Last Revised 2/2/2021
ETHENA, INC.
TERMS AND CONDITIONS AGREEMENT
This Terms and Conditions Agreement ("Agreement") is entered into by and between Ethena, Inc., a Delaware
corporation ("Ethena") and the entity accessing any Services, as defined below
("Customer" or "you").
Ethena provides anti-harassment and gender inclusivity training modules
via email and browser based app (the “Content”) and related training reports (the “Reports”, collectively with the Content, the “Services”), and the Customer wants Ethena to provide the Content to the
Customer’s employees.
This Agreement permits Customer to purchase subscriptions to online
software-as-a-service products and other services from Ethena pursuant
to any ordering documents, online registration, order descriptions or
order confirmations referencing this Agreement ("Order(s)") and sets forth the basic terms and conditions under which those
products and services will be delivered. This Agreement will govern
Customer's initial purchase on the Effective Date as well as any
future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a)
Customer's initial access to any Service (as defined below) through
any online provisioning, registration or order process or (b) the
effective date of the first Order referencing this Agreement.
MODIFICATIONS TO THIS AGREEMENT: From time to time, Ethena may modify this Agreement. Unless otherwise
specified by Ethena, changes become effective for Customer upon renewal
of Customer's current Subscription Term (as defined below) or entry
into a new Order. Ethena will use reasonable efforts to notify Customer
of the changes through communications via Customer's account, email
or other means. Customer may be required to click to accept or otherwise
agree to the modified Agreement before renewing a Subscription Term or
entering into a new Form, and in any event continued use of the Services
after the updated version of this Agreement goes into effect will
constitute Customer's acceptance of such updated version. If Ethena
specifies that changes to the Agreement will take effect prior to
Customer's next renewal or order (such as for legal compliance or
product change reasons) and Customer objects to such changes, Customer
may terminate the applicable Subscription Term and receive as its sole
remedy a refund of any Fees Customer has pre-paid for use of the
applicable Services for the terminated portion of the Subscription
Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING
ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND
NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE
TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH
PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE
THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
PLEASE READ IT CAREFULLY.
-
DEFINITIONS. Capitalized terms used in this Agreement are defined in this
Section 1 or in the section where they are first used.
"Affiliate" means any entity under the control of Customer where
"control" means ownership of or the right to control greater
than 50% of the voting securities of such entity.
"Contractor" means an independent contractor or consultant who is not a
competitor of Ethena.
"Customer Data" means, except as otherwise set forth herein, any data of any type that is submitted to the
Services by or on behalf of Customer, including without limitation: (a)
data submitted, uploaded or imported to the Services by Customer
(including from Third Party Platforms), (b) data provided by or about
Customer’s Employees, and (c) any Response Data.
"Documentation" means any documentation provided by Ethena to Customer in
connection with the Services.
"Feedback" means comments, questions, suggestions, evaluations or any other
feedback relating to any Ethena product or service.
"Ethena App" means any mobile application or desktop client software included
in the applicable Service that is made available by Ethena.
"Permitted User" means an employee of Customer or its Affiliate who is a Training
Recipient.
“Privacy Policy” refers to Ethena’s Privacy Policy which is available at https://app.goethena.com/documents.
“Response Data” means all information, data and responses submitted to the
Service by Customer’s employees.
"Sensitive Personal Information" means any information that if disclosed could result in
substantial harm, embarrassment, inconvenience or unfairness, including
but not limited to any of the following: (i) credit, debit or other
payment card data subject to the Payment Card Industry Data Security
Standards ("PCI DSS"); (ii) patient, medical or other protected health information
regulated by the Health Insurance Portability and Accountability Act
("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be
in a "special category" (as identified in EU General Data
Protection Regulation or any successor directive or regulation).
"Services" shall have the meaning set forth above.
“Training” means anti-harassment and gender inclusivity training.
"Third-Party Platform" means any software, software-as-a-service, data sources or other
products or services not provided by Ethena that are integrated with
Services as described in the Documentation.
-
ETHENA SERVICES.
-
Access to Services; Training Recipients. Subject to the terms of this Agreement, the Documentation and any
scope of use restrictions designated in the applicable Order Form,
Ethena agrees to provide the Services to Customer’s Training
Recipients, solely for Customer’s use in connection with the
Training of its Training Recipients. Use of and access to the
Services is permitted only by Permitted Users. Customer will upload
Customer’s employees who Customer wishes to receive the Content
(“Training Recipients”) and, Customer is responsible for keeping this list up to
date. The number of Training Recipients will be used to determine the
Fee.
-
API Keys; Passwords. If Customer is given API keys or passwords to access the
Services on Ethena's systems, Customer will require that all
Permitted Users keep API keys, user ID and password information
strictly confidential and not share such information with any
unauthorized person. User IDs are granted to individual, named persons
and may not be shared. If Customer is accessing the Services using
credentials provided by a third party (e.g., Google), then Customer
will comply with all applicable terms and conditions of such third
party regarding provisioning and use of such credentials. Customer
will be responsible for any and all actions taken using Customer's
accounts and passwords. If any Permitted User who has access to a user
ID is no longer an employee (or Contractor) of Customer, then Customer
will immediately delete such user ID and otherwise terminate such
Permitted User's access to the Service.
