Customer Terms of Service
Effective: February 2, 2017
Our Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using the EKAM online platform for offshore team management (the “Services”). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a team set up by a Customer, the User Terms of Service (the “User Terms”) govern your access and use of the Services. We thank you for being here.
These “Customer Terms” Form a Part of a Binding “Contract”
These Customer Terms (or, if applicable, your written agreement with us “Specific Agreement”) when agreed to by you by your checking the “I have read and accept the Customer Terms of Service” box, at the time you sign up for a Free 30 Day Trial and again at the time you confirm your paid Subscription on the Order Summary screen, form a binding “Contract” between Customer and us. In these Customer Terms, “We,” “our” and “us” currently refer to EKAM Labs, Inc., and “you” refers either to you as the person who initially signed up on behalf of the Customer to use the Services (sometimes referred to as the “Signing Up User” or “Primary Admin”), or to the Customer, as appropriate.
Your Agreement On Behalf of “Customer”
If you are the Signing Up User, please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.
Customer Choices and Instructions
Definition of “Customer”
“Customer” is the organization that you represent in agreeing to the Contract. Customer will establish a sub-domain using the organization’s name followed by “.ekam.io” as follows: An alphanumeric combination to represent the organization.ekam.io
Customer can create Workgroups (representing different Project Teams, Departments and any group working towards a common organizational goal) within the sub-domain, modify and re-assign roles within the sub-domain or Workgroups, (including the role of the Signing Up User or Primary Admin) and otherwise exercise its rights under the Contract. If Customer decides to replace you as the representative with ultimate authority for the Customer we will provide you with notice following such decision and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.
What This Means for Customer—and for Us
Individuals authorized by Customer to access the Services are each an “Authorized User”. Each Authorized User must agree to the User Terms of Service to activate their subscription. Authorized Users shall be classified as either Members or Guests and will be assigned to one or more Workgroups. Authorized Users may submit content or information to the Services, such as messages, files, web pages, people-specific information or work-status information (“Customer Data”), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or de-provision access of Members or Guests to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign Members or Guests to one or more Workgroups, share Customer Data among Workgroups, or consolidate Workgroups with other Workgroups, including the creation of an “All Members” Workgroup consisting of ALL users categorized as Members (as opposed to Guests). Since these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data, please contact us at email@example.com if you need more information about these choices and instructions. Customer Data stored in EKAM (including search results) will either be Restricted or Unrestricted. Restricted Customer Data will only be available to those Authorized Users on the Restricted Members list pertaining to that specific Customer Data.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Contract and for the lawful use and transmission of Customer Data and the operation of the Services.
Customer Ordering Paid Subscriptions
A Paid subscription allows an Authorized User to access the Services beyond the initial Free 30 Day Trial period. No matter the role, a paid subscription is required for each Authorized User to access the services beyond the Free 30 Day Trial Period. A Paid Subscription may be procured through the Subscription “checkout” interface, or in some cases, via a Specific Agreement entered into between Customer and us. Please contact firstname.lastname@example.org for any questions on procuring paid subscriptions and inviting new Authorized Users. Paid Subscriptions commence when we make them available to Customer and continue for the term specified in the Paid Subscription “check-out” interface or in the Specific Agreement, as applicable. Each Paid subscription is for a single Authorized User for a specified term and is personal to that Authorized User. During an active Paid subscription term, adding more paid subscriptions is fairly easy. Customer may purchase more paid subscriptions at the same subscription price and all will terminate on the same date as all of the other paid subscriptions for that Customer.
Customer’s Purchasing Decisions
From time to time, we may share information in public about our future product roadmap. Our public statements about our product roadmap are an expression of intent, but you should not rely on them when making a purchase. If Customer decides to buy our Services, that decision should be based on the functionality or features we have made available at the time of the purchase and not on the delivery of any future functionality or features.
Customer Feedback is Always Welcome
We welcome feedback from Customers to make our Services better. If Customer sends us any feedback or suggestions regarding the Services, there is a likelihood we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel. Regardless of whether we choose to implement it in our services, we appreciate all customer feedback and suggestions. Please email your feedback or suggestions to email@example.com
Customer and Authorized Users
Customer’s Use of the Services
Customer must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms of Service. While we may review conduct for compliance purposes, we have no obligation to do so. We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Users are over 18 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.
Our Removal Rights
If we believe that there is a violation of the Contract that can simply be remedied by Customer’s removal of certain Customer Data, we will, in most cases, ask Customer to take direct action rather than intervene on our own. However, if the Customer does not take appropriate action, or if we believe there is a credible risk of harm to EKAM Labs Inc., the Services, Authorized Users, or any third parties, we may directly step in and take what we determine to be appropriate action.
