Software user agreement
Last updated: June 23, 2017
Please read this Software User Agreement (this “SUA”) carefully as this SUA constitutes a binding contract between you, an individual user (“you”) and Ekdesk LLC (“Ekdesk”) governing your use of the Ekdesk website found at https://ekdesk.com (“Site”), any software applications (each an “App”), or other Internet services under Ekdesk’s control and used to provide Ekdesk’s services to you (the Site, Apps, and those Internet services are, collectively, the “Services”). By clicking on “Pay securely” on the sign-up page, installing the App, or otherwise accessing or using the Services, you have read, understood, and agree to be bound by and comply with the terms and conditions of this SUA. If you are using the Services on behalf of an entity, partnership, or other organization, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind that entity to this SUA, and (ii) agree to be bound by this SUA on behalf of that entity. If you do not agree, you are not permitted to use the Services.
If a customer accesses or uses the service, all disputes between customer and Ekdesk will be resolved by binding arbitration. Please review Section 14(b) for details regarding customer’s agreement to arbitrate any disputes with Ekdesk.
Ekdesk recommends that you print a copy of this SUA for your records.
“Customer” means you or, if you are using the Service on behalf of a company, entity, or organization, the entity, partnership or organization on whose behalf you are utilizing the Services.
“Party” means either Customer or Ekdesk and “Parties” means both Customer and Ekdesk.
“Recipient” means a director, general partner, officer, employee, contractor, or agent of Customer, or third parties, who receive access to Ekdesk Services or documentation generated from such Services. Recipients access the Services in accordance with this SUA for the purposes of obtaining or generating, with Customer’s authorization, Customer Data.
“Representative” means a representative of Customer, including a director, general partner, officer, employee, contractor, or agent, to whom Customer provides (or for whom Customer authorizes Ekdesk to provide) access to Customer’s Data stored via the Services for the purpose of providing a Customer professional or other services.
“Sign-up” means the on-line sign-up process on Ekdesk’s website.
“Term” has the meaning set out in Section 6.
2. Subscribing to the Service; Eligibility.
Customer subscribes for the Services by selecting them from the options available during Sign-up. In the event of any conflict between this SUA and the information provided during Sign-up, this SUA shall control. Customer and all Customer Personnel (as defined below) must be at least 18 years of age to use the Services. By agreeing to this SUA, you represent and warrant to Ekdesk that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with all applicable laws and regulations.
License grant. Subject to Customer’s complete and ongoing compliance with all the terms and conditions of this SUA and payment of all applicable fees, Ekdesk hereby grants to Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable license during the Term, to access and use the Services through Ekdesk’s available interfaces and to permit Customer Personnel (as defined below) to access and use the Services through Ekdesk’s available interfaces, in each case, solely in connection with Customer’s internal business operations.
User IDs. Upon Customer’s request, Ekdesk will issue a Customer ID to Customer. Customer may share this Customer ID with each of its partners, shareholders, directors, officers, employees, and contractors who are bound by confidentiality restrictions at least as restrictive as this SUA (“Customer Personnel”). Customer Personnel may only access and use the Service through the Customer ID and in compliance with this SUA. Customer will not allow Customer Personnel to share the Customer ID with third parties. Customer is responsible for all activity occurring under its Customer ID. Customer is responsible for all use of the Services by Customer Personnel and for maintaining the confidentiality of the Customer ID and will promptly notify Ekdesk of any actual or suspected unauthorized use of the Services. Ekdesk reserves the right to replace the Customer ID if it determines it may have been used for an unauthorized purpose.
Internet connectivity; disclaimer. Ekdesk may make the Services available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications, and Internet connectivity necessary to access the Services. Customer acknowledges that the Internet is known to be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Customer agrees that Ekdesk is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and Customer waives any and all claims against Ekdesk in connection therewith.
Limitations. Customer agrees that it will not, and it will not permit any Customer Personnel or any other party to: (i) permit any party to access or use the Services other than the Customer Personnel authorized under this SUA; (ii) modify, adapt, alter, or translate any software underlying the Services, except as expressly allowed hereunder; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under applicable law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services; (v) use or copy any software underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass, or harm another individual; (ix) use any high-volume automatic, electronic, or manual process to access, search, or harvest information from the Services (including without limitation robots, spiders, or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under applicable law, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine,” or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Customer may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Customer is prohibited under applicable law from using the Services, Customer may not use them.