-
Ethena Apps. To the extent Ethena provides Ethena Apps for use with the Services,
subject to all of the terms and conditions of this Agreement, Ethena
grants to Customer a limited, non-transferable, non-sublicensable,
non-exclusive license during any applicable Subscription Term to use
the object code form of the Ethena Apps internally, but only in
connection with Customer's use of the Service and otherwise in
accordance with the Documentation and this Agreement.
-
Contractors and Affiliates. Customer may permit its Contractors and its Affiliates'
employees and Contractors to serve as Permitted Users, provided
Customer remains responsible for compliance by such individuals with
all of the terms and conditions of this Agreement, and any use of the
Services by such individuals is for the sole benefit of
Customer.
-
General Restrictions. Customer will not (and will not permit any third party to): (a)
distribute, sell, rent, lease, provide access to or sublicense the
Services to a third party; (b) use the Services to provide, or
incorporate the Services into, any product or service provided to a
third party; (c) reverse engineer, decompile, disassemble, or
otherwise seek to obtain the source code or non-public APIs to the
Services, except to the extent expressly permitted by applicable law
(and then only upon advance notice to Ethena); (d) copy or modify the
Services or any Documentation, or create any derivative work from any
of the foregoing; (e) remove or obscure any proprietary or other
notices contained in the Services or on any reports or data printed
from the Services; or (f) publicly disseminate information regarding
the performance of the Services. Customer agrees and covenants
that the Training Recipients and any other of Customer’s
employees or consultants who may have access to the Service are
legally bound by provisions substantially similar to those in this
Section 2 and that Customer shall be legally responsible to Ethena for
the fulfillment by such persons of their obligations.
-
Ethena APIs. If Ethena makes access to any Application Program Interfaces
(“APIs”) available as part of the Services, Ethena reserves the right
to place limits on access to such APIs (e.g., limits on numbers of
calls or requests). Further, Ethena may monitor Customer's usage
of such APIs and limit the number of calls or requests Customer may
make if Ethena believes that Customer's usage is in breach of this
Agreement or may negatively affect the Services (or otherwise impose
liability on Ethena).
-
Updates. This Agreement applies to any and all updates, upgrades, supplements,
add-on components, or Internet-based services components of the
Service that Ethena may provide or make available to Customer after
the Effective Date. Ethena reserves the right to prohibit or
discontinue participation in product upgrades and may require
additional Fees for Service updates, upgrades and/or any associated
activities.
-
Training Recipient Questions. As required by California law, Ethena will respond within two (2)
business days to any questions directed by Training Recipients to
Ethena. Ethena has no obligation to share either the questions
or the answers with the Customer or any person or entity other than
the Training Recipient who asked the question. In addition, Customer agrees that it will indemnify Ethena in connection with any
such answers, in accordance with Section 3.6.
-
CUSTOMER DATA.
-
Rights in Customer Data. As between the parties, Customer will retain all right, title and
interest (including any and all intellectual property rights) in and
to the Customer Data as provided to Ethena. Subject to the terms of
this Agreement, Customer hereby grants to Ethena a perpetual,
non-exclusive, transferable, sublicensable, irrevocable license to
use, copy, modify, transmit, publicly display, publicly perform and
prepare derivative works of the Response Data, for any purposes
whatsoever, including, providing, improving and developing the
Service. For the avoidance of doubt, Ethena shall not disclose
any Response Data in a manner that identifies Customer or the
individual Training Recipients.
-
Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees
that Ethena may obtain and aggregate technical and other data about
Customer's use of the Services that is non-personally identifiable
with respect to Customer ("Aggregated Anonymous Data"), and Ethena may use the Aggregated Anonymous Data to analyze,
improve, support and operate the Services and otherwise for any
business purpose during and after the term of this Agreement,
including without limitation to generate industry benchmark or best
practice guidance, recommendations or similar reports for distribution
to and consumption by Customer and other Ethena customers. For
clarity, this Section 3.2 does not give Ethena the right to identify
Customer as the source of any Aggregated Anonymous Data.
Notwithstanding the foregoing, if an Ethena partner or other entity
with a contractual relationship to Ethena (“Ethena Partner”) has been providing complimentary Services to a Customer
(“Ethena Partner Customer”), then the Ethena Partner will have the right to receive
Aggregated Anonymous Data of that Ethena Partner Customer with the
source of that Data identified.
-
Reports. Customer will be entitled to obtain Reports of various Response Data,
provided, however, that Ethena shall not provide Customer with any
Response Data that may contain Sensitive Personal Information.
An Ethena Partner will be entitled to request and receive
Reports of an Ethena Partner Customer’s Response Data.
-
Storage of Customer Data. Ethena does not provide an archiving service. Ethena agrees only
that it will not intentionally delete any Customer Data from any
Service prior to termination of Customer's applicable Subscription
Term. Ethena expressly disclaims all other obligations with respect to
storage.
