt of such notice, Envoy will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the Professional Services and issue a prorated refund for the terminated portion of the Professional Services. The foregoing sets forth Customer’s exclusive rights and remedies and Envoy’s sole liability in connection with the limited warranty specified herein.
10.4 Disclaimer. Customer acknowledges that the Services may experience periods of downtime, including but not limited to scheduled maintenance. Customer understands that Envoy cannot and does not guarantee or warrant that files available for downloading from the internet, through the use of the Subscription Service or from the Site will be free of viruses or other destructive code. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Services and the Site for any reconstruction of any lost data. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 10, ENVOY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ENVOY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. NO IMPLIED WARRANTIES WILL BE DEEMED TO ARISE FROM USAGE OF TRADE, COURSE OF PERFORMANCE, OR COURSE OF DEALING. ENVOY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR COMPATIBLE WITH CUSTOMER’S HARDWARE, SOFTWARE, OR NETWORKS. ENVOY MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY APPLICATIONS, THIRD-PARTY SERVICE PROVIDERS OR AGENTS, OR COMMUNITY CONTENT, AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY THEREFORE. BY USING THE SERVICES OF ENVOY, CUSTOMER AGREES AND ACKNOWLEDGES THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK.
10.5 Security. Customer acknowledges that the network dependency of Envoy and the Services exposes Customer to service disruptions, data bottlenecks, security vulnerabilities, and other inherent risks and limitations of the internet. Each party will adopt and maintain reasonable security measures consistent with industry standards to protect against security threats, viruses, and unauthorized access to the other party’s data and information, including the Confidential Information. Each party will promptly and within forty-eight (48) hours inform the other party of any security breach (as defined by applicable law), unauthorized disclosure, or unauthorized use affecting or potentially affecting such other party and will (a) cooperate in enforcing the other party’s rights against unauthorized users; (b) take such steps as are necessary to promptly mitigate the effects of such disclosure and prevent a recurrence thereof; and (c) comply with applicable laws relating to such disclosure.
11.0 Limitation of Liability.
11.1 Exclusion of Consequential and Related Damages; Cap on Damages. ENVOY WILL NOT BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, CONTRIBUTION, INDEMNITY, OR UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING UNDER THIS AGREEMENT, EVEN IF ENVOY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. ENVOY’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ENVOY UNDER THE ORDER OR SOW TO WHICH THE LIABILITY RELATES DURING THE TWELVE (12) MONTH PERIOD PRIOR IMMEDIATELY PRECEDING ANY CLAIM. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR FOLLOWING THE EVENT GIVING RISE TO SUCH CLAIM. Customer’s sole remedy for any claim or loss arising out of or relating to this Agreement is for Envoy to (1) repair or replace the Subscription Service component or re-perform any Professional Service that gave rise to the claim or loss; or (2) return the fees paid for the Subscription Service component or Professional Service that gave rise to the claim or loss, in each case subject to the limitations of this Section. If Customer does not give written notice to Envoy regarding a claim or loss within six (6) months of its occurrence, the foregoing remedies will cease to be available.
11.2 General. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. The fees for the Services reflect this allocation of risk and limitation of liability. Customer agrees that these provisions apply even if the remedies are insufficient to cover all of the losses or damages of Customer or fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO CUSTOMER TO THE EXTENT PROHIBITED BY LAW.
12.1 By Envoy. If Customer has paid fees under this Agreement for the Services, Envoy will defend, indemnify, and hold harmless Customer, Customer’s corporate affiliates, and their respective directors, employees, and agents (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party alleging that Customer’s use of the Subscription Service or Work Product in accordance with this Agreement infringes any third party intellectual property rights (each an “Infringement Claim”). Envoy will indemnify Customer Indemnified Parties for any damages, reasonable attorneys’ fees, and costs resulting from an Infringement Claim and finally awarded against Customer or agreed to be paid by Customer in a written settlement approved by Envoy in writing. Notwithstanding the foregoing, Envoy will have no obligation under this Section 12.1 to the extent any alleged infringement arises from: (a) Customer’s use or Customer Users’ use of the Subscription Service or Work Product in combination with technology or services not provided by Envoy, if the infringement would not have occurred but for such combination; (b) Customer Content; (c) Envoy’s compliance with designs, specifications, or instructions provided by Customer if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use by Customer or Customer Users after notice by Envoy to discontinue use. If Customer is enjoined or otherwise prohibited from using any of the Subscription Service or Work Product or a portion thereof based on an Infringement Claim, then Envoy will, at Envoy’s sole expense and option, either: (i) obtain for Customer the right to use the allegedly infringing portions of the Subscription Service or Work Product; (ii) modify the allegedly infringing portion of the Subscription Service or Work Product so as to render it non-infringing without substantially diminishing or impairing its functionality; or (iii) replace the allegedly infringing portions of the Subscription Service or Work Product with non-infringing items of substantially similar functionality. If Envoy determines that the foregoing remedies are not commercially reasonable, then Envoy may terminate the applicable Order or SOW and issue a prorated refund of fees prepaid by Customer for the terminated portion of the Initial Term or then-current Renewal Term. This Section 12.1 sets forth Envoy’s sole liability and Customer’s sole and exclusive remedy for any actual or alleged infringement by Envoy of any third party intellectual property rights.
