E-Update Service™ End User Terms of Use Agreement

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY.  This End User License Agreement (“Agreement”) governs your use of the Product (as defined below), , which is being provided to you (“Customer” or “You,” including, if you are an entity or organization, your officers, directors, members, managers, affiliates, employees, and agents) by an affiliated partner (“Partner”) of Elite Business Ventures, Inc. (“EBV”) or one of EBV’s subsidiaries.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING BELOW INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM TO PURCHASE THE PRODUCT, OR BY USING THE PRODUCT, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTANDS, AND AGREES TO, THE TERMS OF THIS AGREEMENT, AND THAT THE PERSON ACCEPTING THIS AGREEMENT HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF CUSTOMER ON WHOSE BEHALF IT IS ACTING.

If Customer does not accept this Agreement, do not “ACCEPT” this Agreement, do not execute an order form to purchase the Product, and do not use or subscribe to the Product. 

This Agreement is effective upon the date on which the Product is made available to Customer by Partner or EBV, pursuant to the first Order Form (the “Effective Date”).

EBV may change, modify, add, or remove portions of this Agreement (each, an “Update”) from time to time with or without prior notice, and such Updates will be effective immediately, and EBV encourages Customer to frequently review this Agreement, which is available at [TBD].  In the event of an Update, the “Last Updated” date above will be updated.  Customer’s continued use of the Product confirms acceptance of the Update. If Customer does not agree to the Agreement, including all Updates, Customer must terminate all outstanding Order Forms and discontinue using the Product.

  1. Definitions

    1.1 “Authorized User” means a person employed or engaged by Customer and authorized by Customer to use the Product for Customer’s benefit in accordance with this Agreement, and to has provided their email address as a recipient of content and Updates which are provided as part of the Product.

    1.2 “Customer Data” means all Product subscriber data and information, submitted and/or otherwise provided to EBV by the Partner, Customer, or Authorized Users.

    1.3 “Product” means EBV’s proprietary E-Update Service, comprised of physical posters, software, content, electronic updates, digital versions of labor law notices, information, and hosted services, and as made available by EBV to Customer pursuant to an Order Form, and including all upgrades, Updates, and modifications thereto, and all content therein other than Customer Data.

    1.4 “Standard Labor Law Notices” means the labor law notices which: (a) are mandatory for employers to provide to employees per applicable federal labor laws of the United States and the applicable labor laws of a state or commonwealth within the United States, AND (b) apply to ALL businesses regardless of their size (including with respect to number of employees or revenue), or industry, AND (c) are included on the “all in one” physical labor law poster  provided as part of the Product.
     
    1.5 “Specialized Labor Law Notices” means the labor law notices which apply only to specific businesses based on their size (including with respect to number of employees or revenue), or industry, and those which are not included on the physical “all in one” poster which may be included as part of the Product.

    1.6 “City and County Labor Law Notices” means the labor law notices which may or not be mandatory for employers to provide to employees, and are applicable based on labor laws specific to a city or county within the United States.

    1.7“Order Form” means the written (including digital) order form entered into between EBV or its Partner, and Customer, identifying the Product to be made available to Customer, the Authorized Users permitted during the Subscription Term, and such other terms as Partner or EBV may require.

    1.8 “Subscription Term” means the period of time during which EBV or its Partner will make the Product available to Customer pursuant to the Order Form. If Customer is offered a trial period, such trial period is part of the Subscription Term.

    1.9 “EBV Platform” means all websites, computer systems, software systems, and databases which may be used by EBV to perform its obligations under this Agreement.

  2. Terms and Termination

    2.1 Term and Renewal.  The term of this Agreement shall commence on the Effective Date and shall terminate upon expiration or termination of the last Order Form in effect, unless terminated earlier as permitted herein (“Term”).

