The following Terms and Conditions (“Agreement”) constitute a legal agreement between you or the entity or company that you represent (“Customer” or “You”) and Encamp, Inc. (“Encamp”), which governs Customer’s use of the Services. Each Encamp and Customer may be referred to individually as a “Party” and jointly as the “Parties”.
1.1 Platform. Subject to the terms and conditions of this Agreement, Encamp hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right, during the Term, to access and use the Platform, solely for Customer’s internal business purposes.
1.2 Orders. From time to time, Customer and Encamp may enter into orders, each of which (a) are signed by an authorized representative of each Party, (b) reference, and are governed by, this Agreement, (c) set forth the Platform features and/or related implementation and/or other professional services to be provided by Encamp (such services, the “Services”), and (d) all associated fees to be paid by Customer to Encamp therefor (each, an “Order”). Each Order is hereby incorporated by reference herein. Notwithstanding anything herein, unless otherwise specified in an Order, any Services for which Encamp is engaged commencing within thirty (30) days’ of a filing due date will not result in any liability to Encamp in the event Encamp is unable to timely make the applicable filing by such filing due date.
1.3 Restrictions. Customer will not provide access to the Platform to any person who is not an employee or contractor of Customer (“Authorized Users”). Customer will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; (b) modify, translate or create derivative works based on the Platform; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Platform; (d) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Encamp or its suppliers on the Platform. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify Encamp promptly of any such unauthorized access or use, and (ii) use the Platform only in accordance with the documentation provided by Encamp and all applicable laws, rules and regulations. The identity and number of Authorized Users will be as designated in the initial Order or as otherwise agreed from time to time in writing with Encamp. Upon the termination of an Authorized User’s employment or engagement by Customer, or if Customer otherwise determines that an Authorized User may no longer access the Platform on Customer’s behalf, Customer must promptly inform Encamp in writing and Encamp will terminate or suspend such Authorized User’s access.
1.4 Logins. In order to access the Platform, each Authorized User will be required to create a unique login (a “Login”), including a unique username and password. Each Authorized User will provide true and accurate identification information to Encamp for purposes of establishing the Login, and will promptly update Encamp of any changes in the information provided. Only the applicable Authorized User may access the Platform via such Authorized User’s Login and it is Customer and each Authorized User’s obligation and responsibility to maintain the confidentiality and not share Login credentials. Customer will immediately notify Encamp of any actual or suspected disclosure of a Login or unauthorized access to the Platform via Customer’s Login. Encamp is not responsible for unauthorized access to the Platform via Customer’s Login.
1.5 Customer Obligations. Customer understands that Encamp’s performance of Services is dependent in part on Customer’s actions. Accordingly, Customer will provide Encamp with any necessary items and assistance in a timely manner, including any items and assistance identified in the applicable Order.
1.6 Subcontractors. Encamp may engage subcontractors in performance of the Services; provided, that Encamp will remain responsible and liable for such subcontractors’ compliance with the terms and conditions of this Agreement. This Agreement will not create any contractual relationship between Customer and any of Encamp’s subcontractors, nor obligate Customer to pay or see that payment is made to any such subcontractor.
2.1 Fees. Customer will pay Encamp the fees and taxes and in the manner set forth in each Order, in accordance with the terms and conditions herein and therein. If any amount due pursuant to this Agreement remains unpaid, for any reason, on or after the date that is 30 days following the initial invoice including such amount, You will be liable for (i) interest on such past due amount at a rate equal to 1.5% per month (or if lesser, the maximum amount permitted under applicable law), and (ii) all costs of collection incurred by Encamp, including is court costs and reasonable attorneys’ fees.
3.1 Customer Data.
a. License. Customer owns the unaltered data uploaded or otherwise input by Customer into each Platform (collectively, “Customer Data”). Customer hereby grants to Encamp a non-exclusive, royalty-free, fully paid up, non-sublicenseable (except to contractors, consultants and service providers providing services on behalf of Company) and non-transferable (subject to Section 10.8) right and license to (a) copy, distribute, display, create derivative works of and otherwise use the Customer Data to perform Encamp’s obligations under this Agreement, (b) use the Customer Data internally to develop and improve Company’s products and services and for other internal administrative purposes and (c) create aggregated and/or anonymized data from the Customer Data, including with respect to usage of the Platform, so long as such aggregated and/or anonymized data does not identify Customer or any Authorized User (the “Aggregated Data”). For the avoidance of doubt, Aggregated Data is not Customer Data. Customer reserves any and all right, title and interest in and to the Customer Data other than the rights and licenses expressly granted to Encamp in this Section 3.1.