12.2 By Customer. Customer will defend, indemnify, and hold harmless Envoy, Envoy’s corporate affiliates, and their respective directors, employees, and agents (“Envoy Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of: (a) the Customer Content; or (b) Customer’s use or Customer Users’ use of the Subscription Service or Work Product, including, but not limited to, such use in violation of this Agreement or applicable law. Customer will indemnify Envoy Indemnified Parties for any damages, reasonable attorney’s fees, and costs resulting from a claim that Customer is obligated to defend and finally awarded against Envoy or agreed to be paid by Envoy in a written settlement approved by Customer in writing.
- Publicity. Unless Customer has specifically notified Envoy to the contrary in writing (email notice permitted), Envoy may disclose Customer as a customer of Envoy, and may use Customer’s name and logo on the Site and in Envoy’s promotional materials. Envoy will request Customer’s prior consent for any other uses; such consent to be deemed given if Customer fails to respond to a request within five (5) business days.
- Non-Competition and Non-Solicitation. During the Term and for a period of three (3) years thereafter, Customer will not: (a) offer or prepare to offer products or services similar to the Services or assist any third party in doing so, including by knowingly displaying or demonstrating the Services to actual or potential competitors of Envoy; or (b) induce or solicit any employee or contractor of Envoy to discontinue his or her employment or engagement with Envoy.
- Notices. Customer agrees to receive all communications, agreements, and notices from Envoy electronically, including by e-mail, in-app notifications through the Subscription Service, or by posting them on the Site. Customer further agrees such communications provided electronically will satisfy any legal requirement that such communications be in writing. Except where this Agreement permits notice to Envoy via email, all notices provided under this Agreement must be in writing and sent via internationally recognized delivery service or certified U.S. mail. Notices sent via email will be deemed given one (1) business day after being sent; notices sent via any other authorized delivery method will be deemed given five (5) business days after being sent. Notices to Envoy must be addressed as follows: Attn: Legal Affairs, 678 Front AVE NW STE 100, Grand Rapids, MI 49504, and for notices permitted to be sent via email, to firstname.lastname@example.org.
- Assignment. Customer may not assign this Agreement or any Orders or SOWs to a third party without the prior written consent of Envoy which may be withheld in Envoy’s sole discretion. This Agreement and any Orders or SOWs will bind and benefit the parties, their successors, and their permitted assigns.
- Entire Agreement. This Agreement, any appendices, and any Orders or SOWs represent the entire agreement between Envoy and Customer with respect to Customer’s use of the Services. In the event of a conflict between any of the terms in this Agreement and any Order or SOW, the terms set forth in the Order or SOW will govern and control. This Agreement and any Orders or SOWS expressly supersede: (a) any terms or conditions stated in a Customer prepared purchase order or similar document, whether submitted or executed before or after the subscription start date set forth in an applicable Order; and (b) any other contemporaneous or prior agreements or commitments regarding the Subscription Service or the other subject matter of this Agreement. For the avoidance of doubt, this Agreement will not supersede any non-disclosure agreement entered into by the parties governing information exchanged prior to Customer’s use of the Services or for purposes unrelated to this Agreement.
- General. Envoy shall not be liable for any delay or default under this Agreement if caused by conditions beyond its reasonable control (a “Force Majeure Event”), including, without limitation, acts of God, war, strikes or labor disputes, fire, flood, explosion, embargo, acts of government, act or threat of terrorism, shortage of materials or supplies, power outage, communications or computing infrastructure outage, malicious or unlawful acts of third parties, natural disaster, or any similar conditions. This Agreement and any Orders or SOWs are governed by the laws of the State of Michigan, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Grand Rapids, Michigan for any dispute arising out of this Agreement or any Orders or SOWs. Except pursuant to Section 5.1, the waiver of any breach of any provision of this Agreement or of any Order or SOW will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement or of any Order or SOW is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant Order or SOW is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any Order or SOW, the entire Agreement or the relevant Order or SOW will be deemed null and void.
- Modifications. Envoy reserves the right to modify this Agreement by posting a revised version of this Agreement on the Site at any time and notifying Customer by email or by posting a notice on the Site. Envoy will update the “Last Updated” date at the top of this Agreement upon any such modification. Customer should visit the Site from time to time to review the Agreement and to check for any modifications. Customer’s continued use of the Services after the effective date of a modification will constitute Customer’s acceptance of and agreement to the modified Agreement. If Customer does not agree to a modification, Customer may terminate this Agreement by ceasing use of the Services and providing written notice to Envoy. For the avoidance of doubt, Customer will not receive a refund of fees. Customer’s termination will be effective upon Envoy’s acknowledgement of such termination, and in no event later than thirty (30) days from Envoy’s receipt of Customer’s termination notice.