    2.2 Cancellation

    2.2.1 When an Order Form is entered into with a Partner, cancellation of the Product shall be according the terms and conditions agreed to directly with the Partner, and requests to cancel must be submitted directly to the Partner. Cancellation will result in termination of any content, updates, anniversary posters, or any other responsibility by EBV to provide the Product to Customer.

    2.2.2 If an Order Form is entered into directly with EBV, Customer may cancel by submitting a cancellation request in writing to customerservice@posterelite.com.  Cancellation will result in termination of any content, updates, anniversary posters, or any other responsibility by EBV to provide the Product to Customer. Once cancelled, Customer will not be invoiced or Customer’s credit card will not be charged on the date of the next billing cycle  following EBV’s receipt of cancellation. Customer acknowledges that if the cancellation request is received after Customer’s credit card has been charged the subscription fee, the monthly transaction is final and EBV is under no obligation to issue a refund.

    2.3 Termination.  Either party may terminate this Agreement at any time by submitting cancellation in writing to the Order Form provider.

    2.4 Effect of Termination.  Upon termination of this Agreement, Customer’s right to access or use the Product shall immediately cease and EBV has no obligation to maintain, deliver or provide access to the Product.  EBV shall purge all Customer Data in its possession to the extent required by applicable law; otherwise EBV is under no obligation to purge Customer Data upon termination. The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, and Sections 2.4, 5, 6, 7, 8, 9, 11, 12, 13 and 14, and any outstanding payment obligations shall survive termination of this Agreement.

  3. Usage Rights and Restrictions

    3.1 Customer’s Rights.  Subject to the terms of this Agreement (including any Order Form), EBV grants Customer a limited, non-transferable, non-exclusive, non-sublicensable, personal right for its Authorized Users, at its own cost and expense, to access and use the Product and to use the content therein only for Customer’s internal business purposes during the Subscription Term.  Customer will use the Product in accordance with all applicable laws.

    3.2 General Restrictions. CUSTOMER AND AUTHORIZED USERS MAY NOT REPLICATE, DOWNLOAD, OR PRINT CONTENT FROM THE EBV PRODUCT WITH INTENT TO DISTRIBUTE OR SHARE BEYOND THE INTENDED RECIPIENT OR RECIPIENT LOCATION, AND MAY NOT SHARE OR DISTRIBUTE SUCH CONTENT WITH OTHERS. Customer and Authorized Users shall not, directly or indirectly,: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially use or make the Product OR CONTENT PROVIDED BY THE Product, available to any third party, in each case other than as expressly permitted herein; (ii) make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product, the EBV Platform, or its documentation, or access Product to build a similar or competitive product or service, or to create the source code or structural framework of the Product; or (iii) remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within the Product or any of the content provided as part of the Product.  In addition, Customer and Authorized Users shall not, directly or indirectly, (a) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Product (b) harvest or collect information about or from other users of the Product (c) probe, scan or test the vulnerability of the Product, nor breach the security or authentication measures on the Product, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Product (d) attempt to gain unauthorized access to the Product or its related systems or networks, (e) use the Product or the content contained in the Product for any illegal purpose, or (f) create Internet “links” to the Product or “frame” or “mirror” any content therein. Further, Customer acknowledges that the Product and all of EBV’s products and services are intended only for use within the United States (including District of Columbia and Puerto Rico) (“United States”); Customer warrants and represents that neither it nor its Authorized Users will use the Product outside of the United States and that no Customer Data will originate from outside the United States.

    3.3 User Terms and Conditions. Customer acknowledges that each Authorized User accepts EBV’s Terms and Conditions (“T&C’s”).  Customer is responsible for ensuring that all Authorized Users comply with the T&C’s and the terms of this Agreement.  Any breach of the T&C’s or this Agreement by such Authorized Users shall be deemed to be a breach by Customer, and Customer is liable for such breaches.

