Terms of Use & Licensing Terms and Conditions

Last Updated on: April 13th, 2024

As used in these Terms of Use & Licensing Terms and Conditions (the “Terms of Use & Licensing Terms and Conditions,” or the “Terms”), Envalo, Inc. may hereinafter be referred to as “Envalo” and you may hereinafter be referred to as “Subscriber.” Be sure to read the Terms below, as they cover the terms and conditions that apply to your visits to, use of, and navigation of this website (the “Website,” or the “Site”) and the use of any of Envalo’s Services (as defined below). You must be of legal age to enter into a binding agreement in order to accept these Terms. If you do not agree to these Terms, do not use the Site, register for an Account (as defined below), subscribe to a Plan (as defined below), or use any of the Services. By continuing to use the Site, by registering for an Account, by subscribing to a Plan, or by using any Service, you are agreeing to be bound by the following terms and conditions.

Envalo may change these Terms from time to time and in its sole discretion. By continuing to use the Site, an Account, a Plan, or any Service following such modifications, you agree to be bound by such modifications to the Terms. Any new features or tools which are added to the current Services and/or Plans shall also be subject to these Terms. You must read, agree with, and accept all the terms and conditions contained or expressly referenced in these Terms before you sign up for an Account or use any Service.

In consideration of use of the Site, the use of an Account, the use of a Plan, or the use of any of the Services, you agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the registration page; and (b) to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by you is untrue, inaccurate, not current, or incomplete, Envalo has the right to terminate any Account you create and refuse any and all current or future use of the Site, an Account, a Plan, or any Services. You agree not to resell, rent, copy, or transfer content of or access to the Site or the Services or to attempt to do so.

1. Account; Plan; License to Receive the Service

(a) Account; Plan

To subscribe to, access, and use the Services, Subscriber must register for an Account with Envalo. To complete its Account registration, Subscriber must provide Envalo with its full legal name, business name (if different), business address and official corporate address, if different, phone number, a valid email address, and any other information indicated as required on the Site. Envalo may reject Subscriber’s registration application for an Account, or cancel an existing Account, for any reason, at its sole discretion. Subscriber must also subscribe to and timely remit full payment for one or more Plans offered on the Site. Based upon Subscriber’s subscription to a Plan, Subscriber may identify one or more Authorized User(s) (as defined below), allowing Subscriber’s Authorized Users to access Subscriber’s Account and to use, setup, configure, and manage Subscriber’s Account and Services on behalf of Subscriber. Each Authorized User must be specifically identified by their full legal name and a valid email account. Subscriber acknowledges and agrees it is responsible for: (a) ensuring its Authorized Users comply with these Terms; and (b) any breach of these Terms by Subscriber’s Authorized Users. Subscriber acknowledges and agrees that Subscriber shall be responsible for the performance of all of its obligations under these Terms, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Subscriber.

(b) Grant

Envalo hereby grants to Subscriber a limited, non-exclusive, and non-transferable license, without right of sublicense, during the Term of Subscription to access and use the Services, and to permit Authorized Users to access and use the Services, subject to the terms and conditions of these Terms and the Plan to which Subscriber subscribes. All rights in the Services not expressly granted hereunder are reserved to Envalo.

(c) Scope

The license granted to Subscriber hereunder is solely for Subscriber’s business purposes and is limited (a) to Subscriber and its Authorized Users to access, use, setup, configure, and manage the Services, and (b) to Subscriber’s consumers and/or Subscriber’s public domain as Subscriber permits to access and use the Services that Subscriber and its Authorized Users setup, configure, and manage. Subscriber shall have no right pursuant to these Terms to access, use, display, or distribute the Services, in whole or in part, beyond the scope provided herein and beyond the number of Authorized Users permitted under Subscriber’s Plan or as subsequently added, as the case may be. Subscriber may add additional Authorized Users by adding, specifically identifying, and paying for said additional Authorized Users via Subscriber’s subscription portal on the Site. Subscriber is responsible for all activities that occur under Subscriber’s Account. Subscriber shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Services by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Envalo promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Services. Nothing in these Terms shall obligate Envalo to continue providing access to any Services beyond the date when Envalo ceases providing such Services to Subscriber or subscribers generally.

