1. Description of the Service and Site.
1.1. Service. DispatchPal Transportation Management Software (the “Service“ or the “Program”) is made available to you on a software-as-a-service (SaaS) basis through a web portal on our Site and includes: (i) the non-downloadable software that you access via the Site; (ii) downloadable software which we, or any Third Party Providers (defined below) may provide in connection with the Service, including Client Software (defined below); (iii) any other products, services, and features (“Add-On Services”) made available or provided to you by Essoho in connection with the Service (or which Essoho may allow you to add or integrate to the Service), including third party products or services, including any plug-ins, extensions or integrations, which enable the Service to be used in conjunction with a third-party website, product or service; and (iv) the trademarks, service marks and logos (“Marks“), text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, and other content (together with the Marks, “Content”), contained in or made available through the Service.
1.2. Website. The Site is intended to provide you with information about Essoho and its products and services, to enable you to purchase a subscription to the Service and provide subscribers to the Service with a web portal to access the Service.
1.3. Ability to Accept Terms. If you access and use the Service, you represent and warrant that you are at least 18 years old. The Site is only intended for individuals aged thirteen (13) years or older. If you are under 13 years please do not visit, access or use the Site. If you are between 13 and 18 years of age, then you must review these Terms with you parent or guardian before visiting, accessing or using the Site to make sure that you and your parent or guardian understand these Terms and agree to them. You may not access and use the Service if you are, and you represent and warrant that you are not, a competitor of Essoho.
2. Subscription to the Service.
2.1. License. Subject to your compliance with these Terms, and payment of applicable fees, Essoho hereby grants you, and you accept, a limited, personal, non-exclusive, non-transferable, non-sublicensable, and fully revocable license to access and make a personal non-commercial use of the Service during the Subscription Period (defined below) for your internal purposes of providing transportation services.
2.2. Order Form. Your subscription to the Service is subject to any restrictions or limitations set forth in the Order Form, including the number of your personnel (i.e., dispatchers) who may access the Service designated in the Order Form (“Permitted Users“). “Order Form” means Essoho’s then-current order form which you must complete and submit to Essoho in order to purchase a subscription to the Service (including without the limitation, the webpage on the Site through which you may be enabled to register for the Service). Use of the Service or your Account by more Permitted Users than permitted in the Order Form may incur additional Fees, result in suspension or termination of these Terms, your Account or access by the applicable Permitted Users or other penalties, or any combination of the above, as determined by Essoho in its sole discretion.
2.3. Documentation. To the extent that we make available Documentation (defined below) to you, you are permitted to use such Documentation solely for your internal business purposes and solely in connection with its use of the Service during the Term. You may print or copy the Documentation provided that all Essoho copyright notices are included therein. The Documentation shall be considered the Confidential Information of Essoho. Unless the Documentation is separately referred to herein, all references in these Terms to the Service shall include the Documentation. “Documentation” means user documentation that Essoho generally makes available to its Service customers, whether in print or digitally including without limitation at https://essoho.com and https://dispatchpal.com, that describes the use, features and operation of the Program.
2.4. Site Access. We hereby grant you non-exclusive, non-transferable, non-sublicensable, revocable, limited permission to visit and use the Site for your information and personal use only, subject to these Terms and your compliance with applicable law.
2.5. Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow a Permitted User or any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, sell, display, transmit, broadcast, transfer or distribute any portion of the Service or the Site to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Site or Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service or Site; (iii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Service or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service or Site, or any part thereof; (v) use any robot, spider, scraper, or other automated means to access or monitor the Service or Site for any purpose; (vi) take any action that imposes or may impose (at Essoho’s sole discretion) an unreasonable or disproportionately large load on the Essoho infrastructure or infrastructure which supports the Site or Service; (vii) interfere or attempt to interfere with the integrity or proper working of the Service or Site, or any related activities; (viii) remove, deface, obscure, or alter Essoho’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service or Site, or use or display logos of the Service or Site differing from Essoho’s own without Essoho’s prior written approval; (ix) use Essoho’s Marks without our prior written consent; (x) use the Service or Site to develop a competing service or product; (xi) use the Service Site to send unsolicited or unauthorized commercial communications; and/or (xii) use the Service or Site in any unlawful manner, for any harmful, irresponsible, or inappropriate purpose, to cause damage to any third party or to violate any law, or in breach of these Terms, any terms and conditions of any third-party product or service you use, or agreement you have entered into with any third party. You agree to remain liable to Essoho for any act or omission of a Customer or and any act or omission of a Permitted User that would constitute a breach of these Terms as if such acts or omissions were by you.
