This agreement provides Customer with access to and usage of EPK Assistant, including, without limitation, its features, functions, and user interface, as specified on an order.
- USE OF SAAS SERVICE.
- Customer Owned Data. All data uploaded by Customer to the SaaS Service remains the property of Customer, as between EPK Assistant and Customer (Customer Data). Customer grants EPK Assistant the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the SaaS Service.
- Access and Usage. Customer may allow its contractors to access the SaaS Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
- Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the SaaS Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify EPK Assistant promptly of any such unauthorized access; (iv) may use the SaaS Service only in accordance with the SaaS Service’s user guide and applicable law; and (v) is responsible for all content within their EPK.
- EPK Assistant Support. EPK Assistant must provide Customer support for the SaaS Service under the terms of EPK Assistant’s Customer Support Policy (Support), which is located at https://epkassistant.com/support/.
- Communications. By creating an account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
- WARRANTY DISCLAIMER.
- USE OF SAAS SERVICE.
THE IMPLEMENTATION AND SAAS SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY. EPK Assistant DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE EPK Assistant TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SAAS SERVICE, EPK Assistant DOES NOT GUARANTEE THAT THE SAAS SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SAAS SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order and/or Service Agreement (SA), but if not specified, then within 14 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the SaaS Service, which orders are governed by the terms of this agreement.
Customer may cancel their account at any time. Cancellation is immediate and any payment will not be prorated or refunded. All data from any cancelled account will be completely deleted in 60 days and no longer accessible.
If Customer has registered for a trial use of the Service, Customer may access the Service for the time period specified by EPK Assistant, currently 14-days. Access to the software and evaluation of the services during this first 14-days are free on any plan.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Customer) to the other party (EPK Assistant), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). EPK Assistant’s Confidential Information includes, without limitation, the SaaS Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.
- Protection of Confidential Information. EPK Assistant must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Customer for any purpose outside the scope of this agreement. EPK Assistant must make commercially reasonable efforts to limit access to Confidential Information of Customer to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with EPK Assistant no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Customer; (ii) was known to EPK Assistant prior to its disclosure by the Customer without breach of any obligation owed to the Customer; (iii) is received from a third party without breach of any obligation owed to Customer; or (iv) was independently developed by EPK Assistant without use or access to the Confidential Information. EPK Assistant may disclose Confidential Information to the extent required by law or court order but will provide Customer with advance notice to seek a protective order.
- Reservation of Rights. Software and Documentation, and other (Intellectual Property) are the proprietary property of EPK Assistant and its licensors, and all right, title, and interest in and to the Intellectual Property, remain only with EPK Assistant. Customer may not remove or modify any proprietary marking or restrictive legends in the SaaS Service or Software and Documentation. EPK Assistant reserves all rights unless expressly granted in this agreement.
- Restrictions. Customer may not: (i) sell, resell, rent, or lease the SaaS Service or use it in a service-provider capacity; (ii) use the SaaS Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the SaaS Service; (iv) attempt to gain unauthorized access to the SaaS Service or its related systems or networks; (v) reverse engineer the SaaS Service or the Software and Documentation; or (vi) access the SaaS Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
- Software and Documentation. All software provided by EPK Assistant as part of the SaaS Service, and the SaaS Service documentation, sample data, marketing materials, training materials, and other materials provided through the SaaS Service or by EPK Assistant (Software and Documentation) are licensed to Customer as follows: EPK Assistant grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use such Software in accordance with the Documentation, solely in connection with the SaaS Service.
- Statistical Information. EPK Assistant may compile statistical information related to the performance of the SaaS Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. EPK Assistant retains all intellectual property rights in such information.
- TERM AND TERMINATION
- Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return of Customer Data.
- Within 60 days after termination, upon request EPK Assistant will make the SaaS Service available for Customer to export Customer Data as provided in Section 2(a).
- After such 60-day period, EPK Assistant has no obligation to maintain the Customer Data and may destroy it.
- Return EPK Assistant Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay EPK Assistant for any unpaid amounts and destroy or return all property of EPK Assistant. Upon EPK Assistant’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
- Suspension for Violations of Law. EPK Assistant may temporarily suspend the SaaS Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the SaaS Service, Customer has violated a law. EPK Assistant will attempt to contact Customer in advance.
- Suspension for Non-Payment. EPK Assistant may temporarily suspend the SaaS Service if Customer is more than 30 days late on any payment due pursuant to an order.
- LIABILITY LIMIT.
- Exclusion of Indirect Damages. EPK Assistant is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
- Total Limit on Liability. Except for EPK Assistant’s indemnification obligations in Section 9 below, EPK Assistant’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
- INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
- EPK Assistant will defend or settle any third-party claim against Customer to the extent that such claim alleges that EPK Assistant technology used to provide the SaaS Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies EPK Assistant of the claim in writing, cooperates with EPK Assistant in the defense, and allows EPK Assistant to solely control the defense or settlement of the claim. Costs. EPK Assistant will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending itself under this indemnity, EPK Assistant-negotiated settlement amounts agreed to by EPK Assistant, and court-awarded damages. Process. If such a claim appears likely, then EPK Assistant may modify the SaaS Service, procure the necessary rights, or replace it with the functional equivalent. If EPK Assistant determines that none of these are reasonably available, then EPK Assistant may terminate the SaaS Service and refund any prepaid and unused fees. Exclusions. EPK Assistant has no obligation for any claim arising from: EPK Assistant’s compliance with Customer’s specifications; a combination of the SaaS Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by EPK Assistant. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND EPK Assistant’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
- If a third party claims against EPK Assistant that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, Customer will defend EPK Assistant against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that EPK Assistant promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
- GOVERNING LAW AND FORUM.
- MUTUAL CONFIDENTIALITY.
This agreement is governed by the laws of the State of Nevada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Washoe County, Nevada, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- OTHER TERMS.
- Entire Agreement and Changes. This agreement, the order and the Scope of Work constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
- No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement, order and/or Service Agreement (SA) may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
- No Additional Terms. EPK Assistant rejects additional or conflicting terms of a Customer’s form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement, an order and Service Agreement (SA), the order prevails, then the Service Agreement (SA), and then this agreement.
- Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Feedback. If Customer provides feedback or suggestions about the SaaS Service, then EPK Assistant (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised [03.04.2022]