Saas Terms of Service
Last Update: 30 November 2023
Envase is the entity set out in the Registration Form that is licensing the Software to the Customer.
Customer is the entity set out in the Registration Form.
1.1 Envase is a member of the WiseTech Global Group of companies, which develops and supplies software (Services).
1.2 The supply of Services by Envase will be subject to the terms of this Agreement.
2. Definitions and interpretation
2.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” of a party means other person or entity controlling, controlled by, or under common control by ownership, contract, or otherwise with that party.
“Agreement” means this Agreement along with the registration details for the Services in the Registration Form, any Service Order, the Fee Schedule and any other terms or document incorporated by reference (and any variations made in accordance with the terms of this Agreement).
“Authorized User” means your employee, your Affiliate’s employee, or a Permitted Third Party’s employee for whom you create a unique user name and password under your account and assume responsibility for under the terms of this Agreement.
“Business Day” means a day (not being a Saturday, Sunday or a public holiday) on which banks are generally open for non-automated business in New Hampshire, United States of America.
“Commencement Date” means the earlier of (a) the date on which you start using the Services; and (b) the date upon which this Agreement is executed.
“Confidential Information” in relation to a party (for the purposes of this definition, the Discloser) means all knowledge, information, or know-how pertaining to or concerning the Discloser or any Affiliates, including the Discloser’s (and its Affiliates’) business, systems, processes, data, customers, Users, properties, assets and affairs. Confidential Information excludes any information: (a) which is publicly known; (b) which is disclosed to the other party without restriction and without any breach of confidentiality by a third party; or (c) which is developed independently by the other party without reliance on any of the Discloser’s Confidential Information. Confidential Information does not include Personal Information.
“Customer Materials” means any data (including Personal Information) inputted by Customer, and any User, Personnel or any person with Customer’s authority, in using the Services.
“Data Protection Laws” means any applicable data protection, privacy and cybersecurity Laws, including the California Consumer Privacy Act 2018, the Australian Privacy Act 1988 (Cth) and the General Data Protection Regulation (EU) 2016/679 (GDPR).
“Dispute” means a dispute, difference or question relating to this Agreement including but not limited to any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise.
“Documentation” means those functional descriptions and specifications relating to the operation of the Software contained in the related Registration Form and/or Service Order and product manuals, training materials, update notes and technical and email notes published and updated from time to time by Envase.
“Effective Date” means the earlier of (a) the date on which the Customer executes the Registration Form; and (b) the date on which the Customer executes the Service Order (if applicable).
“Fee(s)” means the fee schedule/s set out in the Registration Form and/or Service Order and as updated from time to time in accordance with the terms of this Agreement.
“Force Majeure Event” means an event or circumstance which: (a) is beyond the reasonable control of a party; (b) could not have been avoided or overcome by that party by the exercise of reasonable foresight, care and due diligence; and (c) includes: earthquake, severe weather, nuclear disaster, epidemic, pandemic, government restraints or interventions, industry-wide industrial disturbance, civil disorder, terrorism and war.
“Intellectual Property Rights” means any rights, title and interest in patents, trademarks, service marks, trade and business names, rights in design, utility models, copyright, database rights, know-how (including trade secrets) and any other similar right whether presently existing, applied for or in relation to which there is a right to apply for registration and any analogous rights to any of the preceding rights under any other jurisdiction.
“Law” means all applicable laws, rules of common law and equity, statutes, regulations, mandatory codes and standards, writs, orders, injunctions, judgments and government authority requirements.
“Losses” means any losses, expenses (including reasonable legal fees and costs of investigation), interest and penalties.
“Permitted Third Party” means an entity under contract with you or your Affiliates who needs to access the Service to perform its obligations to you or your Affiliates and who is not our competitor.
“Personal Information” means (a) ‘personal information’ as defined in the Privacy Act 1988 (Cth); and (b) any other information that is regulated by, or under, any Data Protection Laws.
“Professional Services” means the professional services specified in a Service Order, potentially including but not limited to implementation services, consulting, and training services (as may be modified from time to time at our discretion).