Suspension of access. In addition to any other suspension or termination rights of Ekdesk pursuant to this SUA, certain circumstances may require Ekdesk to suspend or terminate (where appropriate), as determined in Ekdesk’s discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, Ekdesk’s Internet network; (ii) comply with any law, regulation, court order, or other governmental request or order; or (iii) otherwise protect Ekdesk from potential legal liability or harm to its reputation or business. Ekdesk will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this SUA will be construed to limit Ekdesk’s actions or remedies or act as a waiver of Ekdesk’s rights in any way with respect to any of the foregoing activities. Ekdesk will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services.
4. Reservation of Rights.
Ekdesk. Ekdesk expressly reserves all rights in the Services and all other materials provided by Ekdesk hereunder not specifically granted to Customer. It is acknowledged that all right, title, and interest in the Services and all other materials provided by Ekdesk hereunder, any update, adaptation, translation, customization, or derivative work thereof, and all intellectual property rights therein will remain with Ekdesk (or third-party suppliers, if applicable) and that the Services and all other materials provided by Ekdesk hereunder are licensed on a subscription basis and not “sold” to Customer. Ekdesk reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“Ekdesk Materials”), are protected by copyright, trade dress, trade secrets, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Customer and Ekdesk, all Ekdesk Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Ekdesk or its subsidiaries or affiliated companies and/or its third-party licensors. Customer is not authorized to use, sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit adapt, or create derivative works from any such Ekdesk Materials except as expressly authorized hereunder. Customer shall not acquire any right, title, or interest to the Ekdesk Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this SUA, and any goodwill associated therewith shall inure solely to Ekdesk, or its subsidiaries or affiliated companies and/or its third-party licensors, as applicable. Any use of third-party software or services in connection with the Services will be governed by such third parties’ licenses or terms of service and not by this SUA and may be subject to separate fees, including, without limitation, your mobile network operator’s fees, including fees charged for data usage and overage, which are Customer’s sole responsibility.
Customer. Customer expressly reserves all rights in any information, records, files, or other data that Customer (or Customer Personnel) loads, enters into, or otherwise makes available to Ekdesk or the Services and all results from processing such data, including compilations, and derivative works thereof (the “Customer Data”), except that Customer grants Ekdesk a perpetual, non-exclusive, world-wide, royalty free, fully sublicenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Services to Customer or (ii) in connection with Ekdesk’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause 4(b) extend to any update, adaptation, translation, customization, or derivative work of Customer Data, made under this SUA.
Feedback. In the event that Customer provides Ekdesk any ideas, thoughts, criticisms, suggested improvements, or other feedback related to the Services (collectively “Feedback”), Customer agrees that Ekdesk may use the Feedback to modify the Services and that Customer will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Customer hereby grants Ekdesk a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Customer provides the Feedback on the Services or through any other method of communication with Ekdesk.
5. Customer Data.
Responsibility. Customer has sole responsibility for the accuracy, appropriateness, and completeness of all Customer Data. Ekdesk will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating, or otherwise confirming the accuracy, appropriateness, or completeness of Customer Data.
Transmission to recipients. At the Customer’s request and subject to Customer’s payment of any applicable fees, Ekdesk will use reasonable efforts to make certain Customer Data of such Customer available to Representative(s) who have registered with and are using the Services. Customer hereby authorizes Ekdesk to disclose such Customer Data to any Representative to whom Customer authorizes. Ekdesk does not control how any Representatives use the Customer Data and has no responsibility for Customer Data that is provided to a Representative. Notwithstanding the foregoing, Ekdesk reserves the right to decline to transmit Customer Data to a specific Representative if Ekdesk believes such transmission would violate this SUA or any applicable laws (in which case Ekdesk will use reasonable efforts to promptly notify Customer of such decision). Representatives acknowledge that Ekdesk is merely acting as a passive conduit for such distribution and takes no responsibility for any Customer Data. Ekdesk makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility or liability for, the quality, content, nature, or reliability of any Customer Data.
