Terms and Conditions
Erado Terms and Conditions of Service effective 8/1/2017
BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU (THE “CUSTOMER”) AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF CUSTOMER EXECUTED A SUBSCRIPTION FORM OR AN ORDER FORM (OR ENTERED INTO ANY OTHER ORDERING DOCUMENT IN ELECTRONIC OR HARD COPY FORM) FOR ERADO SERVICES, CUSTOMER AGREES THAT BY ACCEPTING THE TERMS OF THIS AGREEMENT (WHETHER BY CLICK THROUGH OR BY ORDER FORM REFERENCING THIS AGREEMENT), THIS AGREEMENT AMENDS AND REPLACES ANY AND ALL PRIOR TERMS AND CONDITIONS ASSOCIATED WITH SUCH ORDER FORM(S) (AND THIS AGREEMENT SHALL CONSTITUTE A WRITTEN AMENDMENT THERETO) AND SUCH TERMS AND CONDITIONS ARE OF NO FORCE OR EFFECT; PROVIDED THAT THE “EFFECTIVE DATE” OF CUSTOMER’S AGREEMENT WITH ERADO IS THE DATE ON WHICH CUSTOMER FIRST EXECUTED ANY ORDER FORM FOR SERVICES, AND THE TERM OF CUSTOMER’S AGREEMENT FOR ALL SERVICES WILL SYNC TO AND CONTINUE TO RENEW ON THE ANNIVERSARY OF THE EFFECTIVE DATE ACCORDING TO THE RENEWAL TERMS OF THIS AGREEMENT.
These Terms and Conditions govern the purchase and licensing of “Erado” services (“services”) by Customer as identified in the applicable order form.
This Erado Service Agreement (the “Agreement”) constitutes a binding agreement between CM2.COM, Inc., dba Erado (“Erado”) and the Customer identified in an order document (including electronic ordering mechanisms) referencing this Agreement (“Order Form”) or the Customer who accepts the terms and applicable rates of this Agreement via click-through acceptance (“Customer”). Customer agrees that the terms of this Agreement will govern Customer’s use of the Services (as defined in Section 1).
1. Services.
The Services may consist of software as a service product, including configurations thereof and feature add-ons (“SaaS Services”), email hosting services (“Email Hosting Services”), or professional services related to either the SaaS Services or Email Hosting Services (“Professional Services”), each as specified in an “Order Form” executed or accepted by Customer.
The SaaS Services, Email Hosting Services and the Professional Services are the “Services.” Certain Professional Services will only be provided pursuant to a statement of work executed by Customer. Following execution of the Order Form, Company will activate the applicable SaaS or Email Hosting Service by providing Customer with access to an account within such Service (“Activation Date”).
As used in this Agreement, the term “Customer Data” means
(a) the data that the SaaS Service receives from Customer’s third-party communication providers or other third party content providers and stores; or
(b) the data that is generated, transmitted, and stored by the Email Hosting Services (“Customer Data”).
Customer hereby grants Company the limited, non-exclusive right to access, copy, transmit, download, display, and reproduce Customer Data as necessary to provide, support, and improve the Services as directed by Customer or as authorized hereunder. Platform usage data is not Customer Data.
1.1 SaaS Services.
1.1.1. Unified Archiving.
The Erado Unified Archiving Platform is a SaaS Service that receives Customer Data. In order to enable the Erado Unified Archiving Platform to receive Customer Data, Customer must purchase licenses for each content type (as defined in the Service Descriptions) to be received and stored by the archive in exchange for a platform access fee. A “License” with respect to the Erado Unified Archiving Platform means one of the following, as applicable to the specific Content Type:
(a) a user account such as an email mailbox;
(b) an instant message account or screen name;
(c) a social media page or profile;
(d) a mobile device phone number;
(e) any other usage metric specified in an Order Form.
1.1.2. Website Archiving.
Website Archiving is a SaaS Service that crawls and captures Customer-designated websites. In order to enable Website Archiving, Customer must purchase Licenses and pay a domain fee. A “License” with respect to the Website Archiving SaaS Service means a (a) webpage; or (b) a video.
