Enjay CRM Subscription Agreement
PLEASE READ THIS ENJAY SUBSCRIPTION AGREEMENT CAREFULLY BEFORE ACCEPTING. THE TERMS AND CONDITIONS OF THIS MASTER SUBSCRIPTION AGREEMENT, ANY ADDITIONAL TERMS AND ANY ORDER FORMS ENTERED INTO BY YOU AND ENJAY IT SOLUTIONS LTD. (“ENJAY’) ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT.” UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS SHALL HAVE THE MEANINGS SET FORTH IN SECTION 12 BELOW.
BY ACCEPTING, YOU ARE AGREEING ON BEHALF OF THE ENTITY ORDERING THE ENJAY PRODUCT (“COMPANY”) THAT COMPANY WILL BE BOUND BY AND BECOME A PARTY TO THE AGREEMENT AND CERTIFYING THAT YOU HAVE THE AUTHORITY TO BIND COMPANY. IF THE COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND COMPANY TO THIS AGREEMENT, DO NOT SELECT THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM ISSUED TO YOU BY ENJAY.
UNLESS AND UNTIL COMPANY HAS AGREED TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT, COMPANY HAS NOT BECOME A LICENSEE OF AND IS NOT AUTHORIZED TO USE, THE ENJAY PRODUCT. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DAY THAT YOU CHECK THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM ISSUED TO YOU BY ENJAY.
Enjay shall make the Enjay Products available to the Company pursuant to the terms of this Agreement and the relevant Order Form during the Subscription Term. The Enjay Products may either be: (a) installed by or for Company at Company’s premises, or on a Company-controlled server within a third party data centre (“On-Site”), or (b) the online, Web-based platform and applications that are hosted by ENJAY, or a third party hosting facility designated by ENJAY and provided as a Service (“On-Demand”). The model of deployment selected by Company is as indicated on the Order Form. Company may elect to migrate from one deployment model to another at any time during the Subscription Term. Such migration may be subject to the applicable Enjay Products migration fees in effect at the time of the migration in addition to additional terms and conditions that apply to the new deployment model.
b.Use of the Enjay Product.
Enjay will provide Company with a key to allow access to the applicable Enjay Product by the specific number of Subscription Users (or configuration) for which the Company has paid the applicable fees. Company understands and agrees that the Enjay Product may not be accessed or used by more than the specified number of Subscription Users for which Company has paid the applicable fees and that additional Subscription Users may only be added per the terms of Section 4.b. Any circumvention of technical access and copy protection measures constitutes a material breach of this Agreement and a violation of laws.
iii.Enjay Products Features and Components.
ENJAY reserves the right to make modifications to the Enjay Products or particular features or components of the Enjay Products, from time to time, at its sole discretion. ENJAY will exercise reasonable commercial efforts to notify Company of any such material modifications to the Enjay Products, provided however, that ENJAY will not have any liability for failure to provide such notice.
During the Subscription Term, and at no additional charge to the Company, ENJAY will provide Company with the standard level of support indicated in the service level agreement (SLA), which corresponds to the Enjay Products purchased by Company: (the “Support Services”); provided, however, that if Company purchases subscriptions through an Authorized Partner, then Company shall obtain Tier 1 support directly from the Authorized Partner and ENJAY shall have no obligation to provide Tier 1 support to the Company unless otherwise agreed to in writing by the parties. ENJAY reserves the right, from time to time, to make modifications to the Support Services or particular components of the Support Services and will use commercially reasonable efforts to notify Company of any material modifications by posting a notice of the modification on the URL noted above. Additional upgraded support services may be purchased by Company via submission of an Order Form. Company understands and agrees that ENJAY may subcontract and/or assign the provision of its Support Services to a third party.
Company shall: (a) be responsible for all Subscription Users’ compliance with the terms and conditions of this Agreement, (b) be solely responsible for the accuracy, integrity, and legality of Company Data and the means by which it acquires and uses such Company Data, (c) use the Enjay Products only in accordance with the applicable online user guide and applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules and regulations) and any Enjay Products documentation, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Enjay Products, and (e) notify ENJAY in writing immediately of (i) any unauthorized use of, or access to, the Enjay Products or any Subscription User account or password thereof or (ii) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or filed against Company in connection with Company Data. For the avoidance of doubt, Subscription User accounts and passwords are specific to individual Subscription Users, and under no circumstances may Subscription User accounts or passwords be shared among or by different Subscription Users; provided, however, that the Company administrator(s) may reassign a Subscription User account during the Subscription Term, if a former Subscription User no longer requires a Subscription User account.