Restrictions. Customer agrees not to upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates, or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, other disabling devices, or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
Indemnity. Customer agrees to defend, indemnify, and hold harmless Ekdesk, its employees, officers, directors, affiliates, suppliers, licensors, and other customers against any and all liability (including damages, recoveries, deficiencies, interest, penalties, and reasonable attorney’s fees) to third parties (including, but not limited to, any Clients, the United States government, and state taxing authorities) arising out of or relating to: (a) violation of any applicable law or regulation, (b) Customer Data, (c) Customer’s (or Customer’s Personnel’s) breach of any of its obligations, representations and/or warranties under this SUA; or (d) Customer’s use of the Services, including in combination with any third-party software, application, or service.
The term of this SUA (“Term”) shall commence upon the date the sign-up process is complete and will continue on a year to year basis, or other periodic basis as agreed by the parties, for so long as Customer is current on all fees due unless or until terminated as permitted under this SUA. If Ekdesk offers, and Customer has elected to receive, trial access to Ekdesk’s Services, notwithstanding anything else to the contrary herein, the Term will begin on the date the sign-up process is complete and end upon delivery of the trial access as offered by Ekdesk (“Trial Term”). At the end of the Trial Term, if Customer wishes to continue to receive the Services, Customer must begin paying for the Services.
7. Customer support.
Technical support. During the Term for the applicable Services, and for so long as Customer is current with its payment of all applicable fees, Ekdesk will use commercially reasonable efforts to provide Customer with technical support services relating to the Services via its technical support website, email, or telephone.
Web support. Web support shall not include any legal or other professional or expert advice of any kind, including, but not limited to, any advice regarding the appropriate handling of workplace, employment, or labor issues, or otherwise.
Service upgrades and scheduled downtime. Ekdesk may update the Services in its sole discretion. Ekdesk may from time to time schedule downtime for maintenance and upgrades.
Data storage and backup. Ekdesk is not responsible for performing, and is not liable for any failure to perform, any back-up of any data (including Customer Data) provided, transmitted, processed, or stored by Customer in or through the Services. It is Customer’s responsibility to back up onto Customer’s own local system all Customer Data, including all data and records that Customer submits to Ekdesk.
Call monitoring. Ekdesk may monitor and record support-related and other outbound calls to Customer, as well as inbound calls to Ekdesk by Customer or Customer’s representatives, for compliance, support, training, and other purposes. Customer acknowledges and agrees that Ekdesk may record any call between Customer and Ekdesk relating to the Services, and agrees to (i) notify all relevant Customer employees that calls with Ekdesk may be monitored and (ii) indemnify and hold harmless Ekdesk from any claim arising as a result of Ekdesk’s monitoring or recording of calls between Ekdesk and Customer’s representatives.
8. Fees and payment.
Fees. Access to the Services may require Customer to pay fees, as may be further described at https://ekdesk.com/pricing. Before Customer pays any fees, Customer will have an opportunity to review and accept the fees that Customer will be charged. All fees are in U.S. dollars and are, except as described in this Section 8, non-refundable. If Ekdesk changes the fees for the Services, including by adding additional fees or charges, Ekdesk will provide Customer advance notice of those changes. If Customer does not accept the changes, Ekdesk may discontinue providing the Services to Customer. Ekdesk will charge the payment method Customer specifies at the time of purchase. Customer authorizes Ekdesk to charge all sums for the Services Customer selects, to that payment method. If Customer pays any fees with a credit card, Ekdesk may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.
Automatic credit card payments. The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Customer activates or updates recurring payments through the Service, Customer authorizes Ekdesk to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all accrued sums on or before the payment due date for the accrued sums. If Customer uses the Service to updates or cancels any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.
Late payment. Customer may not withhold or “set off” any amounts due hereunder. Ekdesk reserves the right to suspend the Services until all past due amounts are paid in full.
Certain taxes. Fees quoted do not include and Customer shall pay, indemnify, and hold Ekdesk harmless from all sales, use, gross receipts, value-added, personal property, or other taxes, and all applicable duties, tariffs, assessments, export, and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Ekdesk.