1.1.3. Email Encryption.
Email Encryption is a SaaS Service that encrypts a Customer designated email mailbox outgoing email. A “License” with respect to Email Encryption is an email mailbox.
1.1.4. Third Party Providers.
The SaaS Services receive Customer Data from third-party sources, and as such are dependent on third party services, software, applications, platforms (such as third party social media, business networking platforms systems, telecommunications carriers, or other messaging or communication services or API’s) (“Third Party Services”). Third Party Services are not offered, controlled or provided by Erado.
The Third Party Service may make changes to its service, or components thereof, or discontinue a service without notice to Erado. In addition, the availability of the Third Party Service may depend on Customer’s compliance with the Third Party Service terms. Accordingly, Erado expressly disclaims any and all liability related to or arising from Third Party Services, including Customer’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Customer’s account by the Third Party Service. Erado does not control and is not responsible or liable for how the Third Party Service transmits, accesses, processes, stores, uses or provides data to Erado.
Customer is solely responsible for ensuring Customer complies with any Third Party Services terms and conditions. In order to integrate the SaaS Services with certain Third Party Services, Customer may be required to provide Customer’s or Customer’s end user access credentials for the Third Party Service in order to receive Customer Data. In such cases, in order to provide the Service,
Erado’s access must be approved
(a) by Customer for all end users or content; or
(b) by each individual end user. With respect to third party text message providers, additional carrier specific terms and conditions may apply.
1.2 Support and Service Level Agreements.
Erado will provide the level of support applicable to the Services package purchased by Customer or the applicable support policy or statement of work. Service Level Agreements are available at http://www.erado.com/sla and are subject to modification by Erado. Customer may find support FAQ’s, videos, and other support resources, or initiate support requests by submitting support tickets via Erado’s service portal located at https://manage.erado.com. Changes in Erado’s support policies will be made available in the applicable Support and Service Level Agreement policies at http://www.erado.com/sla and will be effective on the date the policy is posted.
2. TERM.
These Terms and Conditions are effective on the date the Agreement is accepted by the Company (“Effective Date”), and will not expire until all orders have either expired or terminated. Company will begin providing services as defined in the applicable order form. At the conclusion of the Term, and any successive term(s), this Agreement will automatically renew for an additional term(s) equal to the initial term unless terminated, or modified by written notification of either party. Any renewal shall, at the Company’s option, be subject to any revised terms and conditions available at: https://www.erado.com/toc/. Such termination will be done in writing not less than forty-five (45) days prior to expiration of the current term.
3. CHARGES.
3.1 Orders.
During the term of any Order (“Order Term”), Customer will pay Company the rates and charges for a particular service as set forth in the Agreement, and specified in the Order.
Prices may be:
(a) a fixed rate;
(b) a discount off standard list price;
(c) pricing to which the parties agree in writing.
Unless otherwise specified in the Order, Company will begin billing Customer in full for all the non-recurring and recurring services the date the services are ordered by the Customer.
3.2 Rate Adjustments.
(a) Company can, adjust the amount of the services fee beginning in any successive term of this Agreement. Customer has fifteen (15) days from invoice date to object to such changes. If Customer does not object in writing, the new charge will be deemed approved, and Customer may not dispute them
(b) Company may charge or impose additional rates or surcharges on Customer to recover amounts that it is required by governmental or quasi-governmental authorities to collect on their behalf or to pay to others in support of statutory or regulatory programs, plus amounts to recover the administrative costs associated with such charges or programs. Such charges will include, but are not limited to, sales, use, property, excise, bypass or other local, state, national taxes or charges imposed on or based upon the provision, sale or use of services. Company will notify Customer via email of such changes. Customer has fifteen (15) days to object to such changes. If Customer does not object in writing, the new charge will be deemed approved, and Customer may not dispute them.
4. PAYMENTS TERMS.
4.1 Payment Date.
Unless required to be paid in advance by credit card, Customer will pay the Company invoices in full in U.S. currency on or before the due date of the invoice. Failure to make payment of amounts past due will be deemed breach of contract. Customer remains liable for payment under Section 13 of this agreement upon termination.