2.6. Account. In order to use the Service, you must create an account (“Account“). You must not allow anyone other than yourself or a Permitted User to access or use your Account. You acknowledge and agree (i) not to exceed the aggregate number of authorized Permitted Users designated in the Order Form unless you first notify us in writing and pay Essoho the required additional subscription fees; (ii) to provide accurate and complete Account and login information; (iii) to keep, and ensure that Permitted Users keep, all Account login details and passwords secure at all times; (iv) to remain solely responsible and liable for the activity that occurs in connection with your Account, (v) that the login details for each Permitted User may only be used by that Permitted User, and that multiple people may not share the same login details; and (vi) to promptly notify Essoho in writing if you become aware of any unauthorized access or use of your Account or the Service.
2.7. Feedback. We appreciate hearing from our users and welcome your comments regarding the Service and/or Site. Notwithstanding anything to the contrary herein, please be advised, however, that if you send us ideas, suggestions, inventions, or materials regarding the Service and/or Site (“Feedback”), we shall: (i) own all right, title and interest in and to the Feedback without any restriction (and you hereby shall transfer and assign all remaining right, title and interest in and to the Feedback to Essoho without limitation or restriction of any kind) and to the maximum extent permitted by law you waive the right to assert any moral rights thereto; (ii) not be subject to any obligation of confidentiality; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, without compensation or credit to you or any other person.
3. Customer Data; User Representations and Warranties.
3.4. Availability of the Customer Data. You acknowledge that: (i) the Service does not operate as an archive or file storage service and we, and our Third Party Providers, do not necessarily store all of the Customer Data that you may Provide during your use of the Service; and (ii) you are solely responsible for, and Essoho disclaims all warranties in connection with, the backup of Customer Data. You may download certain Customer Data which you Provide to us at any time during the Term and which is stored by us as part of the Service, or as otherwise set forth herein, provided that you comply with this Agreement and any security requirements we may designate.
3.5. IP Claims. In the event that you believe that any content included in the Essoho Service and/or Site violates your Intellectual Property Rights, right to privacy or is defamatory or otherwise illegal, inappropriate or offensive, please file a detailed notice of complaint to Essoho to the following email address: firstname.lastname@example.org, identifying such content and detailing the facts basis of your complaint and we will make reasonable efforts to review such notice and handle it in accordance with applicable laws. We will not be able to remove any content that was published outside the Service and/or Site (e.g. shared on Facebook by an Essoho user). You shall remove any of the Customer Data you shared, posted and/or reposted outside the Service and/or Site upon Essoho’s first demand.
3.6. Counter-Notification: If you elect to send Essoho a counter notice, to be effective it must be a written communication that includes the following: a physical or electronic signature of the subscriber; identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; the subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Essoho may be found, and that the subscriber will accept service of process from the person who provided notification mentioned above or an agent of such person.
3.7. User Representations and Warranties. You represent and warrant to Essoho that: (a) you have, and will have at all times, all rights, licenses and consents required for your use of the Service and/or Site, including, without limitation, in respect of the provision of and license to the Customer Data provided to Essoho herein; (b) you and your use of the Service and Customer Data will comply with all applicable laws; and (c) you are not located in or a national or resident of any country or entity that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and are not listed on any U.S. Government list of prohibited or restricted parties.
3.8. You shall indemnify, hold harmless, and defend Essoho from and against any liability of any kind related to publishing, disclosing, transferring or submitting to us, or providing Essoho with, any special categories of personal data, sensitive personal data or data or information considered PHI under HIPPA and US law.