    3.4 Usage Limitations.  The Order Form may set forth Authorized User limits, data stream limits, or other usage limitations, and use of the Product by Customer is restricted to such limitations when they are set forth in the Order Form.  In the event login credentials are provided to access the Product, login credentials are personal and unique to each individual Authorized User and may not be shared or used by any other person.  Each subscription of the Product is intended for a single location.  Updates which are provided to an Authorized User are intended solely for the one location for which the subscription is purchased.  Customer may purchase multiple subscriptions.  Distribution of Updates for use in more than one location is explicitly prohibited.

    3.5 Changes to the Product.  EBV may make upgrades and improvements to Product from time to time.  EBV may also modify or delete any features of the Product, and may substitute old features with new features, as may be necessary to meet applicable laws or industry-standard requirements or demands or requirements of third party service providers, or otherwise in its discretion.

    3.6 Suspension.  EBV may suspend provision of Product at any time, with or without notice to Customer and without liability, if EBV suspects or receives notice that the Product or the use thereof actually or allegedly infringes or violates any third party’s rights or violates any applicable laws.  EBV may also suspend access to and use of the Product in order to comply with applicable laws, or upon having reason to believe that any improper activity or potential damage to EBV or other persons or entities is associated with Customer’s or its Authorized Users’ use of or access to the Product.

    3.7 Feedback.  Customer hereby assigns to EBV all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by Customer to EBV relating to the Product (excluding Customer Data) (collectively, “Feedback”), and EBV will have the unrestricted right to use and disclose Feedback into and in connection EBV products and services, without duty or obligation to Customer, and Customer acknowledges that any improvements, modifications and changes arising from or in connection with the its contribution to the Product are the exclusive property of EBV; provided, however, that EBV will not use Customer’s name in connection with any such use or disclosure. Feedback constitutes EBV’s Confidential Information.

  4. Fees and Payment If and only if an Order Form is entered into directly with EBV by the Customer, the following provision apply:

    4.1 Subscription Fees.  Access to the Product is granted as a subscription service. Customer will be billed monthly (if month to month), beginning upon registration, or upon registration AND the beginning of the month following a twelve month period (if annual subscription) according to the terms of the subscription plan at registration and on the Order Form, and the subscription fee set forth in the Order Form or, if no such fee is set forth in the Order Form, at EBV’s current price in effect on the billing date.  All fees are non-refundable.

    4.2 Payment. When an Order Form is entered into directly with EBV, Customer hereby authorizes EBV to charge Customer’s credit card on the billing date of each month at the current subscription price.  However, if EBV invoices Customer for subscription fees instead of billing Customer’s credit card, then Customer will pay such invoice within ten (10) days of receipt.  A valid credit card must be provided as a condition for continued use of the Product.  For credit card payments, EBV will provide Customer with a receipt informing Customer that Customer’s credit card has been charged.  If the credit card is no longer valid, EBV may, in its discretion, suspend or terminate Customer’s access to the Product, with or without notice. 

    4.3 Trial Period.  If EBV grants Customer a free trial period for the Product (“Trial”), then EBV will not charge Customer for the use of the Product during the Trial. At the end of the Trial, Customer’s continued access to the Product is contingent upon its payment of the subscription fees identified in Section 4.1.

    4.4 Conversion of Free Trial to Paid Subscription. If Customer starts a Trial for the Product, the Trial shall automatically convert to a paid, automatically renewing monthly Subscription Term (subject to Section 4.1) if Customer does not cancel within 2 days before the Trial ends.  EBV shall notify Customer of the conversion via the Customer’s provided email address at least 3 days before end of the Trial.   Customers may cancel using any of the methods within Section 2.2 above.

    4.5 Auto renewal. If set forth on the Order Form, each Subscription Term shall automatically renew for subsequent periods of the same length as the first Subscription Term unless Customer provides written notice of termination at least fifteen (3) days prior to expiration of the then-current Term using any of the methods provided within Section 2.2.