b. Reliance on Customer Data. Customer acknowledges and agrees that, in providing the Services, Encamp is reliant upon certain Customer Data to be provided or made available by Customer or its Authorized Users and that Encamp is under no obligation to review or audit such information for currency, completeness, or accuracy. Encamp will have no liability for any fines, penalties, interest, or expenses that may result from the provision of incomplete, inaccurate, outdated, or otherwise improper Customer Data used in the provision of the Services.
c. Return and Deletion of Customer Data. Upon termination of this Agreement, Encamp will make the Customer Data then held or controlled by Encamp available to Customer for download (in a format reasonably selected by Encamp and reasonably acceptable to Customer) for a period of not less than thirty (30) days following such termination and provided Customer has paid all amounts then-owed to Encamp hereunder; provided, Encamp has no obligation to maintain or retain any particular Customer Data and is not responsible for Customer Data not maintained or subsequently destroyed or lost. Customer should retain all records of Customer Data required for Customer’s business purposes. If Customer requests in writing, Encamp will delete the Customer Data within ninety (90) days of such request and confirm such deletion to Customer in writing.
3.2 Platform Ownership. Customer acknowledges and agrees that, as between the parties, Encamp retains all rights title, and interest in and to the Platform, all copies or parts thereof (by whomever produced), and all improvements, modifications and enhancements thereto, and all related intellectual property rights. Encamp grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Platform.
3.3 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Encamp with respect to the Platform. Customer hereby grants Encamp a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
4.1 Term. The term of this Agreement is set forth in the Order and, unless earlier terminated as set forth herein, will continue for one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party delivers to the other Party written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term.
4.2 Termination. In addition to any other remedies it may have, either Party may terminate this Agreement and/or any Order upon written notice to the other Party if such other Party breaches this Agreement (or any Order) and fails to cure such breach within thirty (30) days of receipt of written notice thereof.
4.3 Effect of Termination. Upon expiration or termination of this Agreement, (a) all rights granted hereunder and all obligations of Encamp to provide the Platform will immediately terminate, (b) all then-active Orders will immediately terminate and (c) Customer will cease use of the Platform. Promptly after the expiration or termination of this Agreement, Encamp will invoice Customer for any fees due and payable that Customer has not yet paid, and Customer will be obligated to pay all such amounts for Services performed prior to the effective date of expiration or termination.
4.4 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate; provided, that, the following Sections will survive: 2 (to the extent any fees that are due and payable remain unpaid), 3, 4, 4.3, 4.4, 5, 6.3, 7, 8 and 10.
5.1 Definition. “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that information related to a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
5.2 Use and Disclosure of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The Receiving Party will not (a) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement or any Order, or (b) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to (i) its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of Receiving Party’s rights and performance of its obligations under this Agreement or any Order; and (ii) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees consultants and advisers are bound by written agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this Section 5. The Receiving Party will not allow any unauthorized person access to Disclosing Party’s Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information.
5.3 Disclosures Required by Law. If Receiving Party is required by any law, rule or regulation to make any disclosure of any of Disclosing Party’s Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
5.4 Termination and Stop Usage. In the event of termination or expiration of this Agreement, the Receiving Party will (subject to Section 3.1(c)): (a) cease using the Confidential Information of the Disclosing Party and (b) if requested to do so in writing, either return it to the Disclosing Party or destroy it along with all copies, notes or extracts thereof, and certify to its destruction within fifteen (15) days of receipt of such written notice.
5.5 Terms of Agreement. Neither Party will disclose any of the terms of this Agreement to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may disclose such terms as are required to be disclosed: (a) to (i) its accountants and advisors who have a “need-to-know” solely for the purpose of providing services to such Party or (ii) existing and potential investors, lenders and acquirers and the accountants and advisors of any of the foregoing; provided, however, that any such recipient under either of the foregoing clause (ii) is bound by a written agreement (or in the case of attorneys or other professional advisors, formal ethical duties) requiring such recipients to treat, hold and maintain the terms of this Agreement on a confidential basis in accordance with the terms and conditions of this Section 5; or (b) in order to comply with an applicable judicial process, if in the reasonable opinion of such Party’s counsel, such disclosure is necessary for such compliance, provided that such Party will notify the other Party of such Party’s intent to make any such disclosure sufficiently prior to making such disclosure so as to allow such other Party adequate time to review and comment on such disclosure and further to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed.
5.6 Remedies. Customer acknowledges that any unauthorized use of the Platform may cause irreparable harm and injury to Encamp for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Encamp will be entitled to seek injunctive relief in the event Customer uses the Platform in violation of the limited license granted herein or uses the Platform in any way not expressly permitted by this Agreement. In addition, each Party acknowledges that any breach of this Section 5 may cause irreparable harm and injury to the other Party for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, each Party further agrees that the other Party will be entitled to seek injunctive relief in the event such Party breaches this Section 5.