Company shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Enjay Products or any modified version or derivative work of the Enjay Products created by or for Company, (b) provide the Enjay Products, or any modified version or derivative work of the Enjay Products created by or for Company, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Enjay Products, (d) develop Forked Software, (e) copy any features, functions or graphics of the Enjay Products for any purpose other than what is expressly authorized in this Agreement, (f) modify, remove or disable any portion of the Enjay Core Software, (g) use or modify the Enjay Products in any way that would subject the Enjay Products, in whole in or in part, to a Copyleft License, (h) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or Malicious Code, (i) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Enjay Products or the Company Data contained therein, (j) use any Intellectual Property Rights protected by applicable laws and contained in or accessible through the Enjay Products for the purpose of building a competitive product or service or copying its features or user interface, (k) use the Enjay Products, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without ENJAY’s prior written consent.
Company may use third party contractors to assist with the installation, use, and modification of the Enjay Products for Company’s own internal business use, including creation of Modifications on Company’s behalf. Company agrees not to disclose any Confidential Information of Enjay Products to any contractor or allow any subcontractor to create Modifications unless and until the contractor has agreed in writing to (a) protect the confidentiality of such Confidential Information in the manner required by Section 6 and then only to the extent necessary for the contractor to perform those services subcontracted to it, and (b) assign all such contractor’s rights, title and interests (including all Intellectual Property Rights) in such Modifications to Company to ensure Company can comply with Section 3.a.1. The Company will be solely responsible for all payments to its contractors and will remain responsible for compliance by its contractors with the terms and conditions of this Agreement.
2.Third-Party Software; Third-Party Modules.
The Enjay Products utilizes or includes certain Third Party Software. Company’s use of the Enjay Product, including all Third Party Software accessible via APIs, is governed by the applicable Third-Party Software terms and conditions. If a Third Party Software provider requires ENJAY to remove such software from the Enjay Products due to violation of applicable law or third-party rights, Company agrees to cooperate with ENJAY to ensure its removal from the Enjay Products and Company’s systems.
Company may use Third-Party Modules to add functionality to the Enjay Products, provided that such use is limited to internal use by Company in a manner that does not violate any provisions of Section 1.e. Any use by Company of Third-Party Modules and any exchange of Company Data between Company and the Third-Party Module provider are solely between Company and the Third-Party Module provider. ENJAY does not warrant or support Third-Party Modules.
c.Third-Party Privacy Policies.
d.Third Party APIs.
Features that interoperate with third party services (such as Google) depend on the continuing availability of the API and program for use with the Enjay Products. If a third party ceases to make the API or program available on reasonable terms to ENJAY, ENJAY may cease providing such third party features without entitling Company to any refund, credit, or other compensation
3.Proprietary Rights and Data Protection.
i.Ownership of Enjay Products and Modifications
ENJAY owns all right, title and interest, including all Intellectual Property Rights, in and to the Enjay Products, any and all Modifications (collectively, the “ENJAY Property”). Company hereby does and will assign to ENJAY all right, title and interest worldwide in the Intellectual Property Rights embodied in any and all Modifications. To the extent any of the rights, title and interest are not assignable by Company to ENJAY, Company grants and agrees to grant to ENJAY an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) under Company’s Intellectual Property Rights to use, disclose, reproduce, license, sell, offer for sale, distribute, import and otherwise exploit the Modifications in its discretion, without restriction or obligation of any kind or nature. Except as expressly stated otherwise in this Agreement, ENJAY retains all of its right, title and ownership interest in and to the ENJAY Property, and no other Intellectual Property Rights or license rights are granted by ENJAY to Company under this Agreement, either expressly or by implication, estoppel or otherwise, including, but not limited to, any rights under any of ENJAY’s or its Affiliates patents.
Enjay Product’s name, logo, trade names and trademarks are owned by ENJAY, and no right is granted to Company to use any of the foregoing except as expressly permitted herein or by written consent of ENJAY.
iii.Freedom to Operate and Innovate.