     
  5. Ownership. Customer shall retain all right, title and interest to all Customer Data.  EBV shall retain all right, title and interest in and to (i) Product, Product documentation and content, and all improvements, modifications and/or enhancements thereto including all Updates (regardless of the source of inspiration for any such enhancement or modification and regardless of whether Customer has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within or covered by the Product; (ii) all proprietary education or training content provided by EBV; and (iii) materials related to EBV’s processes and methodologies.  No right, license, title or interest is granted by EBV to Customer to the Product or any other technology owned or controlled by EBV, or in or to any intellectual property rights relating to the foregoing (including without limitation patent rights), whether by implication or estoppel or otherwise, and EBV reserves all rights not expressly granted herein.  Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.

  6. Data.  Notwithstanding any other term of this Agreement, EBV may develop, use and disclose, and shall retain all right, title and interest in and to, all transactional, use and performance data related to use of Product, which may include aggregated and anonymized or statistical data based upon Authorized Users’ use of the Product and Customer Data, provided that EBV may not disclose any of such data to the extent Customer or an Authorized User may be identified therefrom.

  7. Privacy Policy Please refer to the EBV Privacy Policy (the “Privacy Policy“) at www.elitebusinessventures.com/privacy for information regarding how EBV collects, uses and discloses information about Customer in connection with the Product.  Customer consents to the collection, use and disclosure of its personal information in accordance with this Agreement, the Privacy Policy, and applicable law.

  8. Disclaimer of Warranties; No Legal Advice.

    8.1 GENERAL DISCLAIMER.  EBV AND ITS AFFILIATES, and PARTNER, DISCLAIM AND EXCLUDE, to the maximum extent permitted under applicable law, ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE EBV PRODUCTS AND ALL ELEMENTS THEREOF (INCLUDING WITHOUT LIMITATION SOFTWARE AND HOSTED SERVICES) IS MADE AVAILABLE HEREUNDER “AS IS” AND WITHOUT WARRANTY.  EBV AND ITS AFFILIATES, and PARTNER, DO NOT GUARANTEE OR WARRANT THAT ANY ELEMENT OF THE EBV PLATFORM IS ERROR- OR DEFECT-FREE OR UNINTERRUPTED, OR THAT ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, AND EBV AND ITS AFFILIATES ARE NOT OBLIGATED TO PROVIDE TECHNICAL SUPPORT OR MAINTENANCE WITH RESPECT TO THE EBV PRODUCT.  ALTHOUGH EBV USES COMMERCIALLY REASONABLE SECURITY MEASURES, EBV AND ITS AFFILIATES, and PARTNER, DO NOT REPRESENT OR WARRANT THAT THE EBV PLATFORM IS COMPLETELY SECURE, AND CUSTOMER ACKNOWLEDGES THAT THE EBV PLATFORM AND CUSTOMER DATA MAY BE ACCESSED OR USED BY UNAUTHORIZED THIRD PARTIES DESPITE SUCH MEASURES.

    8.2 NO LEGAL ADVICE. THE PRODUCT IS PROVIDED FOR INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE A DEFINITIVE OR COMPLETE STATEMENT OF THE LAW OR LEGAL ADVICE ON ANY GIVEN SUBJECT. NEITHER EBV NOR ITS AFFILIATES, NOR PARTNER, ARE A LICENSED LAW FIRM OR ATTORNEY AND THE PRODUCT AND ITS COMPONENTS DOES NOT CONSTITUTE THE PRACTICE OF LAW NOR THE PROVISION OF LEGAL ADVICE, AND IS NOT INTENDED TO REPLACE LEGAL ADVICE. NEITHER EBV NOR ITS AFFILIATES, NOR PARTNER, GUARANTEE OR GIVE ANY WARRANTY, REPRESENTATION OR UNDERTAKING (WHETHER EXPRESS OR IMPLIED) AS TO THE ACCURACY, CURRENCY OR COMPLETENESS OF THE CONTENT OF THE PRODUCT OTHER THAN THE LIMITED GUARANTEE DOCUMENTED HEREIN.