-
Customer Obligations.
-
In General. Customer is solely responsible for the accuracy, content and
legality of all Customer Data. Customer represents and warrants to
Ethena that Customer has all necessary rights, consents and
permissions to collect, share and use all Customer Data as
contemplated in this Agreement (including granting Ethena the rights
in Section 3.1 (Rights in Customer Data)) and that no Customer Data
will violate or infringe (i) any third party intellectual property,
publicity, privacy or other rights, (ii) any Laws, or (iii) any terms
of service, privacy policies or other agreements governing the
Customer Properties or Customer's accounts with any Third-Party
Platforms. Customer will be fully responsible for any Customer Data
submitted to the Services by any Person as if it was submitted by
Customer.
-
No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect,
store, process or transmit any Sensitive Personal Information.
Customer acknowledges that Ethena is not a Business Associate or
subcontractor (as those terms are defined in HIPAA) or a payment card
processor and that the Services are neither HIPAA nor PCI DSS
compliant. Ethena will have no liability under this Agreement for
Sensitive Personal Information, notwithstanding anything to the
contrary herein.
-
Compliance with Sexual Harassment Laws Customer represents and warrants that it will comply with all
applicable federal, state and local employment laws related to the
Service, including but not limited to implementation and distribution
of a sexual harassment policy, implementation of related internal
investigation procedures, and monitoring and ensuring compliance by
its employees with sexual harassment laws and related training
requirements. Customer acknowledges that the Training is being
provided in English only and that Customer may be required to have the
Training provided in an employee’s primary language if that
language is not English.
-
Compliance with Other Laws. Customer agrees to comply with all applicable Laws in its use of
the Services and that it has obtained all necessary rights to grant
the license set forth in Section 3.1. Without limiting the generality
of the foregoing, Customer will not engage in any unsolicited
advertising, marketing, or other activities using the Services,
including without limitation any activities that violate the Telephone
Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other
anti-spam laws and regulations.
-
Indemnification by Customer. Customer shall, at its sole expense, indemnify, defend and hold
Ethena, its affiliates, and its and their respective officers,
directors, employees and agents harmless from and against any and all
liabilities, losses, damages, claims and expenses (including
reasonable attorney’s Fees) (collectively, “Losses”), resulting from any third-party claim arising out of or
relating to Customer’s use of the Service, including without
limitation, any and all Losses resulting from (a) the nature or
content of the Response Data, (b) Customer’s failure to comply
with applicable law, (c) claims brought by Customer’s employees,
(d) Customer’s breach of the terms and conditions of this
Agreement, or (e) acts or omissions of Customer with respect to the
Service; provided that Customer will not settle any claim without
Ethena's prior written consent, unless the settlement fully and
unconditionally releases Ethena and does not require Ethena to pay any
amount, take any action, or admit any liability, and further provided
that Ethena shall have the right, at its option, to defend itself
against any such third-party claim or to participate in the defense
thereof by counsel of its own choice.
-
Publicity. Customer hereby grants Ethena a limited license to use
Customer’s name and logo solely for the purpose of identifying
Customer as a user of the Service and attributing any Feedback
provided by Customer.
-
SECURITY. Ethena agrees to use commercially reasonable technical and
organizational measures designed to prevent unauthorized access, use,
alteration or disclosure of any Service or Customer Data. However,
Ethena will have no responsibility for errors in transmission,
unauthorized third-party access or other causes beyond Ethena's
control.
-
OWNERSHIP.
-
Ethena Technology. This is a subscription agreement for access to and use of the
Services. Customer acknowledges that it is obtaining only a limited
right to the Services and that irrespective of any use of the words
"purchase", "sale" or like terms in this
Agreement, no ownership rights are being conveyed to Customer under
this Agreement. Customer agrees that Ethena or its suppliers retain
all right, title and interest (including all patent, copyright,
trademark, trade secret and other intellectual property rights) in and
to the Services and all Documentation, professional services
deliverables and any and all related and underlying technology and
documentation and any derivative works, modifications or improvements
of any of the foregoing, including as may incorporate Feedback
(collectively, "Ethena Technology"). Except as expressly set forth in this Agreement, no rights
in any Ethena Technology are granted to Customer. Further, Customer
acknowledges that the Services are offered as an on-line, hosted
solution, and that Customer has no right to obtain a copy of any of
the Services, except for the Ethena Apps in the format provided by
Ethena.
-
Feedback. From time to time, Customer, including Training Recipients, may
submit Feedback to Ethena. Customer hereby assigns to Ethena all
right, title and interest, including all related intellectual property
rights, in and to all such Feedback, and Ethena may freely use or
exploit Feedback in connection with any of its products or services.
Customer has no right to receive access to or copies of any such
Feedback, including but not limited to any Training Recipient
evaluation of the Training or Services.
-
FEES AND PAYMENT.
-
Fees.
-
Amount of Fees. All Fees are as set forth on the Website or in the applicable
Order and will be paid by Customer within thirty (30) days of invoice.