4.2 Interest Charges.
If Customer fails to pay charges for services when due, Company will charge Customer interest on those charges equal to the lesser of eighteen (18) percent per annum or the maximum rate allowed by law.
4.3 Disputed Invoice Charges.
(a) If Customer disputes a charge on the invoice, payment of the charge may be withheld, so long as Customer makes full payment of all undisputed charges and provides Company with a written explanation sent via United States Registered mail to Erado, 321 Burnett Ave South Suite 100, Renton, WA 98057 within thirty (30) days of the invoice date, of the reason for Customer’s dispute of the charge. Customer will cooperate with Company to resolve any disputed charge as soon as possible. If Company determines that the disputed charge is valid, Company will notify Customer and, within five (5) business days of receiving notice, customer will pay the disputed charges.
(b) If Customer fails to dispute any charge within 30 days of the date the invoice for the charge is first received by Customer, the charge will be deemed accurate, and Customer may not dispute it.
(c) If Customer dispute a charge on its credit card (charge-back), customer agrees to pay one hundred twenty five (125) dollars per hour to Erado to cover administrative costs associated with the review and audit of the charge back.
(d) Either party may take appropriate legal action to recover amounts it believes it is due, and if it is determined that any amount is due to the other party, the party will pay that amount plus interest and any costs including but not limited to collection agency and/or associated legal fees on the amount due calculated per the preceding subsection from the date of Customer’s payment or Company’s notification, as applicable.
5. PROVISION OF SERVICES.
5.1 Performance.
Company’s obligations under the Agreement extend only to the Company owned and operated services, the services specified in the Orders, and the Company provided equipment (if any) relating to these services. Company is not responsible for other Customer or third party equipment, networks, or services.
6. SUSPENSION OF SERVICES.
Without prejudice of the parties’ other rights and remedies under the Agreement and subject to its termination provisions, Company may suspend the performance of its obligations without penalty if:
(a) Customer fails to make undisputed payments as required in Section 4;
(b) Company terminates the Agreement in accordance with the termination provisions;
(c) Company is required to suspend such performance in order to comply with any law or a request by any governmental authority with jurisdiction; or
(d) Customer’s use of the services impairs or is likely to impair the integrity of the Company’s service.
(e) Customer violates Erado’s Privacy Policy (the “Privacy Policy”); located at https://www.erado.com/privacy
(f) Customer violates Erado’s Acceptable Use Policy (the “AUP”); located at https://www.erado.com/aup
7. USE OF NAME, SERVICE MARKS, OR TRADEMARKS.
Customer grants Erado the limited right to disclose that Customer is a customer of the Erado. Erado agrees to obtain the prior written approval for any use of Customer’s name in any print marketing materials, press release, blog posts, case studies or white papers.
8. CUSTOMER RESPONSIBILITIES.
8.1 Preparation for Services.
Customer will, at its own expense, prepare to comply with Company specifications. Company shall have no obligation to supply equipment, or hardware of any kind to Customer except as stated in the Order.
8.2 Use of Services.
(a) Customer will not make any illegal use of the services and will conform to the Company acceptable use policy as modified from time to time that is available at Company’s website https://www.erado.com/aup/.
(b) Customer will not permit or allow others to:
1. Abuse or fraudulently use services, including, but not limited to, unauthorized or attempted access, alteration, or destruction of Company’s customers or other authorized user’s information;
2. Use services in such a manner that causes interference, or tampers with another customer’s or authorized user’s use of the Company services; or
3. Use services in a manner that violates Company’s acceptable use policy or any applicable law.
(c) If Customer fails to comply with this Section, Customer releases Company from all liabilities or obligations in connection with the affected service and Customer will indemnify Company for all costs or damages that Company incurs as a result of Customer’s failure to comply.
9. CONFIDENTIAL INFORMATION.
9.1 Definition of Confidential Information.
“Confidential Information” means
(a) the non-public information of either party, including but not limited to information relating to either party’s product plans, customers, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development, or know-how;
(b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential;
(c) the terms of this Agreement;
(d) Client Data; or
(e) the Software.
“Confidential Information” will not include information that:
(a) is in, or enters, the public domain without breach of this Agreement;
(b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation;
(c) the receiving party knew prior to receiving such information from the disclosing party; or
(d) the receiving party develops independently without reference to the Confidential Information.
