Terms And Conditions

Terms & Conditions of Capataz Service

This Agreement is legally binding and governs your use of our App, Site, and Service. By using or accessing any part of our App, Site, or Service you agree to be bound by these Terms of Service and the Privacy Policy. Therefore, please read the Terms of Service and the Privacy Policy before using our App, Site, and Service. We may change our Terms of Service or Privacy Policy from time to time. Please check this page on a regular basis to be familiar with the current version of this Agreement. Your continued use of our App, Site, or Service will constitute acknowledgment and consent to any changes made within the Privacy Policy and Terms of Service.

Section 1 – Introduction and the ETI Capataz

1.1 Eclectus Technologies^® Inc (ETI) and its Business – the ETI Capataz.

ETI is an information technology company that licenses and provides a solution known as the ETI Capataz (the “Solution”) that is designed to help clients with timekeeping, manage work orders or tasks, and assess individual performance against the assigned work. This Solution includes Licensed Software, Know-How, Documentation, and Services.

1.2 Client.

The Client desires to use the Solution in its business operations.

1.3 Licensed Software.

The term “Licensed Software” means the computer or mobile device programs, tools, and content made available by ETI to Client for Client’s access and use through the Software as a Service (SaaS) License of Section 2.1 below.

1.4 Services.

Services. The term “Services” means: (a) the services of ETI to Client in making the Licensed Software available to Client for Client’s remote access to and use of the Licensed Software as licensed and described in this Agreement, and (b) the Data Storage Services of Section 3.2, and (c) the support and maintenance services of Section 5. The term “Services” will also mean and include any additional services (e.g. consulting, implementation, planning, and training services) provided by ETI to the Client under any SOW (see Section 1.5).

Those additional Services will be identified in an SOW – see also Section 3.3. Any other services that are ancillary or related to any of the foregoing Services or the ETI Capataz and that are performed by ETI for Client will also be considered “Services” under this Agreement unless a separate written agreement governing the other services is signed by both Parties.

1.5 Statements of Work – SOWs.

If the Client desires additional Services and if ETI agrees to provide them, they will be set forth in a Statement of Work (“SOW”). Each SOW is part of and will be governed by this Agreement. ETI has no obligation to provide any Services not described in an SOW or elsewhere in this Agreement. Each SOW must be signed by an authorized representative of each Party and will set forth the additional fees to be paid by the Client.

1.6 ETI’s Know-How and Methodology.

“Know-How” means any know-how, expertise, experiences, ideas, knowledge, advice, recommendations, methodologies, processes, practices, standards, plans, data, and information provided or disclosed by ETI to the Client in connection with this Agreement or any SOW, Exhibit, Services, Licensed Software, or Documentation. The Know-How proprietary to ETI (or its licensor(s)) is referred to herein as “Methodology” and will be licensed to Client as “Methodology” and/or as part of the “Licensed Software” (as applicable) under the Licenses of this Agreement.

1.7 Documentation.

If and to the extent that any documentation, instructions, or other works of authorship are delivered or made available by ETI to Client for or in connection with this Solution, then such documentation, instructions, and other works of authorship are referred to herein as “Documentation” (but this definition of “Documentation” does not include any Licensed Software).

1.8 Authorized Users.

“Authorized Users” are employees of the Client who are authorized by the Client to access and use the Licensed Software. “Authorized Users” will also include Consultants, if any, who meet the requirements under Section 7.4 below. Authorized Users must respect this Agreement and must sign up or register with ETI in accordance with its process and guidelines. The Client will be responsible for any conduct or misconduct of an Authorized User relating to this Agreement or any of its subject matter.

