Terms of service

Access to Services is conditional upon Customer agreeing to these terms of service (“Terms”), which are provided by Eptura, and all other terms referenced herein. Acceptance of these Terms is evidenced by the signing of an Order by Customer or use of the Services. Use of the Services following expiry of any existing Order will be governed by these Terms.

1. DEFINITIONS

1.1 “AI Functionality” means any artificial intelligence or machine learning models, applications or interfaces.

1.2 “Acceptable Use Policy” means the acceptable use policy at https://eptura.com/terms/acceptable-use-policy/ 

1.3 “Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control by either Party.

1.4 “Consulting Services” means any services designated by Eptura as being consulting services and which, for the avoidance of doubt, excludes any Subscription Services and Professional Services.

1.5 “Control“ means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

1.6 “Customer” means the party which has placed an Order or the end user of the Services.

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

1.8 “DPA” means the data protection addendum available at https://www.eptura.com/terms/dpa 

1.9 “Documentation” means written or electronic explanatory materials, such as user manuals, training manuals, specifications regarding use of the Services that are published by Eptura and which may be revised by Eptura from time to time.

1.10 “Eptura” means the Eptura entity identified on the relevant Order.

1.11 “Fees” means the fees payable by Customer as specified in each Order or statement of work.

1.12 “Hardware” means the Eptura hardware products sold by Eptura to Customer as set out in the Order.

1.13 “Hardware Addendum” means the hardware addendum available at https://eptura.com/terms/hardware/.

1.14 “Initial Term” means the initial period for Services, as specified in the Order.

1.15 “Law(s)” means any statute, ordinance, judicial decision, executive order, directive or regulation having the force and effect of law in each case to the extent applicable to a Party, the Services and the use thereof, in connection with these Terms.

1.16 “Order” means an ordering document that specifies the Services purchased by (i) Customer or its Affiliates from Eptura; or (ii) Customer or its Affiliates from an authorized Eptura partner. If multiple Orders are executed each such Order will form a separate contract between the Parties.

1.17 “Overage” means units or quantities which are in excess of the initial contracted amounts in the Order. 

1.18 “Party” means a Party to these Terms, and “Parties” shall be construed accordingly.

1.19 “Professional Services” means any services other than the Subscription Services or Support Services to be provided by Eptura as more particularly described in an Order or statement of work. 

1.20 “Reporting Services” means any services provided by Eptura which provide analysis, analytics, reporting or similar services for Customer and its Users.

1.21 “Sensitive Data” means an (i) individual’s government-issued identification number (including Social Security number (or equivalent), driver’s license number, or state-issued identification number); (ii) sexual preference or activities, marital status, nationality, racial or ethnic origin; (iii) 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; (iv) religious or philosophical beliefs or affiliations, political party membership, or labor or trade union membership; or (v) biometric, genetic, health, medical, or medical insurance data.

1.22 “Services” means, collectively, the Consulting Services, Subscription Services and Professional Services provided by Eptura to Customer under the applicable Order.

1.23 “SLA” means the service level addendum available at https://www.eptura.com/terms/sla. 

1.24 “Subscription Services” means Eptura’s software-as-a-service subscription service,including the Reporting Services, as more specifically identified in an Order.

1.25 “Subscription Term” means the period during which the Subscription Services will be provided as set out in each Order, including the Initial Term and any Renewal Terms. 

1.26 “U.K.” means the United Kingdom.

1.27 “U.S.” means the United States of America.

1.28 “User” means any party who accesses and uses the Subscription Services being provided to the Customer.

2. SERVICES

2.1 Access Rights. Subject to these Terms, Eptura grants to Customer and its Affiliates during the Subscription Term a worldwide, non-exclusive, non-transferable (except as expressly permitted in Section 14.5) right to access and use the Subscription Services solely for Customer’s internal business purposes and only in accordance with the applicable Documentation and the Order. Customer agrees that Customer’s purchase in the Order is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Eptura regarding future functionality or features.

