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Associate Terms

These Associate Terms (“Associate Terms”) are effective from the date of the Order and are entered into between the Eptura entity identified in the Order (“Eptura”) and the associate identified in the Order (“Associate”) (each a “Party,” collectively the “Parties”).

1. BACKGROUND

1.1 Eptura is engaged in the development and distribution of certain proprietary products including Eptura’s software-as-a-service subscription services (“Software Services”), Eptura’s installed software products (“On-Premises Software”), and Eptura’s hardware products (“Hardware Products”) (collectively, the “Eptura Products”).

1.2 Associate intends to sell Eptura Products directly to the Customer (“Resell”).

1.3 Eptura and Associate, in exchange for the mutual promises and conditions contained herein, agree to be bound by these Associate Terms. Each party’s Agreement to be bound by these Associate Terms is evidenced by the making of the Order.

2. DEFINITIONS

2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party, where “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

2.2 “Change of Control” means the: (a) consolidation or merger with or into any entity; (b) sale, transfer, or other disposition of all or substantially all of the assets of a Party; or (c) acquisition by any entity, or group of entities acting in concert, of beneficial ownership of more than 50% (or such lesser percentage that constitutes Control) of the outstanding voting securities or other ownership interests of a Party.

2.3 “Customer” means an end-user customer or prospective end-user customer of Eptura Products for its own internal use.

2.4 “Customer Data” means all content and information uploaded, posted, submitted, published, or transmitted by Customer in connection with use Eptura Products but, for the avoidance of doubt, excludes Sensitive Data.

2.5 “Discount” means 10% on the then current list price of Eptura Products and hourly rates of Professional Services

2.6 “Documentation” means the sales and marketing literature, user manuals, training documents, or instructions, technical specifications, and any other paper or electronic media for use with or describing Eptura Products as may be updated from time to time by Eptura and made generally available to customers.

2.7 “End User Terms” means terms and conditions located at eptura.com/terms which shall govern Customer’s use of the Software Products, and as updated from time to time.

2.8 “Opportunity” means a lead that has expressed an interest in Eptura Products and “Opportunities” shall be construed accordingly.

2.9 “Order” means a written ordering document, issued by Eptura and signed on behalf of Associate, that specifies the Eptura Products that Eptura will provide to Associate for the benefit of ther Customer and which shall be governed by and incorporated into these Associate Terms.

2.10 “Partner Portal” means Eptura’s website portal, located at https://eptura.allbound.com (or as updated by Eptura from time to time), which describes policies, programs, procedures, and requirements applicable to Associate, and provides instructions, resources, and other benefits available to Associate.

2.11 “Professional Services” means the implementation and/or training services as specified in an Order or a statement of work. Professional Services do not include maintenance services.

2.12 “Associate Solution” means Eptura Products plus any Associate provided services, software, or hardware that are not Eptura Products.

2.13 “Sensitive Data” means: (a) an individual’s government-issued identification number (including Social Security number, driver’s license number, or state-issued identification number); (b) sexual preference, marital status, national, racial or ethnic origin; (c) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password that would permit access to an individual’s financial account; (d) religious or philosophical beliefs or affiliations, political party membership, or labor or trade union; or (e) biometric, genetic, health, medical, or medical insurance data.

2.14 “Term” means, collectively, the Initial Term and all Renewal Terms.

3. APPOINTMENT

3.1 Appointment. Subject to the terms and conditions of these Associate Terms, Eptura hereby grants to Associate, for the Term, a nontransferable, non-exclusive, limited right to Resell Eptura Products.