Nothing in this Section 3 shall inhibit, hamper, encumber or otherwise impede ENJAY’s freedom to create Modifications or improve, extend and/or modify any and all Enjay Products.
Company or its Subscription Users may, from time to time, provide suggestions, enhancement or feature requests or other feedback to ENJAY with respect to the EnjayCRM Property or other ENJAY products, services or related documentation (whether or not such is disclosed or delivered by ENJAY to Company under this Agreement) (collectively, “Feedback”). The company agrees that all Feedback is and shall be given by the Company entirely voluntarily. ENJAY shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback in its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by Company, shall not create any obligation of confidentiality for ENJAY, unless ENJAY expressly agrees so in writing.
b.Company Data/Business Information.
i.Ownership of Company Data.
Company owns and retains all Intellectual Property Rights in and to the Company Data.
iii.Non-Modification and Non-Disclosure.
ENJAY shall not (a) modify Company Data, or (b) disclose Company Data except as compelled by law in accordance with Section 6.a, as expressly set forth in this Agreement or as otherwise permitted in writing by Company.
Company agrees to allow ENJAY and its Affiliates to store and use Company business contact information, including names, business phone numbers, and business e-mail addresses, anywhere it does business. Such information will be processed and used in connection with ENJAY’s business relationship, and may be provided to contractors acting on ENJAY’s behalf, ENJAY’s business partners who promote, market and support certain ENJAY products and services, and assignees of ENJAY and its subsidiaries for uses consistent with ENJAY’s business relationship.
i.Relationship of the Parties.
To the extent that the Company Data contains personal data about any living individual (“Data”), ENJAY will process that Data only as a Data Processor acting on behalf of Company (as the Data Controller) and in accordance with the requirements of this Agreement.
ii.Company’s Compliance with Privacy Laws.
Company will at all times comply in full with the requirements of any applicable privacy and data protection laws to which it is subject as a Data Controller (“Applicable Privacy Law(s)”).
ENJAY will process the Data in accordance with Company’s instructions under Applicable Privacy Law(s) and will not: (a) assume any responsibility for determining the purposes for which and the manner in which the Data is processed, or (b) process the Data for its own purposes.
1.In the course of providing Company with the services described in the Agreement, ENJAY may also collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices the Company’s Subscription Users use to access the Enjay Product or Service. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (the “Usage Data”). Usage Data does not, however, include Company Data.
2.The Enjay Products also includes Enjay Core Software that regularly transmits certain usage data, including but not limited to, licensing, system and service performance data, to ENJAY and, if applicable, an Authorized Partner, to verify compliance with the terms of this Agreement and to improve ENJAY’s products and services. Company hereby authorizes and directs ENJAY and Authorized Partners, if applicable, to use the Enjay Core Software in accordance with the terms of this Agreement. Enjay Core Software does not collect or access any Company Data.
v.Aggregated Data Use.
Notwithstanding Sections 3.c.3 or 3.c.4, Company agrees that ENJAY may process the Data and Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the ENJAY products or services in order to: (a) maintain and improve the performance and integrity of ENJAY products or services, (b) understand which ENJAY products or services are most commonly deployed and preferred by customers and how customers interact with ENJAY products or services, (c) identify the types of ENJAY services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Company or any living individual to be identified.
ENJAY will have in place and will maintain throughout the Term, appropriate technical and organizational measures against accidental or unauthorized destruction, loss, alteration or disclosure of the Data, and adequate security programs and procedures to ensure that unauthorized persons will not have access to any equipment used to process the Data.
Company authorizes ENJAY to subcontract processing of Data under this Agreement to a third party provided that: (a) ENJAY flows down its obligations under this Section 3.c, to protect the Data in full, to any subcontractor it appoints, such that the data processing terms of the subcontract are no less onerous than the data processing terms set out in this Section 3.c, and (b) ENJAY will remain fully liable to Company for the acts, errors and omissions of any subcontractor it appoints to process the Data.
ENJAY will at all times provide an adequate level of protection for Data that it processes on behalf of Company. Company acknowledges that ENJAY satisfies this requirement through.
d.Authorized Partner as Agent for Company.