Section 2 – Licenses

2.1 SaaS License – for Licensed Software.

Subject to the terms and conditions of this Agreement and Client’s compliance therewith, ETI grants to Client a non-exclusive, non-transferrable, limited-term license for Client through its Authorized Users to access and use the Licensed Software, but only for Client’s internal use for its business (the “SaaS License”) and not for the development or design of any other software, product or solution. The Licensed Software will run on ETI Servers (defined below). The Authorized Users will access and use the Licensed Software from Client’s Computers or Mobile Devices (defined below) via the Internet through compatible web browsing software on Client’s Computers or Mobile Device. The Client may access and use the Licensed Software only in the ordinary course of Client’s business operations and only by and through Authorized Users (as defined below).

2.2 Methodology and Documentation License.

2.3 The Licenses.

The “SaaS License” and the “Methodology and Documentation License” are collectively referred to herein as the “Licenses” and each as a “License”. The Licenses are limited to Client’s internal use and Client may not use and is not licensed to use, any Licensed Software, Documentation, Methodology or Services for any other purpose or in any manner or application that is in violation of any law, regulation, ordinance, or government authority, or in violation or breach of any obligation Client may have to a third party, or for any unethical purpose. Rights not expressly granted to the Client are reserved by ETI.

2.4 ETI Servers.

“ETI Servers” means the server(s) and any other computer(s), storage media, hardware, and system(s) selected or designated by ETI for the storage and execution of the Licensed Software for the purpose of allowing Client (through its Authorized Users) access to and use of such Licensed Software via the Internet under the SaaS License. ETI Servers are not dedicated exclusively to the Licensed Software or Client. ETI Servers may be located at ETI’s and/or its contractor’s site(s).

2.5 Client’s Computers or Mobile Devices.

ETI is not responsible for the Client’s Computers or Mobile Devices.

2.6 Responsibilities of ETI.

ETI is responsible for the procurement and maintenance and server-side Internet access of the ETI Servers and the Licensed Software. ETI is also responsible for any operating system and other third-party software needed to run the Licensed Software on the ETI Servers. ETI or its contractor, not the Client, owns and holds the licenses to such third-party software. ETI (directly or through its contractor) will contract with the applicable third-party software licensors for software maintenance and updates and new versions as ETI deems appropriate. ETI will determine which updates and new versions of the third-party software will be installed on the ETI Servers and when they are installed.

2.7 Responsibilities of Client.

Client, at its expense, is responsible for procuring, installing, implementing, and maintaining Client’s Computers or Mobile Devices (including system software or apps), compatible web browsing software, Internet access, data feeds, telecommunications, networks, peripherals, and any other items and services needed by Client’s Computers or Mobile Devices and Authorized Users to access (via the Internet) the Licensed Software running on ETI Servers and Client Data resident on the ETI Servers. The Client may consult with ETI concerning these requirements and on any upgrades or changes needed to remain compatible with the Licensed Software.

2.8 Licensed Software Updates and New Versions.

The SaaS License and Licensed Software includes any Licensed Software Updates (see Section 5.2) that ETI installs on the ETI Servers for inclusion in the SaaS License. All such Licensed Software Updates will become part of the Licensed Software. Client’s rights and License will only apply to the then-most-current version of the Licensed Software installed on, and available to Client’s Authorized Users from, the ETI Servers, but will not include any functionality or features of Licensed Software not included in the subscription or payment plan paid for by Client. Prior or outdated versions of the Licensed Software may be discontinued by ETI. ETI has no obligation to include in the SaaS License or Licensed Software or make available for access and use by Client, any future functionality, modules, or products that ETI elects to separately license or provide to its customers. ETI may condition the inclusion and availability of such future functionality, modules, or products on the payment of additional fees and/or on other conditions and terms. If the Client agrees to pay such additional fees and agrees to such other conditions and terms, if any, then that future functionality, module, or product will be included in the SaaS License and will be Licensed Software under and subject to this Agreement.