4. Ownership of Proprietary Rights.
4.1. The Service and the Site, including without limitation any Add-On Services, Marks, Content, underlying data, software, platforms, algorithms, technology, application design, any information, logos, trade-names and brands, services, texts, files, animation, images, sound, music, videos, various applications, organization, structure, specifications, Feedback (defined below), Service and/or Site “look and feel” and features and any enhancements, improvements and derivatives thereof and all Intellectual Property Rights (defined below) related thereto (“Essoho IPR”) are the property of Essoho and/or its licensors who retain at all times all right, title and interest in connection therewith. For the avoidance of doubt, Confidential Information shall be deemed as Essoho IPR. No transfer or grant of any rights by Essoho is made or is to be implied by any provision of these Terms or by any other provision contained in the Service and/or Site with respect to the Essoho IPR or otherwise, except for the limited license set forth in Section 3.1 above. All rights not explicitly granted to You in these Terms are hereby reserved.
“Intellectual Property Rights” means worldwide, whether registered or not (a) rights associated with works of authorship, designs, mask works and photography including copyrights; (b) trademarks, service marks, domain names, logos, trade names, trade dress, the right to publicity and goodwill rights; (c) patents, patent applications and industrial designs; (d) trade secrets; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and/or (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
4.2. Password Maintenance. Certain features or Add-On Services included or offered in conjunction with the Service (including without limitation certain data back-up and encryption services) require the use of a password which may be provided to, or chosen by, you in order to use and access the feature, service and the data which may be stored or secured in or by such feature or service. If you forget or lose your password, Essoho may be unable to locate the password or provide you with a new password and you may lose access to or use of the feature or service and any data which be stored or secured in or by such feature or service. Without limitation to Section 3.4 above, you acknowledge and agree that you are solely responsible for maintaining, and if necessary, for separately recording, your passwords.
4.3. Third Party Software. Portions of the Service may include open source and/or third party software that is subject to third party terms and conditions (“Third Party Terms”). A list of any third party software and related Third Party Terms, as may be updated from time to time, is available upon request. If there is a conflict between any Third Party Terms and these Terms, then the Third Party Terms shall prevail but solely in connection with the related third party software. Notwithstanding anything to the contrary, Essoho makes no warranty, whether explicit or implied, or provides indemnity of any kind with respect to any third party software.
4.4. Confidential Information. You agree to keep confidential and to use only for purposes permitted under these Terms, any Essoho proprietary or confidential information disclosed to you pursuant to these Terms or in connection with your use of the Service and/or Site which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature (“Confidential Information”). The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is rightfully known by you prior to the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed (provided that you shall give written notice to Essoho of such disclosure and an opportunity, at Essoho’s expense, to resist or restrain the scope of such request). You shall not disclose or make available the Confidential Information to any third party, except to your employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. You shall take measures at a level at least as protective as those taken to protect your own confidential information of like nature (but in no event less than a reasonable level) to protect the Confidential Information. You will promptly notify Essoho in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information. Upon any termination of your subscription to the Service, you shall promptly remove the Service from all hard drives, networks and other storage media and destroy all copies of the Service in your possession or under your control; any sums paid by you until the date of termination are non-refundable, and you shall not be relieved of your duty to discharge in full all due sums owed by you to Essoho under these Terms, which sums shall become immediately due and payable on the date of termination of these Terms; and you shall return to us all Essoho Confidential Information, and all copies thereof, in your possession, custody or control unless otherwise expressly provided in these Terms.
5.2. Data Processing Agreement and other data-related agreements. If you are a customer subject to the General Data Protection Regulation (“GDPR”) and/or otherwise require a data processing agreement for any reason, you shall request our Data Processing Agreement (“DPA”) by sending us an email to email@example.com, sign it and return it signed to firstname.lastname@example.org. By signing the document you hereby agree that any processing of information performed by us on your behalf shall be subject to the terms and conditions of the DPA. If you need another data-related agreement, you shall contact us at email@example.com.
5.3. Anonymous Information. Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, we, and our Third-Party Providers, may collect, generate, process, use and/or publish Anonymous Information (defined below) relating to your or your Customers’ use of the Service or Site, and/or disclose it, in order to provide, improve and publicize our products and services and for other business purposes, all the foregoing without restriction or limitation of any kind. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. Essoho owns all Anonymous Information collected or obtained by Essoho.
6. Term; Subscription Period.
6.1. Site. The provisions of these Terms applicable to your access and use of the Site are in effect until terminated by Essoho or you. Essoho, in its sole discretion, has the right to terminate your access and use of the Site, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of these Terms).