3.2 Restrictions. All rights not explicitly granted under these Associate Terms are reserved for Eptura. Except as provided pursuant to these Associate Terms or with the prior written consent of Eptura, and without prejudice to the generality thereof, Associate shall not (and will not authorize or in any way assist others to):

(a) sub-license to others, whether sub-distributors, value-added-partners, original-equipment-manufacturers or others, any of the rights granted herein, without the prior written consent of Eptura (which consent Eptura may withhold or condition at its sole discretion);

(b) re-brand, bundle, re-label, or otherwise supply Eptura Products to a third party other than the Customer pursuant to these Associate Terms;

(c) reproduce, copy, modify, or otherwise change any of Eptura Products or Documentation except as specified herein or the Documentation;

(d) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, user interface techniques or algorithms, file formats or programming or interoperability interfaces of any portion of Eptura Products or of any files contained in or generated using Eptura Products by any means whatsoever;

(e) knowingly take any action that would cause any Eptura Products or its licensors’ and/or suppliers’ products to be placed in the public domain;

(f) remove, cover, or alter any trademark, trade name, copyright, patents or other proprietary notices, labels, or marks appearing on or in copies of any Eptura Products or Documentation;

(g) post, transmit or otherwise make available through or in connection with Eptura Products any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; or

(h) circumvent or disable any security or features of Eptura Products, or attempt to probe, scan, gain access to, or test the vulnerability of Eptura’s network and/or Eptura Products or any systems, networks, servers, computers, devices, or equipment owned, controlled, or used by Eptura.

3.3 Associate Obligations. During the Term, Associate will comply strictly with the following requirements:

(a) Conduct. Associate will not make false or misleading representations with regard to Eptura or Eptura Products and will not: (a) employ or cooperate in the publication or employment of any misleading or deceptive advertising with regard to Eptura Products; (b) make representations, warranties, or guarantees to the Customer or to the specifications, features or capabilities of Eptura Products other than those which are consistent with the Documentation; (c) publish any technical description of Eptura Products beyond the Documentation published by Eptura; or (d) engage in any practice in conflict with its obligations of these Associate Terms.

(b) Compliance with Laws. Associate shall comply with all applicable laws and regulations relating to Eptura Products, including as to sanctions and export laws.

(c) Customer Complaints and Claims. Associate shall promptly report to Eptura any Customer complaint or claim related to Eptura Products, and Eptura shall have the right to directly respond to any such complaint or claim.

(d) Account Activities. Associate shall use all reasonable security precautions when providing access to Eptura Products to its employees, the Customer, and individuals to whom Associate provides access and will immediately notify Eptura of any known or suspected unauthorized use.

(e) Sensitive Data. Associate shall immediately facilitate the removal, deletion, or modification of any Sensitive Data that is stored or hosted in Eptura Products. Eptura reserves the right to suspend and/or terminate Associate or Customer access until Sensitive Data is removed.

4. ON-PREMISES SOFTWARE

When reselling On-Premises Software, Associate agrees to the additional terms at https://eptura.allbound.com.

5. PROFESSIONAL SERVICES.

5.1 Professional Services. If Associate contracts with Eptura to have Eptura perform Professional Services, the Parties will enter a statement of work (“SOW”) governing the provision of such Professional Services. Eptura shall perform such Professional Services: (a) in a professional and workmanlike manner; and (b) in accordance with the terms and conditions set forth in the SOW. The terms of the SOW shall control, however, in the event of any other conflict between the terms of any SOW and the terms of these Associate Terms, these Associate Terms shall control. Eptura shall retain all ownership rights to all work product and deliverables excluding any pre-existing technology or materials supplied by Associate and/or its Customer for incorporation into such work product. Eptura grants Associate, and/or Customer, a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any deliverables or work product, to the extent necessary to permit Associate, and/or Customer, to use the same in connection with Eptura Products.

6. END USER TERMS

Associate is responsible for ensuring Customer has agreed to be bound by the End User Terms applicable to the Software Services and Hardware Products being purchased. Associate has no authority to alter, remove, or negotiate the End User Terms. Any additional or different terms in Associate’s order with Customer will not be binding upon Eptura and Associate will be solely liable for any claims arising from such terms.

7. FEES AND PAYMENTS

7.1 Fees. The fees to be paid by Associate (“Fees”) shall be set forth in the applicable Order. All such Fees shall incorporate the Discount.

7.2 Renewals. The Fees for each Renewal Term shall be increased by 10% from the Initial Term/prior Renewal Term (as relevant).