(d) Restrictions of Use

Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Services, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to (including any Authorized User):

Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Software or the Services
Modify, translate, adapt, alter, or create derivative works from the Services;
Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Services;
Distribute, sublicense, rent, lease, loan, or grant any third-party access to or use of the Services to any third party;
Harvest, collect, gather, or assemble information or data regarding other subscribers;
Transmit through or post on the Services unlawful, inappropriate, immoral, libelous, tortious, infringing, fraudulent, objectionable, hateful, defamatory, threatening, harassing, offensive, vulgar, or obscene material or material harmful to minors;
Create a false identity to mislead any person as to the identity or origin of any communication;
Use the Services for transmitting information that is false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity, or agency for financial gain or to cause any injury to any person;
Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
Interfere with or disrupt the integrity or performance of the Services or the data contained therein;
Use the Site or Services in any manner that could damage, disable, overburden, impair, or harm any server, network, computer system, or resource of Envalo;
Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Services;Attempt to hack or break through the security of the Site, or engage in a denial-of-service attack against the Site, or enable others to do so;
Engage in unauthorized access, monitoring, interference with or use of the Site or the Services or third-party accounts, information (including personal information), computers, systems, or networks, including scraping, copying, or downloading content that doesn’t belong to you;
Provide any service based on the Services without prior written permission;
Allow licenses to be shared or used by more than one individual other than by way of reassigning the license to a new user;
Resell, license, or provide free or unauthorized access to the Site or make the Site available on any file-sharing, virtual desktop, or application hosting service;
Use third party links to sites without agreeing to their website terms & conditions;
Post links to third party sites or use their logo, company name, slogan, etc. without their prior written permission;
Harass or interfere with another subscriber or end-user’s use and enjoyment of the Services;
Send any unsolicited or unauthorized advertising, such as spam, chain letters, pyramid schemes, or other unsolicited commercial communication;
Host, display, upload, modify, publish, transmit, store, update, or share any information that belongs to another person or entity and to which you do not have any right, including personal or confidential information or any person or entity with respect to which you do not have consent or permission from such person or entity;
Remove, alter, or obscure any proprietary or other notice that appears on the Services or related software, including on any copies made in accordance with these Terms;
Publish or disclose the results of any benchmarking of the Services, or use such results for any other software development activities;
Use the Services for the purposes of competing with Envalo;
Use the Services for any form of competitive or benchmarking purposes;
Use the Services or related Software for any purpose other than the limited use scope of Subscriber;
Impersonate or misrepresent your affiliation with Envalo;
Use the Services or related Software, or allow the transfer, transmission, export, or re-export of all or any part of the Services or related Software, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction;
Use the Services to send or store material containing software viruses, worms, or other harmful computer codes, files, scripts, or programs;
Use the Site or the Services in any manner that interferes with or disrupts the integrity, security, or performance of the Services, its components, and the data contained therein;
Upload, post, publish, reproduce, transmit, or distribute in any way any component of the Site or the Services itself or derivative works with respect thereto;
Use the Services or related Software in a manner that violates any applicable local, state, national, or international law or governmental regulation, policy procedure, executive order, or ordinance, or any rights of a third party; or
Use the Services or related Software if the subscription and/or license has been terminated by Envalo.

Subscriber agrees to notify its Authorized Users, Staff, and any other employees and agents who have access to the Services, if any, of the limitations set forth in these Terms. Subscriber is solely responsible for anything Subscriber, its Authorized Users, and/or its Staff writes, submits, receives, shares, and stores or any data Subscriber, its Authorized Users, and/or its Staff inputs into the Site or the Services or provides to Envalo (collectively, “Content”). Content includes, but is not limited to, data, information, materials, text, graphics, images, audio, or video that are uploaded, transmitted, posted, generated, stored, or otherwise made available through the Site or the Services or provided to Envalo. Subscriber has no obligation to provide any Content to the Site or to Envalo, and Subscriber is free to choose the Content it wants to provide.

2. Fees and Payments

(a) Service Fees and Other Fees

In exchange for the Services to be provided and the licenses granted under these Terms, commencing on the Service Start Date, Subscriber shall pay Envalo the Fees identified in the Plan, plus any other applicable fees, subscription fees, costs, interest, and expenses contained in the Plan, any SOW, and these Terms (collectively, the “Fees”). A valid credit card must remain on file in Subscriber’s Account to pay all incurred and recurring Fees. Envalo will charge applicable Fees to the credit card on file authorized by Subscriber (the “Authorized Payment Method”), and Envalo will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and any other charges are in U.S. Dollars, and all payments will be in U.S. currency.