6.2. Service. Your subscription to the Service, and the provisions of these Terms applicable to the Service, shall become effective on the earlier of: (i) the date that you commence access to or use of the Service and/or Site; (ii) the date that we receive payment of any applicable Service subscription fee; or (iii) the date specified on the Order Form, and shall remain in effect until the expiration of the subscription period as set forth in the Order Form (at which point, subject to your payment of any applicable Service subscription fees, your subscription shall automatically renew for successive subscription periods unless terminated earlier by us or by you pursuant to these Terms (the subscription period, including any renewal periods, “Subscription Period”). If you continue to access or use the Service past any subscription period renewal date, you shall be deemed to have renewed your subscription to the Service for the corresponding renewal period and shall be liable to pay all applicable fees in connection with such renewal period.
6.3. Termination of Service. Without derogating from your obligation to pay applicable Fees (defined below), you may terminate your subscription to the Service by cancelling your Account through the tools that we make available within the Service or by sending a cancellation request to us at firstname.lastname@example.org, in which case we will use commercially reasonable efforts to respond within a reasonable time. We may terminate your subscription (and cease to provide the Service to you) at any time, including without limitation in the event that you breach these Terms. We may also terminate your subscription or purchase of the Service, portion thereof, or an Add-On Service, as applicable to the extent that the Service, portion thereof, or Add-On Service will be discontinued or end-of-lifed by Essoho or the Third Party Provider of the particular feature or Add-On Service.
6.4. Objection. If you object to any term or condition of these Terms, or any subsequent modifications thereto, or become dissatisfied with the Site or Service in any way, your only recourse is to immediately discontinue use of the Site or Service (and cancel your subscription).
6.6. Suspension. If we believe, in our sole discretion, that you are using the Service (including any Add-On Service) in a manner that may cause harm to us or any third party, or in breach of these Terms, then we may, without derogating from our right to terminate your subscription as specified in these Terms, suspend or terminate your Account or your access to and use of the Service (or the Add-On Service) and/or Site, or parts thereof. The applicable Third Party Provider may similarly suspend your use of an Add-On Service, or a portion thereof, if such Third Party Provider believes that you are using its product or service in a manner that may cause harm to such Third Party Provider or any third party or in violation of the applicable terms and conditions.
7.1. Use of the Site. Your general right to access and use the Site (for clarity, excluding the Service) is currently for free, but we may in the future charge a fee for certain access or usage. You will not be charged for any such access or use of the Site unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Site.
7.2. Service Fees. Your access to and use of the Service is subject to your payment in full of the subscription and other fees according to Essoho’s then-current price list as published on the Site (“Fees”). You acknowledge and agree that the Fees are based on the plan chosen as designated in the Order Form, even if a smaller number of Permitted Users ultimately use the Service in a given Subscription Period (however, use of the Service or your Account by more Permitted Users than permitted in the Order Form may incur additional Fees, result in suspension or termination of this Agreement, your Account or access by the applicable Permitted Users or other penalties, or any combination of the above, as determined by Essoho in its sole discretion). You shall make such payments, and the Fees shall be charged, in advance of each month or year, as applicable, for which you have subscribed to the Service. We may at any time change the Fee amounts, but such changes will not take effect until the completion of the billing cycle in which such change is made. We will make reasonable efforts to notify you at least two months prior to any changes in price for the services for which you subscribe. Failure to pay applicable Fees may result (at our sole discretion) in termination or suspension of your access and use of the Service or portions thereof.
7.3. Payment Terms. All Fees are stated, and shall be paid, in US Dollars, are non-refundable and, unless otherwise stated in the Order Form, are exclusive of all taxes, levies, or duties, which are your responsibility. If you are located in a jurisdiction which requires you to deduct or withhold taxes or other amounts from any amounts due to us, you must notify us in writing. In such a case, we reserve the right to assess the withheld amount or to increase the gross amount of the applicable payment so that, after the deduction or withholding for taxes, the net amount paid to us will not be less than the amount we would have received without the required deduction or withholding. The available payment methods and the required payment schedule are set forth in the Order Form.
7.4. Payment Processing. The Order Form may enable you to purchase a subscription and pay the Fees online by using your credit card or other online tools or services. If you choose to do so, such payment will be processed through a third party payment processing service, and additional terms may apply to such payments. We currently engage a third party, Wave Financial USA Inc. (“Wave”), for online payment processing services, and in addition to these Terms, you agree that Wave’s terms and conditions shall apply to your online payments of the Fees. Wave’s terms are available at www. https://www.waveapps.com. We reserve the right to use other third party payment processing services for such purposes in the future.