2.9 No Rights to Code.

Client and Authorized Users are not entitled to receive any copy of any of the Licensed Software in any form (source code, object code, executable code, or other forms). The SaaS License is strictly limited to remote access via the Internet as described in this Agreement. In the event that Client or any Authorized User does receive any of the Licensed Software, Client and Authorized Users will not decompile, disassemble or reverse engineer any of the Licensed Software, or distribute or publish any copy of any of it, or modify it or create any derivative work based on it, or in any way facilitate any of the foregoing. Nothing in this Section 2.9 prohibits Client’s Authorized Users from receiving or displaying on Client’s Computers or Mobile Devices any screen displays, content, or output “served up” by the licensed use of the Licensed Software under the SaaS License.

2.10 Documentation.

Documentation may be copied and used internally by the Client, but only to facilitate the licensed use of the Licensed Software and Methodology. The Client will treat all Documentation as confidential information and copyrighted works of ETI. The Client will not disclose or transfer Documentation to any person other than to Client’s employees and Consultants (as defined in Section 7.4) on a confidential and “need-to-know” basis. Those employees and Consultants must be under confidentiality and restricted use obligations at least as protective of ETI and the ETI Capataz as are the confidentiality and restricted use provisions of this Agreement.

Section 3 – Services

3.1 Services.

ETI will provide the Services described in this Agreement, including any applicable SOW.

3.2 Data Storage Services.

As part of the Services, Client Data will be stored on ETI Servers and available to Client in connection with its licensed use of the Licensed Software and in accordance with this Agreement (the “Data Storage Services”) – see Section 6.1.

3.3 Additional Services.

If Client desires additional services or changes to the Services, the Parties may supplement or amend this Agreement or an existing SOW or add a new SOW, but any such supplement, amendment, or additional SOW must be agreed to by both Parties in writing. The additional services and changes to Services described in such supplements, amendments, or additional SOWs will be governed by this Agreement as “Services.” Additional or changed Services will require additional or increased fees and compensation as stated in the SOW to be paid by Client to ETI for the additional or changed Services.

3.4 Cooperation.

The Client will promptly make available to ETI such information, assistance, and cooperation as ETI may reasonably request in connection with the Services or the ETI Capataz.

Section 4 – Payments and Assumptions

4.1 Subscription Fee.

The Client will pay ETI its then-current monthly Subscription Fee. The Subscription Fee is set forth on ETI’s website. The Subscription Fee is payable in advance on the first day of the month to which the fee applies and may be pro-rated as necessary to account for any partial-month. The Subscription Fee is subject to a reasonable increase upon at least three months’ advance written notice to the Client. If the increase is not acceptable, then the Client may terminate this Agreement under Section 9.1. The Subscription Fee may be paid annually in advance.

4.2 Additional Services.

Fees and charges for additional Services or changed Services, if any, are not included in Section 4.1 and are due and payable by Client when invoiced by ETI or as otherwise agreed in writing by the Parties in the applicable SOW.

4.3 Taxes.

The fees and other amounts payable by Client to ETI under this Agreement do not include any taxes that may be assessed or imposed upon any Licensed Software, Services, this Agreement, or any of the payments, transactions, or licenses of this Agreement, including, without limitation, any sales, use, excise, value-added, personal property, export, import and withholding taxes, and excluding only Philippine taxes based upon ETI’s net income. Client shall directly pay any such taxes assessed against it, and Client shall promptly reimburse or pay ETI for any such taxes payable, paid, or collectible by ETI. If any taxes are withheld from any payments to ETI under this Agreement, the Client must pay such taxes and ensure that ETI receives the full amount of all payments as stated in this Agreement after payment and satisfaction of such taxes.

Section 5 – Maintenance and Support of Licensed Software

5.1 Maintenance of Licensed Software.

ETI shall be responsible for the maintenance of Licensed Software. Regular maintenance activity shall be performed on ETI Servers or shall be sent to the Clients through software updates – see also Section 5.2.