Refunds. In the event of termination of the Services for any reason except for Customer’s breach, Ekdesk may provide Customer with a refund of any pre-paid, but unused fees related to such Services, subject to the following: (i) no refund shall be paid for the current pro-rata month’s services, regardless of the day on which Customer cancels the Services; (ii) Ekdesk will retain and not be obligated to refund any prepaid fees up to and including the amount of fees Customer would have been required under this SUA to pay for Customer’s use of the Services for the two month period following the effective date of the termination of the Services. Customer is not entitled to any refund for Ekdesk’s termination of the Services based upon Customer’s breach. If Customer purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.
9. Confidential and proprietary information.
Definitions. For purposes of this section, a Party receiving Confidential and Proprietary Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Discloser” and “Confidential and Proprietary Information” means all information disclosed by Discloser to Recipient during the Term and marked as “confidential” or “proprietary.” Customer hereby acknowledges that the Service will be considered Confidential and Proprietary Information belonging exclusively to Ekdesk (or its designated third-party supplier), and Ekdesk hereby acknowledges that Customer Data will be considered Confidential and Proprietary Information belonging exclusively to Customer, in each case regardless of whether or not marked as “confidential” or “proprietary.”
Discloser’s Confidential and Proprietary Information does not include: (i) information already known or independently developed by Recipient without use of or reference to any Discloser’s Confidential and Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential and Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates, or contractors having a “need to know,” as permitted by this SUA (including Section 5(b)), or to such other recipients as the Discloser may approve in writing, including Representatives; (ii) use Confidential and Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this SUA; or (iii) alter or remove from any Confidential and Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential and Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than reasonable care. Upon the earlier of Discloser’s written request or termination or expiration of this SUA, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential and Proprietary Information of Discloser in its possession or control and cease all further use thereof. Ekdesk may retain a copy of such Confidential and Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential and Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this SUA or is required by law or by the order of a court or similar judicial or administrative body, provided that prior to disclosing any Confidential and Proprietary Information due to a legal requirement, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
10. No warranties.
Content from other users, suppliers, advertisers, and other third parties may be made available to Customer through the Services. Because Ekdesk does not control such content, Customer agrees that Ekdesk is not responsible for any such content. Ekdesk does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and Ekdesk assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Ekdesk. Ekdesk is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Customer understands that by using the Site and/or Services Customer may be exposed to third-party websites that Customer finds offensive, indecent, or otherwise objectionable. Ekdesk makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party websites, products, or services accessible by hyperlink or otherwise from the Site or Services. Ekdesk provides these links for Customer’s convenience only and does not control such websites. Ekdesk’s inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Services may contain links to websites that are operated by Ekdesk but which operate under different terms. It is Customer’s responsibility to review the privacy policies and terms and conditions of any other website Customer visits.
CUSTOMER AGREES THAT IN NO EVENT WILL EKDESK BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
Warranty Disclaimer. THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EKDESK HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EKDESK DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING EKDESK OR ANY OF ITS SERVICES THAT IS NOT EXPRESSLY STATED IN THIS SUA. CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, CUSTOMER’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.
11. Limitation of liabilities.
The Parties acknowledge that each provision of this SUA that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does reflect a fair allocation of risk between the parties, and this allocation of risk forms an essential element of the basis of the bargain between the parties and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. Each of these provisions is severable and independent of all other provisions of this SUA. The limitations in this Section 11 will apply even if any limited remedy fails of its essential purpose.
Amount. IN NO EVENT WILL EKDESK BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS SUA EXCEEDING FEES PAID IN RESPECT OF THE SERVICES AT ISSUE IN THE LAST THREE (3) MONTHS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS SUA WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL EKDESK’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS SUA.
Type. IN NO EVENT SHALL EKDESK BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS SUA, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, OR BREACH), OR OTHERWISE. IN NO EVENT SHALL EKDESK BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO CUSTOMER. TO THE EXTENT THAT EKDESK MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF EKDESK’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:
For Ekdesk, addressed to firstname.lastname@example.org; and
For Customer, to the addresses or email address provided by Customer on Sign-up (as such address or email address may be updated by Customer from time to time in accordance with this SUA).