“Registration Form” means the initial document or online form that registers you as a customer for our Services, sets out the scope of your use of the Software (as may be modified from time to time at our discretion) and contains your comprehensive legal entity details that we collect for administration purposes.
“Service” means the license set out in clause 3 of this Agreement, use of the Software identified in the Registration Form, and professional services specified in any subsequent Service Order (as applicable and as may be modified from time to time at our discretion).
“Service Order” means an ordering document entered into for any subsequent or additional Services to those captured in the Registration Form, including any Professional Services, addenda and supplements thereto. By entering into a Service Order under this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
“Software” means software listed in the Registration Form licensed to you and/or software components (Envase IP) to be installed on your, your Affiliates’, or your Authorized Users’ computer systems or mobile or other devices.
“Subscriber Data” means any data uploaded into the Service, or otherwise provided for processing by the Service, by or on behalf of you and your Affiliates in accordance with this Agreement.
“Subscription Fees” means the fees for the Service specified in the Service Order. Subscription Fees may or may not be based on events or transactions conducted using the Services.
“Taxes” means any tax including any GST, withholding tax, value added tax, sales tax, customs duty, import duty, levy, charge, impost, duty, fee, deduction, compulsory loan or other amount which is assessed, levied, imposed or collected by any governmental agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed on, or in respect of any of the above..
“Technical Support Services” means our current technical support services offering, as described at www.envasetechnologies.com.
“Third Party App” means a software application developed by you or a third party (and made available to you by us) that interoperates with the Service.
“User” means any employee or contractor of the Customer, or Customer’s Affiliate/s, authorised by the Customer to use the Services pursuant to this Agreement.
2.2 In this Agreement, unless the context otherwise requires, a reference to:
(a) the singular includes the plural and vice versa;
(b) a gender includes all genders;
(c) a document (including this Agreement) is a reference to that document (including any Schedules and Annexures) as amended, consolidated, supplemented, novated or replaced;
(d) a party means a party to this Agreement;
(e) “We” or “Us” or “Our” means Envase Holdings, LLC, or its designated Affiliate as specified in the Registration Form, a Service Order or invoice;
(f) “You” or “Your” or “Subscriber” means the customer named on the Registration Form, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity;
(g) an item, recital, clause, schedule or annexure is to an item, recital, clause, schedule or annexure of or to this Agreement;
(h) a person (including a party) includes an individual, company, other body corporate, association, partnership, firm, joint venture, trust and Government Agency and the person’s successors, permitted assigns, substitutes, executors and administrators;
(i) a law includes any legislation, judgment, rule of common law or equity or rule of any applicable stock exchange, and is a reference to that law as amended, consolidated, supplemented or replaced and includes a reference to any regulation, by-law or other subordinate legislation;
(j) proceedings includes litigation, arbitration and investigation;
(k) time is to New Hampshire, USA;
(l) day is to a day in New Hampshire, USA;
(m) the words “including” and “includes” mean “including, but not limited to”, and “includes, without limitation” respectively;
(n) headings are for convenience only and do not affect interpretation of this Agreement; and
(o) if a period must be calculated from, after or before a day or the day of an act or event, it must be calculated excluding that day.
3. License and Services
3.1 On and from the Effective Date, Envase grants to the Customer a license to use the Software:
(a) that is limited, worldwide, non-exclusive, non-transferable and revocable;
(b) that is solely for the Customer and its Affiliates’ own internal purposes;
(c) that is provided subject to the Documentation and use of the Software in accordance with the same;
(d) until terminated in accordance with the terms of this Agreement,
together the “License”.