    Customer acknowledges that EBV and its affiliates, and Partner, do not provide legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Product, including those related to data privacy or employment or labor matters.  Customer acknowledges that the Product may be used in ways that do and do not comply with such laws, rules or regulations and it is Customer’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. Customer acknowledges that there is no attorney-client relationship between Customer and EBV or its affiliates.

    The purpose of the Product, and all other features of the Product is to provide United States state and federal Standard Labor Law Poster(s), and Updates as described herein, to Customer’s administrative Authorized Users.  Customer must consult an attorney for all legal matters relating to labor and  employment law compliance needs.  Customer must not act or rely on any information provided by the Product without seeking the advice of an attorney licensed to practice law in the applicable jurisdiction.

    Customer acknowledges that every business is different, and circumstances frequently vary and may affect the proper course of action that must be taken concerning employment and human resources-related issues.

    It is solely CUSTOMER’s responsibility to ensure that Authorized Users post the labor law posters and updates provided as part of the Product in a legal and compliant manner according to the rules, laws, guidelines of the applicable federal, state, and local agencies.  The Product relies on accurate email and physical addresses to determine which notices apply to each Customer. It is Customer’s sole responsibility to ensure that accurate physical location address information has been provided, along with an accurate and up to date email address for each Authorized User and location.  It is Customer’s responsibility to ensure that Authorized Users receive notifications from EBV or Partner, including regarding Updates, and post its content in a legal and compliant manner.

    Customer acknowledges that electronic updates are intended to supplement a physical poster; that electronic updates provided as part of the Product are not a substitute for physically posting labor law notices on a wall per state and federal guidelines; that they are not sufficient (nor intended) to meet labor law posting requirements for employees who do not frequent a physical office where posters and notices may be on display.

  9. Indemnification

    9.1 Infringement Indemnity.  EBV shall, at its expense, defend or at its option, settle any claim, action or allegation brought against Customer alleging that the Product infringes any valid copyright or patent of any third party, and shall pay any final judgments awarded or settlements entered into; provided that Customer gives prompt written notice to EBV of any such claim, action or allegation of infringement and gives EBV the authority to proceed as contemplated herein. In the event any infringement claim, action or allegation is brought or threatened, EBV may, at its option, terminate this Agreement upon notice.  This Section states the entire liability of EBV, and Customer’s sole and exclusive remedy, with respect to infringement of any patent, copyright, trade secret or other intellectual property right.  EBV will have the exclusive right to defend any indemnified claim (including the right to select and control the work of counsel) and make settlements thereof at its own discretion. Customer may not settle or compromise any indemnified claim, action or allegation, except with prior written consent of EBV.  Customer shall give such non-monetary assistance and information as EBV may reasonably require to settle or defend indemnified claims.

    9.2 Indemnification by Customer.  Customer will defend, indemnify and hold EBV and its affiliates and its and their officers, directors, employees and agents, and EBV’s licensors and third party vendors and suppliers, from and against any and all liabilities, losses, damages, claims, allegations, actions, demands, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees) (“Losses”) arising out of or relating to (i) Customer’s use of the Product except to the extent such Losses are covered by EBV pursuant to its indemnification obligation in Section 9.1; (ii) Customer Data; and (iii) Customer’s breach of this Agreement.

  10. Limited Guarantee.  Subject to the terms of this Agreement, EBV guarantees that the combination of physical labor law poster(s) delivered to the Authorized User AND accompanying Updates provided to the Authorized User as part of the Product will reflect the latest and most up-to-date state and federal Standard Labor Law Notices, and will stay updated with major mandatory changes in United States state and federal labor law posting requirements for Standard Labor Law Notices during the Subscription Term (“Limited Guarantee”).

    If EBV’s violation of the Limited Guarantee causes Customer to pay a federal or state levied fine (“Fine”), then EBV will reimburse Customer for the Fine, so long as, at the time of the issuance of the Fine, (i) Customer is not in breach of this Agreement and has complied with all requirements of EBV ), (ii) Customer is not in arrears in its payment obligations hereunder, and (iii) EBV or its designee did not contact Customer to update or correct outdated or incorrect content prior to imposition of the fine.