5.2 Licensed Software Updates.

“Licensed Software Updates” (or simply “Updates”) means future updates to and new versions and releases of the Licensed Software that are implemented on ETI Servers for purposes of the SaaS License during the Term. Licensed Software Updates may include “Fixes” (as defined above) and “New Releases” (i.e., new versions and releases of the Licensed Software). Licensed Software Updates will also include any other modifications, enhancements, and additions of or to the Licensed Software that ETI makes available under the SaaS License to Client as part of the Licensed Software.

5.3 Telephone and Email Support.

The Client will be entitled to telephone and email support from ETI’s telephone and email support personnel concerning problems and issues relating to Licensed Software and remote access to it as contemplated by this Agreement. Telephone and email support do not include training. Telephone and email support are subject to the reasonable availability of ETI’s support personnel during ETI’s standard support hours. Telephone and email support are subject to ETI’s then-current telephone and email support policies, limitations, and procedures. Support entitles Client to a maximum of one hour of telephone and emails support per month (EXCEPT THAT DURING THE FIRST MONTH OF THIS AGREEMENT, THERE WILL BE NO CAP ON A REASONABLE NUMBER OF THESE HOURS). Unused time in a given month will not be carried forward or credited to any subsequent month. Telephone and email support beyond this limit is governed by Sections 3.3 and 4.2 as additional Services and is not covered by the Subscription Fee.

5.4 Other Services.

Other services, including, without limitation, consultation, implementation, custom content development, and training, are not included in the support and maintenance services and will require a new SOW and payment of additional fees plus expenses.

5.5 Exceptions and Procedures.

ETI’s obligations under this Section 5 do not apply to any problem attributable to Client’s Computers or Mobile Devices or their connectivity to the Internet, or Client’s failure to meet its responsibilities or requirements under this Agreement (including any SOW) or to follow any Documentation provided by ETI.

5.6 Most Current Version of Licensed Software.

ETI is only obligated to maintain and support ETI’s then most current version of Licensed Software implemented by ETI on ETI Servers for the SaaS License. ETI will have no obligations under Section 5 with respect to outdated Licensed Software.

5.7 Subscription Fee.

Payment of the Subscription Fee to ETI covers maintenance and support under Section 5, but not Section 5.4 or excess hours under Section 5.3.

5.8 Cooperation.

The Client will make available to ETI such assistance and cooperation as ETI reasonably requests in connection with maintenance and support under Section 5.

Section 6 – Client Data and Confidentiality

6.1 Client Data.

“Client Data” means the data of Client that are transmitted by Client or its Authorized User to ETI’s Servers as part of the licensed use of Licensed Software. Transmitting of Client Data must be in accordance with ETI’s then-current reasonable procedures, requirements, and guidelines. Such Client Data will be kept confidential by ETI (and its contractors, if any) and will not be transmitted to any unauthorized third party except as needed for this Agreement or in connection with an acquisition or merger of ETI. Client warrants that Client Data and the transmitting and storage of such data will not infringe, misappropriate or violate the rights or intellectual property of any third party or any law or regulation. The Client is responsible for the accuracy, integrity, completeness, and content of Client Data.

6.2 Protection of Client’s Other Confidential Information.

ETI understands and acknowledges that it may have access to financial or business information of Client which Client maintains in confidence and which is not generally known to others in the profession or industry of either Party or the general public and which is not known to ETI prior to disclosure by Client to ETI. ETI agrees to hold all such confidential information of Client in confidence and not to disclose any portion of it to any third party other than ETI’s contractors, subcontractors, successors, and assigns on a “need to know” basis who are under similar obligations of confidentiality. This Section 6 is subject to Section 7.5 and does not apply to Feedback or any intellectual property in Feedback licensed to ETI.

Section 7 – Intellectual Property

7.1 Ownership.

The Licensed Software, Documentation, and Methodology and the copyrights, trade secrets, patent rights, and other intellectual property in and to the Licensed Software, Documentation, Services, and Methodology are owned by ETI (and/or ETI’s licensor(s)), and nothing herein assigns or conveys any ownership or exclusivity thereof to Client (see also Section 7.5 below). The rights of Client to the Licensed Software, Documentation, and Methodology are limited to the licenses and rights expressly granted to Client under this Agreement.