Ekdesk may change its contact information by giving notice of such change to the Customer. Customer may change its contact information by using the currently available interfaces on Ekdesk’s application.
For contractual purposes, Customer (i) consents to receive communications from Ekdesk in an electronic form; and (ii) agrees that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Ekdesk provides to Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Customer’s consent to receive Communications and do business electronically, and Ekdesk’s agreement to do so, applies to all of Customer’s interactions and transactions with Ekdesk. The foregoing does not affect Customer’s non-waivable rights. If Customer withdraws such consent, from that time forward, Customer must stop using the Services. The withdrawal of Customer’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Ekdesk prior to the time Customer withdraws its consent.
You consent to receive SMS text messages from us. By providing Ekdesk with Customer’s mobile telephone number, Customer consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Service. While Ekdesk does not charge a fee for text messages, Customer’s carrier may charge standard messaging, data, and other fees. Customer is responsible for these charges. Ekdesk may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Ekdesk is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
On notice. Either Party can terminate this SUA for their convenience by providing the other party with notice of termination prior to the last day of the then current annual, or as applicable, other periodic, renewal.
Generally. Either Party may, in addition to other relief, terminate this SUA if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days, or, in the case of Customer, for the failure to pay all applicable fees.
Survival. Upon termination or expiration of this SUA for any reason: (i) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth in Section 9 (Confidential and Proprietary Information). The following Sections will survive expiration or termination of this SUA for any reason: the introductory paragraph, Sections 1, 3 – Limitations, 4, 5 – Indemnity, 6, 10, 11, 13, and 14.
14. General Provisions.
Assignment. Customer may not assign this SUA or any of its rights or obligations hereunder to any third party without Ekdesk’s prior written consent. Any assignment in violation of this section shall be void. Ekdesk may assign this SUA without restriction and without any notice to Customer. The terms of this SUA shall be binding upon permitted successors and assigns.
Arbitration. Except as expressly provided in this SUA, all controversies, disputes, demands, counts, claims, or causes of action between Customer and Ekdesk arising out of, under, or related to this SUA or Ekdesk’s privacy practices (including any action Ekdesk takes or authorizes with respect to information about or provided by Customer) shall be settled exclusively through binding arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes selected from the panel of the American Arbitration Association (“AAA”). As modified by this SUA, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS SUA, CUSTOMER AND EKDESK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Customer and Ekdesk must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Customer and Ekdesk, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CUSTOMER OR EKDESK MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) the arbitrator shall honor claims of privilege and privacy recognized at law; (g) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Customer or Ekdesk shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Ekdesk customer; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses.
Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration provision. Such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in the Commonwealth of Virginia. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
Right to list as a customer. Customer agrees that Ekdesk may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.
Compliance with export regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Ekdesk harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations, or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
European Union residents. If Customer resides in the European Union or if any transfer of information between Customer and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Service.
Construction. Except as otherwise provided herein, the Parties rights and remedies under this SUA are cumulative. The term “including” means “including without limitation.” The headings of sections of this SUA are for reference purposes only and have no substantive effect.
Force Majeure. Customer acknowledges and understands that if Ekdesk is unable to provide Services as a result of a force majeure event Ekdesk will not be in breach of this SUA and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Ekdesk.
Severability. NOTHING IN THIS SUA WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO CUSTOMER. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.
Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this SUA or by law in one instance shall not preclude enforcement thereof on future occasions.
Independent contractors. Customer’s relationship to Ekdesk is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Ekdesk.
Entire agreement. This SUA constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This SUA may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this SUA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this SUA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Amendments. Ekdesk reserves the right to change this SUA at any time and from time to time upon notice by posting revisions to this SUA (including the description of the Services) on Ekdesk’s website and by sending electronic notification to Customer. Continued use of the Services after Customer become aware of or receives notification of any such changes shall constitute Customer’s consent to such changes. Customer is responsible for regularly reviewing the most current version of this SUA, which is available on Ekdesk’s website.