2.2 Acceptable Use. Customer shall comply with and shall ensure its Users comply with the Acceptable Use Policy.

2.3 Users. Eptura is not responsible for any harm arising from any acts or omissions of any Users, or any individuals who were not authorized to access the Subscription Services but who were able to gain access for any reason other than the gross negligence of Eptura. Customer will notify Eptura immediately of any actual or suspected unauthorized access to the Subscription Services at [email protected].

2.4 Professional Services. In the event that Customer elects to have Eptura perform Professional Services, the Parties will enter into a statement of work governing the provision of such Professional Services. Eptura shall perform such Professional Services (i) in a professional and workmanlike manner and (ii) in accordance with the terms and conditions set out in the statement of work. If Customer does not reasonably believe that Eptura has performed its obligations as required under this Section then  Customer must notify Eptura of this within thirty (30) days of completion of the affected Professional Services. Customer’s exclusive remedy arising out of a failure to provide the Professional Services in accordance with this Section is limited to the re-performance of the Professional Service, or if re-performance is not commercially reasonable (in the sole opinion of Eptura), termination as provided by Section 13.2(a). Any changes to the Professional Services will not be effective unless mutually agreed upon in writing. Customer will provide (as relevant) assistance, cooperation, key role positions, and resources reasonably necessary to enable Eptura to perform the Professional Services. Customer acknowledges that Eptura’s ability to provide Professional Services as described in the statement of work may be affected if Customer does not meet its responsibilities as set out in the applicable statement of work. 

2.5 Consulting Services. All Consulting Services shall be subject to the additional terms at found at https://eptura.com/terms/consulting.

2.6 Affiliates. Customer and/or Customer’s Affiliates may purchase Services through an Order. In such event, (i) Customer Affiliate executing the Order will, for the purposes of such Order, be considered “Customer” as that term is used in these Terms, and (ii) all Orders will be governed by these Terms regarding Customer’s and its Affiliate’s access and use of the Services and the Order will include a statement to this effect which shall be signed by the relevant Affiliate. For clarity, Eptura will not be obligated to provide any Services to Customer, or its Affiliate(s) until Eptura receives a valid Order for such Services.

2.7 Changes to the Subscription Service. Eptura may modify the Subscription Services from time to time by removing unused features or substituting outdated features with new features that have similar or improved functionality, by implementing system upgrades, migrations and/or platform changes or otherwise so long as such changes are not intended to and do not materially adversely affect Customer’s use of the Subscription Services.

3. SERVICE LEVELS. Service levels of the Subscription Services shall be governed by the terms of the SLA.

4. HARDWARE. The sale and purchase of the Hardware shall be governed by the the terms of the Hardware Addendum.

5. REPORTING SERVICES . Customer acknowledges and agrees that the Reporting Services generate outputs based upon information provided by Customer and its Users and/or arising from their use of Subscription Services and so the accuracy or reliability of the Reporting Services is reliant upon the information provided. EPTURA MAKES NO WARRANTY OR REPRESENTATION AS TO THE RELIABILITY OR ACCURACY OF THE OUTPUTS GENERATED BY THE REPORTING SERVICES AND THESE SHOULD BE USED FOR INFORMATION PURPOSES ONLY. Where Reporting Services include AI Functionality (which will be specified in the Documentation), Customer further acknowledges and agrees that such AI Functionality is not a substitute for human oversight or judgement.

6. PAYMENT AND TAXES

6.1 Payment Terms. All Fees (i) shall be paid within the time periods and in the currency specified in the Order without setoff or any deductions, (ii) cannot be decreased during the then-current Subscription Term; and (iii) are non-refundable. 

6.2 Payment Details. Customer is responsible for providing complete and accurate invoicing details and primary contact information to Eptura and notifying Eptura of any changes to such information. Where a purchase order number is given by Customer, Eptura shall include such purchase order number on the invoice. If Customer fails to provide or provides an incorrect purchase order number then it shall not be relieved of its obligation to pay the relevant Fees.