7.3 Expenses. Unless otherwise agreed in writing, all out-of-pocket expenses incurred by either Party in connection with the performance of their respective duties under these Associate Terms will be borne by the Party incurring such costs.

7.4 Payment and Taxes. All Fees shall be due and payable within thirty (30) days from the date of invoice during the Term of these Associate Terms. Payments not received when due shall bear interest at the lesser of 1.5% per month or the highest rate permitted by law for the actual number of days elapsed. Unless otherwise agreed in in writing by Eptura, all Fees shall be paid in U.S. dollars. As between Eptura and Associate, Associate shall be responsible for any sales, use, excise, or comparable taxes assessed or imposed upon the licenses, services and Eptura Products provided to Customer in connection with these Associate Terms, excluding any income taxes levied on Eptura. If Eptura has a legal obligation to pay or collect taxes for which Associate or Customer is responsible, Eptura will add such tax as a separate line item on the invoice for payment, unless Associate provides Eptura with a valid tax exemption certificate. Associate acknowledges and agrees that its obligation to pay Fees is not dependent on collection of any amounts from the Customer.

7.5 Disputed Amounts. If Associate reasonably and in good faith disputes all or any portion of any invoice, Associate shall notify Eptura in writing of its objection within thirty (30) days from the date of the relevant invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute (if any) subject to the terms of this Section. Failure to provide an objection within the time frame shall be deemed acceptance of the invoice. Associate’s obligations to pay the disputed amounts shall be suspended until such time as the Parties resolve such dispute.

8. CONFIDENTIALITY AND DATA PROTECTION

8.1 Obligations of Confidentiality. During the Term, each Party may have access to confidential or proprietary information disclosed by the other Party, including, without limitation, ideas, trade secrets, patent applications, plans, projections, protocols, source code, algorithms, procedures, methods, systems, products, customer information, and financial information, and all other non-public information that a reasonable person should understand to be confidential due to its nature and the circumstances in which it was disclosed and that is disclosed by or on behalf of either, whether disclosed orally or in writing or by any other media (“Confidential Information”). Each Party (the “Receiving Party”) acknowledges that the Confidential Information of the other Party (the “Disclosing Party”) contains valuable trade secrets and other proprietary information of the Disclosing Party and that any such Confidential Information will remain the sole and exclusive property of the Disclosing Party. Confidential Information excludes information that: (a) was in the public domain prior to the time of disclosure; (b) enters the public domain after disclosure through no action or inaction of the Receiving Party; (c) is already known by the Receiving Party at the time of disclosure; (d) is obtained by the Receiving Party from a third party without restriction; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Except as otherwise expressly set out in these Associate Terms, the Receiving Party will not disclose (including, without limitation, distribute, transmit or transfer) or use the Confidential Information of the Disclosing Party or any portion thereof without the prior written consent of Disclosing Party except for the purpose of exercising its rights or performing its obligations under these Associate Terms. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, Affiliates, consultants, and agents who are bound by obligations of confidentiality no less protective than those set out in these Associate Terms and Receiving Party will be responsible for any unauthorized disclosure of any Confidential Information by such persons as if Receiving Party had made such unauthorized disclosure itself. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by law so long as the Receiving Party gives the Disclosing Party (to the extent legally permissible) prompt written notice prior to the disclosure and reasonable assistance in limiting disclosure or obtaining a protective order. Eptura may disclose these Associate Terms to actual and potential investors and funding sources who agree to hold it in confidence. The Receiving Party agrees to take steps designed to protect the Disclosing Party’s Confidential Information that are substantially similar to those it takes to protect its own proprietary information (but not less than reasonable care) from unauthorized disclosure. Receiving Party will promptly notify the Disclosing Party if the Receiving Party becomes aware of any misuse or unauthorized disclosure of Confidential Information.

8.2 Remedies. Each Party acknowledges that the provisions of these Associate Terms regarding confidentiality are reasonable and necessary to protect the other Party’s legitimate business interests. Each Party acknowledges that any breach of such provisions shall result in irreparable injury to the other for which money damages could not adequately compensate. If there is a breach of such provisions, then the injured Party shall be entitled, in addition to all other rights and remedies which it may have at law or in equity, to seek a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all persons involved from continuing the breach. The existence of any claim or cause of action that a Party (or any other person involved in the breach) may have against the other Party shall not constitute a defense or bar to the enforcement of such provisions.