3.2 Subject to the terms of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.
3.3 Restrictions on Licenses and Use. The Software is and remains the property of Envase and its relevant Affiliates. The Customer’s (and its Affiliates’) rights in relation to the License and the Services are limited to those specifically granted under this Agreement or the Registration Form and/or Service Order. This Agreement does not grant or assign to the Customer or its Affiliates any other legal or equitable title or right in or to the Software or the Services. Without limitation to any other provision of the Agreement, the Customer must not and must not permit others (including its Affiliates) to:
- reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the Software;
- modify, translate, adapt, alter, or create derivative works from, the Software;
- copy, distribute, publicly display, sell, rent, lease, loan or otherwise exploit the Software;
- sub-license, lease or loan the Software to any third party;
- assign, pledge, transfer, sub–license or in any way attempt to encumber the Software; or
- merge all or any part of the Software with other computer programs,
3.4 Envase will provide the Services with due care and skill, in accordance with applicable Laws and using reasonable endeavours to meet any specified service level within the Registration Form and/or Service Order.
3.5 Envase will provide any Professional Services and/or Technical Support Services in accordance with the applicable Registration Form and/or Service Order and with due care and skill and in accordance with applicable Laws for the Fees set out in the applicable Registration Form and/or Service Order (as updated from time to time in accordance with clause 6.3 of this Agreement).
3.6 Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Professional Services and/or Technical Support Services. You acknowledge that our ability to provide Professional Services as described in the Service Order and Technical Support Services (and meet any service levels specified in the Registration Form and/or Service Orders) may be affected if you do not meet your responsibilities set out in this clause 3.6, and that we are not liable to the extent we are affected by your non-compliance with this clause.
4. Services, Use of Services and Customer responsibilities
4.1 We offer various versions of our Service, including:
(a) Full Service. The most comprehensive version of the Service requires payment for continued use of the Service. The version of the Service that requires payment is currently referred to as “Full Service.”
(b) Free Versions. Certain versions of the Service may be provided to you free-of-charge. The versions of the Service that do not require payment to be accessed are currently referred to as “Free Versions.”
(c) Free Trials. From time to time, we may offer trials of the Full Service for a specified period of time without payment or at a reduced rate (each, a “Free Trial”), which will be subject to Free Trial terms (“Free Trial Terms”).
4.2 Customer is solely responsible for all access to and use of the Services by the Users, including the username, passwords and other login details associated with Customer’s account.
4.3 Customer is solely responsible for maintaining internet access, IT infrastructure and all other technology, communications, and other matters needed in order for Customer and Users to access and use the Services.
4.4 Envase is not responsible or liable to Customer, any User or other person, for any fault or defect in the Services:
(a) caused by any Customer or third party data, products or services which interact or interoperate with the Services, including the products and services set out in clause 4.8; or
(b) caused by the modification of, or combination, operation or use of the Services with other data, services or software not provided or authorised by Envase.
4.5 Customer must ensure that all usernames and passwords used by Customer and Users to access the Services are kept secure and confidential. Customer must immediately notify Envase of any unauthorised use of Customer’s (including any User’s) passwords or any other breach of security which could impact the Services.
4.6 Customer must ensure that all access and use of the Services does not:
(a) undermine the security or integrity of Envase’s products or, where the Services are hosted by a third party, that third party’s computing systems;
(b) involve the use or any attempt to use the Services in any way which may impair the functionality of the Services;
(c) involve any attempt to gain unauthorised access to any materials other than those to which the Customer and any User has been given express permission to access;
(d) involve any act not expressly permitted by this Agreement; or
(e) breach any Law.
4.7 Third Party Products. Any third-party product that we provide as identified in an applicable Service Order or that is made available in connection with the Service (e.g., a Third Party App) is provided pursuant to the terms of the applicable third-party agreement, and your use of any such third-party product constitutes your agreement to comply with the terms of the applicable third-party agreement. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any third-party product.
4.8 Third Party Apps. We do not provides any warranties for or support Third Party Apps, regardless of whether the Third Party App is certified or authorised by us. If you install or enable a Third Party App for use with the Service, you grant us permission to allow the provider of that Third Party App to access Subscriber Data as required for the interoperation of that Third Party App with the Service. We are not responsible for any disclosure, modification, or deletion of Subscriber Data by the applicable provider resulting from access by a Third Party App. If we believe a Third Party App violates our policies, this Agreement, applicable Law, or the rights of any third party, we may disable the Third Party App and suspend use of the Third Party App at our discretion until the potential violation is resolved.