6.3 Taxes.Customer is responsible for paying any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods- and-services tax or excise (collectively, “Taxes“). All Taxes payable by Customer will be added to the total price of each invoice issued by Eptura to Customer. To exempt any purchase from Taxes, Customer must furnish evidence of a certificate of exemption or similar document in a form satisfactory to Eptura. Customer is not responsible for paying income taxes levied on Eptura. If Eptura has a legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Eptura with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by Law to account for or pay any withholding for any tax, duty, or other charge in respect of any invoice issued by the Eptura (“WHT”), Customer will (i) gross up the amount payable under the invoice to apply the rate of WHT so that, after payment of any WHT, the net amount received by Eptura from Customer will be equal to the actual amount payable under the invoice; (ii) pay the WHT to the relevant taxing or other governmental authority; and (iii) promptly provide evidence of such payment. Customer shall indemnify, and hold Eptura and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses arising from non-payment of any WHT.

6.4 Overage. Eptura will monitor the average number of Users for the Subscription Services over rolling three-month periods during the Subscription Term. If Overage is identified, Eptura shall notify Customer and issue an invoice for the Overage. Overage Fees shall be calculated as 1.4x the relevant unit price in the then current Order.

6.5 Late Payment. Where any undisputed payment that is not received by the due date may accrue late charges at the rate of 1.5% per month or the highest rate permitted by Law, whichever is lower, plus any and all collection costs. Eptura reserves the right to demand settlement of all overdue invoices before accepting additional Orders from Customer or its Affiliates or require payment of additional Orders prior to implementation. If Customer is delinquent on any undisputed late payment obligations for more than thirty (30) days following written notice of such late payment; Eptura may (without limiting any other rights or remedies available to it) accelerate Customer’s obligation to pay all other Fees (if any) for the remainder of the Subscription Term such that those Fees become immediately due and payable. For the purposes of this Section, if Customer in good faith disputes any of the amounts set forth in any invoice rendered by Eptura hereunder, Customer shall notify Eptura in writing within ten (10) days following Customer’s receipt of the invoice, which notice shall include a written statement of the basis of the dispute in reasonable detail and engage in good faith with Eptura to resolve the dispute.

6.6 Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in these Terms, Eptura reserves the right to suspend provision of the Services: (a) if any Fees are thirty (30) days or more overdue (and are not otherwise subject to a dispute, in the terms specified in Section 6.5), until such time as all outstanding Fee obligations are paid in full; (b) if Eptura deems such suspension necessary as a result of Customer’s breach of the Acceptable Use Policy; (c) if Eptura reasonably determines suspension is necessary to avoid material harm to Eptura or its customers, including if the Subscription Service is experiencing denial of service attacks, hacking, or other attacks or disruptions outside of Eptura’s control; or (d) as required by Law or at the request of governmental entities

7. PROPRIETARY RIGHTS.

7.1 Retained Rights. Subject to the limited rights expressly granted hereunder, Eptura and its licensors reserve all of their right, title and interest in and to the Subscription Services including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set out herein. 

7.2 Customer Data. As between the Parties, Customer retains all right,title, and interest to the Customer Data. Customer grants Eptura a non-exclusive, worldwide, transferable, royalty-free and fully paid license to use Customer Data solely as necessary to perform the Subscription Services.Customer represents and warrants that it has the right and authority to provide Eptura with Customer Data for use in connection with the Subscription Services which includes, for the avoidance of doubt, all authorizations and consents necessary to enable Customer to upload, submit, post, publish of transmit Customer Data to the Services without violating any laws or rights of any third parties. For the avoidance of doubt, Eptura shall have no liability for any third-party services (including artificial intelligence) which are utilized by Customer to generate and/or upload, submit, post, publish or transmit Customer Data to the Services.