If Company purchases a Subscription to the Enjay Product from an Authorized Partner, then Company warrants and agrees that it has appointed the Authorized Partner to act as Company’s agent in the procurement and management of the Enjay Product and services and that ENJAY may deal with the Authorized Partner on that basis. The provision of any Company Data by that Authorized Partner will be deemed to have come from Company directly and it is Company’s responsibility to ensure the accuracy and completeness of the Company Data. If Company does not wish the Authorized Partner to have access to Company Data or to act on Company’s behalf, then Company must inform ENJAY in writing.
a.Fees and Payment.
Company agrees to pay all fees specified in the relevant Order Form. Except as otherwise provided, fees set forth in each Order Form hereunder will be: (a) fixed during the Subscription Term set forth in such Order Form, (b) quoted and payable in United States dollars or other currency as specified in relevant Order Form, (c) based upon the number of Subscription User seats purchased, even if actual usage is lower, and (d) non-cancelable and non-refundable. Fees are payable advance, unless otherwise noted in an Order Form. Company agrees to provide ENJAY with complete and accurate billing and contact information and to notify ENJAY of any changes to such information. If Company purchases a Subscription to the ENJAY Product from an Authorized Partner, the Authorized Partner (i) may agree with Company to accept payment on a different payment schedule in currencies other than United States dollars or as specified in relevant order form; and (ii) will submit payment to ENJAY on Company’s behalf in accordance with its agreement with ENJAY.
b.Additional Subscription Users.
Additional Subscription User seats may be added during any given month at the then-current Subscription User fee. Company understands and agrees that Company will be charged a pro-rata fee for the initial month in which Subscription Users are added and for each of the monthly periods remaining in the then-current Subscription Term. The Subscription Term for the additional Subscription User subscriptions will terminate on the same date as the pre-existing Subscriptions. Company will be responsible for submitting a new Order Form to ENJAY, or to the applicable Authorized Partner, to request the additional Subscription User seat(s) during the Subscription Term. Company also understands and agrees that the number of Subscription User seats purchased under a specific Order Form cannot be decreased during the relevant Subscription Term set forth on such Order Form.
All fees required for renewal of a Subscription Term will be reflected in a quotation issued by ENJAY (or by an Authorized Partner, if applicable) in advance of the expiration of the current Subscription Term (each a “Renewal Quote”), and any pricing or changes in the number of Subscription Users for such renewal Subscription Term will be reflected in the Renewal Quote. Fees for any subsequent renewals shall be set at the then-current Enjay product pricing, unless otherwise stated on the Order Form, Renewal Quote or otherwise agreed to in writing by the parties.
Upon ENJAY’s request, Company shall provide ENJAY with a written report in a mutually-agreed-upon format regarding the Enjay Product being utilized by Company and the number of Subscription Users authorized to use the Enjay Product, to be delivered to ENJAY no later than five (5) business days after the request has been made by ENJAY.
Overdue amounts are subject to interest at a rate of one percent (2.0%) per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by Company to ENJAY or the applicable ENJAY Authorized Partner is thirty (30) days or more overdue, ENJAY may, without limiting its other right and remedies, suspend services until such amounts are paid in full along with interest thereon.
Unless otherwise provided, fees specified in quotes or Order Forms, do not include any Taxes, and Company is responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on ENJAY’s net income or property.
Company shall maintain accurate records (including, without limitation, the reports described above in Section 4.d) necessary to verify the number of Subscription Users. Within thirty (30) days of delivery of a written request by ENJAY or its third party appointee, Company shall provide ENJAY or its third party appointee with such records. If Company has more Subscription Users than Company has paid for, Company shall immediately pay the applicable fees for such additional Subscription Users, commencing on the effective date of the applicable Order Form through the remainder of the then current Subscription Term, in addition to reasonable costs incurred by ENJAY associated with reviewing such records.
5.Term and Termination.
Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues for a period of one (1) year thereafter (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”), unless one party provides the other party with written notice of non-renewal a minimum of sixty (60) days prior to the expiration of the then-current term. The Initial Term, together with each Renewal Term, is referred to as the “Term” for purposes of this Agreement.
b.Termination by Company or ENJAY.
Either party may terminate this Agreement and any then-current Order Forms prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
c.Effect of Termination.