5. Fees and Payment
5.1 Envase, or an Affiliate of Envase, will invoice the Customer the Fees on a monthly basis in accordance with the Fee Schedule.
5.2 Customer must pay the Fees no later than 14 days following the date of the invoice.
5.3 Payment Timing; Credit Card. If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge you for the Service plus a reasonable processing fee using your credit card and for any paid feature of the Service that you choose to sign up for or use under this Agreement. Regardless of payment method, we may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service. If you set up a Free Trial using a credit card or if you paid the Subscription Fees using a credit card, you agree that we may automatically charge your credit card account the applicable Subscription Fee when the Free Trial ends or renew your subscription and charge your credit card account monthly thereafter (as applicable). We will automatically renew your subscription each year on the Renewal Date until you terminate your subscription or we no longer offer the Service to which you subscribed. We may charge you up to the amount you approve plus a reasonable processing fee. You must keep all information in your billing account current. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for a Service that requires payment, we may terminate your access to that Service effective immediately.
5.4 Late Payment. Any amount not paid when due will be subject to finance charges equal to 3% of the unpaid balance per month or the highest rate permitted by applicable usury Law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason. Unless expressly stated otherwise, all amounts payable under this Agreement are expressed exclusive of Taxes.
5.5 If Taxes are payable as a consequence of any supply made (or deemed to be made) by one Party to the other in connection with the Agreement, the Party receiving the supply must pay to the Party making the supply an amount equal to the Tax payable in respect of the supply, in addition to the price, or other consideration (if any) required to be paid.
6. Changes to the Services and/or Fees
6.1 The available Services and their features are intended to evolve over time based on factors such as feedback, customer take-up, online and technology updates. The currently available Services and their features are listed on the Website.
6.2 Envase may add to or remove elements of the Services from time to time at its discretion to the extent needed to comply with Laws applicable to Envase or to ensure we remain scalable and compliant with any global logistics industry needs.
6.3 Envase may review and increase the Fees at its discretion by providing at least 30 days’ notice to Customer. Customer may terminate this Agreement in accordance with clause 13.1 in relation to any increase in the Fees pursuant to this clause.
6.4 Customer’s continued access and/or use of the Services following the expiry of the 30 days’ notice under clause 13.1 constitutes Customer’s agreement to and acceptance of any changes to the Services and/or the Fees under this clause 6.
6.5 You acknowledge that Fees may include third party license fees, if your configuration requires a third party supported module. In the event that these third-party license fees increase, we will adhere to clause 6.3 of this Agreement in advising of any variation to Fees
7.1 In the absence of the provision of a valid sales and use tax exemption certificate from buyer to seller, any applicable Tax will be added to the charges in accordance with the applicable Laws, and will be payable by buyer to the seller, subject to receipt of a valid tax invoice. In addition to any charges payable by you pursuant to this Agreement, you shall be liable for and agree to pay any Tax due on charges levied under this Agreement or for other services offered from time to time by us.
7.2 Subject to clause 7.3, if you are liable to pay, withhold or deduct any amount on account of withholding tax (“Withholding Tax”) on charges levied under this Agreement, then the charges must be grossed up by such an amount as is necessary to ensure that the net amount received by us after payment, withholding or deduction of any such Withholding Tax equals the amount we would have received had there been no payment, withholding or deduction of Withholding Tax.
7.3 You may pay, withhold or deduct a Withholding Tax from charges levied under this Agreement and are not required to pay any gross up of such an amount to us, provided that:
(a) We consent in writing to the application of this clause 7.3 to you (which can be provided or refused in our sole discretion);
(b) The payment, withholding or deduction of the Withholding Tax is required by law;
(c) The amount of the payment, withholding or deduction made by you does not exceed the maximum amount required to be paid, withheld or deducted by you under applicable laws and tax treaties; and
(d) You deliver to us evidence (in a form acceptable to us) of:
(i) Your liability to pay, withhold or deduct the Withholding Tax, such as a tax invoice, certificate or other documentation before the Withholding Tax is paid, withheld or deducted or, if such evidence is not available prior to the due date for payment, withholding or deduction, as soon as practicable thereafter; and
(ii) The actual payment, withholding or deduction of the Withholding Tax, such as a tax receipt.