7.3 Feedback. Customer acknowledges that Eptura may utilize Customer suggestions, enhancement requests or other recommendations (collectively, “Feedback“) for any lawful business purpose, without a duty of accounting to Customer so long as such Feedback does not identify Customer, or any Customer provided Customer Data. No compensation will be paid with respect to Eptura’s use of Feedback. Eptura will own all right, title, and interest, including all related intellectual property rights in any Feedback provided by Customer.

7.4 Aggregate Data. The Parties acknowledge that the Subscription Services may collect and aggregate certain de-identified information and data regarding the use and operation of the Subscription Services by Customer (“Aggregated Data”), and Eptura will be free (during and after the term hereof) to (i) use Aggregated Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Eptura offerings, (ii) disclose Aggregated Data solely in aggregate or other anonymized, unidentifiable form in connection with its business; and (iii) where Customer has purchased Services which require the use of AI Functionality, use Aggregated Data to develop, train or enhance such AI Functionality provided that, for the avoidance of doubt, the Aggregated Data does not include Personal Data (as defined in the DPA) and the Aggregated Data is not used in respect of the provision of Services to any other customers or disclosed to any other third parties outside of the terms of this Section 7.4.

8. CONFIDENTIALITY AND DATA PRIVACY.

8.1 Confidential Information. The term “Confidential Information” means Customer Data, internal policies and procedures of a Party 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 Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether such information is disclosed before or after the date of the Order. Confidential Information excludes information that (i) was in the public domain prior to the time of disclosure; (ii) enters the public domain after disclosure through no action or inaction of the Receiving Party; (iii) is already known by the Receiving Party at the time of disclosure; (iv) is obtained by the Receiving Party from a third party without restriction; or (v) 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 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 Terms. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set out in these 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 the agreement between the Parties 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 Return of Confidential Information. Upon Disclosing Party’s written request, Receiving Party will return or destroy all Confidential Information. However, Receiving Party is permitted to retain copies of the Confidential Information for archival, audit, disaster recovery, legal and/or regulatory purposes, and Receiving Party will not be required to purge Confidential Information from the electronic back-up files of its computer systems, on condition that any Confidential Information so retained will remain subject to the obligations and restrictions set out in these Terms.

8.3 Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.

9. DATA SECURITY AND PROCESSING. Eptura has in place security measures in relation to the provision of Services which are more particularly set out in the DPA. If applicable, Eptura will process Customer Data in accordance with the DPA.

10. REPRESENTATIONS.  Each Party represents and warrants that: (a) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under these Terms; (b) the execution of an Order by its representative whose signature is set out on the Order has been duly authorized by all necessary corporate or organizational action of such Party, and (c) when an Order is executed, the applicable Order will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

11. INDEMNIFICATION AND PROCEDURES

11.1  Eptura Indemnification. Eptura will defend, indemnify, and hold Customer and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) (collectively, “Claim(s)”) arising out of or relating to the extent (a) that the Services infringe or misappropriate any intellectual property right of such third party or (b) arising out of Eptura’s gross negligence, willful misconduct or fraud.

11.2 Eptura will have no obligation under Section 11.1 for any Claim to the extent arising out of or is based upon: (i) Customer’s use of the Services not in compliance with these Terms, Order, or the Documentation; (ii) Customer’s combination of the Services with software, hardware, system, data, or other materials not supplied or authorized by Eptura (unless expressly permitted by the Documentation) without Eptura’s prior written authorization; or (iii) Customer Data provided to Eptura.

11.3 In the event an infringement or misappropriation Claim involving the Services is brought or threatened, or is likely to be brought or threatened in Eptura’s reasonable opinion, Eptura may, at its sole option and expense: (x) procure for Customer the right to continue to use the Services, (y) modify the Services in a manner that does not materially degrade the Service’s functionality, or (z) terminate the affected Services and, with respect to termination of the Subscription Services, refund the unearned portion of the Fees payable for the affected Subscription Services based on the days left in the Subscription Term, less any Fees for usage accrued prior to the date of termination. Notwithstanding anything else herein, the foregoing indemnification obligations are Eptura’s only obligations and liability, and Customer’s exclusive remedy, in respect of any infringement or misappropriation Claim.