9.2. Obligations with Respect to Confidential Information.
Each party agrees:
(a) that it will not disclose to any third party, or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and
(b) that it will use reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control. Either party may disclose Confidential Information of the other party:
(c) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or
(d) to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such party maintain the Confidential Information on a confidential basis.
9.3 Remedies.
Each party acknowledges and agrees that a breach of the obligations of this Section by the other party may result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient of Confidential Information.
10. ACKNOWLEDGEMENT AND DISCLAIMER; LIMITATIONS OF LIABILITY.
Customer hereby acknowledges to Company all of the following and agrees that without such acknowledgement and disclaimers Company would not have entered into this Agreement.
COMPANY DISCLAIMS ANY RESPONSIBILITY FOR ASSURING THAT ANY CUSTOMERS ARE COMPLYING WITH APPLICABLE FEDERAL STATE OR LOCAL LAWS OR INDUSTRY RULES WITH REGARD TO THE COLLECTION AND RETENTION OF ELECTRONIC INFORMATION. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, NOT EXPLICITLY STATED IN THE AGREEMENT, AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. THE SERVICES AND ANY MATERIALS OR EQUIPMENT ARE SUPPLIED “AS IS” TO THE FULL EXTENT PERMITTED BY LAW. COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT ARISING OUT OF THIS AGREEMENT AND ANY SERVICES TO BE PROVIDED HEREUNDER INCLUDING THE PERFORMANCE OR NON-PERFORMANCE OF ANY SOFTWARE OR SERVICES, INCLUDING THE FAILURE OF ANY ESSENTIAL PURPOSE. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, LOST DATA OR LOSS OF BUSINESS OPPORTUNITY, AND INCIDENTAL DAMAGE TO CUSTOMER’S PREMISES FOR SERVICE INSTALLATION, WHETHER OR NOT COMPANY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY IN THE AGGREGATE TO ANY CUSTOMER FOR DAMAGES FOR ANY MATTER ARISING UNDER THIS AGREEMENT EVER EXCEED 15% OF CUSTOMER’S AVERAGE MONTHLY BILL FOR SERVICES OVER THE PREVIOUS SIX MONTHS OF THE CURRENT TERM AS OF THE TIME OF MAKING SUCH CLAIM FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
11. INDEMNIFICATION.
11.1 General Indemnification.
Customer will indemnify and defend Company from and against all third-party claims for damages arising from or related to the misuse of the services as set forth in this Agreement.
11.2 Intellectual Property Indemnification.
If promptly notified of any third-party action brought against Customer based on a claim that services originating from and provided by Company infringe a United States patent or copyright, Company will defend the action at its expense and will pay any and all fees, costs, or damages that may be finally awarded in the action or resulting settlement. Company will not be obligated to indemnify Customer if such infringement is the result of
(a) the combination, operation or use of the services by Customer with any equipment, software or data that is not approved or consented to by Company;
(b) Company’s compliance with Customer’s designs or specifications with respect to the Services; or
(c) Use of the Services in a manner prohibited under the Agreement or any attachment to the Agreement.
If a final injunction is obtained against customer prohibiting use of services by reason of infringement of a United States patent or copyright, or to minimize the potential for a claim, Company may at its option and expense either:
(a) Procure the right for Customer to continue using the services;
(b) Procure alternative services which furnish equivalent functionality; or
(c) Direct Customer to return the services to Company, and terminate the applicable Order related to the infringing services. Company shall have no other liability or obligation for such infringement.
11.3 Rights of Indemnified Party.
The party seeking indemnification under this Section must promptly notify the other party in writing of any claim and give the indemnifying party full and complete authority, information and assistance for the claim’s defense and settlement. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and its own expense, but indemnifying party will retain sole control of the claim’s settlement or defense. To be indemnified under this Section, the party seeking indemnification must not by any act (including any admission or acknowledgment) materially impair or compromise a claim’s defense.