7.4 Future Functionality. You agree and acknowledge that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
8. Confidential Information
8.3 Each party may disclose the Confidential Information of the other party:
(a) when required to do so by Law or any regulatory authority (provided that the disclosing party notifies the other party as soon as is reasonably possible of any requirement to disclose, takes all steps necessary to challenge or limit the requirement to disclose, and provides all assistance and co-operation reasonably requested by the other party to challenge or limit the requirement to disclose); and
(b) to its Personnel whose duties reasonably require such disclosure, on condition that the party making such disclosure:
(c) ensures that each such person to whom such disclosure is made is informed of the confidentiality of the information and the obligations of confidentiality under this Agreement; and
(d) uses all reasonable endeavours to ensure that each such person to whom such disclosure is made complies with those obligations as if they were bound by them.
8.4 Each party must take steps no less rigorous than those which its takes in respect of its own information of like kind to prevent any unauthorised use or disclosure of, or unauthorised access, loss or damage to, the Confidential Information of the other party under its possession or control.
8.5 If either party becomes aware of a breach of this clause, including a breach of its personnel with respect to the other Party’s Confidential Information, it must:
(a) notify the other party as soon as it becomes aware of the breach; and
(b) promptly provide the other party with any information or assistance which it may reasonably request in order to minimise the loss or damage it may suffer as a result of the breach.
9.1 Each party represents to the other party that it has validly entered into this Agreement and that it has the power and authority to do so.
9.2 The Customer warrants that:
(a) the Customer Materials and the use of the Customer Materials by Envase in accordance with this Agreement will not infringe any third-party rights nor any Laws; and
(b) the Customer Materials will not contain any defamatory, offensive, abusive, illegal, or otherwise menacing or harassing content.
10. Data Protection
10.2 The Customer represents and warrants that it will, prior to providing any Customer Materials to Envase, obtain all necessary consents and approvals from, and make any notifications to, any individuals to whom the Customer Material relates as required by Laws (including any Data Protection Laws):
(a) for the Customer to use the Services; and
(b) to allow Envase to collect, hold, use, store, disclose and otherwise process any Customer Materials in the manner contemplated by the Agreement.
10.3 The Customer must at all times comply with all Data Protection Laws in relation to Customer Materials, its use of the Service and in relation to any Personal Information that Envase provides or discloses to the Customer.
10.4 The Customer must promptly notify Envase if Customer no longer holds any necessary consents or approvals to use any individual’s Personal Information contained in any Customer Materials, and Customer must immediately cease to use the Services in respect of any such individual.
11. Intellectual Property Rights
11.1 Each party acknowledges and agrees that:
(a) any Intellectual Property Rights existing prior to the date of this Agreement will not be affected by this Agreement;
(b) all Intellectual Property Rights in Envase IP are owned by Envase (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers any right, title or interest in any of the Envase IP to the Customer; and
(c) all Intellectual Property Rights in the Customer Materials are owned by the Customer (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers to Envase any right, title or interest in any of Customer Materials.
12.1 Envase warrants that, for the term of this Agreement, the Software will perform substantially as described in the Product Documentation, as updated from time to time (unless modified by a party other than Envase in which case this warranty is void).
12.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL TERMS, CONDITIONS, WARRANTIES, UNDERTAKINGS, INDUCEMENTS OR REPRESENTATIONS, INCLUDING ANY WARRANTIES OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATING IN ANY WAY TO THE SOFTWARE OR TO THIS AGREEMENT ARE EXCLUDED. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES, OR THAT OPERATION OF THE APPLICATSOFTWARE WILL BE UNINTERRUPTED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCES, ENVASE SHALL NOT HAVE ANY LIABILITY TO THE CUSTOMER IN RESPECT OF ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER THE CUSTOMER OR ANY THIRD PARTY, HOWEVER CAUSED, WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY IN RESPECT OF THE SOFTWARE OR THE FAILURE OR OMISSION ON THE PART OF ENVASE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF ENVASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 UCC DISCLAIMER. ANY WARRANTY THAT MAY BE PROVIDED OR IMPLIED BY ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL CODE OR ANY OTHER COMPARABLE LAW OR STATUE IS EXPRESSLY DISCLAIMED.