7.2 Protections.

The Client will not allow any person other than its Authorized Users to access or use any Licensed Software. The Client will not disclose or transfer any of the Documentation, or Methodology or information learned about or from the Licensed Software or its screen displays to any other person or entity other than Client’s Authorized Users. The Client will ensure that its employees and Consultants, if any, comply with the obligations of this Agreement relating to the protection or confidentiality of Licensed Software, Documentation, or Methodology.

7.3 Exceptions to Confidentiality.

7.4 Consultants.

If any consultant or other contractor of Client needs to know or use any Licensed Software, Documentation, or Methodology in connection with services for Client, then such consultant or other contractor is referred to herein as a “Consultant” and Client may allow such Consultant to access and use Licensed Software, Documentation or Methodology, but only as necessary to perform the services for Client, provided that the Consultant is not a competitor of ETI and first agrees in writing: (a) not to access or use the Licensed Software, Documentation or Methodology for any purpose other than services for Client, (b) to abide by confidentiality obligations as least as protective of ETI and the Licensed Software, Documentation, and Methodology as the confidentiality obligations in this Agreement, and (c) to abide by Section 7.5 of this Agreement.

7.5 Feedback.

“Feedback” means any modifications, improvements, updates, suggestions, ideas, and enhancements of, or to any Licensed Software, Documentation, Methodology, or Services that are disclosed by Client or any of its Authorized Users or Consultants to ETI. If and to the extent that Client or any of its Consultants (or any of its or their personnel) develops or creates any Feedback, or discloses or provides any Feedback to ETI, then ETI will have the right to use, disclose, distribute, copy, modify, and commercialize such Feedback and the intellectual property in and to the Feedback. Client and Consultants agree to license, and hereby license, to ETI the Feedback and all copyrights, patent rights, trade secrets, and other intellectual property in and to such Feedback. This license is non-exclusive, irrevocable, and worldwide and includes the right to grant sublicenses to others. Client and Consultants make no guaranty or warranty that any Feedback is free of error or defect or that it is suitable for use by ETI or any of the purposes or requirements of ETI.

Section 8 – Security

8.1 Passwords and Access.

User IDs (e.g., logins), passwords, and access to the Licensed Software and Client Data residing on ETI Servers will be administered and governed by ETI’s then-current reasonable guidelines and procedures. The Client is responsible for any and all activities that occur under its accounts(s) and for the confidentiality of all User IDs and passwords of Authorized Users and the confidentiality of any other security-related information disclosed to Client or any Authorized Users. The Client must safeguard such User IDs, passwords, and security-related information. The Client must notify ETI of any known unauthorized use of Client’s user accounts and any other breach of security-relevant to this Agreement or ETI or the Solution. Each Authorized User will have a user account assigned to him or her. A user account may be assigned to only one individual user – i.e., no sharing of user accounts.

8.2 Security.

The Client is responsible for maintaining adequate technical and procedural access controls and system security requirements and devices to ensure that there is no unauthorized or improper access to or use of Licensed Software or ETI Servers or violation of data privacy or confidentiality from, by or through any equipment, computers or mobile devices, networks, communication links or devices, offices, facilities, employees, agents, representatives, contractors, volunteers, clients, customers, affiliates or Authorized Users of Client. ETI is not responsible or liable for any unauthorized or improper access to or use of Licensed Software or any Client Data where such access or use originates outside of ETI Servers or from, by or through any equipment, computers or mobile devices, networks, communication links or devices, offices, facilities, employees, agents, representatives, contractors, clients, customers, affiliates or Authorized Users of Client.