(b) Plan Fees to be Paid in Advance

If Subscriber’s Plan is a monthly Plan, Subscriber will be billed in advance in 30-day intervals. If Subscriber’s Plan is an annual Plan, Subscriber will be billed in advance in 12-month intervals. Each such date Subscriber is billed in advance for either the 30-day intervals (for monthly Plans) or the 12-month intervals (the annual Plans) is the “Billing Date”. Subscriber will be charged on each Billing Date for all outstanding Fees that have not previously been charged. A receipt of payment will be sent to Subscriber via the email address provided by Subscriber when registering for an Account or as updated by Subscriber from time to time. If Envalo is not able to process payment of Fees using an Authorized Payment Method, Envalo may make subsequent attempts to process payment using any Authorized Payment Method. If Envalo is unable to successfully process payment of Fees using an Authorized Payment Method within thirty (30) days of its initial attempt, Envalo may suspend and revoke access to Subscriber’s Account and the Services. Subscriber’s Account will be reactivated upon Subscriber’s payment of any outstanding Fees, plus the Fees applicable to Subscriber’s next billing cycle. Subscriber may not be able to access its Account or any Services during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, Envalo reserves the right to terminate your Account in accordance with these Terms. Subscriber may have two weeks to bring up and settle any issues with the billing of any Fees by Envalo.

(c) Late Payments

If Subscriber fails to pay the Fees by the Billing Date, Envalo shall be entitled to interest from the day on which the Fees became due. Both Parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.

(d) Taxes

All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Subscriber is responsible for all applicable Taxes that arise from or as a result of Subscriber’s subscription to any Plan or the Services. To the extent that Envalo charges these Taxes, they are calculated using the tax rates that apply based on the billing address Subscriber provides to Envalo. Such amounts are in addition to the Fees for such Plan and Services and will be billed to Subscriber’s Authorized Payment Method. If Subscriber is exempt from payment of such Taxes, Subscriber must provide Envalo with evidence of its exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Envalo receives evidence satisfactory to Envalo of Subscriber’s exemption. If Subscriber is not charged Taxes by Envalo, Subscriber is responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in Subscriber’s jurisdiction. For the avoidance of doubt, all sums payable by Subscriber to Envalo under these Terms will be paid free and clear of any deductions or withholdings whatsoever. Other than any Taxes charged by Envalo to Subscriber and remitted to the appropriate tax authorities on Subscriber’s behalf, any deductions or withholdings that are required by law will be borne by Subscriber and paid separately to the relevant taxation authority. Envalo will be entitled to charge the full amount of Fees stipulated under these Terms to Subscriber’s Authorized Payment Method ignoring any such deduction or withholding that may be required. Subscriber is solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges, and additional charges that arise from or as a result of Subscriber’s subscription to any Plan and/or the use of the Services. The Services are not a marketplace. Any contract of sale made through the Services is directly between Subscriber and its customer, if any.

(e) Option

Subscriber may have the option to expand the number of licenses granted under these Terms, the Plan, and any SOW to increase the number of Authorized Users and/or to increase the Services upon Envalo’s receipt and acceptance of Subscriber’s written notice of same, Subscriber’s addition of and payment for additional Authorized Users via Subscriber’s subscription portal on the Site, Subscriber’s execution of a SOW, and/or Subscriber’s subscription to a higher-level Plan, as the case may be.

3. Professional or Customized Services

During the Term of Subscription, Subscriber may request Envalo to perform professional or customized services in the nature of software development, customization add-in, documentation, training, testing, integration services, and any other similar services that Envalo may offer (hereinafter, “Professional or Customized Services”) by submitting to Envalo for acceptance a SOW containing the requirements and specifications of the proposed Professional or Customized Services. All SOWs shall be subject to these Terms. Any and all Services, including Professional or Customized Services, performed by Envalo are not exclusive to Subscriber, and Envalo may perform services of any type or nature for any other person or entity at any time.

4. Reports and Records

Subscriber shall maintain accurate records containing the following information, copies of which Envalo shall be entitled to receive upon seven (7) days prior written notice to Subscriber: (i) the name and email address of each Authorized User; and (ii) the Service(s) received, accessed, used, setup configured, and/or managed by each Authorized User. Envalo may reasonably request Subscriber to maintain records containing additional information related to the Services and Subscriber’s use thereof. In addition, Envalo may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Services, as Envalo deems reasonably necessary, in order to determine Subscriber’s compliance with these Terms.

5. Audits and Inspections

For the purpose of verifying compliance with these Terms, Envalo (and Envalo’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit and inspect from time to time Subscriber’s offices, books, and records relevant to the Services and to observe the use made of the Services and the manner in which each Authorized User accesses, uses, sets up, configures, and/or manages the Services and Account. If such audit or inspection pursuant to this Section indicates that Subscriber is not in compliance with these Terms (including any SOW), such as more Authorized Users than permitted and/or added and purchased by Subscriber under a Plan or applicable SOW, Subscriber shall pay Envalo the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Plan or SOW). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Subscriber shall reimburse Envalo for Envalo’s reasonable costs associated with such audit or inspection.