12. TERMINATION.
12.1 Company Right to Terminate.
Company may immediately terminate the Agreement or discontinue service if:
(a) Customer fails to cure its breach of the payment terms in Section 5 above within five (5) days of notification from the Company. Failure to provide Company updated credit card information otherwise required for payment within such five (5) day period shall constitute a breach of the agreement and will permit termination at Company’s option;
(b) Customer fails to cure any other material breach of the Agreement within 30 days after written notice from Company;
(c) Customer becomes the subject of a bankruptcy, insolvency, reorganization or liquidation proceeding, or any other similar or related company reconstruction, receivership or administration action, whether voluntary or involuntary; or
(d) Customer makes an assignment for benefits of creditors.
(e) Customer violates Erado’s Privacy Policy (the “Privacy Policy”); located at https://www.erado.com/privacy
(f) Customer violates Erado’s Acceptable Use Policy (the “AUP”); located at https://www.erado.com/aup
Notwithstanding termination of the Agreement, Customer will remain liable for all invoices, charges and fees for services provided, whether or not invoiced by the termination date.
12.2 Customer Right to Terminate.
Customer may terminate this agreement if
(a) Company fails to provide services for sixty (60) consecutive days due to circumstances beyond Company’s control Customer may terminate the Agreement.
(b) Company materially fails to provide service to customer; Customer must give Company written notice via United States Registered Mail of such failure and provide Company sixty (60) calendar days to cure. If company does not cure the material failure within sixty (60) calendar days from Company’s receipt of notice, then Customer may terminate the Agreement immediately due to the material failure. Company’s material failure does not include a failure caused by circumstances not within Company’s sole control.
If Customer terminates service due to Company’s material failure to provide the services, Customer will not be liable for any Termination Liability charges contained herein.
12.3 Data Retention
If Customer terminates service,
(a) Erado will retain Customer Data for the Term of the Agreement, unless Customer requests or implements specific retention policies within the SaaS Services. Retention policies are based on variables assigned to Customer Data as directed by Customer or implemented by Customer. Customer is solely responsible for compliance with all applicable legal, regulatory or internal requirements with respect to such retention policies. Following termination or expiration of this Agreement, Erado will retain Customer Data associated with the SaaS Services for a minimum of three (3) months. Thereafter, Erado reserves the right, in its sole discretion, to delete Customer Data. Customer agrees to pay Erado’s then current data extraction and exportation fees plus any hardware costs.
(b) and has Email Hosting Services, the retention of Email Hosting Service Customer Data during the Term is subject to space limitations applicable to the Email Hosting Service plan purchased by Customer. Email Hosting Service Customer Data will be retained for a period of five (5) days following the termination or expiration of the earlier of the Email Hosting Service termination or the termination or expiration of the Agreement.
12.3 Order Term Termination Liability.
Certain services may be priced under an Order Term, which may be identified as “Order Term,” “Term Plan,” or similar language indicating that Customer must keep the service for a specific time period. Customer acknowledges that a precise calculation of Company’s damages for an early termination of a service with an Order Term would be extremely difficult and that the termination charges under this section represent reasonable liquidated damages, not a penalty. If Customer terminates an Order in whole or in part, before expiration of the Order Term, then Customer will pay the following termination charges:
(a) A lump sum equal to a minimum of 75% of the initial User count stated in Customer’s Order Form or the average User count over the last 12 months, whichever is greater, multiplied by the remaining number of months in the term.
(b) Any fees imposed on Company by third parties that result from Customer’s early termination.
There will be no Order Term termination charges where the charges for the entire Order Term have been paid in advance, nor will there be any refund of such charges owing to Customer.
12.4 Discontinuance of Service Notice.
Customer may terminate services
(a) by giving advance written notice, pursuant to Section 2 Customer may discontinue service.
If Customer terminates service before the end of the current term plan, the liabilities associated with the term plan will apply.
13. SERVICE AND ACCOUNTS/LICENSES
13.1 During the term of the agreement customer may add new services, additional accounts/licenses by executing a change order agreement, add license agreement, new on-line order, or similar document. Additional licenses/services purchased during the term of this agreement will be prorated and billed to the end of the current annual billing cycle. Customer will be billed at the either the then current rate for any new service, or contracted rate for existing services. A license as defined in Section 1.1 is required for each unique account and each service.