8.3 Personal Information.

Client and its Authorized Users must not disclose to ETI or transmit to or store on any ETI Servers any personally identifiable information (PII), protected health information (PHI), payment card information (PCI), or any other personal information. Client and its Authorized Users must not violate any law, regulation or government order, or the rights of any person. The Client will indemnify ETI and its officers, managers, employees, contractors, and representatives against, and hold them harmless from, any such violation and any claims of such violation, and any judgments, settlements, damages, awards, expenses, costs, losses, and attorneys’ fees.

8.4 Client Data Only.

Except for the transmission and storage of Client Data (as described in Sections 3.2 and 6.1), Client and its Authorized Users may not transmit, upload or store any data, computer programs or mobile apps, or other subject-matters to or on ETI Servers.

8.5 Suspension for Security Breach.

In the event that ETI believes that Client’s (including any of its Authorized Users’) access to or use of any Licensed Software, Services or ETI Servers or any of Client’s Computers or Mobile Devices present a security breach or risk to Client Data or to the data or property of any other client or to the ETI Servers, then ETI may suspend such access and use until the security breach or risk has been eliminated to the reasonable satisfaction of ETI. Such suspension will not be a breach of this Agreement and ETI will have no liability for such suspension. The Client will fully cooperate with ETI in connection with any such security breach or risk or any such suspension.

Section 9 – Term and Termination

9.1 Term.

The “Term” of this Agreement will begin on the date of this Agreement is accepted by Client and will continue thereafter on a month-to-month basis and may be terminated by a Party at any time by giving one month’s advance notice of termination to the other Party.

9.2 Termination for Breach.

If Client breaches this Agreement or any SOW or Exhibit and fails to cure said breach within ten days after receiving written notice of the said breach from ETI, then ETI will be excused from any further obligation or liability under this Agreement or any SOW or Exhibit and ETI may terminate or suspend any license or right granted by ETI under this Agreement or the SOW or the Exhibit, by giving notice to Client. This Section 9.2 will not limit the relief, remedies, and damages to which ETI may be entitled.

9.3 Effect of Termination.

Upon termination of this Agreement under Section 9.2 or any other termination or expiration of this Agreement, the Services and Licenses will terminate and Client will have no further License or rights under this Agreement or with respect to any Licensed Software, Documentation, or Methodology and will cease all use of the Licensed Software, Documentation, and Methodology, and will confirm that it has done so in writing to ETI. All obligations of confidentiality and other protections of the Licensed Software, Documentation, or Methodology or ETI’s intellectual property under this Agreement will survive any termination or expiration of the Licenses or this Agreement and will continue in effect (but all access to and use of the Licensed Software, Documentation, and Methodology by or for Client or its Consultants must cease). In addition, Sections 7, 9.3, and 10 will survive any termination of this Agreement, but nothing in those surviving Sections will supersede or affect the first sentence or the last sentence of this Section 9.3. Upon termination of the Licenses or this Agreement, any Licensed Software and Documentation in the possession or control of Client or any of its Consultants will be destroyed or permanently erased by Client, and Client and its Consultants will not retain any copy thereof and will confirm compliance therewith in writing to ETI.

Section 10 – General Provisions

10.1 Disclaimers.

NEITHER PARTY MAKES ANY WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. ETI DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, AND METHODOLOGY ARE PROVIDED AND LICENSED ON AN “AS IS” BASIS. ETI DOES NOT WARRANT THAT ANY LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES WILL SATISFY THE CLIENT’S REQUIREMENTS OR THAT THEY ARE WITHOUT DEFECT OR ERROR, OR THAT THE USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, AND SERVICES ARE NOT INTENDED, LICENSED, OR PROVIDED FOR ANY HAZARDOUS USE OR ANY APPLICATION REQUIRING FDA OR OTHER GOVERNMENT APPROVAL THAT HAS NOT BEEN OBTAINED BY THE CLIENT. HAZARDOUS USE MEANS USE IN ANY APPLICATION OR ENVIRONMENT IN WHICH ANY FAILURE OR MALFUNCTION OF, OR ERROR OR DEFECT IN, THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES COULD RESULT IN ANY CATASTROPHE OR LOSS OF LIFE OF OR PHYSICAL INJURY TO A NATURAL PERSON.