12.4 To the extent allowed by applicable law, the liability of Envase and its Affiliates for any breach of a term, condition or warranty in relation to goods or Services shall be limited, at the option of Envase, to any one or more of the following: if the breach relates to goods; (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and if the breach relates to services: (i) the re-supplying of the services; or (ii) the payment of the cost of supplying the services again.
12.5 If, notwithstanding the above, Envase is held liable to the Customer for any reason, then the total aggregate liability of Envase shall be limited to the amount of any actual loss or damage which is not in excess of amounts actually paid and due to be paid by the Customer to Envase under this Agreement during the twelve month period prior to the event giving rise to the Customer’s complaint.
12.6 Envase will defend and indemnify the Customer against any third party claim that the Software infringes a copyright, patent, trade secret or other intellectual property right (IP Infringement) (including against any final, non-appealable judgment of a court of competent jurisdiction for costs or damages suffered or incurred by the Customer as a result of such third party claim of IP Infringement), provided that:
(a) the Customer notifies Envase in writing within seven (7) days of receiving a claim;
(b) the Customer does not admit liability in relation to any such claim without the prior written approval of Envase;
(c) Envase has sole control of the defense and all related settlement negotiations; and
(d) the Customer provides Envase with all necessary assistance, information, access and authority to enable Envase to exercise its rights and perform its obligations under this clause 12.
12.7 The Customer shall be responsible for its own direct costs for staff, management, business obligations and professional advice arising from any claim.
12.8 Envase shall have no liability for any IP Infringement based on use of a superseded or altered release of the Software if the IP infringement would have been avoided by the use of a published unaltered release of the Software prior to the date of the alleged IP Infringement.
12.9 Envase may resolve a claim under clause 12.6 by:
(a) modifying the Software to be non-infringing; or
(b) obtaining for the Customer a license to continue using the Software.
12.10 The obligations contained in this clause define Envase’s entire liability and Customer’s exclusive remedy for any IP Infringement.
12.11 The Customer indemnifies Envase from and against:
(a) Any Losses incurred, damages awarded or settlement agreed because of any claim against Envase by a third party that the Customer Materials infringe any third-party’s Intellectual Property Rights; and/or
(b) any Losses suffered or incurred by Envase in connection with Customer’s breach of its obligations under clause 10 (Data Protection).
12.12 Nothing in this Agreement operates to exclude or restrict:
(a) Customer’s liability to Envase to pay the Fees;
(b) a Party’s liability under any indemnity;
(c) a Party’s liability for death or personal injury resulting from negligence;
(d) a Party’s liability for fraud;
(e) Customer’s liability for a breach of clause 8 (Confidential Information);] or
(f) any liability that cannot be excluded or limited by Law.
12.13 Notwithstanding any other provision of this Agreement, the following applies to any liability of a party arising out of, or in relation to this Agreement:
(a) each party must act reasonably to mitigate its losses and the amount to which the party is entitled to recover must be reduced to the extent the party has failed to act reasonably to mitigate its losses; and
(b) the amount of one party’s liability in respect of any claim made by the other party will be reduced by the extent, if any, to which the claiming party’s negligence, breach of this Agreement, or breach of any Law appliable to it contributed to the Losses arising from the claims.
13.1 This Agreement commences on the Effective Date and will continue on a monthly basis unless terminated by:
(a) Customer on 30 days’ written notice to Envase; or
(b) Envase on 30 days’ written notice to Customer.
13.2 A party may terminate this Agreement by notice to the other party with immediate effect from that or any later date that it may nominate if any of the following events has occurred in respect of the other party:
(a) a material breach of any of its obligations under this Agreement which is capable of remedy, and which the other party fails to remedy within 30 days after receipt of written notice from the notifying party;
(b) a material breach of any of its obligations under this Agreement that is not capable of remedy;
(c) an Insolvency Event occurs; or
(d) a failure by Customer to pay any amount due to Envase under this Agreement within 14 days following receipt of notice from Envase of an overdue invoice.