Plan Terms and Payment Obligations
We have the following Subscription Plans:
- Basic with Subscriptions Paid Monthly in Advance
- Basic with Subscriptions Paid Annually in Advance
- Enhanced with Subscriptions Paid Monthly in Advance
- Enhanced with Subscriptions Paid Annually in Advance
The Plans provide different levels of services as set forth in https://www.ekam.io/pricing.html
Enterprise Plan Contracts are written contracts between us and the Customer and will cover terms and conditions different from the one charted out in this document.
Subscription Rates for each plan are set forth on the Services interface “check-out” and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. If we agree to invoice customer by email, the terms are net 30, and full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
Change of rates, introduction of new plans
For Customers in Annually Paid Subscription Plans, we may change the rates for existing customers no more frequently than annually, provided that the change of rate is included in the Auto Renewal Notice sent to Customer as provided below.
We may change the rates set forth on the Services interface checkout from time to time, and those rates will apply to new Customers who subscribe after such change is made. Those changed rates will also apply to existing customers who are on Monthly Paid Subscription Plans from the next monthly billing.
We may also introduce new plans and subscription rates related to such new plans from time to time.
Contract Period, Payment and Auto-renewal
Customer can choose a plan that allows them to pay subscription fees annually in advance or monthly in advance. Annually paid subscription plans are for a Contract Period of one year from the date of the initial subscription and auto-renew for the subsequent years unless the subscription is cancelled by you at least 30 days before the renewal date. Monthly Paid Subscription Plans are for a Contract Period of one month from the date of initial subscription and auto-renew for the subsequent months unless the subscription is cancelled by you at least 5 days before the renewal date.
Notification from us about auto-renewal and subscriber’s option to cancel annual subscription before auto-renewal
For a Customer who is on an annually paid subscription plan, we will send a notification to the Customer at least 45 days prior to the annual renewal date, informing the Customer of its right to cancel the subscription by giving us written notice of cancellation no later than 30 days before auto-renewal date.
No such notification will be sent to a Customer who is on a Monthly Paid Subscription Plan.
Payments/ Billing/ Credit Card Information:
All payments will be made by credit card through Stripe, (https://www.stripe.com) either annually in advance or monthly in advance, including for auto-renewals, incremental billing or upgrades in plans. We will supply a PAID Receipt for each payment.
As all payments are processed through Stripe, we do not ourselves capture or store any of your credit card information.
Billing for Annually Paid Subscription Plans
For Annually Paid Subscription Plans, billing is done for the full year based on the number of Authorized Users and the rate to be applied per month, for the 12 months.
Incremental Billing for Annually Paid Subscription Plans
For Annually Paid Subscription Plans, if the maximum number of Authorized Users is more than what has already been billed until the end of the Contract Period, we will do an incremental billing and charge your credit card for the additional users.
This billing is done on the month date: Which means, if the subscription started on the 23rd of January, 2017, the incremental billing, if any, is done on the 23rd of subsequent months until the annual renewal date.
Incremental billing during the reminder of the contract period is done only if the number of Authorized Users is more than what has already been billed for the contract period. No refund will be made if in subsequent months, the Customer has fewer Authorized Users than what the Customer has already paid for.
A Customer subscribes to the Enhanced Plan, Annual Payment option on the 23rd of January, 2017, with 15 Authorized Users.
If the number of Authorized Users during the period 23 Jan 2017 to 23 Feb 2017 is 20, then on the 23rd of Feb, 2017, we will generate an incremental invoice for this Customer, for an additional 5 users for the remainder of the contract period, i.e. 11 months, and charge Customer’s credit card accordingly.
Billing – Subscriptions Paid Monthly in Advance
For subscriptions paid monthly in advance, when the subscription is ordered, the invoice is generated for the first month based on the number of Authorized Users and the rate to be applied per month, for one month.
For subsequent months Customer will be billed for the MAXIMUM number of Authorized Users during the previous billing month.
Upgrading the Current Plan
A Customer can upgrade from the current plan during the Contract period or at the end of the Contract period.
The following are the possible upgradation paths:
- From the Basic with subscriptions paid monthly in advance to Basic with subscriptions paid annually in advance.
- From the Basic with subscriptions paid monthly in advance to Enhanced with subscriptions paid monthly in advance.
- From the Basic with subscriptions paid monthly in advance to Enhanced with subscriptions paid annually in advance.
- From the Basic with subscriptions paid annually in advance Enhanced with subscriptions paid monthly in advance.
- From the Basic with subscriptions paid annually in advance to Enhanced with subscriptions paid annually in advance.
- From the Enhanced with subscriptions paid monthly in advance to Enhanced with subscriptions paid annually in advance
When upgrading happens during a current contract period, the current contract is closed (terminated), and a new contract is put in place from the date of upgrading.
Any credits from the current contract are calculated and given value for application to subsequent billing(s) under the upgraded plan contract.
In the case where the current contract is annual payment in advance, the credit will be for the remaining days of the annual payment cycle.
In the case where the current contract is monthly payment in advance, the credit will be for the days remaining in the monthly billing cycle.