11.4 Customer Indemnification. Customer will defend, indemnify, and hold Eptura, its Affiliates, suppliers, and licensors harmless from and against any Claims arising out of or relating to: (a) Customer Data provided to Eptura; (b) breach of the Acceptable Use Policy; or (c) Customer’s gross negligence, willful misconduct, or fraud.

11.5 Indemnification ProceduresThe Party seeking indemnification (the “Indemnified Party”) hereunder shall promptly notify the other Party (the “Indemnifying Party”) in writing of any Claim and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such Claim and shall employ counsel of its choice to handle and defend the same. The Indemnifying Party shall not settle any Claim in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party has been prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense.

12. LIMITATION OF LIABILITY AND DISCLAIMER

12.1 Limitation of liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES BE LIABLE FOR (I) PURE ECONOMIC LOSS OR  LOSS OF REVENUE OR PROFITS; LOSS OF USE OR DAMAGE TO DATA; COST TO PROCURE SUBSTITUTE SERVICES; LOSS OR DEPLETION OF GOODWILL; OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (II) DIRECT DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES TO EPTURA HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE LIMITATION IN SECTION 12.1(I) SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR CUSTOMER’S FAILURE TO REMIT ALL FEES PROPERLY DUE AND OWING UNDER THE APPLICABLE ORDER.

12.2 Disclaimer: EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE TERMS, EPTURA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER INCLUDING THAT THE SERVICES OR THE DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. EPTURA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EPTURA SHALL NOT HAVE ANY LIABILITY FOR PERSONAL INJURY OR DEATH (EXCEPT WHERE ARISING FROM NEGLIGENCE) OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE SUBSCRIPTION SERVICES, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF EPTURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. TERM AND TERMINATION

13.1 Order Term. Each Order will set out the applicable term during which the Services will be provided to Customer. Unless otherwise provided in an Order, upon expiration of the Initial Term or any Renewal Term, the Subscription Services will automatically renew for additional one (1) year periods (each a “Renewal Term”). Each Party must provide at least sixty (60) days’ written notice if it intends for the Subscription Services to expire at the end of the then-current Subscription Term.

13.2 Termination. Either Party may terminate any Order immediately upon written notice if the other Party (a) materially breaches any obligations under these Terms or an Order and fails to cure the breach within thirty (30) days after receiving written notice to do so; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any material breach notice by the terminating Party shall expressly state all the reasons for the claimed breach in sufficient detail to provide the other Party the opportunity to cure the alleged breach.

13.3 Effects of Termination. Upon termination or expiration of the applicable Order, Customer’s use of the Subscription Services shall cease. Termination of an Order will not relieve Customer of any liability accrued prior to the date of termination (including payment of Fees). In addition, if an Order is terminated by Customer for any reason other than that in Section 13.2(a), Customer will remain responsible for any Fees (which shall become due for payment immediately), regardless of whether such amounts have been invoiced or are payable at the time of such termination. Upon Customer’s termination of an Order under Section 13.2(a), Eptura will refund to Customer any unused, prepaid fees covering the remainder of the term of the applicable Order. Termination of an Order will not affect the Parties’ rights and obligations under any other Order, and all other Orders will remain in full force and effect unless and until terminated in accordance with their terms.

13.4 Survival. If these Terms are terminated for any reason, all remedies for breach, rights to accrued payments and Sections 1 (Definitions), 6.1 (Payment Terms), 7.3 (Feedback), 8 (Confidentiality and Data Privacy), 11 (Indemnification), 12 (Limitation of Liability), 13.3 (Effects of Termination), 14 (General Terms) will survive termination or expiration of these Terms.

14. GENERAL TERMS

14.1 Waiver and Severability. No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right. All waivers must be in writing and signed by the Party granting the waiver. The waiver by a Party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other Party. If any provision of these Terms is deemed invalid, illegal or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. The remainder of these Terms will remain valid and enforceable in accordance with its terms.