    The Limited Guarantee does not apply to any Specialized Labor Law Notices, nonstandard industry-specific notices, sector-specific notices, municipal or location-specific notices, or any other specialized notice that is not issued by a United States federal or state agency.

    The maximum aggregate amount of reimbursement under this Section 10 is limited to the lesser of the amount of the specific Fine or $25,000.  Fine reimbursement is per Customer, without regard to the amount of the Fine(s), and reimbursement is only payable if the following conditions are met: (a) Customer is an active subscriber of the Product prior to the time the fine is issued; (b) EBV has, on record, at the time the fine is issued, a valid and current person specific email address (i.e. not admin@example.com, or sales@example.com) and accurate location information for each Authorized User, (c) Customer and its Authorized Users have not opted out of future emails or otherwise requested that EBV or its affiliate not contact Customer, (d) Customer notifies EBV or Partner or Affiliate of the fine within ten (10) days of payment of the fine, and (e) Customer provided EBV or Partner or EBV’s affiliate with all necessary information to enable it to present the Product to Authorized Users, (f) Customer has posted the content provided by EBV as part of the Product in a manner which complies with the requirements of the agency imposing the Fine.

    THE FOREGOING REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND EBV’S SOLE LIABILITY, FOR VIOLATION OF THE LIMITED GUARANTEE.

    The Limited Guarantee may be amended, modified, or discontinued in EBV’s sole discretion at any time hereto by providing notice to Customer of the change.

  11. Limitations of Liability

    TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EBV NOR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, DATA OR DATA USE, OR FOR OTHER ECONOMIC DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EBV’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, ON THE BASIS OF ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO EBV OR ITS APPLICABLE AFFILIATE UNDER THE ORDER FORM PURSUANT TO WHICH THE CLAIM ARISE; provided, however, that the maximum amount of liability does not limit amounts actually payable by EBV to Customer pursuant to Section 10.

    Both Parties acknowledge that the fees, disclaimers and limitations of liability reflect the allocation of risk set forth in this Agreement as agreed by the parties and that the parties would not enter into this Agreement without these limitations on their liability.

    EBV AND ITS AFFILIATES ARE NOT LIABLE FOR FINES, PENALTIES, DAMAGES OR LOSSES RELATING TO OR ARISING OUT OF CUSTOMER’S OR AUTHORIZED USERS’ FAILURE TO PROMPTLY VIEW AND ACKNOWLEDGE LABOR LAW NOTICES OR TO COMPLY WITH THE REQUIREMENTS OF THIS AGREEMENT.

  12. Governing Law.  This Agreement shall be interpreted and construed in accordance with the laws of California without regard to conflict of laws provisions.