6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
6.2 Encamp Representations and Warranties. Encamp represents and warrants to Customer that (a) the Services will be performed in a professional and workmanlike manner, in accordance with the standard and quality generally recognized and accepted within its industry, (b) each deliverable identified in a Order will conform to the specifications set forth therein in all material respects, and (c) it will use commercial reasonable measures to ensure that the Platform will not contain any virus (or other software designed to harm software, hardware or data).
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM ARE PROVIDED ON AN “AS-IS” BASIS AND ENCAMP DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3 OR 1.4 ABOVE OR (B) EITHER PARTY’S BREACH OF SECTION 5 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3 OR 1.4 ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 ABOVE, (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, OR (D) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO ENCAMP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
8.1 Indemnification by Encamp. Encamp will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of an allegation that Customer’s authorized use of the Platform infringes or misappropriates a third party’s intellectual property rights. Notwithstanding the foregoing, Encamp will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by (a) modification of the Platform by any party other than Encamp without Encamp’s express consent; (b) the combination, operation, or use of the Platform with other product(s), data or services where the Platform would not by itself be infringing; or (c) unauthorized or improper use of the Platform. If the use of the Platform by Customer has become, or in Encamp’s opinion is likely to become, the subject of any claim of infringement, Encamp may at its option and expense (i) procure for Customer the right to continue using the Platform as set forth hereunder; (i) replace or modify the Platform to make it non-infringing so long as the Platform has at least equivalent functionality; (iii) substitute an equivalent for the Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Encamp’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer will indemnify, defend and hold Encamp and the officers, directors, agents, and employees of Encamp (“Encamp Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the Encamp Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of (a) Encamp’s authorized use of the Customer Data or (b) any use or disclosure by Customer of the Platform in violation of this Agreement.
8.3 Indemnification Procedure. If a Customer Indemnified Party or a Encamp Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9.1 Compliance with Laws. Each Party will comply with all federal, state, county, and local laws, ordinances, regulations, rules and codes applicable to such Party in connection with its activities under this Agreement including, without limitation, (a) the Fair Labor Standards Act, including any regulations or administrative orders thereto; and (b) the Occupational Safety and Health Act, including any regulations or administrative orders thereto.
10.1 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware governing such agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in the state of Delaware, and the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens.
10.2 Notices. Any notice or communication required or permitted to be given by either Party under this Agreement will be in writing and will be hand delivered or sent by registered or certified mail, return receipt requested, or by an overnight delivery service to the Party receiving such communication at the address as set forth in the Order.
10.3 Entire Agreement; Precedence. This Agreement and any Statements of Work contain the final and complete agreement between the Parties for the provision of the Platform and performance of the Services and supersede all prior and contemporaneous conduct, agreements, statements, representations, negotiations, course of conduct, course of dealing, and communications pertaining to those Services and the Platform, whether written or oral. This Agreement cannot be modified or amended, except in accordance with a written agreement signed by an authorized representative of each Party. In the event of any conflict between this Agreement and a Order, the terms and conditions of this Agreement will govern unless such Order expressly amends such terms and conditions, in which case such amended terms and conditions will govern with respect to such Order only.
10.4 Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any of its obligations under this Agreement, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
10.5 Publicity. Neither Party will use the other Party’s name in any public announcement, press release or other promotional materials without such other Party’s prior written consent; provided, that Customer agrees that Encamp may, without such consent, (a) list Customer’s name (including by displaying any Customer trademark) and identify the business relationship between the Parties on Encamp’s website and in other marketing and advertising collateral, together with a list of other customers and (b) if Customer identifies Encamp in any documents made available to the public, issue a press release that references such public disclosure and Customer’s use of the Platform.
10.6 Waiver. A Party’s failure or delay in enforcing the terms and conditions of this Agreement or in insisting upon strict performance of any of the other Party’s obligations will not be interpreted as a waiver thereof. Waiver of any provision of this Agreement by either Party will only be effective if in writing and will not be interpreted as a waiver of any subsequent breach or failure under the same or any other provision of this Agreement. No conduct, statement, course of conduct, course of dealing, oral expression, or other action will be construed as a waiver.
10.7 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.8 Assignment. Neither Party may assign this Agreement to a third party without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 10.8 will be null and void.
10.9 Counterparts. This Agreement may be executed and delivered by facsimile or other electronic means (including PDF) and in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the Parties.
Effective Date: September 28, 2022
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