13.3 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available to either party:
(a) each party retains the rights and claims it has against the other party for any past breach of this Agreement occurring prior to the date of termination or expiry;
(b) Customer’s rights to use the Services and any of Envase’s Intellectual Property immediately ceases on termination of this Agreement for any reason;
(c) Customer must immediately pay Envase all amounts due to Envase under the Agreement (including any incurred but not yet invoiced) will become immediately due and payable, and Customer must immediately pay Envase all such outstanding amounts that have been invoiced or upon receiving an invoice; and
(d) Customer must immediately deliver to, or otherwise dispose of, as directed by Envase, all Envase’s Intellectual Property and Confidential Information, then in its possession, custody or control, and must certify in writing to Envase that this has been done.
13.4 Clauses 4.2, 4.5, 4.6, 8, 9.2, 10, 11, 12, 14.5 and 15.6 survive the expiration or termination of this Agreement for any reason, together with those provisions which are expressly stated or by their nature are intended to survive the termination or expiration of this Agreement.
14. Dispute Resolution.
14.1 If a Dispute arises, each party must not commence any court proceedings relating to the Dispute unless it has complied with the provisions of this clause 14, except to seek urgent interlocutory relief.
14.2 A party claiming that a Dispute has arisen must notify the other in writing giving details of the Dispute (Dispute Notice).
14.3 If the Dispute is not resolved in accordance with clause 14.3 within 5 Business Days, either Party must give formal written notification of such Dispute (and the proposed designated representatives of both Parties (the Designees)) (Further Dispute Notice) to a representative of the other Party. If the other Party wishes to change its Designee, it must do so within 3 Business Days of receiving the Further Dispute Notice. The Designees shall communicate with each other promptly with a view to resolving the Dispute within thirty (30) calendar days of receipt of the Further Dispute Notice (or such extended period as the Designees agree is appropriate in any case). In the event that a Dispute is not resolved by the Designees within such time period, the Designees shall refer the Dispute for discussion and resolution to the Chief Executive Officer of each Party or any other appropriate senior officer of each Party, who shall meet and confer concerning a resolution for an additional thirty (30) calendar days from the end of such time period.
14.4 To the extent the procedures set out in clause 14.2 and 14.3 fail to resolve a Dispute, any such unresolved Dispute arising out of this Agreement will be finally settled and determined by arbitration administered by the American Arbitration Association (the “AAA“) under its then-current International Arbitration Rules (the “AAA Rules“). The written award of the arbitrators is final and binding upon the Parties, and judgment on or enforcement of the award may be sought, had or entered in any court having jurisdiction. Each Party is entitled to appoint one arbitrator, and after consultation with the Parties, the AAA shall appoint a third arbitrator. The seat of arbitration is Delaware, U.S.A. The arbitrators may hold hearings at such other locations, as the arbitrators shall determine, after consultation with the Parties. The arbitral proceedings and all pleadings and written evidence will be in the English language.
15.1 Force Majeure. No delay, failure or omission by a party to perform any of its obligations (excluding any payment obligations) under this Agreement, and no delay, failure or omission by Envase to provide Services in accordance with this Agreement:
(a) will be a breach of this Agreement; or
(b) will create any liability,
if such delay, failure or omission arises from or is due to any act, omission or circumstance over which the party could not reasonably have exercised control, including acts of God, fire, storm, lightning, flood, earthquake, acts of the public enemy, war, rebellion, insurrection, riot, invasion, strikes, lockouts, pandemics and states of emergency.
15.2 Waiver and Variation. The parties agree that:
(a) no right under this Agreement shall be deemed to be waived except by notice in writing signed by each party;
(b) a written waiver provided by one party pursuant to clause 15.2(a) will not prejudice its rights in respect of any subsequent breach of this Agreement by the other party;
(c) subject to clause 15.2(a), any failure by a party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by one party to the other party, will not be construed as a waiver of that party’s rights under this Agreement; and
(d) no modification or alteration of any clause of this Agreement will be valid except in writing and signed by each party.