14.2 Subcontractors. Eptura reserves the right to use subcontractors (who are under a covenant of confidentiality with Eptura), including, but not limited to, offshore subcontractors to assist with Services, including, without limitation, data migration, configuration, and implementation processes. Eptura will be and remain fully responsible for the acts and omissions of subcontractors to the same extent as its own employees. 

14.3 Account Access. Customer acknowledges that, in some cases when Customer requests support, it is necessary for Eptura to be given access to Customer’s account in order to diagnose and resolve issues. When Customer contacts Eptura for support, it acknowledges that it is providing consent to Eptura to access Customer’s account.

14.4 Force Majeure. Neither Party will be liable for any failure to perform due to circumstances beyond its reasonable control, including without limitation, acts of God; acts of government; natural disasters; fire; civil unrest; acts of terror; pandemic; labor problems (other than those involving such Party’s employees); Internet or telecommunications service provider failures; or cyberattacks. A force majeure event will not include a Party’s financial inability to perform its obligations. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

14.5 Assignment. Neither Party may transfer or assign any of its rights or delegate any of its obligations under these 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 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 Terms will be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.

14.6 Relationship of the Parties. The relationship between the Parties is that of independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

14.7 Publicity. Eptura may identify Customer as a customer of Eptura on Eptura’s website as well as within any written and/or electronic marketing material relating to Eptura’s products and/or services.

14.8 Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

14.9 Compliance with Laws. Each Party will comply with all Laws in the performance of its obligations under any Order and these Terms, including (without limitation) those relating to U.S., U.K. and international sanctions and embargoes. 

14.10 Export Compliance. Services may be subject to export laws and regulations. Each of Eptura and Customer represent that they are not included on any denied party list or list with analogous effect in the U.S., U.K., European Union or Australia. Customer undertakes that it will not permit any Users in any country subject to sanctions or embargoes by the U.S., U.K., European Union or Australia or in violation.

14.11 Governing Law. All matters arising out of or relating to an Order, these Terms, or a statement of work and any dispute or claim arising out of or in connection with them or their subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the domestic law of Eptura. Each party irrevocably agrees that the courts of Eptura’s domestic jurisdiction shall have exclusive jurisdiction to settle any dispute or claim arising out this of or in connection with all matters arising out of or relating to an Order or these Terms or their subject matter or formation (including non-contractual disputes or claims). For Customers contracting with Eptura, Inc. the governing law shall be New York and the courts of the state of New York shall have exclusive jurisdiction.

14.12 Dispute Resolution. If a dispute should arise between the Parties relating to these Terms or any Order, the Parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the Parties or be deemed a waiver by either Party hereto of any remedies to which such Party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one Party notifies the other Party of such dispute, then such dispute may be resolved by formal legal actions. The foregoing process will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.

14.13 Notices. Any notice required or permitted to be given will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate Party at the address set out on Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 14.13. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.

14.14 U.S. Government End Users. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, Defense Federal Acquisition Regulations Supplement (“DFARS”) section 252.227-7014(a)(1) and DFARS section 252.227-7014(a)(5) or otherwise, all Services provided in connection with these Terms are “commercial items,” “commercial computer software,” and or “commercial computer software documentation”. Any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms. Customer will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.

14.15 Entire Agreement and Amendments. These Terms, including the Order(s) and any statement(s) of work, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, and discussions and understandings, written or oral, with respect to such subject matter. Any change to these Terms will not have effect prior to the next Renewal date unless agreed in writing by both Parties. These Terms shall take precedence over any conflicting terms in Customer-provided purchase or procurement documentation. Any pre-printed terms and conditions on or attached to Customer’s purchase orders or invoices will be of no force or effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable Order, (b) the applicable statement of work, (c) these Terms and (d) the Documentation. The titles and headings are for reference purposes only and will not in any way affect the meaning or interpretation of these Terms.

Version May 2024