The rates in the Order are valid for the initial twelve (12) month
period of each Subscription Term and thereafter may be subject to an
automatic adjustment increase of up to ten percent (10%) per year. Any
late payments will be subject to a service charge equal to 1.5% per
month of the amount due or the maximum amount allowed by law,
whichever is less.
-
Conversion of Complimentary Services. If Customer is an Ethena Partner Customer who has been provided
complimentary Services through an Ethena Partner and that relationship
is terminated, then Customer will be responsible for the Fees set
forth in Section 6.1.1. If Ethena does not receive written
notice from the Customer within thirty (30) days after such
termination that Customer wishes to terminate the Services, then
Customer will continue to obtain access to the Services and Customer
agrees that Ethena may use the credit card on file to process those
Fees in accordance with Section 6.2.
-
Nonrefundable. Except as expressly set forth in Section 8 (Limited Warranty)
and Section 12 (Indemnification), all Fees are non-refundable.
-
Taxes. Customer is responsible for paying all Taxes, and all Taxes are
excluded from any Fees set forth in the applicable Order. If Customer
is required by Law to withhold any Taxes from Customer's payment,
the Fees payable by Customer will be increased as necessary so that
after making any required withholdings, Ethena receives and retains
(free from any liability for payment of Taxes) an amount equal to the
amount it would have received had no such withholdings been made.
-
Payment Via Credit Card. Customer will be required to provide information regarding its
credit card or other payment instrument. Customer
represents and warrants to Ethena that such information is true and
that it is authorized to use the payment
instrument. Customer will promptly update its account
information with any changes (for example, a change in billing address
or credit card expiration date) that may occur. If any
payment due from Customer under this Agreement becomes past due,
Ethena may charge Customer a late payment charge equal to the lesser
of (a) one and one-half percent (1.5%) per month, compounded monthly,
or (b) the maximum rate permitted under applicable law on the past due
balance. Customer shall reimburse Ethena for all reasonable costs and
expenses incident to the collection of overdue amounts hereunder,
including but not limited to reasonable attorneys’ Fees. If
Customer disputes any Fees, it must provide written notice to the
Ethena of such dispute within ten (10) days after the date of the
invoice. If you are purchasing the Services via credit card,
debit card or other payment card ("Credit Card"), the following terms apply:
-
Stripe Processing. Payment processing services are provided by Stripe and are
subject to the Stripe Connected Account Agreement, which includes the
Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to use the
Service, you agree to be bound by the Stripe Services Agreement, as
the same may be modified by Stripe from time to time. As a condition
of the Ethena’s enabling payment processing services through
Stripe, Customer agrees to provide Stripe and, if necessary, the
Ethena, accurate and complete information about Customer and its
business.
-
Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase
any Services, Customer hereby authorizes Ethena (or its designee) to
automatically charge Customer's Credit Card on the same date of
each calendar month (or the closest prior date, if there are fewer
days in a particular month) during the Subscription Term for all Fees
accrued as of that date (if any) in accordance with the applicable
Order. Customer acknowledges and agrees that the amount billed and
charged each month may vary depending on Customer's use of the
Services and may include subscription Fees for the remainder of
Customer's applicable billing period and overage Fees for the
prior month.
-
Invalid Payment. If a payment is not successfully settled due to expiration of a
Credit Card, insufficient funds, or otherwise, Customer remains
responsible for any amounts not remitted to Ethena and Ethena may, in
its sole discretion, either (i) invoice Customer directly for the
deficient amount, (ii) continue billing the Credit Card once it has
been updated by Customer (if applicable) or (iii) terminate this
Agreement.
-
Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement,
Customer may terminate the Subscription Term by sending Ethena notice
of non-renewal in accordance with Section 7.1 (Subscription Term and
Renewals) or, if Customer's Subscription Term is on a monthly
basis (or if otherwise permitted by Ethena), by terminating via the
"Settings" page on the Dashboard, with termination effective
at the end of the current Subscription Term.
-
Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term,
Ethena will charge Customer's Credit Card (or invoice Customer
directly) for any outstanding Fees for Customer's use of the
Services during the Subscription Term, after which Ethena will not
charge Customer's Credit Card for any additional Fees.
-
Taxes. All amounts payable under this Agreement do not include VAT,
sales tax, use tax, withholding tax, foreign export duties or other
similar taxes, duties, levies and charges, all of which (other than
income tax attributable to Ethena’s income) shall be paid by
Customer.
-
TERM AND TERMINATION.
-
Term and Renewals. The Term of this Agreement will commence on the Effective Date and
will continue for the initial period of one (1) year.
Thereafter, the Term of this Agreement shall automatically renew
for additional periods equal to the initial Term, unless either party
provides the other with written notice of non-renewal at least thirty
(30) days prior to the end of the then-current Term. If Customer cancels, previous Fees will not be refunded, but Customer
will receive the Service until the end of the Term that Customer paid
for.