6. Data Security

(a) Creation and Storage of Back-ups

Envalo will create a back-up of Subscriber Data (as defined below) nightly, as scheduled by Envalo. Envalo will store such back-ups in Envalo’s Virtual Private Cloud (“VPC”) on servers that will be accessible from the internet. Envalo reserves the right to retain only the most current 30 days of back-ups on a rolling basis, as well as the right to retain copies of the first back-up of the month for a period of twelve (12) months, and to erase or otherwise dispose of all other back-ups at any time.

(b) Security

Envalo will implement commercially reasonable security measures (including, but not limited to, password protection and encryption) that are intended to prevent access to the Services and Envalo’s network by unauthorized persons and shall comply with applicable laws and regulations concerning the safeguarding of Subscriber Data that is stored or accessed by the Services. Envalo will establish and maintain such other commercially reasonable safeguards (including, but not limited to, virus protection safeguards) against the destruction, loss, or alteration of the Services and/or data that is stored or accessed by the Services. Envalo or its agents will utilize security systems for the Services that provide notification in the event of fire, improper entry, and environmental systems failure. Upon Envalo’s (or its agent’s) discovery of any security breach, intrusion, or other event giving rise to the actual unauthorized access, destruction, loss, or alteration of Subscriber’s Data, Envalo will take commercially reasonable measures to promptly notify Subscriber thereof and will take such commercially reasonable action as may be appropriate to mitigate and prevent such unauthorized access, destruction, loss, or alteration. However, Subscriber acknowledges and agrees that the Internet is an open system and Envalo cannot and does not guarantee that Subscriber’s Subscriber Data will not be intercepted by others and decrypted.

7. Mergers and Acquisitions

For the purpose of calculating the Fees under Subscriber’s Plan, Subscriber acknowledges and understands that said Fees charged under said Plan does not and will not include Authorized Users and/or Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in additional Authorized Users and/or Services being acquired, such additional Authorized Users and/or Services will not be covered by the Fees charged under the Plan. Subscriber agrees that such Authorized Users and/or Services shall be subject to additional fees, based upon the then-current listed price for the additional Authorized Users and/or Services resulting from the acquisition or merger.

8. Copyright Protection; Use Restrictions; Subscriber License Grant

(a) Subscriber agrees that the Site and the Services and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Envalo or Envalo’s licensor. The works and databases included in the content of the Site and the Services are protected by applicable copyright laws. Other than as expressly set forth in these Terms, no license or other rights in the pre-existing intellectual property rights to the Site or the Services are granted to Subscriber, and all such rights are hereby expressly reserved.

(b) Subscriber agrees that it may not use any trademarks, logos, or service marks of Envalo, whether registered or unregistered (for purposes of these Terms, “Envalo Trademarks”), unless it is expressly authorized to do so by Envalo in writing. Subscriber agrees not to use or adopt any marks that may be considered confusing with Envalo Trademarks. Subscriber agrees that any variations or misspellings of Envalo Trademarks would be considered confusing with Envalo Trademarks. Subscriber acknowledges and agrees that these Terms do not give it any right to implement Envalo patents.

(c) Subscriber agrees that only identified and named Authorized Users shall be permitted access to the Site and the Services as set forth in Subscriber’s Plan. Except as set forth herein or in a SOW, if applicable, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.

(d) Subscriber hereby grants to Envalo a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, display, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, and translate, and create derivative works of any Subscriber Data provided by Subscriber or its Authorized Users in connection with the Services. Envalo may use its rights under this license to operate, provide, and promote the Services and to perform its obligations and exercise its rights under these Terms. Subscriber represents, warrants, and agrees that it has all necessary rights in the Subscriber Data to grant this license. Subscriber irrevocably waives any and all moral rights it may have in the Subscriber Data in favor of Envalo and agrees that this waiver may be invoked by anyone who obtains rights in the Subscriber Data through Envalo, including anyone to whom Envalo may transfer or grant (including by way of license or sublicense) any rights in the Subscriber Data. Envalo may collect and provide certain Subscriber and Authorized User registration and statistical information, such as usage, and Subscriber and Authorized User traffic patterns, in aggregate and anonymized form to third parties. Envalo may access Subscriber’s and its Authorized User Accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems. Subscriber Data submitted by Subscriber to the Site or the Services, whether by Subscriber or by its Authorized User, remains the sole property of Subscriber, subject to any rights or licenses granted in these Terms or elsewhere.

(e) Subscriber hereby grants to Envalo a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to use Subscriber Marks (as defined below) to operate, provide, and promote the Services and to perform its obligations and exercise its rights under these Terms. This license shall survive any termination of these Terms solely to the extent that Envalo requires the license to exercise any rights or perform any obligations that arose during the Term of Subscription.