13.2. True-ups.
Customer may increase its User subscriptions during the Term, provided that Customer promptly reports any increases in User counts to Erado. Erado reserves the right to perform a reconciliation of actual usage/User count versus ordered quantities of Customer’s Service/User subscriptions under the then-current Order Form(s) (“True-up”). Upon reasonable advanced notice, Erado shall have the right to audit, and Customer agrees to make available, or provide access to, Customer’s internal controls and records reasonably necessary to assist with the True-up. If, as a result of any such True-up, Erado reasonably determines that Customer’s use of the Services has exceeded its subscription quantities, or where Customer has reported an increase in User subscriptions, Erado will make the pro-rated adjustments to the corresponding Fees invoiced in the subsequent invoice(s) or in a separate True-up invoice. If Customer fails to dispute any true-up charge within fifteen (15) days of the date the invoice for the charge is first received by Customer, the charge will be deemed accurate, and Customer may not dispute it.
14.3. Subscription Minimum.
During the Term, a minimum of 75% of the initial User count stated in Customer’s Order Form or the average User count over the last 12 months, whichever is greater, will be billable unless otherwise agreed to in writing by the parties.
14.4 Professional Services.
Customer may optionally engage Erado to perform any of the following additional professional services (“Professional Services”) in accordance with the Fees set out in the applicable Order Form or as otherwise agreed in writing by the parties:
(a) Audit & eDiscovery Services to assist with independent third party audit and eDiscovery projects carried out by Erado’s Compliance, Audit & eDiscovery teams;
(b) Data Services to assist with consultative or customized support with respect to special requests or issues related to Customer’s Legacy Data or Archived Data; or
(c) Technical Services to assist with Standard Support outside of Business Hours, customized implementation and/or configuration, other consultative or project management services, or other advanced training or support beyond the scope of normal support services.
15. FORCE MAJEURE
Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain equipment from third party suppliers; cable cuts by third parties, a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond the reasonable control of a party.
16. SOCIAL MEDIA AND WEBSITE CAPTURE
In the event that the Services include the capture of social media account information or website content, the following shall apply:
(a) Limitation on Social Media Capture, Archive, and Forwarding. Customer acknowledges that Company’s ability to capture, archive and/or forward Social Media Site information may be limited by one or more of the following: social media site policy, social media user privacy settings, social media site data encryption, limitations of the social media site application programming interface, social media restrictions on capture of third party data, local, state, or federal laws, and social media site data storage or access failures. Customer further acknowledges that Company does not capture peer to peer messaging and chat room traffic not communicated through the designated Social Media Sites, or advertising and other information other than message communication to and from the Customer that may appear on such Social Media Sites. Company shall have no obligation or liability whatsoever for failure to capture communications as a result of privacy settings or application programming interface restrictions or changes. In the event any Social Media Site denies access to Company for purposes of archiving and forwarding such electronic communications, Company shall be granted such time as is necessary, and not to exceed one hundred eighty (180 days, to modify its software and applications as necessary to maintain access to such Social Media Sites.
(b) Website Content Capture and Archiving. Company agrees that it will capture and archive all publically accessible website content of Customer for purposes of carrying out certain regulatory requirements for the collection and the Regulated Party’s archiving of electronic communication. Company’s responsibility to complete such capture shall be subject to the conditions and disclaimers described in the Agreement.
(c) Website Content Capture and Archiving. Subject to the limitations in this section that may be updated from time to time, Section 16.D, and elsewhere in this Agreement, Company agrees to provide capturing and archiving services (“Archiving Services”) to Customer for the unique website addresses provided by Customer for example https://www.domain.com. Such website capture will not be provided for any 3rd level or external website(s) for example https://sub.domain.com.
(d) Limitation on Website Content Capture and Archiving. Customer acknowledges that Company’s ability to capture and archive website information may be limited but not limited to by one or more of the following: access controls such as passwords or other security measures, page discovery, website data encryption, non-standard website programming, client side programming, local, state, or federal laws, and website data storage or access failures. Customer further acknowledges that Company does not capture peer to peer messaging, chat room, or email traffic connected to or through the website, or 3rd party advertising and other 3rd party content. Company shall have no obligation or liability whatsoever for failure to capture any portion of the website or its contents that are beyond the control of Company.