8.3 Data Privacy. Each Party shall comply with applicable laws with respect to data privacy and data protection. Associate or Customer (as applicable) shall be responsible for procuring any necessary consents under applicable law with respect to the provision of Customer Data to Eptura and the processing of such Customer Data by Eptura via the Associate Solution or the Software Services / On-Premises Software. Either Party shall notify the other Party within twenty-four (24) hours in relation to the receipt of any complaint, notice, or communication received from any regulatory authority or individual which relates directly or indirectly to the processing of Customer Data or to either Party’s compliance with applicable data protection laws.

8.4 Data Security. Associate shall implement and maintain appropriate and industry standard physical, administrative, and technical security policies and procedures to protect the security and confidentiality of Eptura Products and the processing of Customer Data. Associate shall notify Eptura within forty-eight (48) hours of the discovery of any unauthorized access to or acquisition of Confidential Information, and/or personal information of the Customer, including the nature of the security incident, the categories, locations, and approximate number of individuals concerned and the approximate number of records of personal information concerned, and the measures which Associate proposes to take to address the security incident, including where appropriate, measures to mitigate possible adverse effects. When Eptura is acting as a processor in respect of personal data as part of its provision of Eptura Products to the Customer it shall adhere to the Data Processing Terms.

9. TERM

Unless earlier terminated as contemplated herein, these Associate Terms will apply to the Order for the term set out in the Order (“Initial Term”) plus any renewal term these Associate Terms (“Renewal Term”).

10. TERMINATION AND EFFECT OF TERMINATION

10.1 Termination. Either Party may terminate these Associate Terms for convenience at any time upon thirty (30) days’ prior written notice.

10.2 Suspension. Eptura may suspend the provision of Eptura Products to Associate and/or Customer: (a) effective immediately upon notice if Associate or Customer breaches any provision of Section 3.2; or (b) if Associate fails to pay any portion of the Fees within fifteen (15) days after receiving written notice from Eptura that payment is past due. Where any Customer enquires with Eptura as to the reason behind suspension of services, if such suspension is a result of the application of this Section 10.2, Eptura may disclose that information to Customer without consent of Associate.

10.3 Default. If either party materially defaults in any of its material obligations under these Associate Terms and such default has not been cured within thirty (30) days after written notice of such default, the non-defaulting Party may immediately terminate these Associate Terms in addition to its other rights and remedies. Should these Associate Terms be terminated for non-payment of Fees, Eptura shall have the right to directly invoice and collect from each Customer and direct that payments be made to Eptura.

10.4 Change of Control. Eptura may immediately terminate these Associate Terms if there is a Change of Control of Associate.

10.5 Other For Cause Termination. Eptura may terminate these Associate Terms or any Order, without notice, for cause. For purposes of these Associate Terms “for cause” shall include, but not be limited to, with respect to Associate’s actions, (a) negligence, (b) fraud, (c) willful damage or injury to Eptura’s business, trademarks, goodwill, or assets, or (d) commission of a crime, (e) insolvency of Associate or execution of an assignment for benefit of its creditors.

10.6 Effect of Termination.

(a) Expiration or termination of these Associate Terms shall not relieve the Parties of any rights or obligations accruing prior to such expiration or termination. Any Order that is in effect at the time of termination of these Associate Terms shall remain in effect and continue to be governed by the terms and conditions of these Associate Terms until the Order itself expires or is terminated provided that in no event may such Orders be extended or renewed without the prior written consent of Eptura. To the extent a Customer desires to purchase Eptura Products (including renewals and increasing usage) following termination of the Agreement, Associate will refer the Customer to Eptura. Eptura will have no liability to Associate of any type arising from termination of these Associate Terms in accordance with its terms.