7.5. Free Trial Subscription. We may offer a free, no-obligations trial subscription of the Service (“Trial Subscription“). The Trial Subscription, if any, shall come commence on the date that you commence access or use of, as applicable, the Service and will conclude at the end of the trial period displayed on the Order Form, or sooner if: (i) you upgrade your subscription by beginning to pay the applicable fees for the Service, or (ii) your use of the Service is terminated in accordance with these Terms. You acknowledge and agree that these Terms are applicable and binding upon you during the Trial Subscription period and that Essoho: (i) does not make any commitments in connection with the Service during the Trial Subscription period; and (ii) may send you, subject to your opting out, communications and other notices about the Service to your email address. We reserve the right to modify, cancel and/or limit this Trial Subscription offer at any time.
7.6. Downloadable Software Updates. To the extent Essoho or an applicable Third Party Provider, provides you with a software update, including without limitation any patch, bug fix, upgrade, new version or general update (“Update“), for any Client Software or any downloadable portion of the Service (including of any Add-On Service), you agree to, in accordance with any instruction which may be provided by Essoho or the applicable Third Party Provider, to apply or download and install such Update immediately and to cease using the prior version of the applicable software (except as modified by the Update). Such Updates shall be made available in Essoho’s and its Third Party Provider’s sole discretion.
7.7. Web Browser requirements. You acknowledge that use and access of the Service requires (i) a supported web browser as specified in the Documentation and, (ii) a web browser version that supports HTML5. You are solely responsible for using a supported web browser and upgrading to the then-current minimum web browser requirements that we define from time to time. We shall either: (i) display the then-current web browser requirements on the Site or Service; or (ii) otherwise notify you directly of the then-current web browser requirements.
8. Warranty Disclaimer.
8.1. ESSOHO IPR, THE SITE AND THE SERVICE (WHICH INCLUDES, FOR CLARITY, ANY ADD-ON SERVICE OR THIRD PARTY SERVICE) AND YOUR USE THEREOF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU ASSUME ALL RESPONSIBILITY FOR ACCESSING AND USING THE SITE AND SERVICE AND FOR THE SELECTION OF THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS. ESSOHO AND ITS AFFILIATES AND THIRD-PARTY PROVIDERS, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8.2. ESSOHO, ITS AFFILIATES, LICENSORS, AND THIRD-PARTY PROVIDERS, DO NOT WARRANT THAT THE SERVICE OR ACCESS TO AND USE OF THE SITE OR SERVICE WILL BE UNINTERRUPTED, ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR SERVICE IS FREE FROM VIRUSES OR OTHER HARMFUL CODE, OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE.
8.3. ESSOHO, ITS AFFILIATES AND THIRD-PARTY PROVIDERS, OFFER NO WARRANTY REGARDING THE CORRECTNESS, ACCURACY, AVAILABILITY, RELIABILITY OF THE PERFORMANCE OF THE SERVICE.
8.4. ESSOHO, ITS AFFILIATES AND THIRD-PARTY PROVIDERS, DO NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE, THE SITE. YOUR USE OF AND RELIANCE UPON SERVICE OR SITE, OR CONTENT AND YOUR DATA (INCLUDING CUSTOMER DATA) AND ANY MARKETPLACE MATERIALS IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND ESSOHO, ITS AFFILIATES AND THIRD-PARTY PROVIDERS, SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING.