(f) Envalo shall have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Envalo shall hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.

9. Proprietary Rights

(a) Reservation of Rights

Subscriber acknowledges that in providing the Services, Envalo utilizes: (i) the name, logo, and domain name of the product names associated with the Services and other trademarks; (ii) certain audio and visual information, documents, software, and other works of authorship; and (iii) other technology, hardware, products, processes, algorithms, user interfaces, know-how, and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information (collectively “Envalo Technology”) and that the Envalo Technology is covered by intellectual property rights owned or licensed by Envalo (“Envalo IP Rights”). Other than as expressly set forth in these Terms, no license or other rights in the Envalo IP Rights are granted to Subscriber, and all such rights are hereby expressly reserved.

10. Disclaimer

By using the Site or the Services, Subscriber agrees that use of the Site or the Services is entirely at Subscriber’s own risk. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT ACCESS TO THE SITE, THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND ENVALO DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SITE OR THE SERVICE(S). SPECIFICALLY, ENVALO DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF THE SITE, ITS INFORMATION, PRODUCTS OR SERVICES AND (2) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.

SUBSCRIBER ACKNOWLEDGES AND AGREES IT ASSUMES RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM ITS USE OF THE SITE OR THE SERVICES. SUBSCRIBER SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SITE OR THE SERVICES. TECHNICAL DIFFICULTIES COULD BE ENCOUNTERED IN CONNECTION WITH THE SITE OR THE SERVICES. THESE DIFFICULTIES COULD INVOLVE, AMONG OTHERS, FAILURES, DELAYS, MALFUNCTION, DATA SECURITY BREACHES, SOFTWARE AND DATA EROSION, OR HARDWARE DAMAGE, WHICH DIFFICULTIES COULD BE THE RESULT OF HARDWARE, SOFTWARE, OR COMMUNICATION LINK INADEQUACIES, OR OTHER CAUSES. SUCH DIFFICULTIES COULD LEAD TO POSSIBLE ECONOMIC AND/OR DATA LOSS. IN NO EVENT SHALL ENVALO OR ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, SUCCESSORS, ASSIGNS, EMPLOYEES, AGENTS, SUPPLIERS, PROVIDERS AND/OR LICENSORS BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR POSSIBLE LOSS, COST OR DAMAGE INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SITE OR THE SERVICES OR ITS CONTENT OR INABILITY TO GAIN ACCESS TO OR USE THE SITE OR THE SERVICES OR OUT OF ANY BREACH OF ANY WARRANTY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF ENVALO OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS, ASSIGNS, OR PROVIDERS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH STATE LAW.

11. Indemnification

(a) Subscriber Infringement Indemnity

Subscriber, at its expense, shall defend, indemnify, and hold Envalo and its subsidiaries, affiliates, shareholders, directors, officers, successors, assigns, employees, agents, suppliers, providers, and/or licensors (sometimes referred to herein as the “Envalo Parties”) harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against any of the Envalo Parties which relate to a claim, action, lawsuit, or proceeding made or brought against any of the Envalo Parties by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Envalo Claim”) by way of Envalo’s use of any Subscriber Data, Subscriber Marks, or other information or materials provided by Subscriber in connection with these Terms.

(b) Subscriber Indemnity

Subscriber, at its expense, shall defend, indemnify, and hold the Envalo Parties harmless from and against any and all claims or demands, including reasonable attorneys’ fees, made by any third party due to or arising out of (a) Subscriber’s breach of these Terms or the documents incorporated herein by reference; (b) or Subscriber’s violation of any law or the rights of a third party; or (c) any aspect of any transaction between Subscriber and any third party, including but not limited to refunds, fraudulent transactions, alleged or actual violation of applicable laws (including but not limited to Federal and State consumer protection laws), or Subscriber’s breach of these Terms.

(c)

Subscriber shall be responsible for any breach of these Terms by its Authorized Users, Staff, affiliates, agents, and/or subcontractors and shall be liable as if it were Subscriber’s own breach.

12. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ENVALO OR ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, SUCCESSORS, ASSIGNS, EMPLOYEES, AGENTS, SUPPLIERS, PROVIDERS AND/OR LICENSORS (THE “ENVALO PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, GOODWILL, USE, DATA, LOST SAVINGS, LOST REVENUES, OR OTHER INTANGIBLE LOSSES WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES, OR ARISING OUT OF THESE TERMS, EVEN IF ENVALO OR ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN ENVALO PARTIES’ LIABILITY SHALL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

13. Term of Subscription; Failure to Comply with Terms; Termination

(a) These Terms shall be effective for the Term of Subscription, unless modified or terminated earlier by Envalo. The term of these Terms shall begin on the date of Subscriber’s completed registration for use of the Services and continue until terminated by Subscriber or Envalo, as provided below.

