It’s Elation Inc. (“Elation” or “the Company”) provides You (“You” and “Your” means you as an individual or you as the authorized representative of an organization or business) the use of the Edagio Service, including a browser interface, smart device apps, and data encryption(?), transmission, access and storage, on the payment terms and conditions described below.
1. LICENSE GRANT
2. LICENSE GRANT & RESTRICTIONS
Elation hereby grants You a non-exclusive, non-transferable, worldwide right to use Edagio, solely for Your own internal organizational or business purposes, subject to the terms and conditions of this Payment Terms and Conditions Agreement as well as the Edagio Terms of Service Agreement. All rights not expressly granted to You are reserved by Elation. You may not access Edagio if You are a direct competitor of Elation. In addition, You may not access Edagio for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Edagio in any way; (ii) modify or make derivative works based upon Edagio; (iii) create Internet “links” to Edagio or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access Edagio in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of Edagio, or (c) copy any ideas, features, functions or graphics of Edagio.
User licenses cannot be shared or used by more than one individual, organization or business but may be reassigned from time to time to new individuals who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use Edagio.
You may use Edagio only for Your internal organizational or business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of Edagio; or (v) attempt to gain unauthorized access to Edagio or its related systems or networks.
4. YOUR RESPONSIBILITIES
You are responsible for all activity occurring under Your accounts and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with Your use of Edagio, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Elation immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Elation immediately and use reasonable efforts to stop immediately any copying or distribution of Edagio that is known or suspected by You or Your Users; and (iii) not impersonate another Edagio user or provide false identity information to gain access to or use Edagio.
5. ACCOUNT INFORMATION AND DATA
Elation does not own any data, information or material that You submit to Edagio in the course of using Edagio (”Customer Data”). You, Elation, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Elation shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Elation reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and Elation shall have no obligation to maintain or forward any Customer Data.
6. INTELLECTUAL PROPERTY OWNERSHIP
Elation alone (and its licensors, where applicable) shall own all right, title and interest in Edagio, including all related Intellectual Property Rights and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to Edagio. This Agreement is not a sale and does not convey to You any rights of ownership in or related to Edagio, or Elation’s Intellectual Property Rights. “Edagio,” the Edagio logo, and “Elation” are servicemarks of It’s Elation and no right or license is granted to use them without our express written permission.
7. CHARGES AND PAYMENT OF FEES
You agree that Elation will charge Your monthly service fee using Edagio to the credit card on file for Your account. You agree to pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Elation may modify its fees and charges for Edagio or introduce new fees or charges at any time upon 30 days prior notice to You via e-mail. Support, training, and/or content development assistance for Edagio are available and will be charged to Your credit card upon delivery.
8. BILLING AND RENEWAL
Elation charges and collects monthly for the use of Edagio. Elation will automatically issue a receipt for each month upon payment. Fees for other services will be charged on an as-quoted basis. Elation’s fees are exclusive of all taxes, fees, or charges imposed by taxing authorities, and You are responsible for payment of all such amounts. You agree to provide Elation with complete and accurate billing and contact information. This information includes Your legal company or organization name, street address, e-mail address.
9. NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to Elation herein, Elation reserves the right to suspend or terminate this Agreement and Your access to Edagio if Your account becomes delinquent. Delinquent charges are subject to late payment charges of 1 and ½ percent per month or the maximum rate allowed by law, whichever is less, plus any costs incurred in collecting the amount owed. If You or Elation terminates this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. Elation reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to Edagio. You agree and acknowledge that Elation has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 30 days or more delinquent.
10. TERMINATION UPON EXPIRATION
This Agreement commences on the date you complete the registration form. In addition to subscribing to Edagio on a month to month basis, Elation offers a discount for annual subscription. The price for Edagio also varies with the number of users You make it available to. You agree to pay for Edagio by completing the registration form and selecting your subscription choice. This Agreement will automatically renew for successive renewal terms of either one month or one year depending upon your subscription, at Elation’s then current fees. Either party may terminate this Agreement, by notifying the other party in writing at least 1 day prior to the date of the requested termination. If You choose to suspend your subscription, Elation will issue a pro-rated credit, less the termination charge that will apply if You terminate an annual subscription early. The termination charge is equal to the discount You received for subscribing for Edagio for a year versus a monthly subscription.
11. TERMINATION FOR CAUSE
Any breach of Your payment obligations or unauthorized use of the Elation Technology or Service will be deemed a material breach of this Agreement. Elation, in its sole discretion, may terminate Your password, account or use of Edagio if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Elation has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. REPRESENTATIONS & WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Elation represents and warrants that it will provide Edagio in a manner consistent with general industry standards reasonably applicable to the provision thereof and that Edagio will perform substantially in accordance with the online help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to Edagio and that Your billing information is correct.
13. MUTUAL INDEMNIFICATION
You shall indemnify and hold Elation, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that Elation (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Elation of all liability and such settlement does not affect Elation’s business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim. Elation shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that Edagio directly infringes a copyright, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Elation of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Elation; provided that You (a) promptly give written notice of the claim to Elation; (b) give Elation sole control of the defense and settlement of the claim (provided that Elation may not settle or defend any claim unless it unconditionally releases You of all liability); (c) provide to Elation all available information and assistance; and (d) have not compromised or settled such claim. Elation shall have no indemnification obligation, and You shall indemnify Elation pursuant to this Agreement, for claims arising from any infringement arising from the combination of Edagio with any of Your products, service, hardware or business process(s).
14. DISCLAIMER OF WARRANTIES
ELATION MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF EDAGIO OR ANY CONTENT. ELATION DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF EDAGIO WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) EDAGIO WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH EDAGIO WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (E) EDAGIO OR THE SERVER(S) THAT MAKE EDAGIO AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EDAGIO AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ELATION DISCLAIMS 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, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. INTERNET DELAYS
ELATION’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ELATION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE EDAGIO, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH EDAGIO, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Subject to the agreement of the parties, if any dispute or difference shall arise between the Company and the Customer on any matter relating to or arising out of the Agreement, such a dispute shall be referred to the arbitration of a single Arbitrator to be agreed upon by the parties.
18. PROPER LAW AND JURISDICTION
The Agreement shall be governed by and construed in accordance with the laws of Montana, without regard to its conflict of laws. Any dispute concerning the Agreement or its interpretation shall be adjudicated in Yellowstone County, Montana.
Elation may give notice by means of a general notice on Edagio, electronic mail to Your e-mail address on record in Elation’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Elation’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Elation (such notice shall be deemed given when received by Elation) at any time by any of the following: an email message from Your user account to email@example.com or a letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to: ELATION, 214 N. Broadway, Billings, MT 59101.
20. MODIFICATION TO TERMS
Elation reserves the right to modify the terms and conditions of this Agreement or its policies relating to Edagio at any time, effective upon posting of an updated version of this Agreement on Edagio. You are responsible for regularly reviewing this Agreement. Continued use of Edagio after any such changes shall constitute Your consent to such changes.
21. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by You without the prior written approval of Elation but may be assigned without Your consent by Elation to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Elation directly or indirectly owning or controlling 50% or more of You shall entitle Elation to terminate this Agreement for cause immediately upon written notice.