17. MISCELLANEOUS
17.1. Export Restrictions.
The Services, including any software, documentation and any related technical data included with, or contained in the Services, may be subject to United States export control laws and regulations. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing or using the Services. Without limiting the foregoing:
(a) Customer represents that it and its Authorized users and other users are not named on any United States government list of persons or entities prohibited from receiving an Erado Services Agreement
(b) Customer represents that Customer will not use the Services in a manner which is prohibited
under United States Government export regulations;
(c) Customer will comply with all United States antiboycott laws and regulations;
(d) Customer shall not provide the Service to any third party, or permit any user to access or use the Service in violation of any United States export embargo, prohibition or restriction; and
(e) Customer shall not, and shall not permit any user or third party to, directly or indirectly, export, re-export or release the Services to any jurisdiction or country to which, or any party to whom, the export, re-export or release is prohibited by applicable law, regulation or rule.
17.2. U.S. Government End User Provisions.
Erado provides the Services to federal government end users solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.2277015 (Technical Data – Commercial Items) and DFAR 227.7202–3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Erado to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specially conveying such rights must be included in any applicable contract or agreement.
17.3 Independent Contractor.
Company provides services as an independent contractor under the Agreement. The parties’ relationship and the Agreement will not constitute or create an association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates.
17.4 No Waiver of Rights.
If either party fails to enforce any right or remedy under the Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party.
17.5 No Third Party Beneficiaries.
The Agreement’s benefits do not extend to any third party.
17.6 Governing Laws.
The Agreement will be governed by applicable federal laws and regulations and the laws of the State of Washington without regard to choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in King County, in the State of Washington, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
17.7 Dispute Resolution.
In the event of a dispute between Erado and Customer, the dispute will be escalated internally in good faith; first through designated Erado personnel and this person’s equivalent at Customer; then through another designated Erado personnel and this person’s equivalent at Customer. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Any dispute arising out of or relating to this Agreement, including the breach, termination or validity hereof, which has not been resolved by the foregoing negotiation procedure within 90 days of the initiation of such procedure, may then otherwise be dealt with according to the provisions of this Agreement. This dispute resolution procedure will not affect the obligation of either party to perform, subject to Erado’s right to suspend Services in accordance with this agreement or the right of either party to enforce this Agreement.
17.8 Assignment.
Customer may not assign any rights or obligations under the Agreement without Company’s prior written consent.
17.9 Amendments.
The Agreement may only be modified by a written amendment signed by both parties.
17.10 Construction.
No rule of construction requiring interpretation against the drafter will apply to the Agreement’s interpretation.
17.11 Notice.
Notices required under the Agreement must be submitted in writing to the parties’ address shown below and to any Company address for notice listed in an attachment. Notices relating to a dispute must also be sent to: CM2.COM, Inc. dba Erado 321 Burnett Ave South Suite 100 Renton, WA 98057 Attn: Legal Department.
17.12 Severability.
If any provision of the Agreement is found to be unenforceable, the Agreement’s unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties’ original intent.
17.13 Survivability.
The terms and conditions of the Agreement regarding confidentiality, indemnification, warranties, payment, dispute resolution and all other that by their sense and context are intended to survive the expiration of the Agreement will survive and continue in effect.
17.14 Electronic Signatures and Communications.
The parties agree that electronic signatures, whether digital or encrypted, by an Authorized User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement.
17.15 Modifications.
Erado may make modifications to this Agreement by posting a revised version to https://www.erado.com/toc or via weblink at the Service login page. Customer unequivocally indicates acceptance of any such modifications by
(a) accepting the version of the Agreement with the modified terms at the product log in page;
(b) executing an Order Form including the modified terms; or
(c) continued use of the Services for 30 days following the earliest notice provided to an Authorized User of the modification.
17.16 Entire Agreement.
This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations and communications (both written and oral) regarding such subject matter.
17.17 Heading.
Headings are for reference only and have no effect on any provision’s meaning.