(b) Without limiting any other remedies, Envalo may suspend or terminate Subscriber’s subscription, Account, Plan, its Services, and/or these Terms for any reason, without notice, and at any time (unless otherwise required by law). Further, Subscriber acknowledges and agrees that Envalo may in its sole discretion suspend or terminate Subscriber’s Account and/or the Services and/or deny Subscriber access to all or part of the Site or the Services without prior notice if Subscriber and/or Subscriber’s Authorized Users and/or Staff engages in any conduct or activities that Envalo in its sole discretion believes violate any of these Terms, violates any rights of Envalo, or is otherwise inappropriate for continued access. Upon the occurrence of such a suspension or termination, Subscriber shall not be entitled to any refunds of any Fees, pro rata or otherwise. Subscriber agrees to defend, indemnify and hold the Envalo Parties harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from Subscriber’s and/or Subscriber’s Authorized Users’ and/or Staff’s use of the Site and/or the Services, or the placement or transmission of any message, information, software or other materials through the Site and/or the Services by Subscriber and/or Subscriber’s Authorized Users and/or Staff or related to any violation of these Terms by Subscriber and/or Subscriber’s Authorized Users and/or Staff.

(c) Upon termination of the Services by either party for any reason:

Envalo shall cease providing its Services to Subscriber and Subscriber will no longer be able to access its Account with Envalo.
If the terminated Services were offered pursuant to a month-to-month subscription Plan, Subscriber shall not be entitled to any refunds of any Fees, pro rata or otherwise.
If the terminated Services were offered pursuant to an annual subscription Plan, Envalo will refund to Subscriber any Fees paid for any full (not partial) months remaining under said pre-paid annual Plan. This provision is not applicable to terminations pursuant to Section 13(b), above.

14. Modifications

(a) Envalo reserves the right, in its sole and absolute discretion, to update or change any portion of these Terms at any time. Envalo will provide Subscriber with reasonable advance notice of changes to these Terms that materially adversely affect Subscriber’s use of the Site or the Services or Subscriber’s rights under these Terms by sending an email to the email address provided by Subscriber when registering for an Account or as updated by Subscriber from time to time, or by providing notice through Envalo’s Site, or by similar means. However, Envalo may make changes that materially adversely affect Subscriber’s use of the Site or the Services or Subscriber’s rights under these Terms at any time and with immediate effect (i) for legal, regulatory, fraud and abuse prevention, or security reasons; or (ii) to restrict products or activities that Envalo deems, in its sole discretion, unsafe, inappropriate, or offensive. Unless Envalo indicates otherwise in its notice (if applicable), any changes to these Terms shall be effective immediately upon dissemination of notice of such updated terms via email or upon posting such updated terms on Envalo’s Site. Subscriber’s continued access to or use of the Site or the Services after Envalo disseminates such notice, if applicable, or after Envalo posts such updated terms on Envalo’s Site, constitutes Subcriber’s acceptance of the changes and consent to be bound by the Terms as amended. If Subscriber does not agree to the amended Terms, Subscriber must stop accessing and using the Site and the Services.

(b) Envalo may change the Fees and/or Plan(s) in connection with the Services from time-to-time and at its sole and absolute discretion. Envalo will provide Subscriber with thirty (30) days advanced notice prior to any changes in the Fees and/or Plan(s) by sending an email to the email address provided by Subscriber when registering for an Account or as updated by Subscriber from time to time, or by providing notice through Envalo’s Site, or by similar means. Envalo shall not be liable to Subscriber or to any third party for any modification, price change, suspension, or discontinuance of the Services (or any part thereof).

15. Confidentiality

For purposes of these Terms, “Confidential Information” means any valuable, non-public business information, technical information, code, inventions, know-how, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. Envalo’s Confidential Information includes but is not limited to all information that Subscriber receives relating to Envalo, or to the Services, that is not known to the general public. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than as is necessary for performing its obligations under these Terms and in accordance with any other obligation in these Terms. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under these Terms. At all times and notwithstanding any termination or expiration of these Terms, the receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Confidential Information of the disclosing Party, except as approved in writing by the disclosing Party or as is necessary for performing its obligations under these Terms and in accordance with any other obligation in these Terms. The receiving Party will only permit access to the Confidential Information of the disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in these Terms. The receiving Party will be responsible to the disclosing Party for any third party’s use and disclosure of the Confidential Information that the receiving Party provides to such third party in accordance with these Terms. The receiving Party will use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Confidential Information as are commercially reasonable and customary for the type of Confidential Information. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party’s possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. All Confidential Information will remain the exclusive property of the disclosing Party. If Subscriber should breach or threaten to breach any provision of this Section, Envalo, in addition to any other remedy it may have at law or in equity, shall be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of these Terms. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by Envalo as a result of Subscriber’s breach of any provision of this Section. In the event that Envalo should seek an injunction hereunder, Subscriber hereby waives any requirement for the submission of proof of the economic value of any Confidential Information or the posting of a bond or any other security.