No refunds of payments will be made, unless termination of this Agreement and any then-current Order Forms is a result of a breach by ENJAY under Section 5.b, in which case Company will be entitled to a refund of the pro rata portion of fees associated with the remainder of the Subscription Term. Company understands and agrees that upon expiration of the Subscription Term or termination of this Agreement, whichever occurs first, the rights granted under this Agreement and, in connection with any then-current Order Forms, will be immediately revoked and ENJAY may immediately deactivate Company’s account. Company acknowledges and agrees that ENJAY may keep copies of Company Data solely to the extent necessary for the performance of its obligations under this Agreement. In no event shall any termination relieve Company of the obligation to pay any fees payable to ENJAY for the period prior to the effective date of termination, unless otherwise stated in this Agreement.
Sections 1.e, 3.a, 3.c.4(a), 3.c.4(b), 3.c.5, 4, 5.d, 6, 7.c, 8, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement.
The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Confidential Information. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Original Code and the structure, sequence, and organization of the Enjay Products are Confidential Information of ENJAY or its licensors.
Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
7.Warranties, Exclusive Remedies and Disclaimers.
ENJAY warrants that (a) it has the legal power to, and hereby does, enter into this Agreement, (b) the Enjay Products shall perform materially in accordance with the online user guide for the applicable Enjay Products, and (c) ENJAY will use commercially reasonable measures to detect whether the Enjay Products contains any Malicious Code. If the Enjay Products does not conform to the warranty specified in Section 7.a(b) above, Company must notify ENJAY within thirty (30) days of the breach of warranty, and ENJAY agrees to use commercially reasonable efforts to cure the non-conforming portions of the Enjay Products before Company pursues any other remedies. ENJAY is not responsible for any non-compliance with this warranty resulting from or caused by any (i) Malicious Code present in the Company Data made available to ENJAY by Company, or (ii) Modifications made by anyone other than ENJAY, including by way of example, Modifications made by Company or any Authorized Partners. Company’s sole and exclusive remedy for a breach of any of warranties contained in this Section 7.a shall be to terminate the Agreement pursuant to Section 5.b and, notwithstanding anything to the contrary in Section 4.a, have ENJAY refund to Company the pro rata unused portion of any pre-paid Subscription fees.
Company warrants that (a) it has the legal power to, and hereby does, enter into this Agreement, (b) it has all rights in and to the Company Data necessary to permit ENJAY to exercise its rights to access and use the Company Data as permitted by this Agreement, and (c) the Company Data or the media on which the Company Data resides does not contain any Malicious Code.
c.Disclaimer of Warranties.
EXCEPT AS EXPRESSLY STATED IN SECTION 7.a AND AS PERMITTED BY APPLICABLE LAW, THE ENJAY PRODUCT IS PROVIDED TO COMPANY STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ENJAY’S PRODUCT OR SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND ENJAY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
8.Responsibility for Third-Party Claims.
ENJAY shall, at its expense, (a) defend or settle any third party claims, actions and demands brought against Company and its Affiliates, officers, directors, employees or agents, where the third party claimant expressly asserts that (i) the Enjay Product infringes such third party’s trademarks or copyrights, or (ii) ENJAY misappropriated such third party’s trade secrets in the development of the Enjay Products, and (b) pay all damages finally awarded therein against the Company indemnified parties or agreed upon in settlement by ENJAY (including other reasonable costs incurred by Company or its Affiliates, including reasonable attorneys’ fees, in connection with enforcing this Section 8.a), subject to the exclusions (1)-(5) set forth below. ENJAY has no obligation to Company under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) Third Party Software, Company Software or Company Data, (2) Modifications where the Enjay Products would not infringe, including by way of example, Modifications made by Company or any Authorized Partners, but excluding Modifications made by ENJAY itself, (3) combination of the Enjay Products with other products, processes or materials where the Enjay Products would not infringe except for such combination, (4) where Company continues to use the Enjay Products after being notified of allegedly infringing activity or being informed of Modifications that would have avoided the alleged infringement, or (5) where Company’s use of the Enjay Products is not strictly in accordance with this Agreement. In the event that ENJAY believes the Enjay Products, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.a applies, then ENJAY may, in its discretion and at its sole expense: (1) procure for Company the right to continue using such Enjay Products or any applicable part thereof, (2) replace such Enjay Product, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Enjay Product, or infringing part thereof, so as to make it non-infringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Company shall have the right to terminate this Agreement solely with respect to the infringing Enjay Product, and, notwithstanding anything to the contrary in Section 4.1, have ENJAY refund to Company the pro rata unused portion of any pre-paid subscription fees. THIS SECTION 8.a STATES ENJAY’S SOLE LIABILITY TO, AND COMPANY’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE ENJAY PRODUCTS OR SERVICES DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
Company shall, at its expense, (a) defend or settle any third party claims, actions and demands brought against ENJAY and its Affiliates, officers, directors, employees and agents, and (b) pay all damages finally awarded therein against the ENJAY indemnified parties or agreed upon in settlement by Company (including other reasonable costs incurred by ENJAY or its Affiliates, including reasonable attorneys’ fees, in connection with enforcing this Section 8.b) arising from: (i) Company’s breach or violation of Company’s responsibilities under Sections 1.d or 1.e, (ii) claims that Company Data or ENJAY’s transmission or hosting thereof infringes or violates the rights of a third party, (iii) claims that Company’s or its Subscription Users’ use of the Enjay Products or services in violation of this Agreement infringes or violates the rights of such third party, or (iv) claims that Company failed to comply with applicable laws, rules or regulations in its performance of this Agreement.