-
Termination for Cause. Either party may terminate this Agreement (including all related
Order Forms) with immediate effect if the other party (a) fails to
cure any material breach of this Agreement (including a failure to pay
Fees) within ten (10) days after written notice; (b) ceases operation
without a successor; or (c) seeks protection under any bankruptcy,
receivership, trust deed, creditors' arrangement, composition, or
comparable proceeding, or if any such proceeding is instituted against
that party (and not dismissed within sixty (60) days thereafter).
-
Suspension of Service. If Customer's account is thirty (30) days or more overdue, in
addition to any of its other rights or remedies (including but not
limited to any termination rights set forth herein), Ethena reserves
the right to suspend Customer's access to the applicable Service
(and any related services) without liability to Customer until such
amounts are paid in full. Further, Ethena may immediately suspend access to the Service if
Customer materially breaches this Agreement (except for
Customer’s non-payment of Fees) until such breach is
cured. Such a suspension of Service shall not
relieve Customer from its obligations to pay all amounts due
under this Agreement.
-
Effect of Termination. Termination or expiration of this Agreement shall not affect any
rights or obligations of the parties, including the payment of amounts
due, which have accrued up to the date of such termination or
expiration. All licenses and other rights to use the
Service shall terminate upon any termination or expiration of this
Agreement, and Customer will immediately cease any and all use of and
access to all Services (including any and all related Ethena
Technology) and delete (or, at Ethena's request, return) any and
all copies of the Documentation, any Ethena passwords or access codes
and any other Ethena Confidential Information in its possession.
Provided this Agreement was not terminated for Customer's breach,
Customer may retain and use internally copies of all reports exported
from any Service prior to termination. Customer acknowledges that
following termination it will have no further access to any Customer
Data input into any Service, and that Ethena may delete any such data
as may have been stored by Ethena at any time. Except where an
exclusive remedy is specified, the exercise of either party of any
remedy under this Agreement, including termination, will be without
prejudice to any other remedies it may have under this Agreement, by
law or otherwise.
-
Survival. The following Sections will survive any expiration or termination
of this Agreement: 2.5 (General Restrictions), 3 (Customer Data,
including Indemnification by Customer), 5 (Ownership), 6 (Fees and
Payment), 7 (Term and Termination), 8 (Limited Warranty), 11
(Limitation of Remedies and Damages), 12 (Indemnification), 13
(Confidential Information) and 14 (General Terms).
-
LIMITED WARRANTY.
-
Limited Warranty. Ethena warrants, for Customer's benefit only, that each Service
will operate in substantial conformity with the applicable
Documentation. Ethena's sole liability (and Customer's sole
and exclusive remedy) for any breach of this warranty will be, at no
charge to Customer, for Ethena to use commercially reasonable efforts
to correct the reported non-conformity, or if Ethena determines such
remedy to be impracticable, either party may terminate the applicable
Subscription Term and Customer will receive as its sole remedy a
refund of any Fees Customer has pre-paid for use of such Service for
the terminated portion of the applicable Subscription Term. The
limited warranty set forth in this Section 8.1 will not apply: (i)
unless Customer makes a claim within thirty (30) days of the date on
which Customer first noticed the non-conformity, (ii) if the error was
caused by misuse, unauthorized modifications or third-party hardware,
software or services, or (iii) to use provided on a no-charge, trial
or evaluation basis.
-
Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, ALL SERVICES,
DOCUMENTATION AND ANY AND ALL OTHER MATERIAL PROVIDED BY COMPANY
TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED "AS IS".
NEITHER ETHENA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS
OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. ETHENA DOES NOT WARRANT THAT CUSTOMER'S USE OF
THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ETHENA
WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT
WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR
CORRUPTION. ETHENA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS,
SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS
OUTSIDE THE REASONABLE CONTROL OF ETHENA. CUSTOMER MAY HAVE OTHER
STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES,
IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
COMPANY MAKES NO GUARANTEE AS TO THE RESULTS OR OUTCOMES OF
USING THE SERVICE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE
OPERATION OF THE SERVICE, INCLUDING BUT NOT LIMITED TO ENSURING THAT: (i) THE SERVICE MEETS THE
REQUIREMENTS OF ANY APPLICABLE FEDERAL, STATE OR LOCAL LAWS REGARDING
SEXUAL HARASSMENT TRAINING; (ii) ITS EMPLOYEES DO NOT
“OVERRIDE” ANY ASPECT OF THE TRAINING; and (iii) ITS
EMPLOYEES ARE ACCURATELY IDENTIFIED AND THEIR TRAINING IS ACCURATELY
TRACKED.
-
TARGET AVAILABILITY.
-
Target Availability. Ethena will use commercially reasonable efforts to make each
Service available with an uptime of 99.9% of each calendar month
("Target Availability").
-
Exclusions. The calculation of uptime will not include unavailability to
the extent due to: (a) use of the Service by Customer in a manner not
authorized in this Agreement or the applicable Documentation; (b)
general Internet problems, force majeure events or other factors
outside of Ethena's reasonable control; (c) Customer's
equipment, software, network connections or other infrastructure; (d)
third party systems, acts or omissions; or (e) Scheduled Maintenance
or reasonable emergency maintenance. "Scheduled Maintenance" means Ethena's scheduled routine maintenance of the
Services for which Ethena notifies Customer at least twenty-four (24)
hours in advance. Scheduled Maintenance will not exceed eight (8)
hours per month. Ethena typically performs Scheduled Maintenance once
per month.