10.2 Responsibility for Decisions.

THE CLIENT IS SOLELY RESPONSIBLE FOR DECISIONS MADE AND ACTIONS TAKEN BASED ON THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES. IT IS THE CLIENT’S RESPONSIBILITY TO VERIFY ALL ANALYSES, RESULTS, AND DATA CREATED, COMPILED, OR GENERATED WITH THE USE OF THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES. ALL USE OF AND RELIANCE ON THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES AND ANY INFORMATION, DATA, OR RESULTS OBTAINED FROM ANY OF THEM ARE AT THE SOLE RISK OF THE CLIENT AND SUCH USE AND RELIANCE MUST BE BY QUALIFIED PROFESSIONALS WHO EXERCISE THEIR OWN INDEPENDENT PROFESSIONAL JUDGMENT.

10.3 Limitation of Liability.

UNDER NO CIRCUMSTANCES WILL ETI’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, ANY SOW, OR ANY LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES (REGARDLESS OF THE FORM OF ACTION OR CLAIM E.G. CONTRACT, WARRANTY, TORT, AND/OR OTHERWISE) EXCEED A LIMIT EQUAL TO ONE YEAR OF THE SUBSCRIPTION FEE RECEIVED BY ETI FROM CLIENT UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL ETI BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, COVER, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS OR REVENUE, LOSS OF USE OF ANY COMPUTER PROGRAMS OR MOBILE APPS, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, DATA, SERVICES OR SOFTWARE, OR CLAIMS BY ANY PERSON OTHER THAN CLIENT, EVEN IF ETI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT WILL ANY OF ETI’S OFFICERS, PERSONNEL, OWNERS, LICENSORS, CONTRACTORS, SUBCONTRACTORS, OR ADVISORS HAVE ANY LIABILITY RELATING TO OR ARISING FROM THIS AGREEMENT OR ANY OF THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES.

This Agreement, including its disclaimers and limitations of liability, represents a mutually agreed-upon allocation of risk, and the consideration given has been set to reflect such allocation.

10.4 Injunctive Relief.

The Parties acknowledge and agree that any breach by a Party (the “offending Party”) of any of the covenants or provisions contained in this Agreement will give rise to irreparable injury to the other Party (the “offended Party”) inadequately compensable in damages and monetary remedies alone. Accordingly, the offended Party may seek and obtain preliminary and permanent injunctive relief against the breach or threatened breach of said covenants or provisions. Such relief will be in addition to any other remedies that may be available to the offended Party.

10.5 Notices.

Any notice or consent from ETI to Client may be sent or delivered by email, by first class, priority or express mail, by registered or certified mail, by commercial courier (e.g., Federal Express or U.P.S.), or by personal delivery. The Client will keep ETI informed of the Client’s then-current email and physical addresses.

10.6 Export Act.

Client hereby warrants and certifies that any Licensed Software, Documentation, Know-How, and Methodology provided by ETI to Client will not be made available or exported by Client or its personnel to any country in contravention of any law or regulation of the United States or any of its agencies, including the Export Administration Act of 1979 and regulations relating thereto.

10.7 Construction.

This Agreement (which includes its SOWs and Exhibits) represents the wording selected by the Parties to define their agreement and no rule of strict construction will apply against or in favor of either Party. Whenever the context reasonably permits, the singular will include the plural, the plural will include the singular, and the whole will include any part thereof.

10.8 Headings.

Section and paragraph headings used herein are for convenience only and will not be used to broaden or limit this Agreement.