The party or other person entitled to seek indemnification pursuant to this Section 8 (the “Indemnified Party”) shall: (a) promptly notify the other party obligated to provide such indemnification (the “Indemnifying Party”) in writing of any such claim, (b) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent), and (c) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense.
9.Limitation of Liability.
a.Limitation on All Damages.
EXCEPT FOR A BREACH BY COMPANY OF SECTIONS 1.b, 1.d, 1.e or 1.f, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE LESSER OF THE TOTAL AMOUNT PAYABLE BY COMPANY TO ENJAY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY OR ONE HUNDRED THOUSAND DOLLARS ($100,000). THE FOREGOING SHALL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER SECTION 4.
b.Disclaimer of Consequential Damages.
EXCEPT FOR A BREACH BY COMPANY OF SECTIONS 1.b, 1.d, 1.e or 1.f, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
c.Scope of Limitations on Liability.
THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE).
10.Commercial Computer Software.
a.Commercial Computer Software.
The Enjay Product and related modifications were fully developed at private expense and are commercial computer software as defined in FAR 2.101. Any related documentation, technical data, or services are also commercial. However certain components of Open Source has been used as described above in Third Party Components In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred in the Enjay Products, related documentation, technical data, services, or any deliverable to the United States Government are specified in this Master Subscription Agreement. All other uses are prohibited and no ownership rights are conferred.
ENJAY may include the Company name on a customer list.
Company acknowledges and agrees that the Enjay Products is subject to all applicable export control laws and regulations, including, without limitation, those of the United States Government. Company shall strictly comply with all applicable export control laws and regulations related to the Enjay Products, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and all licenses and authorizations issued under such laws and regulations. Company shall fully cooperate with ENJAY in securing any export licenses and authorizations required under applicable export control laws and regulations. Company agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such EnjayCRM Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control laws and regulations. Company shall make its records available to ENJAY upon reasonable request to permit ENJAY to confirm Company’s compliance with its obligations as set forth in this Section 11.b.
Neither party may assign 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 this Agreement in its entirety (including all Order Forms), without the consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 11.c shall be void.
d.Relationship of the Parties.
ENJAY and Company are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
e.No Third-Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
f.Choice of Law and Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the State of Gujarat and the Central Indian laws applicable therein, excluding its conflicts of law provisions. Company and ENJAY agree to submit to the personal and non-exclusive jurisdiction of the courts located in Valsad District, Gujarat, India. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.
h.Manner of Giving Notice.
Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of ENJAY, when addressed to Enjay IT Solutions Ltd., 4th floor, Asopalav Building, opp railway station, Bhilad, Gujarat – 396105. Notices regarding the Enjay Products in general may be given by electronic mail to Company’s e-mail address on record with ENJAY.
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s reasonable control, and denial of service attacks.
The Agreement and any Order Forms or exhibits attached hereto (the “Collective Agreements”) entered into between Company and ENJAY shall be in English. Any translations of the Collective Agreements that ENJAY may provide to Company, are for Company’s convenience only, and in all cases, unless otherwise prohibited by law, the English version of the Collective Agreements will govern the relationship between the parties. For the avoidance of doubt, if there is any contradiction between the English language version of the Collective Agreements and the translations, the English language version of the Collective Agreements will govern.