-
Sole Remedy for Failure to Meet Target Availability. If there is a verified failure of a Service to meet Target
Availability in two (2) consecutive months, then Customer may
terminate the applicable Subscription Term by sending written notice
of termination within thirty (30) days after the end of the second
such month, in which case Ethena will refund to Customer any Fees
Customer has pre-paid for use of such Service for the terminated
portion of the applicable Subscription Term. This termination and
refund right is Customer's sole and exclusive remedy, and
Ethena's sole and exclusive liability, for Ethena's failure to
meet the Target Availability.
-
NO SUPPORT OBLIGATION. Ethena has no obligation under this Agreement to maintain the Service
or assist any Ethena or employee with the procurement, installation,
maintenance or use of the Service. Because the Service is provided
“as is”, no updates, customization services or support
services are provided or required to be made available to Ethena
and/or the Service. In addition, Customer is solely responsible
for any technical requirements necessary for access to the Service.
Notwithstanding the foregoing, Ethena may elect to assist
Customer with any technical issues encountered with the Service,
provided that Customer provided written Notice of such issues within
two (2) business days of the discovery of such issue.
-
LIMITATION OF REMEDIES AND DAMAGES.
-
Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE
FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE),
INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR FOR LOSS OF
PROFITS OR REVENUES OR LOSS OF DATA, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, OR CUSTOMER’S USE OF, OR THE RESULTS
OBTAINED FROM, THE SERVICE, DOCUMENTATION, OR ANY OTHER MATERIAL
PROVIDED BY ETHENA TO CUSTOMER UNDER THIS AGREEMENT.
-
Liability Cap. ETHENA'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER
ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE
AMOUNT ACTUALLY PAID BY CUSTOMER TO ETHENA DURING THE PRIOR TWELVE
(12) MONTHS UNDER THIS AGREEMENT.
-
Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of
Section 2.5 (General Restrictions); or (b) under Section 3.5
(Customer Obligations) or 3.6 (Indemnification by Customer).
-
Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in
this Section 11 apply regardless of the form of action, whether in
contact, tort (including negligence), strict liability or otherwise
and will survive and apply even if any limited remedy specified in
this Agreement is found to have failed of its essential purpose.
-
Customer Acknowledgement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMER OF WARRANTIES,
LIMITATIONS ON LIABILITY AND LIMITED REMEDIES CONTAINED IN THIS
AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF COMPANY’S
BARGAIN HEREUNDER, INCLUDING THE PRICING OF THE SERVICE, AND COMPANY
WOULD NOT PROVIDE THE SERVICE TO CUSTOMER ABSENT SUCH
LIMITATIONS.
-
INDEMNIFICATION FOR INTELLECTUAL PROPERTY CLAIMS. Ethena will defend Customer from and against any claim by a third
party alleging that a Service when used as authorized under this
Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark
and will indemnify and hold harmless Customer from and against any
damages and costs finally awarded against Customer or agreed in
settlement by Ethena (including reasonable attorneys' fees)
resulting from such claim, provided that Ethena will have received
from Customer: (i) prompt written notice of such claim (but in any
event notice in sufficient time for Ethena to respond without
prejudice); (ii) the exclusive right to control and direct the
investigation, defense and settlement (if applicable) of such claim;
and (iii) all reasonable necessary cooperation of Customer. If
Customer's use of a Service is (or in Ethena's opinion is
likely to be) enjoined, if required by settlement or if Ethena
determines such actions are reasonably necessary to avoid material
liability, Ethena may, in its sole discretion: (a) substitute
substantially functionally similar products or services; (b) procure
for Customer the right to continue using such Service; or if (a) and
(b) are not commercially reasonable, (c) terminate this Agreement and
refund to Customer the Fees paid by Customer for the portion of the
Subscription Term that was paid by Customer but not rendered by
Ethena. The foregoing indemnification obligation of Ethena will not
apply: (1) if such Service is modified by any party other than Ethena,
but solely to the extent the alleged infringement is caused by such
modification; (2) if such Service is combined with products or
processes not provided by Ethena, but solely to the extent the alleged
infringement is caused by such combination; (3) to any unauthorized
use of such Service; (4) to any action arising as a result of Customer
Data or any third-party deliverables or components contained within
such Service; (5) to the extent the alleged infringement is not caused
by the particular technology or implementation of the Service but
instead by features common to any similar product or service; or (6)
if Customer settles or makes any admissions with respect to a claim
without Ethena's prior written consent. THIS SECTION 12 SETS FORTH
ETHENA'S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL
PROPERTY INFRINGEMENT.