10.9 Assignment.

Because this Agreement is personal to Client, Client will have neither the right nor the power to assign or transfer this Agreement by assignment, merger, or otherwise to any third party without the written consent of ETI. ETI may assign or transfer this Agreement and its rights under this Agreement (and delegate any remaining obligations and duties under this Agreement) to an affiliate or to a third party who acquires substantially all of the business or intellectual property of ETI applicable to the Licensed Software. Any assignee or transferee of this Agreement must assume the duties and obligations of the assigning or transferring Party under this Agreement.

10.10 Successors.

This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

10.11 Force Majeure.

Except for obligations to make payment, neither Party will be deemed in breach of this Agreement or otherwise liable for any delay or failure to perform any obligation or duty where such delay or failure is caused by any act of nature, fire, flood, accident, riot, war, crime, terrorism, government intervention or regulation, any obligation to comply with any law, regulation or ordinance, any disruption or interference in communications, equipment or software, the Internet, any unaffiliated third party, any disruption or delay in supplies, communications, power, or other utilities, any labor dispute or shortage, or circumstances beyond the control of that Party. It is also understood that downtime of ETI Servers and Licensed Software for maintenance, re-location, Upgrades, and other purposes will be necessary from time to time and that unintended interruptions and downtime may also occur and are not a breach of this Agreement.

10.12 Governing Law.

This Agreement and the rights and obligations of the Parties hereunder will be governed by and interpreted, construed, and enforced in accordance with the laws of the State of Utah, without regard to conflict of law principles. The Parties consent to the jurisdiction of the state and federal courts located in Salt Lake City or County, Utah and agree that such courts and their respective courts of appeal will be the exclusive venue for the resolution of any dispute relating to this Agreement or any of the Licensed Software, Services, Know-How or Methodology. Each Party waives any objection which it may have now or hereafter to the laying of venue in such courts and irrevocably submits to the exclusive jurisdiction and venue of such courts.

10.13 ETI Personnel.

The personnel of ETI used to perform Services and obligations under this Agreement may be employees or subcontractors of ETI. ETI remains responsible for the performance of its obligations under this Agreement (including the SOW(s)).

10.14 Relationship.

Neither Party is the partner, joint venturer, agent, or representative of the other Party. Each Party is an independent contractor. There is no employment relationship between the Parties. Neither Party has the authority to make any representations or warranties or incur any obligations or liabilities on behalf of the other Party. Neither Party will make any representation to a third party inconsistent with this Section.

10.15 Waiver.

Any waiver of, or promise not to enforce, any right under this Agreement will not be enforceable unless evidenced by a writing signed by the Party making said waiver or promise.

10.16 Entire Agreement.

This Agreement (which includes its SOWs and Exhibits): (i) represents the entire agreement between the Parties concerning the subject matter of this Agreement, (ii) supersedes all prior agreements, understandings, representations, and warranties relating to the subject matter of this Agreement, whether written or oral and (iii) may only be amended, canceled or rescinded by a writing signed by duly authorized representatives of both Parties. Any terms or conditions of any purchase order or other document submitted by Client in connection with this Agreement or any Services that are in addition to, different from, or inconsistent with the terms and conditions of this Agreement are not binding on ETI and are of no effect.

10.17 New Terms of Service.

These Terms of Service (this Agreement) may be changed or replaced by a new Terms of Service by ETI by giving Client at least three months’ advance notice of the new Terms of Service. Any access to or use of any Licensed Software by, or on behalf of Client after that three month period will constitute Client’s acceptance of and agreement to the new Terms of Service. If the new Terms of Service are unacceptable to Client, then Client may decline to accept and agree to the new Terms of Service by not accessing or using the Licensed Software after that three month period, in which case Client will give notice thereof to ETI and the Licenses will terminate.

How to Contact Us

If you have any questions, comments, complaints, or suggestions in relation to your data protection, software protection, technology protection, this Statement, or any other concerns about the way in which we process information about you, please contact us:

Email: contactus@eclectustech.net

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