- General Data Protection Regulations. To the extent this Agreement or the Customer Content is subject to the General Data Protection Regulations of the European Union, this Agreement hereby incorporates by reference the document titled “Envoy and the GDPR,” available at https://www.envoyplatform.com/envoy-gdpr.html.
“Acceptable Use Policy” has the meaning given in Section 2.3.
“Account Information” means personal information about Customer Users provided to Envoy in connection with the creation or administration of Customer User accounts. For example, Account Information includes names, email addresses, addresses, phone numbers, and other profile information associated with a Customer User account. Account Information does not include aggregate or de-identified information compiled from Account Information that does not identify Customer, any Customer User, or any other individual.
“Confidential Information” has the meaning given in Section 8.1.
“Customer Content” means all data, information, file attachments, text, images, personally identifiable information, and other content that is uploaded, submitted, or entered into the Subscription Service by Customer Users. Customer Content does not include performance or usage metrics, statistical information, technical information or Feedback from Customer or Customer Users.
“Customer Indemnified Parties” has the meaning given in Section 12.1.
“Customer User” means any employee, business customer, sales representative or other authorized representative of Customer, or any other individual with the prior written consent of Envoy, for whom (1) Customer has paid the subscription fee specified in any Order, and (2) Envoy has created a user account, consisting of a username and password.
“Envoy Indemnified Parties” has the meaning given in Section 12.2.
“Infringement Claim” has the meaning given in Section 12.1.
“Initial Term” has the meaning given in Section 6.2.
“Mobile App” means the mobile application the can be download through the Apple App Store, which allows Customer Users to access the Subscription Service on their mobile device.
“Order” means (a) an electronic or tangible order form executed by Customer or (b) online order, setting forth commercial details of a subscription to the Subscription Service and the purchase of associated Professional Services (if any), and incorporating this Agreement by reference.
“Professional Services” means implementation, configuration, integration, training, advisory, content or photography services, and other professional services related to the Subscription Service that are specified in an SOW or Order.
“Renewal Term” has the meaning given in Section 6.2.
“Representatives” has the meaning given in Section 8.2.
“Site” means Envoy’s website at http://www.envoyplatform.com, its subdomains, related domains, and any other website where this Agreement is posted.
“SOW” means a statement of work or similar document that describes Professional Services, establishes the fees for the Professional Services, references this Agreement, and is executed by an authorized representative of each party.
“Subscription Service” means Envoy’s software system which is provided on a subscription (software-as-a-service) basis only, and is comprised of the following core modules: Security, User Administration, Presentations, Showroom, Assortments, Catalog Management, Ordering, Customer Management, File Distribution, Notifications, Product Management, and Stocktaking; (2) all other components or documentation provided by Envoy in connection therewith, including graphical and user-interface elements; and (3) all patches, updates, enhancements, or other modifications to any of the foregoing. Envoy may add, remove, or modify modules at any time in its sole discretion.
“Term” has the meaning given in Section 6.2.
“Training Resources” means Envoy’s online training portal and the content therein.
“Work Product” means all software, code, materials, ideas, deliverables, and items that are conceived, made, discovered, written, or created by Envoy’s personnel in connection with providing the Professional Services.
Service Level Expectations
Envoy will use commercially-reasonable efforts to make the Subscription Service continuously available at least 99% of the time in any calendar month, excluding unavailability due to (1) the acts or omissions of Customer, its affiliates, or their respective personnel, or Customer’s hardware or software; (2) failure of internet infrastructure, including internet connectivity; (3) disruptions arising from malicious or unlawful acts of third parties; (4) Envoy’s regular maintenance interval as defined below; and (5) any other Force Majeure Event (collectively, “Exceptional Circumstances”).
- Maintenance Intervals
Envoy may take the Subscription Service offline (i.e. make the Subscription Service unavailable) for maintenance as is reasonably required in order to maintain the proper functionality of the Subscription Service. Envoy shall provide Customer with at least 24-hours’ advance notice of any maintenance to be performed outside of the regular maintenance interval. The regular maintenance interval is Saturday, 9 to 10 AM U.S. Eastern Time, during which time Envoy may take the Subscription Service offline at its discretion and without notice.
- On-Call Support
“Problem” means any condition that interferes with the availability of the Subscription Service. During normal business hours (8 AM to 5 PM U.S. Eastern Time, Monday through Friday, holidays excepted), Envoy shall provide Customer with technical assistance by telephone and email for Problems. Contact: email@example.com, 1.844.462.7776. Except under Exceptional Circumstances, Problem resolution time will be prompt, and clear timeframes for resolution of Problems will be communicated to Customer.