  13. Arbitration.  Both parties agree to first attempt to negotiate any dispute (except those expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will begin upon written notice from one party to the other. If the parties cannot come to a resolution within thirty (30) days of commencement of informal negotiations, either party may choose to have the dispute (except those expressly excluded below) finally and exclusively resolved by binding arbitration in San Diego, California. This election to arbitrate is final and binding. The Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS (available on the JAMS website, www.jamsadr.com) will govern the binding arbitration. The Federal Arbitration Act determines whether a dispute is subject to arbitration. Arbitration fees and the parties’ share of arbitrator compensation will be governed by the Rules. Both parties agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Product or this Agreement must be filed within one hundred (100) days after such claim or cause of action arose or will be forever barred. The arbitration shall occur within ninety (90) days from the date of the initial arbitration demand.  The parties shall cooperate to ensure that the arbitration process is completed within the ninety (90) day period. The parties shall cooperate in exchanging and expediting discovery as part of the arbitration process. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will decide in writing but need not provide a statement of reasons unless requested by a party. The written decision of the arbitrator (which will provide for the payment of costs) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or a decree in equity, as circumstances may indicate.  The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  Customer further agrees that Company shall be entitled, in addition to damages, unpaid fees, costs and interest, to recover the costs of the arbitration proceedings as well as any collection proceedings, as necessary, including reasonable attorneys’ fees. In the event it shall be necessary to obtain a court order confirming any such arbitral award, or to otherwise bring a court proceeding, Customer shall submit to the jurisdiction of any court of competent jurisdiction sitting in San Diego, California.  This arbitration provision remains in full force and effect notwithstanding the nature of any claim or defense related to it. Each party waives any claim that JAMS does not have jurisdiction or is an inconvenient forum. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  CUSTOMER UNDERSTANDS THAT ABSENT THIS SECTION 10, CUSTOMER WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, AND SO CUSTOMER HEREBY WAIVES THE RIGHT TO A JURY TRIAL.  BOTH PARTIES AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN THE PARTIES. TO THE FULL EXTENT PERMITTED BY LAW: (1) NO ARBITRATION WILL BE JOINED WITH ANY OTHER; (2) CUSTOMER WAIVES ANY RIGHT TO COMMENCE A CLASS-ACTION SUIT; AND (3) NO DISPUTE MAY BE BROUGHT IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. If a dispute arises between the parties for which monetary relief is inadequate and where a party may suffer irreparable harm in the absence of an appropriate remedy, the injured party may apply to any court of competent jurisdiction for equitable relief, including without limitation a temporary restraining order or injunction, without proving damages or posting a bond.

  14. Miscellaneous.

    14.1 Export Control Laws.  Each party shall comply with the export control laws of the United States which are applicable to Product, and which may prohibit use of the Product in certain sanctioned or embargoed countries.

    14.2 Independent Contractors.  EBV and Customer and Partner are each independent contractors.  Neither EBV nor Partner has the authority to bind or make any commitment on behalf of Customer and Customer does not have the authority to bind or make any commitment on behalf of EBV or Partner.  None of either party’s employees are entitled to any employment rights or benefits of the other party, and the parties are not joint venturers.

    14.3 Waiver, Entire Agreement and Amendments, Representations, Severability and Purchase Orders.  The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter.  This Agreement, together with the T&C’s and the Order Form, encompasses the entire agreement between Customer and EBV with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral.  Customer  may not alter, amend or modify this Agreement except by written instrument signed by the duly authorized representatives of it and EBV.  Customer acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation of any kind, assurance or warranty (whether or not in writing) of EBV, an EBV affiliate, Partner, or any other person (whether or not party to this Agreement) other than as expressly set out in this Agreement.  Customer specifically agrees that it has not relied upon and its purchase of subscriptions is not contingent upon the future availability of any software, products, services, programs, modifications, enhancements or Updates in entering into the payment obligations in this Agreement.  If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.  The terms and conditions appearing on any purchase order issued by Customer for this Agreement, if any, shall not change, add to, or modify the terms or conditions of this Agreement and shall have no effect.

    14.4 Assignment.  Customer may not transfer or assign this Agreement, including by merger or operation of law, without EBV’s prior written consent, and any such attempted assignment shall be void and of no force or effect.  EBV may assign this Agreement in its discretion. This Agreement is binding on each party’s successors and permitted assigns.

    14.5 Force Majeure.  EBV and its Partners and affiliates shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by any cause outside of its reasonable control, which include without limitation acts of God, acts of terror, storms, fires, floods, epidemics and pandemics, government orders, or failure of telecommunications or infrastructure. 

    14.6 Notices.  All notices or other formal or legal communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given or made if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by recognized courier service (e.g., Federal Express, DHL, UPS): (i) if to Customer: to the attention of the person identified in the Order Form, and (ii) if to EBV: to the attention of its General Counsel.

    14.7 No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement. 


    PLEASE PRINT THIS SERVICES AGREEMENT FOR YOUR RECORDS.