No downgrading of current plan
No downgrade of the current plan will be allowed during the contract period. Customer can only downgrade the current plan at the end of the contract period by giving at least 30 days’ notice in advance for all plans paid annually, and by giving at least 5 days’ notice in advance for all plans paid monthly.
Subscribed or Subscribing customers can apply discount coupons which may be given to them for specific promotions or for service inadequacies.
Any credits that may accrue to Customer’s account will have no currency or exchange value, and will not be transferable or refundable.
Termination of Services for Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are fifteen (15) days or more overdue, upon ten (10) day’s written notice to Customer, we may, without limiting our other rights and remedies, terminate Customer’s and Authorized Users’ access to the Services.
Providing the Services
We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.
We will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.
Keeping the Services Available 24x7
For all Service plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide Customer with at least 8 hours advance notice.
Protecting Customer Data is a Top Priority for Us
We will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described in our Security Practices page. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what Customer’s Authorized Users do with Customer Data. That is Customer’s responsibility.
The EKAM Extended Family
We may leverage our employees, those of our corporate affiliates and third party contractors (the “EKAM Extended Family”) in exercising our rights and performing our obligations under the Contract. We will be responsible for the EKAM Extended Family’s compliance with our obligations under the Contract.
Ownership and Proprietary Rights
Customer Owns all Customer Data
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us and the EKAM extended family a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Data Request Policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data as may be necessary to grant this license.
And We Own Our Services
We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a non-sub-licensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.
Term and Termination
As further described below, a free 30 day trial subscription continues for 30 days from signup or until terminated or until the customer subscribes for a paid subscription or until terminated. In the case where we extend the free trial subscription beyond the original 30 day period, the subscription continues until the end of that new period or until the customer subscribes for a paid subscription or until terminated, whichever is earlier. A paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and Specific Agreements.
All paid subscriptions automatically renew for additional periods equal to one (1) year or the preceding term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a paid annual subscription term or at least five (5) days before the end of a paid monthly subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
Termination Without Cause
Customer may terminate its 30 day free trial subscriptions immediately without cause. We may also terminate Customer’s 30 day free trial subscriptions without cause, but we will provide Customer with one (1) day’s prior written notice.
Effect of Termination
If the Contract is terminated for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all paid subscriptions after the effective date of termination. If the Contract is terminated for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those paid subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer Data. During the term of a team’s paid subscriptions, Customer will be permitted to export or share certain Customer Data from the Services. Following termination or expiration of a Customer’s paid subscriptions, upon request by Customer made within 30 days after the effective date of termination or expiration of the Contract we will make Customer Data available to Customer for export or download. After that 30 day period, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. Please review our Security Practices page for more information on how Customer itself can initiate deletion.
Any Customer Data stored on EKAM during Customer’s 30 day free trial period will be permanently lost unless Customer purchases a paid subscription before the end of the trial period.
Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms of Service. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Limitation of Liability
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR THE EKAM EXTENDED FAMILY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
IN NO EVENT WILL EITHER CUSTOMER OR ANY MEMBER OF THE EKAM EXTENDED FAMILY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
Our Indemnification of Customer
We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data ; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us or the EKAM Extended Family for, any Claim Against Customer.
Customer’s Indemnification of Us
Customer will defend us and the members of the EKAM Extended Family (collectively, the “EKAM Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User Terms of Service(a “Claim Against Us”), and will indemnify us for all reasonable attorney’s fees incurred and damages and other costs finally awarded against us in connection with or as a result of, and for amounts paid by us under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and our exclusive remedy against Customer for, any Claim Against Us.
Limitations On Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
The sections titled “Customer Feedback is Always Welcome,” “Our Removal Rights,” “Plan Terms and Payment Terms,” “The EKAM Extended Family,” “Customer Owns All Customer Data,”,, “And We Own Our Services,” “Effect of Termination,” “Data Portability and Deletion,” “Representations; Disclaimer of Warranties,” “Limitation of Liability,” “Our Indemnification of Customer,” “Customer’s Indemnification of Us,” “Limitations on Indemnifications,” “Confidentiality” and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us, or publicly available, from time-to-time. Since we do not want to list customers who do not want to be listed, the Customer may send us an email to firstname.lastname@example.org stating that it does not wish to be used as a reference.
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, floods, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.
Email and EKAM Messages
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to EKAM will be sent to email@example.com, except for legal notices or an indemnifiable claim, which must be sent to firstname.lastname@example.org. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As our business evolves, we may change these Customer Terms and the other components of the Contract. If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Except with respect to the EKAM Extended Family, neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying EKAM Labs, Inc. of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Venue; Waiver of Jury Trial; Fees
The state and federal courts located in New York, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
The Contract, including these Customer Terms of Service and all referenced pages, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Specific Agreement (if any), (2) the Customer Terms and (3) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.
Please feel free to contact us if you have any questions about these Customer Terms of Service. You may contact us at email@example.com or at our mailing address below:
EKAM Labs, Inc.
54 W 40th Street
New York, New York 10018