(b) Upon expiration or termination of these Associate Terms for any reason each Party shall immediately: (a) pay the other Party all amounts due and payable prior to the date of such termination, (b) return to the other Party or destroy all Confidential Information (as defined in Section 8) of the other Party in its possession or control, including all copies thereof, and (c) cease all use of the Trademarks of the other Party, and Associate shall cease all marketing, promotion, and sale of Eptura Products and return or destroy all marketing and promotional materials relating to Eptura Products.

(c) Upon termination of these Associate Terms for any reason, those Sections that should reasonably and customarily survive such termination shall survive, including without limitation Sections 3.2 (Restrictions), 3.3 (Associate Obligations), 7.4 (Payment and Taxes), 8 (Confidentiality and Data Protection), 10.6 (Effect of Termination), 11 (Audit), 13 (Indemnification), 14 (Limitation of Liability), 16 (Ownership), and 17 (General).

(d) Following termination of these Associate Terms each of the Parties agrees that it shall make no statement to any party which defames or disparages the other or is derogatory in any manner. Notwithstanding this, Eptura shall be entitled, following termination of these Associate Terms, to contact any Customer with an active Order to inform them of the termination of the Agreement and how they may continue to use Eptura Products following the end of their then current term (including that Customer may enter into an agreement directly with Eptura).

10.7 Termination of an Order. Orders may not be terminated for convenience by either Party. Associate must notify Eptura in writing of expiration or termination of the license or subscription to Eptura Products. Upon Eptura’s receipt of an expiration or termination notice, Eptura may deactivate the applicable Customer account(s) and delete any data therein after thirty (30) days. Associate is responsible for informing Customer to remove Customer Data prior to the expiration or termination of a license or subscription to Eptura Products.

11. AUDIT

Associate shall, for a period of five (5) years from the date such records were created, maintain accurate and complete records to include a complete list of the Customer’s, addresses, electronic mail addresses, and primary contacts, and the compliance with all obligations under these Associate Terms. Upon reasonable prior written notice and no more frequently than once per calendar year unless prior breach has been uncovered, Eptura may conduct or appoint an independent third party to conduct an audit to determine the compliance with the license grant and all other obligations hereunder. The costs of such audit shall be borne by Eptura unless the audit reveals a breach by Associate in which case the costs shall be borne by Associate.

12. REPRESENTATIONS AND WARRANTIES.

12.1 Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full corporate right, power, and authority to enter and perform its obligations and grant the licenses it grants or is required to grant under these Associate Terms, and (b) these Associate Terms when executed will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

12.2 Associate Warranties. Associate represents and warrants that:

(a) it will use, and permit Customer to use, Eptura Products, only in compliance with applicable laws and regulations and pursuant to the terms of the applicable End User Terms;

(b) it will comply with all contractual obligations to the Customer and all applicable laws and regulations with respect to its use of or access to any data with respect to, or received from, the Customer;

(c) it will notify Eptura in writing of any claim or proceeding involving Eptura Products or any portion thereof promptly after Associate learns of such claim or proceeding;

(d) it will display, demonstrate, and represent Eptura Products fairly and will not make any representations concerning Eptura or Eptura Products which are false, misleading, defamatory, disparaging, or inconsistent with those representations set forth in the Documentation;

(e) it will not provide (or permit the Customer to provide) any Sensitive Data to Eptura via Eptura Products or otherwise.

12.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE ASSOCIATE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) EPTURA PRODUCTS, AND ANY RELATED SERVICES, PRODUCTS, OR INFRASTRUCTURE PROVIDED BY EPTURA, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, (B) EPTURA DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND (C) EPTURA DOES NOT WARRANT THAT EPTURA PRODUCTS, AND ANY RELATED SERVICES AND PRODUCTS INFRASTRUCTURE PROVIDED BY EPTURA, WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, AND VIRUS-FREE OR WILL WORK ON ALL DEVICES. ASSOCIATE AGREES AND ACKNOWLEDGES THAT EPTURA SHALL IN NO EVENT BE HELD RESPONSIBLE FOR ANY PROBLEMS WITH EPTURA PRODUCTS, OR ANY RELATED SERVICES, PRODUCTS, OR INFRASTRUCTURE PROVIDED BY EPTURA, TO THE EXTENT ATTRIBUTABLE TO THE PUBLIC INTERNET OR PSTN/VOIP INFRASTRUCTURE OR A CUSTOMER’S ABILITY OR INABILITY TO CONNECT TO THE INTERNET OR PSTN/VOIP.