-
CONFIDENTIAL INFORMATION. Each party (as "Receiving Party") agrees that all code, inventions, know-how, business,
technical and financial information it obtains from the disclosing
party ("Disclosing Party") constitute the confidential property of the Disclosing Party
("Confidential Information"), provided that it is identified as confidential at the time
of disclosure or should be reasonably known by the Receiving Party to
be confidential or proprietary due to the nature of the information
disclosed and the circumstances surrounding the disclosure. Any Ethena
Technology, performance information relating to any Service, and the
terms and conditions of this Agreement will be deemed Confidential
Information of Ethena without any marking or further designation.
Except as expressly authorized herein, the Receiving Party will (1)
hold in confidence and not disclose any Confidential Information to
third parties and (2) not use Confidential Information for any purpose
other than fulfilling its obligations and exercising its rights under
this Agreement. The Receiving Party may disclose Confidential
Information to its employees, agents, contractors and other
representatives having a legitimate need to know (including, for
Ethena, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to
confidentiality obligations no less protective of the Disclosing Party
than this Section 15 and that the Receiving Party remains responsible
for compliance by any such representative with the terms of this
Section 15. The Receiving Party's confidentiality obligations will
not apply to information that the Receiving Party can document: (i)
was rightfully in its possession or known to it prior to receipt of
the Confidential Information; (ii) is or has become public knowledge
through no fault of the Receiving Party; (iii) is rightfully obtained
by the Receiving Party from a third party without breach of any
confidentiality obligation; or (iv) is independently developed by
employees of the Receiving Party who had no access to such
information. The Receiving Party may make disclosures to the extent
required by law or court order, provided the Receiving Party notifies
the Disclosing Party in advance and cooperates in any effort to obtain
confidential treatment. The Receiving Party acknowledges that
disclosure of Confidential Information would cause substantial harm
for which damages alone would not be a sufficient remedy, and
therefore that upon any such disclosure by the Receiving Party the
Disclosing Party will be entitled to seek appropriate equitable relief
in addition to whatever other remedies it might have at law.
-
GENERAL TERMS.
-
No Assignment. This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. Neither party may assign
or delegate this Agreement or any rights or obligations under this
Agreement without the advance written consent of the other party,
except that either party may assign this Agreement in connection with
a merger, reorganization, acquisition or other transfer of all or
substantially all of such party's assets or voting securities. Any
attempt to transfer or assign this Agreement except as expressly
authorized under this Section 14.1 will be null and void.
-
Severability. If any provision of this Agreement will be held invalid or
unenforceable by a court, the remaining provisions of this Agreement
will remain in full force and effect, and the provision or portion
thereof affected will be construed so as to be enforceable to the
maximum extent permissible by law.
-
Governing Law; Dispute Resolution.
-
Informal Dispute Resolution. In the event of any dispute, claim, question, or disagreement
arising from or relating to this Agreement, whether arising in
contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve
the Dispute. If a Dispute arises, the complaining party shall provide
written notice to the other party in a document specifically entitled
"Initial Notice of Dispute," specifically setting forth the
precise nature of the dispute ("Initial Notice of Dispute").
Following receipt of the Initial Notice of Dispute, the parties shall
consult and negotiate with each other in good faith and, recognizing
their mutual interest, attempt to reach a just and equitable solution of
the Dispute that is satisfactory to both parties ("Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute
through Dispute Resolution within thirty (30) days of the receipt of the
Initial Notice of Dispute, then the Dispute shall subsequently be
resolved by arbitration as set forth below.
-
ARBITRATION. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE
SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE
PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY
AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A
JURY TRIAL. The arbitration shall be conducted before a single neutral
arbitrator, before JAMS in New York. The arbitration shall be
administered by JAMS in accordance with this document and the JAMS
Streamlined Rules and Procedures for the Arbitration, with one
addition: The limitation of one discovery deposition per side shall be
applied by the arbitrator, unless it is determined, based on all
relevant circumstances, that more depositions are warranted. The
arbitrator shall consider the amount in controversy, the complexity of
the factual issues, the number of parties and the diversity of their
interests and whether any or all of the claims appear, on the basis of
the pleadings, to have sufficient merit to justify the time and
expense associated with the requested discovery.
The arbitration will occur in New York, but the parties may choose to
appear by person, by phone, by another virtual means, or through the
submission of documents.
The arbitrator will issue a ruling in writing. Any issue concerning the
extent to which any dispute is subject to arbitration, the
applicability, interpretation, or enforceability of this agreement shall
be resolved by the arbitrator. To the extent state law is applicable,
the arbitrator shall apply the substantive law of New York.
All aspects of the arbitration shall be treated as confidential and
neither the parties nor the arbitrators may disclose the content or
results of the arbitration, except as necessary to comply with legal or
regulatory requirements. The result of the arbitration shall be binding
on the parties and judgment on the arbitrator's award may be entered
in any court having jurisdiction. The arbitrator shall award to the
prevailing party, if any, the costs and attorneys' fees reasonably
incurred by the prevailing party in connection with the
arbitration.