15.4 Severance. If any provision of this Agreement is held wholly or partially invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force (and the validity and enforceability of this Agreement will not be affected) apart from that provision which shall be deemed deleted and severed to the extent that it is invalid, unenforceable, illegal or otherwise void.
15.5 Execution. This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. If the signatures on behalf of one party are on different counterparts, this will be taken to be, and have the same effect as, signatures on the same counterpart and on a single copy of this Agreement. Each party consents and agrees that the other party may elect to execute this Agreement electronically or by exchanging PDF signatures over email. If a party elects to execute this Agreement electronically or by email, the electronic signature or PDF signature page of that party will have the same effect as a written signature and will be a valid and binding signature for the purposes of this Agreement.
15.6 Governing law and jurisdiction. This Agreement, and the rights and obligations of the parties under this Agreement, will be governed by and construed according to the laws of Delaware, USA, without reference to any conflict of laws rules or principles. Any suit, action or proceeding by any party with respect to this Agreement shall be brought in a proper Delaware court and the parties hereby submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. The parties hereby irrevocably waive any objections which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in accordance with clause 14 and hereby further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
15.7 Notices. Notices under this Agreement may be delivered by email, hand or registered mail to:
If to Envase: firstname.lastname@example.org; and
If to the Customer: to the registered address, the email address specified on the Registration Form and/or Service Order, or to such email address as otherwise notified by the Customer to Envase.
Notice will be deemed given: (a) if by hand or registered mail, on delivery; (b) if by email, on email reply by the recipient acknowledging delivery or 30 minutes after the time sent (as recorded on the device from which the sender sent the email and provided the sender has not received an automated message that the email has not been delivered), whichever happens first. All communications under this Agreement must be in English.
15.8 U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Clause 2.101 and Clause 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
15.9 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department at email@example.com.
15.10 Assignment, Transfer of Obligations and Sub-Contracting.
(a) Envase may at any time assign its rights and/or transfer its obligations under this Agreement:
(i) to any of its Affiliates by notice to the Customer; or
(ii) to any other person with the prior written consent of the Customer.
(b) The Customer may at any time assign its rights under this Agreement to a third party, with the prior written consent of Envase.
(c) The parties must promptly do all further acts and execute and deliver all further documents reasonably required by a party to give effect to any assignment contemplated by clause 15.10.a or 15.10.b as applicable.
(d) No party may assign to any person except as permitted under this clause 15.
(e) Without limitation to clause 15.10(a), WTG may sub-contract the performance of any of its obligations under this Agreement, however WTG shall remain solely responsible for the performance of this Agreement in accordance with its terms.
15.11 Order of Precedence. In the event of a conflict or inconsistency between a term or provision of this Agreement, the Service Order or the Registration Form, the term or provision of the document named first in the list below will prevail to the extent of the conflict or inconsistency:
(a) This Agreement; and
(b) the Service Order.
15.12 Publicity. Each party shall be at liberty to disclose in any media release, written statement, website materials or other publicity that the other party is (or has been) a supplier or customer of the other, as the case may be. Each party hereby consents to such disclosure. Each party agrees not to use such disclosure in any way which will disparage or harm the good business standing or reputation of the other party
15.13 Authority. The Customer represents and warrants, and where applicable undertakes, to Envase that it has full capacity and power to enter into and comply with all terms and conditions of this Agreement and it has all approvals and authorizations that may be required to permit it to enter into this Agreement and to perform its obligations under this Agreement in accordance with its terms. The Customer agrees and acknowledges that this Agreement is a valid and binding obligation on it, and enforceable against it by Envase.
IF YOU REGISTER FOR A FREE VERSION OF THE SERVICE OR A FREE TRIAL OF THE SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES. IN THE EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN A TERM OR PROVISION OF THIS AGREEMENT AND THE FREE TRIAL TERMS APPLICABLE PURSUANT TO CLAUSE 4.1(c), THE FREE TRIAL TERMS WILL PREVAIL BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A REGISTRATION FORM AND/OR SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.