13. INDEMNIFICATION

13.1 By Eptura. Eptura shall defend, indemnify, and hold harmless Associate and its Affiliates, and their respective officers, directors, employees and agents from and against any and all claims, suits or proceedings brought by a third party and any damage, cost, liability, and expenses (including court costs and reasonable attorneys’ fees), resulting from such third party claim, suit, or proceeding and incurred as a direct result of (a) any claim that Eptura Products infringe any patent or copyright, or misappropriates any trade secret, of a third party, or (b) the gross negligence or willful misconduct of Eptura or its employees or agents in the performance of these Associate Terms (except to the extent arising out of the acts or omissions of Associate). Eptura’s obligation of indemnification under (a) does not apply with respect to Eptura Products or portions or components thereof: (a) that are not supplied by Eptura; (b) that are combined with other products, processes, or materials where the infringement or misappropriation relates to such combination; (c) to the extent Associate or the Customer continues the allegedly infringing activity after being provided modifications that would have avoided the alleged infringement; or (d) where Associate’s or the Customer’s allegedly infringing use of Eptura Products is not strictly in accordance with these Associate Terms. In the event Eptura believes that Eptura Products are, or are likely to be, the subject of an infringement claim, Eptura may, at its option, (x) procure for Associate rights to continue using Eptura Products under these Associate Terms, (y) replace or modify Eptura Products so that such products become non-infringing but substantially equivalent in functionality and performance, or (z) if neither (x) or (y) are reasonably feasible in spite of Eptura’s reasonable efforts, terminate these Associate Terms and refund to Associate the unused or unearned amount, if any, of prepaid Fees for the Eptura Products. The foregoing obligations are the only obligations and liability of Eptura and the exclusive remedies of Associate in connection with infringement by Eptura Products, or any related services.

13.2 By Associate. Associate shall defend, indemnify, and hold harmless Eptura and its Affiliates, and their respective officers, directors, employees, licensors, suppliers and agents from and against any and all claims, suits or proceedings brought by a third party and any damage, cost, liability, and expenses (including court costs and reasonable attorneys’ fees), resulting from such third party claim, suit or proceeding and incurred as a direct result of: (a) the gross negligence, willful misconduct, or fraud of Associate or its employees or agents in the performance of these Associate Terms; (b) Associate’s failure comply with Section 6; (c) Associate’s failure to comply with applicable laws; and (d) any false representations or warranties made by Associate to any Customer relating to Eptura or Eptura Products.

13.3 Indemnification Procedures. Each Party’s obligations under this Section 13 are conditioned upon the indemnified Party providing the indemnifying Party with: (a) the prompt written notice of any claim for which indemnification is sought; (b) complete control of the defense and settlement of such claim; and (c) reasonable assistance and cooperation in such defense at the indemnifying Party’s expense. Notwithstanding the foregoing, the indemnifying Party may not enter a settlement of a claim that involves a remedy other than the payment of money by the indemnified Party without the indemnified Party’s written consent. The indemnified Party shall have the right to participate in the defense and settlement of any claim subject to indemnification hereunder, with counsel of its own selection, at its sole cost and expense.

14. LIMITATION OF LIABILITY

EXCEPT IN THE CASE OF A VIOLATION BY ASSOCIATE OF SECTION 3.2 (RESTRICTIONS), EACH PARTY’S OBLIGATIONS ARISING UNDER SECTION 13 (INDEMNIFICATION) OF THESE ASSOCIATE TERMS, AND EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY (OR, WITH RESPECT TO EPTURA, ITS LICENSORS OR SUPPLIERS) WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT, ARISING OUT OF OR IN CONNECTION WITH THESE ASSOCIATE TERMS (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EPTURA’S (AND ITS LICENSORS’ AND SUPPLIERS’) TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE ASSOCIATE TERMS AND THE EPTURA PRODUCTS RENDERED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ANY AMOUNTS PAID BY ASSOCIATE TO EPTURA DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