This Agreement and any Order Forms or exhibits attached hereto or URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails, and/or agreements including requests for proposals (“RFP”), between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, including any pre-printed terms on a customer purchase order, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, and except as set forth in Section 4.a, no terms stated in a purchase order or in any other order document (other than an Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. The Agreement and all exhibits hereto, including any related Order Forms may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Company and ENJAY. All rights not expressly granted to Company are reserved by ENJAY and its licensors.
Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall 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 shall remain in effect.
a.”Affiliate” means a company that is Controlled by, under common Control with or Controlling Company during the period of such control.
b.”API” means application programming interfaces provided by ENJAY as part of the Enjay Products, which set forth rules and specifications that Third Party Modules may utilize to access Company Data in accordance with this Agreement.
c.”Authorized Partner” means a Enjay Products partner that is in good standing with ENJAY under a fully-executed ENJAY agreement and is associated with an Order Form under this Agreement.
d.”Company Data” means any data, information or material submitted by Company, or stored by Company in the Enjay Products.
e.”Company Software” means online, Web-based applications and offline software products that are developed by or for Company, the use of which software is governed by the applicable terms and conditions specified by such software.
f.”Confidential Information” means information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
g.”Control” means ownership, directly or indirectly, of more than 50% of the voting securities that vote for the election of the board of directors or other managing body.
h.”Copyleft License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., GNU General Public License and //www.gnu.org/copyleft/).
i.”Enjay Core Software” means functionality that reports the number of authorized Subscription Users, and provide ENJAY (and Authorized Partners, where applicable) with the ability to monitor certain usage of the Enjay Products.
j.”Data Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or European Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or European Community law.
k.”Data Processor” means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the Data Controller.
l.”Forked Software” means modifications to any open source version of the Original Code to develop a separately maintained source code program (a) with features not present in the Original Code or (b) where modifications to the Original Code are not automatically integrated with the Original Code.
m.”Intellectual Property Rights” means any patents and applications thereto, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property and proprietary rights.
n.”Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
o.”Modifications” means any work based on or incorporating all or any portion of the Enjay Products, including, without limitation, modifications, enhancements, and customizations to the Enjay Products developed by ENJAY, Company, a third party on either such party’s behalf or any combination of such parties.
p.”Order Form” means a document for purchases of Subscriptions hereunder, including purchase orders, order notifications and order confirmation documents (either in writing or via the Web), that are agreed to by ENJAY, or entered into between ENJAY and Company or Company and an Authorized Partner, as applicable, from time to time. Order Forms are deemed incorporated herein by reference.
q.”Original Code” means the Enjay Product source code.
r.”Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
s.”Service” means when the Enjay Product is purchased by Company for use On-Demand.
t.”Software Releases” has the meaning ascribed to it in Exhibit A of this Agreement.
u.”Subscription” means Company’s right to use the Enjay Product for the Subscription Term, per the terms of the Agreement and the related Order Form(s).
v.”Subscription Term” means the period of time which Company may access the applicable Enjay Product as set forth in an Order Form.
w.”Subscription User” means an individual employee, contractor or agent of Company authorized by Company to use the applicable Enjay Products for which a Subscription has been purchased and who has been given a user identification and password.
x.”Enjay Product” means any software that ENJAY supplies, licenses or sells to Company from time to time during the Term, including any software that is downloadable from a third party app store (e.g. Sugar Mobile) and Modifications.
y.”Support Services” shall have the meaning defined in Section 1.c.
z.”Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.
aa.”Third-Party Modules” means software developed by a third party that Company may use to add functionality to the Enjay Products, the use of which software is governed by the applicable terms and conditions specified by such third party.
bb.”Third-Party Software” means online, Web-based applications and offline software products that are developed by third parties, and may interoperate with the Enjay Products, the use of which software is governed by the applicable terms and conditions specified by such third party.
During the Subscription Term, if Company has paid the applicable fees and is in compliance with the terms and conditions of the Agreement, ENJAY shall provide automatic updates to the Company’s instance of the Enjay Product with Software Releases. “Software Releases” may be comprised of Maintenance Releases and/or Feature Releases (as defined below).
a.”Maintenance Releases” means an update to the Enjay Products which includes fixes to known defects and does not intentionally introduce any new or modified application behavior.
b.”Feature Releases” means a software update that includes both fixes to known defects and introduces new or modified application behavior or changes the available features or functionality of the Enjay Product.