16. Miscellaneous

(a) Notice

All notices and communications to Subscriber will be to the email address provided by Subscriber when registering for an Account or as updated by Subscriber from time to time.

(b) Assignment

These Terms are not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Envalo. Terms shall be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.

(c) Support Services

Envalo performs scheduled maintenance of its Site in accordance with industry standards. Envalo will make commercially reasonable efforts to provide Subscriber advance notice of any maintenance that will interrupt the Services or Subscriber’s access to the Site.

(d) Survival

Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of these Terms, will survive the termination or expiration of these Terms and remain binding upon and for the benefit of the Parties hereto.

(e) Binding Effect and Third-Party Beneficiary

Except where specifically stated in these Terms, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of these Terms.

(f) Waiver of Rights

Except where specifically stated to the contrary, all remedies available to Envalo for Subscriber’s breach of any of the terms and conditions under these Terms, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of Envalo at any time to require performance by Subscriber of any provision hereof shall not affect the full right to require such performance at any time thereafter. Similarly, the failure of Envalo to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

(g) Injunctive Relief

If Subscriber breaches Section 1 of these Terms, Envalo shall be entitled, in addition to any other rights available under these Terms, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.

(h) Severability

If any provision or portion thereof of these Terms or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any competent jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of these Terms will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.

(i) Governing Law; Dispute Resolution; Jurisdiction and Venue

These Terms, and any and all claims arising out of or in connection therewith, shall be governed by, and construed in accordance with, the laws of the State of Ohio (“Ohio”) applicable to contracts made entirely within Ohio and wholly performed in Ohio, without regard to any conflict or choice of law principles. Each Party irrevocably submits to the personal jurisdiction and venue of and agrees to service of process issued or authorized by any state or federal court in Cleveland, Ohio. Neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to these Terms. Any and all disputes, claims or causes of action, in law or equity, including without limitation, claims arising out of or related to the Parties’ negotiations and inducements to agree to these Terms, enforcement, breach, performance or interpretation of these Terms will be submitted to mandatory, binding arbitration conducted at the American Arbitration Association in Cleveland, Ohio, USA and in accordance with American Arbitration Association rules. Three (3) arbitrators appointed under such rules shall conduct said binding arbitration, and any judgment may be entered thereon in any court of competent jurisdiction. These Terms are subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Subscriber acknowledges that by agreeing to arbitration, it waives the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. Nothing in these Terms is intended to prevent Envalo from obtaining injunctive relief in any competent state or federal court in Ohio to prevent irreparable harm pending the conclusion of any such arbitration. Notwithstanding any contrary provision in these Terms, Subscriber acknowledges and agrees that Envalo may file a complaint in the Cuyahoga County Court of Common Pleas, Cleveland, Ohio or in the United States District Court for the Northern District of Ohio for infringement of its proprietary or intellectual property rights. In the event that Envalo is successful in taking any action to enforce, or in defending, as applicable, its rights under these Terms either in binding arbitration or in state or federal court in the event of Envalo’s filing of a complaint for infringement of its proprietary or intellectual property rights, Subscriber agrees to pay the reasonable and documented fees and expenses (including attorneys’ fees and expenses) of Envalo in such action or arbitration. Subscriber and Envalo agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. If this Class Action Waiver is found to be unenforceable, then the remainder of this Section shall remain valid and enforceable. This Section shall survive expiration, termination, or rescission of these Terms.

(j) Force Majeure

Any failure or delay by Envalo in the performance of any obligations under these Terms, if any, shall not be deemed a default or breach of these Terms or a ground for termination if such failure or delay arises, directly or indirectly, out of causes reasonably beyond the reasonable control of Envalo, including but not limited to acts of God or of the public enemy, acts of war, terrorism, political or civil unrest, riots, rebellions or revolutions in the U.S. or any nation where any obligations under these Terms are to be executed, U.S. or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, earthquake, elements of nature or acts of God, failure of third party connections, computer or Internet or telecommunications breakdowns, denial of service attacks, strikes, supplier and third-party failure, lockouts, labor difficulties, utilities or networks, hostile attacks, restrictions, strikes, freight embargoes, epidemic, pandemic or virus, quarantines, health related orders, or other similar actions taken by governmental authorities, and/or any similar cause beyond the reasonable control of Envalo.

