This Elko Subscription Terms of Service (“Agreement”) is entered into by and between the Elko entity set forth below (“Elko”) and the entity or person placing an order for or accessing any Services (“Customer” or “you”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Elko pursuant to any Elko ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, “Elko” means Deckspire Inc. d/b/a Elko, a Delaware corporation with offices at 582 Market St, Suite 905, San Francisco, CA 94104, USA.
Modifications to this Agreement: From time to time, Elko may modify this Agreement, effective upon notice to Customer. Customer’s continued access to or use of the Services constitutes Customer’s acceptance of any such revisions. No other amendment, modification or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by both parties. Neither any course of conduct between Elko and Customer nor any trade practices shall act to modify this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Definitions
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Services” means Elko’s proprietary software-as-a-service solution(s), including the Elko Portal, Elko application programming interfaces (APIs), Elko Code, Elko Site Widget, and Elko Apps, as described in the applicable Order Form.
“People” (in the singular, "Person") means Customer's end user customers, potential customers, and other users of and visitors to the Customer Properties.
“Customer Properties” means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer provides Services to People.
“Customer Data” means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including closing estimate information and personally identifiable information) that are collected from the Customer Properties using the Services.
“Contractor” means an independent contractor or consultant who is not a competitor of Elko.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Elko.
“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by Elko that are integrated with Services.
“Documentation” means the technical product documentation provided with the Services.
“Permitted User” means an employee, Person, or Contractor of Customer or its Affiliate who is authorized to access the Service.
“Staff User” means an employee or Contractor of Customer or its Affiliate who is authorized to access administrative features within the Service.
“Feedback” means comments, questions, suggestions or other feedback relating to any Elko product or service.
“Portal” means Elko’s user interface for accessing and administering the Services that Customer may access via the web or the Elko Apps.
“Elko App” means any mobile application or desktop client software included in the applicable Service that is made available by Elko.
“Elko Code” means certain JavaScript code, software development kits (SDKs) or other code provided by Elko for deployment on Customer Properties.
“Closing Estimates” means a real estate closing estimate, title quote, seller net sheet, buyer net sheet, loan estimate, closing disclosure estimate, or any other form of closing estimate created by Customer, Permitted Users, Staff Users, or any People associated with Customer.
“Fee Schedules” means a schedule of title and settlement fees that are imported to the Services by Customer.
“Office” means the information about a physical or virtual office that is imported to the Services by Customer for organizational purposes.
2. Elko Services
2.1. Services Overview. Elko’s Services are a suite of software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to offer title quotes, settlement fees, net sheets, and other Closing Estimates to People through the entire lifecycle of their relationship with Customer and to provide a Portal for accessing and managing Customer Data regarding those People. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include Elko Code deployed on Customer Properties to enable Closing Estimate calculation, communication, lead capture, messaging, and other functionality.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Elko may also offer Professional Services (as defined in Section 12) related to certain Services. Customer will purchase and Elko will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of Closing Estimates generated, Staff Users added, Permitted Users added, Fee Schedules added, Offices added). If Customer exceeds a contractual usage limit, Elko may work with Customer to seek to reduce Customer's usage so that it conforms to that limit. If, notwithstanding Elko's efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon Elko’s request, and/or pay any invoice for excess usage in accordance with Section 7. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Elko's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy Elko Code on Customer Properties in order to enable closing estimate calculation and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. Deployment of Elko Code. Subject to all of the terms and conditions of this Agreement, Elko grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the Elko Code in the form provided by Elko on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement Elko Code on the Customer Properties in order to enable features of the Services. Customer will implement all Elko Code in strict accordance with the Documentation and other instructions provided by Elko. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Elko Code may cause the Services to cease working or function improperly and that Elko will have no responsibility for the impact of any such Customer changes.
2.5. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Elko); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by Elko” designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.7. Elko APIs. If Elko makes access to any APIs available as part of the Services, Elko reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Elko may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Elko believes that Customer's usage is in breach of this Agreement, any applicable Order Forms, or may negatively affect the Services (or otherwise impose liability on Elko).
3. Customer Data
3.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Elko. Subject to the terms of this Agreement, Customer hereby grants to Elko a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data. Elko does not provide an archiving service. Elko agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. Elko expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations.
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Elko that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Elko the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
c) Disclosures on Customer Properties. Customer acknowledges that the Elko Code causes a unique cookie ID to be associated with each Person who accesses the Customer Properties, which cookie ID enables Elko to provide the Services. Customer will include on each Customer Property a link to its privacy policy that discloses Customer's use of third party tracking technology to collect data about People as described in this Agreement. Customer's privacy policy must disclose how, and for what purposes, the data collected through Elko Code will be used or shared with Elko as part of the Services. Customer must also provide People with clear and comprehensive information about the storing and accessing of cookies or other information on the Peoples' devices where such activity occurs in connection with the Services and as required by applicable Laws. For clarity, as between Customer and Elko, Customer will be solely responsible for obtaining the necessary clearances, consents and approvals from People under all applicable Laws.
3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Elko from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Elko at Customer's expense. Notwithstanding the foregoing sentence, (a) Elko may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Elko's prior written consent, unless the settlement fully and unconditionally releases Elko and does not require Elko to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Elko may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and Elko may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Elko customers. For clarity, this Section 3.5 does not give Elko the right to identify Customer as the source of any Aggregated Anonymous Data.