15. USE OF TRADEMARKS

Each Party hereby grants to the other Party a limited, nonexclusive right to use the other Party’s trade names, trademarks, service marks, titles, and logos (“Trademarks”) in the marketing, promotion, and distribution of Eptura Products and in connection with any marketing and promotion of the Parties’ relationship under these Associate Terms, provided that all such use of Eptura’s Trademarks is consistent with the marketing guidelines provided by Eptura from time to time. Any use of another Party’s Trademarks by one Party shall inure to the benefit of the other Party. Each Party agrees that the other Party’s Trademarks, and any goodwill appurtenant thereto, shall be owned exclusively by the other Party and shall inure solely to the benefit of the other Party. Upon the expiration or earlier termination of these Associate Terms, the rights granted herein regarding the Trademarks will immediately terminate and each Party will immediately cease and desist all use of the Trademarks. Associate may not: (a) alter or remove any of Eptura’s Trademarks on or from Eptura Products; or (b) use any part of Eptura’s name, trade name, brand or trademark as part of Associate’s own name or trade name or individual trademark.

16. OWNERSHIP

16.1 Customer Data. All Customer Data provided to Eptura by Associate or Customer that is submitted to or through Eptura Products is and shall remain the exclusive property of Associate or Customer, as the case may be. Associate (or Customer via acceptance of the End User Terms) grants Eptura a non-exclusive, worldwide, transferable, royalty-free and fully paid license to use the Customer Data solely as necessary to provide the Software Services.

16.2 Eptura Products. Eptura Products (including, but not limited to, any Documentation, API (application programming interface), reference material, and sample/test programs supplied by Eptura), and any updates or improvements thereto, are and shall remain exclusive property of Eptura, its licensors and suppliers (as the case may be), whether or not incorporated into or with other products or an Associate Solution. Eptura and its licensors and suppliers shall retain ownership of their respective copyrights, patents, trademarks, trade secrets, and other intellectual property rights relating to or residing in Eptura Products, and any updates or improvements thereto. Except for the rights expressly granted herein, nothing in these Associate Terms will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Eptura’s or its licensors’ or suppliers’, existing or future rights in or to Eptura Products, and any updates or improvements thereto.

17. GENERAL

17.1 Customer Contact. Eptura has the right to contact and survey the Customer to notify them of new features and to collect information about Customer’s use of Eptura Products.

17.2 Assignment. Neither Party may transfer or assign any of its rights or delegate any of its obligations under these Associate Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of the other Party. However, either Party may transfer or assign its obligations under these Associate Terms in their entirety without the consent of the other Party to an Affiliate or in connection with a merger, acquisition, and corporate reorganization, sale of all or substantially all of its assets or a similar transaction. Where there is a legal requirement for consent of each Party in order to allow any such assignment or transfer, the Parties agree to provide such consent (including, where required, entering into an assignment or transfer agreement). Any attempted assignment or transfer in violation of this Section will be null and void. These Associate Terms will be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.

(a) Force Majeure. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under these Associate Terms (other than the payment of amounts owed) if such delay or failure arises by any reason beyond its reasonable control, including: (a) any act of God, or any acts of war, terrorism, the elements, earthquakes, floods, fires, epidemics, pandemics, riots, or failures or delays in transportation or communications; and/or (b) Governmental restrictions, failure of public utilities or common carriers, failure of third-party providers or sabotage. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of these Associate Terms. Either Party may terminate these Associate Terms if any event of force majeure results in the inability of the other Party to perform these Associate Terms for a period exceeding thirty (30) days.

17.3 Governing Law/Venue. All matters arising out of or relating to an Order or these Associate Terms will be interpreted, construed and enforced in all respects in accordance with the domestic laws of Eptura, save that where Eptura is in the United States, the laws State of New York shall apply, in all cases without reference to the United Nations Convention on Contracts for the International Sale of Goods.