If Company decides to customize the Enjay Products for Company’s environment, Company agrees that such customization will be done and provided by ENJAY or ENJAY’s Authorised Partners..
4.Third Party Analytics Tools.
Company agrees that it will not, directly or indirectly, conduct any activity that will degrade performance beyond an acceptable level, including but not limited to: (a) conducting automated functionality tests or load tests on the Enjay Product against Company’s staging and/or testing environments, (b) creating Internet links to the Enjay Product, and/or (c) deploying custom modifications that adversely impact the ENJAY infrastructure due to incompatible code, inefficient code or architecture practices. The company also agrees not to “frame,” “fork” or “mirror” any part of the Enjay Product on any other device. If Company does any of the foregoing, ENJAY shall have the right to terminate or suspend Company’s account and access to the Service without any refund or credit until Company corrects such violation to ENJAY’s reasonable satisfaction.
With respect to the Service, the maximum disk storage space, including any replication(s) of Company’s environment (i.e., sandbox) will be determined based on the Enjay Products purchased by Company (the “Storage Limit”). If the amount of storage required by Company exceeds the Storage Limit, Enjay product shall invoice Company the then-current storage fees for such excess use. Company agrees to pay such data storage fee within thirty (30) days of invoice.
7.Backup of Data.
Company may submit a request to ENJAY, to receive two (2) recoveries of Company’s Data from backup per calendar month free of charge (the “Two Recoveries”). Recoveries beyond the Two Recoveries may be available for an additional charge at ENJAY’s then-current rate for such backup services, which rate can be ascertained by contacting a Enjay sales representative.
8.Replication of Environment (Sandbox).
Upon Company’s request to ENJAY and at no additional charge, Company is entitled to receive the number of duplicates of Company’s production environment (data application logic and configuration) (“SandBox”) per calendar month, as indicated by the Enjay Product that is purchased by Company. Any additional requests for a Sandbox shall be subject to ENJAY’s then-current fees for such services. A Sandbox is intended to be used for development, testing, or staging of any modifications to Company’s production environment instance, and not for use as a production environment instance.
9.Handling of Company Data Post Termination.
If Company is using the On-Demand Services as of the effective date of termination, upon written request by Company made within ninety (90) days of the effective date of expiration or termination of the Agreement (the “Post-Term Period”), ENJAY agrees to make available to Company, a copy of Company’s production environment. Further, during the Post-Term Period and upon the Company’s request, ENJAY shall grant the Company limited access to the Service for the sole purpose of permitting the Company to retrieve Company Data, provided that the Company has paid in full all good faith undisputed amounts owed to ENJAY. Upon expiration of the Post-Term Period, ENJAY will have no further obligation to maintain for or provide to Company any of the Company Data and may thereafter, unless legally prohibited, delete all Company Data in its systems or otherwise in its possession or under its control.
Subject to the terms of this Agreement, ENJAY will make the Enjay Product available to Company and its Subscription Users for use at the Company’s premises or on a Company-controlled server within a third party data centre, and grants Company, during the Subscription Term only, a non-exclusive, revocable, non-transferable (except as provided in Section 11.c of the Agreement) right to install, use and modify the Enjay Product solely for Company’s own internal business purposes.
ENJAY shall electronically deliver or make available the Enjay Product and the information necessary for Company’s use and installation of the Enjay Product.
During the Subscription Term, ENJAY may provide Long Term Supported Releases to the Enjay Product, from time to time. Company understands and agrees that, Company may not have immediate access to new or improved features or newer versions of the Enjay Product until the Long Term Supported Release is issued to On-Site customers by ENJAY. “Long Term Supported Release” means a Enjay Product update that includes fixes to known defects, introduces a new or modifies existing application behaviour and/or changes the available features or functionality of the Enjay Product.
Company understands and acknowledges that Enjay regularly retires older versions of the Enjay Product and that Support Services on the older versions of the Enjay Product are only provided to customers for a designated period of time (the “End-of-Life Policy”). Company understands that Support Services for the Enjay Product will end according to the End of Support Dates indicated therein and that prior to the End of Support Date for the version of the Enjay Product that Company is using, Company must upgrade to the latest supported version of the Enjay Product in order to continue receiving Support Services from ENJAY. ENJAY reserves the right to modify its End-of-Life Policy in the future, by providing notices of such modifications at the URL noted above.