(k) Non-Solicitation

Subscriber agrees that, during the Term of Subscription and for twelve (12) months thereafter (“Restricted Period”), it shall not, directly or indirectly, (i) hire or attempt to hire, employ or contract with any person or entity who is an employee of, subcontractor with or independent contractor with, Envalo, without the prior written consent of Envalo, which consent may be withheld in Envalo’s sole discretion, or (ii) solicit, induce, attempt to solicit or induce, or cause any other person on its behalf to solicit, induce, or attempt to solicit or induce, nor shall Subscriber perform any services or work for or on behalf of, any client of Envalo.

(l) Headings

Headings of particular sections are inserted only for convenience and are not to be considered a part of these Terms or be used to define, limit, or construe the scope of any term or provision of these Terms. Should any provision of these Terms require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms and conditions of these Terms will be more strictly construed against one Party than against the other.

(m) Export Laws Compliance

Neither Party will export, directly or indirectly, any technical data acquired from the other Party pursuant to these Terms (or any product utilizing such data) to any country for which the United States Government, any agency thereof, or any applicable foreign governmental body at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Each Party will comply with all applicable export and import laws and regulations.

17. Definitions

As used here in:

“Account” or “Subscriber Account” shall mean Subscriber’s account for which Subscriber registered with Envalo and through which Subscriber subscribes to and pays for one or more Plans.
“Authorized Users” shall mean Subscriber’s employees, staff, representatives, consultants, agents, and independent contractors working for Subscriber (sometimes referred to herein as “Staff”) in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of these Terms; and (ii) are specifically identified and authorized by Subscriber to access, use, setup, configure, and manage Subscriber’s Account and the Service on behalf of Subscriber. Subscriber shall be responsible for all access and use of the Service by the Authorized Users.“Fees” shall mean the fees payable pursuant to Section 2 and Section 5 hereof and all SOWs, if any.
“License Entitlement” shall mean the license quantity, if applicable, pursuant to which the Services are deployed by Envalo, as set forth in any SOW, which may be measured by the number of servers, agents, containers, hosts, or metrics, and may include time-based or usage-based billing.
“License Keys” shall mean an alphanumeric code that enables use of the Software, if any.
“Plan” shall mean the Envalo plan to which Subscriber subscribes, the name, features, Services, and fees of which may be modified at any time by Envalo in its sole discretion.
“Service” or “Services” shall mean Envalo’s Site(s), email, and database services or other Envalo-designated websites or IP addresses, any Envalo Software, any Account, any and all features, functionalities, the number of Authorized Users allocated under a Plan or subsequently added and paid for by Subscriber, data storage, options, services, support services, storefronts, sales channels, products, tools, storage, bandwidth, accounts, plans, platforms, reports, analytics, discounts, rates, management, lists, extensions, modules, widgets, applications, systems, profiles, mailings, disk space, and/or backups provided on any Envalo plan to which Subscriber subscribes, and/or any Professional or Customized Services identified on any SOW, including associated documentation made available to Subscriber in written form or online.
“Service Start Date” shall mean the date from which Subscriber first used the Site, the date of Subscriber’s completed registration for use of the Services, or the date Subscriber began using any of Envalo’s Services, whichever is earlier.
“Software” shall mean Envalo software, if any, including but not limited to the application that runs in Subscriber’s operating environment and captures systems information, including but not limited to calls and events.
“Statement of Work” or “SOW” shall mean a statement of work or other such executed document that references these Terms, whereby Subscriber engages Envalo to provide Professional or Customized Services, to customize the Services or Subscriber’s access to or use of the Services, or to perform certain training, consulting, technical account management, professional, or similar services related thereto. Each SOW is hereby incorporated into these Terms in its entirety by this reference. A SOW shall take precedence over any other provision of these Terms, provided that any conflict or inconsistency in a SOW with any other provision of these Terms shall only apply to that specific SOW.
“Subscriber Data” shall mean (i) any electronic data, customer data, information, or material that Subscriber (or Subscriber’s Agent) provides, uploads, or submits to Envalo in connection with these Terms or any SOW, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Services (including any Authorized User).
“Subscriber Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
“Term of Subscription” shall mean the date from which Subscriber first used the Site, the date of Subscriber’s completed registration for use of a Service, or the date Subscriber began using any of Envalo’s Services, whichever is earlier, and continuing until terminated by Envalo or by Subscriber, as provided herein.