8.5. YOU AGREE THAT WE, OUR AFFILIATES AND THIRD-PARTY PROVIDERS, WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
8.6. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
9. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW:
9.1. ESSOHO, ITS AFFILIATES, LICENSORS, ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUBCONTRACTS AND SUPPLIERS, AND THIRD-PARTY PROVIDERS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, COMPENSATORY, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERUPTION, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE SERVICE AND/OR SITE, OR RELIANCE ON ANY OF THE ESSOHO IPR OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY INCIDENTS, DATA INCIDENTS, BREACHES OF ANY KIND, OR ANY OTHER FAILURE TO PERFORM BY ESSOHO) ARISING OUT OF THESE TERMS OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE OR SITE OR IN CONNECTION WITH THE ACTIONS AND OMMISSIONS OF THIRD PARTY PROVIDERS, EVEN IF ESSOHO, ITS AFFILIATES, LICENSORS OR THIRD PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ESSOHO, ITS AFFILIATES, LICENSORS OR ITS THIRD-PARTY PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SITE OR SERVICE, EXCEED:
(A) WITH RESPECT TO THE SITE: THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) IN CONNECTION WITH THE SITE (FOR CLARITY, NOT INCLUDING THE SERVICE) IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY;
(B) WITH RESPECT TO THE SERVICE: THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) IN CONNECTION WITH THE APPLICABLE SERVICE ACCOUNT (OR, IF THE LIABILITY RELATES TO A PARTICULAR ADD-ON SERVICE, THE AMOUNT OF FEES PAID BY YOU IN RESPECT OF THAT ADD-ON SERVICE FOR THE APPLICABLE SERVICE ACCOUNT ONLY) IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
9.3. TO THE EXTENT YOU HAVE ENTERED INTO AN AGREEMENT WITH, OR AGREED TO TERMS AND CONDITIONS OF, OR OTHERWISE DIRECTLY ENGAGED THE SERVICES, OR PURCHASED THE PRODUCTS, OF A THIRD PARTY PROVIDER, ESSOHO AND ITS AFFILIATES AND THIRD-PARTY PROVIDERS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES OF ANY KIND ARISING FROM SUCH THIRD PARTY SERVICE OR YOUR USE THEREOF, AND YOU ACKNOWLEDGE AND AGREE THAT YOU MUST SEEK RELIEF OR REDRESS FOR ANY SUCH CLAIMS OR DAMAGES DIRECTLY WITH, FROM, AND AGAINST THE THIRD-PARTY PROVIDOR OF SUCH THIRD PARTY SERVICE.
9.4. THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 9 SHALL APPLY: (I) EVEN IF A PARTY, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (II) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).
9.5. Indemnification. You agree to defend, indemnify and hold harmless Essoho, our Third Party Providers, and affiliates and each of our respective officers, directors, agents, licensors, suppliers, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from: (i) your use of the Site, Service, Account and/or Customer Data; (ii) any third party claim in respect of your use of the Customer Data; (iii) your breach of these Terms; (iv) your failure to comply with the obligations applicable to you under the GDPR and/or data protection laws or regulations or the DPA; and/or (v) for the processing of personal data without a DPA, in the event you fail to return to us the DPA duly signed by you.
9.6. Disclosure. We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Service and/or Site as we reasonably believe necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your support requests, and/or (v) protect the rights, property or safety of Essoho, its users or the public.
10.2. We permit you to link to the Site provided that: (i) you link to but do not replicate any page on this Site; (ii) the hyperlink text shall accurately describe the Content as it appears on the Site; (iii) you shall not misrepresent your relationship with Essoho or present any false information about us and shall not imply in any way that we are endorsing any services or products, unless we have given you our express prior consent; (iv) you shall not link from a website that you do not own; (v) your website, and domain name, does not contain content that (a) is offensive or controversial (both at our discretion), or (b) infringes any Intellectual Property Rights, privacy rights, or other rights of any person or entity; and/or (vi) you, and your website, comply with these Terms and applicable law.
10.3. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither software provided by Essoho nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
10.4. Government Use. If you are part of an agency, department, or other entity of the United States Government (“Government“), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. Any such software is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the such software by the Government shall be governed solely by the terms of these Terms.
10.5. Assignment. These Terms, and any rights granted hereunder, may not be transferred or assigned by you but may be assigned by Essoho without restriction.
10.6. Modifications. We reserve the right, at our discretion, to change these Terms at any time. Such change will be effective ten (10) days following our sending a notice thereof to you or posting the revised Terms on the Site, and your continued use of the Service thereafter means that you accept those changes.
11. Governing Law and Disputes.
11.1. These Terms and any disputes between you and Essoho shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules.
11.2. The exclusive jurisdiction and venue for all disputes between you and Essoho shall be the courts located in Illinois, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms. Notwithstanding the foregoing, Essoho reserves the right to seek injunctive relief in any court in any jurisdiction.
Last updated: November, 2021