17.4 Dispute Resolution. The Parties agree to use good faith efforts to settle any dispute or controversy (“Dispute”) arising out of, relating to, or in connection with these Associate Terms, or the interpretation, validity, construction, performance, breach, or termination thereof, prior to escalating to higher levels of management or resorting to litigation. Except as to Section 10.2, the Parties agree to continue performing their respective obligations under these Associate Terms to the extent practicable while the Dispute is being resolved unless and until such obligations are terminated or expire in accordance with the provisions hereof.

17.5 Insurance. During the Term, each of the Parties shall obtain and maintain commercial general liability insurance with coverage for bodily injury and death and property damage including products liability, cyber liability, and contractual liability coverage with a limit in an amount reasonable for the scope of such Party’s business. At the Party’s request, the other Party shall promptly provide a certificate evidencing their insurance.

17.6 English Language. These Associate Terms are written in the English language, which shall be controlling for all purposes. No translation of these Associate Terms into any other language shall be of any force or effect in the interpretation of these Associate Terms or in a determination of the intent of the Parties hereto.

17.7 Attorneys’ Fees. The prevailing Party in any action to enforce or interpret these Associate Terms shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.

17.8 Injunctive Relief. The Parties agree that a material breach of these Associate Terms adversely affecting Eptura’s, or its licensors’ or suppliers’, proprietary rights in Eptura Products would cause irreparable injury to Eptura, or its licensors or suppliers, for which monetary damages would not be an adequate remedy and that Eptura shall (without needing to post any bond or other security) be entitled to seek temporary, preliminary, and permanent equitable relief in addition to any remedies it may have hereunder or at law.

17.9 Independent Contractors. Associate and Eptura are independent contractors and nothing in these Associate Terms will be deemed to create any agency, employee-employer relationship, Associateship, or joint venture between the Parties. Except as otherwise specifically provided in these Associate Terms, neither Party will have or represent that it has the right, power or authority to bind, contract or commit the other Party or to create any obligation on behalf of the other Party.

17.10 Notices. All notices and consents required or permitted under these Associate Terms must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid), by overnight courier, or by facsimile (receipt confirmed), in each case to the appropriate Party listed below and, if not indicated, at the address set forth on the signature page of these Associate Terms and will be effective upon receipt. Each Party may change its address for receipt of notices by giving notice of the new address to the other Party.

If to Eptura:

950 East Paces Ferry Road, NE, Suite 800
Atlanta, GA 30326
Email: [email protected]
ATTN: General Counsel
copy to: Chief Revenue Officer

If to Associate: as set out in the Order.

17.11 Publicity and Press Release. The Parties may agree to issue a joint press release announcing these Associate Terms and generally describing the terms hereof. Any press releases incorporating or referencing a Party to these Associate Terms must be approved in advance by each Party’s marketing department.

17.12 Marketing Consent. Associate hereby consents to receive regular communications from Eptura regarding the Associate relationship.

17.13 Severability. If any provision of these Associate Terms is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of these Associate Terms will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the Parties to the fullest extent possible.

17.14 Waivers. The failure of either Party to enforce any provision of these Associate Terms, unless waived in writing by such Party, will not constitute a waiver of that Party’s right to enforce that provision or any other provision of these Associate Terms.

17.15 Amendments and Modifications. Except as set forth herein, any amendment and/or modification shall be effective only if made in writing and signed by a representative of the respective Parties authorized to bind the Parties.

17.16 U.S. Government End Users. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with these Associate Terms are “commercial items,” “commercial computer software,” and or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of these Associate Terms. Associate will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.

17.17 Entire Agreement. These Associate Terms supersedes all prior discussions, understandings, and agreements with respect to the subject matter. Associate acknowledges that any pre-printed terms and conditions on or attached to Associate’s purchase orders or invoices will be of no force or effect.

17.18 Order of Precedence. In the event of a conflict between the terms and conditions of these Associate Terms and the terms and conditions of any Order or SOW, these Associate Terms shall control; provided that an Order or SOW include a provision that expressly states that it is intended to supersede a specified provision of these Associate Terms shall supersede with respect to such Order or SOW.

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