4. Security
Elko agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, Elko will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Elko’s control.
5. Third-Party Platforms
The Services may support integrations with certain Third-Party Platforms including, but not limited to, settlement software systems and digital content management systems. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Elko to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Elko has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Elko does not guarantee that the Services will maintain integrations with any Third-Party Platform and Elko may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6. Ownership
6.1. Elko Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Elko or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Elko Technology"). Except as expressly set forth in this Agreement, no rights in any Elko Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for Elko Code and the Elko Apps in the format provided by Elko.
6.2. Feedback. Customer, from time to time, may submit Feedback to Elko. Elko may freely use or exploit Feedback in connection with any of its products or services.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Warranty Disclaimer) and Section 14 (Indemnification), all fees are non-refundable. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Elko receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
7.3.1. Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Elko (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month), if on a monthly term, or on the same date each calendar year, if on an annual term, during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
7.3.2. Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
7.3.3. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Elko and Elko may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
7.3.4. Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the “Billing” page on the Portal.
7.3.5. Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Elko notice of non-renewal to in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by Elko), by terminating via the “Billing” page on the Portal, with termination effective at the end of the current Subscription Term.
7.3.6. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Elko will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which Elko will not charge Customer's Credit Card for any additional fees.
7.3.7. Credit Card Processing Fee. Elko reserves the right to charge Customer a processing fee of up to 3% of the payment amount for payments made using Credit Card.
7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Elko reserves the right to suspend Customer's access to the applicable Service (and any related services) and delete all Customer Data without liability to Customer until such amounts are paid in full. Elko also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of this Agreement.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Elko Technology) and delete (or, at Elko's request, return) any and all copies of the Documentation, any Elko passwords, access codes, API keys and any other Elko Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Elko may delete any such data as may have been stored by Elko at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.6 (General Restrictions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9 (Warranty Disclaimer), 13 (Limitation of Liability), 14 (Indemnification), 15 (Confidential Information) and 17 (General Terms).
9. Warranty Disclaimer
Elko shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Elko or by third-party providers, or because of other causes beyond Elko’s reasonable control, but Elko shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ALL SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS". NEITHER ELKO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ELKO DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ELKO WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. ELKO SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. ELKO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ELKO. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability of Services
Customer understands that, in certain cases, the availability and reliability of Elko’s services is dependent on the quality of integration between Customer’s and Elko’s computer and software systems. Customer shall make all commercially reasonable efforts to provide Elko with API documentation and technical support to help Elko provide Services to Customer.
11. Support
During the Subscription Term of each Service, Elko will (a) provide Customer with reasonable technical support services in accordance with Elko’s standard practice for no additional charge, and/or upgraded support if purchased, (b) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Elko shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Elko’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Elko’s employees), Internet service provider failure or delay, or denial of service attack.
12. Professional Services
Elko will provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer will pay Elko at the per-hour rates set forth in the Order Form (or, if not specified, at Elko's then-standard rates) for any excess services. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Service set forth in Section 2 (Elko Services) and the applicable SOW, but Elko will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Elko (or its agents).
13. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ELKO AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ELKO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ELKO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ELKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Indemnification
Elko will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Elko (including reasonable attorneys' fees) resulting from such claim, provided that Elko will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Elko to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer.
If Customer's use of a Service is (or in Elko's opinion is likely to be) enjoined, if required by settlement or if Elko determines such actions are reasonably necessary to avoid material liability, Elko may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Elko. The foregoing indemnification obligation of Elko will not apply: (1) if such Service is modified by any party other than Elko, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Elko, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Elko's prior written consent. THIS SECTION 14 SETS FORTH ELKO’S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
15. Confidential Information
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Elko Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Elko without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Elko, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 15. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
16. Co-Marketing
At the request of Elko, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date or the 30th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on Elko’s web site and in Elko promotional materials. Customer agrees that Elko may disclose Customer as a customer of Elko.
17. General Terms
17.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17.1 will be null and void.
17.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.3. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws provisions. In the event of any controversy or claim arising out of or in connection with this Agreement, or a breach thereof, the Parties agree to use the following procedure. Except as otherwise set forth in an applicable Order Form, the Parties shall first attempt to settle the dispute by good faith discussion. The Parties consent and submit to the exclusive jurisdiction and venue over any claim that may arise out of or in connection with this Agreement in the courts located in San Francisco County, California, provided that either Party may, without limiting any of its rights or remedies (whether under this Agreement, at law, in equity or otherwise), seek injunctive relief and other equitable remedies at any time in any court of competent jurisdiction for any actual or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations. Each Party acknowledges that its breach of any of the provisions related to its confidentiality obligations or the other Party’s intellectual property rights may cause irreparable injury to the other Party for which monetary damages are not an adequate remedy.
17.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if transmitted by facsimile or e-mail, when receipt is electronically confirmed; or (iv) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
17.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
17.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Elko may make changes to the Services, and Elko will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Elko's obligations as compared to those reflected in such terms as of the Effective Date).
17.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
17.8. Subcontractors. Elko may use the services of subcontractors and permit them to exercise the rights granted to Elko in order to provide the Services under this Agreement, provided that Elko remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
17.9. Subpoenas. Nothing in this Agreement prevents Elko from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Elko will use commercially reasonable efforts to notify Customer where permitted to do so.
17.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent
17.11. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Customer may not remove or export from the United States or allow the export or re-export of the Services, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
17.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.