-
Choice of Law and Jurisdiction – New York. This Agreement will be governed by and construed in accordance with
the laws of the State of New York, regardless of its conflicts of laws
principles. The parties exclude the application of the 1980 United
Nations Convention on the International Sale of Goods and the
application of the Uniform Computer Information Transactions Act. Any
action shall be brought exclusively in a court of competent
jurisdiction in New York, and the parties consent and submit to the
personal jurisdiction and venue such a court.
-
Construction. This agreement must be construed as if it was jointly written
by both parties.
-
No Joinder or Class Action. Both parties agree that each may bring or participate in claims
against the other only in their respective individual capacities, and
not as a plaintiff or class member in any purported class. No
arbitration or claim under this agreement shall be joined to any other
arbitration or claim, including any arbitration or claim involving any
other current or former user of the services, and no class arbitration
proceedings shall be permitted. In the event of any dispute concerning
the validity or enforceability of this provision, such claim must be
adjudicated by a court and not by an arbitrator.
-
Injunctive Relief. Customer acknowledges that its breach of certain provisions of
this Agreement will cause irreparable harm to Ethena for which
monetary relief would be insufficient, and hereby agrees that Ethena
will be entitled to injunctive relief as well as such further relief
as may be granted by a court of competent jurisdiction in the event of
such breach or threatened breach of Accordingly, notwithstanding the
above provisions, Ethena may apply for injunctive remedies (or an
equivalent type of urgent legal relief) in any jurisdiction.
-
Notice. Any notice or communication required or permitted under this
Agreement will be in writing to the parties at the addresses set forth
below or at such other address as may be given in writing by either
party to the other in accordance with this Section and will be deemed
to have been received by the addressee (i) if given by hand,
electronic mail or fax, immediately upon receipt; (ii) if given by
overnight courier service, the first business day following dispatch
or (iii) if given by registered or certified mail, postage prepaid and
return receipt requested, the second business day after such notice is
deposited in the mail.
-
Amendments; Waivers. Except as otherwise provided herein, no supplement, modification,
or amendment of this Agreement will be binding, unless executed in
writing by a duly authorized representative of each party to this
Agreement. No waiver will be implied from conduct or failure to
enforce or exercise rights under this Agreement, nor will any waiver
be effective unless in a writing signed by a duly authorized
representative on behalf of the party claimed to have waived. No
provision of any purchase order or other business form employed by
Customer will supersede the terms and conditions of this Agreement,
and any such document relating to this Agreement will be for
administrative purposes only and will have no legal effect.
-
Entire Agreement; Precedence. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all
previous written and oral agreements and communications relating to
the subject matter of this Agreement. The terms of this Agreement take
precedence over the terms of any purchase order, preprinted form,
terms and conditions, or similar document issued by a Customer which
may be accepted by Ethena for administrative convenience only.
Customer acknowledges that the Services are on-line,
subscription-based products, and that in order to provide improved
customer experience Ethena may make changes to the Services, and
Ethena will update the applicable Documentation accordingly.
-
Force Majeure. Neither party will be liable to the other for any delay or failure
to perform any obligation under this Agreement (except for a failure
to pay Fees) if the delay or failure is due to unforeseen events that
occur after the signing of this Agreement and that are beyond the
reasonable control of such party, including but not limited to: a strike; blockade; war; act of terrorism; riot; natural disaster; failure or diminishment of power or telecommunications,data networks or services, or hosting providers; or refusal of a
license by a government agency.
-
Subcontractors. Ethena may use the services of subcontractors and permit them to
exercise the rights granted to Ethena in order to provide the Services
under this Agreement, provided that Ethena remains responsible for (i)
compliance of any such subcontractor with the terms of this Agreement
and (ii) for the overall performance of the Services as required under
this Agreement.
-
Subpoenas. Nothing in this Agreement prevents Ethena from disclosing Customer
Data to the extent required by law, subpoenas, or court orders, but
Ethena will use commercially reasonable efforts to notify Customer
where permitted to do so.
-
Independent Contractors. The parties to this Agreement are independent contractors. There is
no relationship of partnership, joint venture, employment, franchise
or agency created hereby between the parties. Neither party will have
the power to bind the other or incur obligations on the other
party's behalf without the other party's prior written
consent.
-
Export Control. Customer will not export, directly or indirectly, the Service or
any technical data of Ethena to any country for which the U.S.
Government requires an export license or other governmental approval
without first obtaining such license or approval.
-
Government End-Users. Elements of the Services are commercial computer software. If the
user or licensee of the Services is an agency, department, or other
entity of the United States Government, the use, duplication,
reproduction, release, modification, disclosure, or transfer of the
Services, or any related documentation of any kind, including
technical data and manuals, is restricted by a license agreement or by
the terms of this Agreement in accordance with Federal Acquisition
Regulation 12.212 for civilian purposes and Defense Federal
Acquisition Regulation Supplement 227.7202 for military purposes. All
Services were developed fully at private expense. All other use is
prohibited.
-
Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which
will be deemed an original and all of which together will be
considered one and the same agreement. This Agreement may be
delivered by facsimile or electronic PDF transmission, and facsimile
or electronic copies of executed signature pages shall be binding as
originals.