ELIVE CONNECT SOLUTION AGREEMENT
Important, please read carefully. This is the eLive Connect Solution Agreement (“Agreement“). E-Technology Services (“eTech Services”) is willing to give rights to use and access the eLive Connect Solution to the legal entity that you represent (“Customer“) only upon the condition that Customer accepts all of the terms contained in this Agreement and any other documents, terms, and conditions included with or referred to in this Agreement. eTech Services and Customer are each referred to as a “Party” and collectively as the “Parties.” By accepting this Agreement, Customer is consenting to be bound by all the terms of the Agreement. You represent and warrant that you have authority to purchase on behalf of Customer. This Agreement shall be effective on the date that the Customer pays for or uses the eLive Connect Solution.
WHEREAS, eTech Services has developed and owns an online software platform, referred to as eLive Connect, which allows customers to have access to training videos, podcasts, webinars, interactive trainings, tailgate meetings, documents, links and other content and materials;
WHEREAS, Customer wishes to procure access to the eLive Connect Solution (as defined below) to allow its employees and/or clients to access the content and materials included therein, with the capability of branding the Customer-instance with Customer’s brand and providing access to its own content and materials on the eLive Connect Solution;
WHEREAS, Customer and eTech Services desire to enter into this Agreement for Customer to access and use the eLive Connect Solution, subject to the terms and conditions therein; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, eTech Services and Customer agree to as follows:
1. Definitions
Capitalized terms defined above or in the text of this Agreement shall have the meanings set forth herein. Other capitalized terms shall have the respective meaning set forth below:
“Affiliate” with respect to a Party means any business entity that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Party, including as an Affiliate any business entity now or in the future that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Party. For purposes of this definition, “Control” means with respect to an entity, direct or indirect ownership or beneficial ownership of more than twenty percent (20%) of the voting power, equity capital, or other equity securities of such entity. “Controlled by” and “Controlling” shall have correlative meanings.
“Content” means, collectively, the eLive Connect Content and the Third Party Content.
“Customer Content” means any text, images, audio, video, photographs, links, and other content and material, in any format, that Customer uploads to the eLive Connect Solution. For the avoidance of doubt, the Content, any services provided under this Agreement, eTech Services intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer Content.”
“Customer Users” means the end users authorized by Customer to access and use the eLive Connect Solution in accordance with this Agreement.
“eLive Connect Content” means any text, images, audio, video, photographs, and other content and material, in any format, that is owned by eLive Connect and that Customer or the Customer Users may access through the eLive Connect Solution.
“eLive Connect Solution” means the online software platform, referred to as eLive Connect, which allows users to have access to training videos, podcasts, webinars, interactive trainings, tailgate meetings, documents, links and other content and materials.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision.
“Professional Services” means customization and specialty services, if performed, and invoiced on an hourly basis.
“Third Party Content” means any text, images, audio, video, photographs, links, and other content and material, in any format, that is owned or provided by a third party and that Customer or the Customer Users may access through the eLive Connect Solution.
2. General
2.1 Right to Access and Use the eLive Connect Solution.
(a) Subject to the terms and conditions set forth herein, during the Term, eTech Services grants to Customer a non-exclusive right to access and use the eLive Connect Solution solely for Customer’s internal business purposes, unless otherwise terminated in accordance with this Agreement.
(b) To the extent Customer has paid for access by Customer Users, Customer may allow Customer Users to access the Content available on the eLive Connect Solution using a unique login ID and password for each of Customer Users. Customer is responsible for the Customer Users’ access and use of the eLive Connect Solution and their compliance with this Agreement. Customer and Customer Users are entirely responsible for maintaining the confidentiality of the login credentials of Customer Users. Customer shall not allow multiple individuals to share one common login credential.
2.2 Restrictions on Use.
Neither Customer nor Customer Users shall: (a) use any part of the eLive Connect Solution to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, rules or regulations of any governmental authority; (b) use any part of the eLive Connect Solution to send or store infringing, obscene, harassing, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights, or to send or store material that promotes bigotry, racism, hatred or harm; (c) send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within any part of the eLive Connect Solution or the Content; (d) interfere with or disrupt the integrity or performance of any part of the eLive Connect Solution or the Content or data contained therein; (e) attempt to gain unauthorized access to any part of the eLive Connect Solution or its related systems or networks; or (f) use any Third Party Services except solely in conjunction with any part of the eLive Connect Solution and in accordance with the applicable Third Party Terms.
2.3 Third Party Services.
If Customer accesses or uses certain third party software, products or services, or accompanying documentation, provided by third party providers in connection with the Agreement or otherwise accessible as part of the eLive Connect Solution (including the Third Party Content) (“Third Party Services“) is subject to and governed by the terms and conditions applicable to such Third Party Services, including any applicable acknowledgements, license terms and disclaimers contained therein (the “Third Party Terms“). In the event of a conflict between this Agreement and the Third Party Terms, the Third Party Terms will control with regard to Customer’s and any Customer Users’ use of the relevant Third Party Services.
2.4 Customer Customizations.
As part of Customer’s access to the eLive Connect Solution, Customer will have the ability to add Company’s Marks (as defined below) to the Customer’s specific instance of the eLive Connect Solution in the locations designated within the eLive Connect Solution and include Customer Content within the designated libraries.
2.5 Professional Services.
Any Professional Services shall be described in a statement of work separately executed by the Parties.
3. Term
Unless earlier terminated or extended as provided herein, the initial term of the Agreement shall be for twelve (12) months from the Effective Date (the “Initial Term“). Upon expiration of the Initial Term, the term of the Agreement shall automatically renew for additional periods of one (1) year each (each a “Renewal Period“), unless either Party provides the other Party with notice of its intent not to renew at least sixty (60) days prior to expiration of the Initial Term or the then-current Renewal Period (as applicable). The Initial Term and Renewal Periods shall collectively be referred to as the “Term.”
4. Fees
4.1 Implementation Fee.
Customer shall pay eTech Services a one-time implementation and set up fee.
4.2 Annual Fees and Incremental User Fees.
The fees for access to the eLive Connect Solution are based upon the number of Customer Users. Customer shall pay an annual fee for the right to allow access to the eLive Connect Solution for up to twenty-five (25) Customer Users (the “Annual Fee“). The Annual Fee shall include access to the eLive Connect Solution. Each additional Customer User will require an incremental Annual Fee in accordance with the then current price (each, an “Incremental User Fee“). Any services requested by Customer will be billed at eTech Services’ then prevailing time and material rates.
4.3 Changes in Fees.
eTech Services may change its Annual Fee, Incremental User Fee, and any other fees from time to time by posting the change in fees on the website. Pricing for Renewal Periods will be at the then-current pricing.
4.4 Cost of Third Party Services.
Customer’s use or access to certain Third Party Services may require Customer to pay an additional fee.
5. Intellectual Property Rights
5.1 Rights to eTech Services Property.
As between Customer and eTech Services, eTech Services shall exclusively own the eLive Connect Solution, the Content, all hardware, software, networks, data, know-how, ideas, techniques, process, and other information and materials used to develop, incorporated into, or used in provision of the eLive Connect Solution or the Content, including all modifications, enhancements, and derivations thereof (collectively, the “eTech Services Property“) and all copyrights, patents, trademarks, trade secrets, intellectual property and other proprietary rights in, to or under the eLive Connect Property. Customer shall not, and shall not permit Customer Users or other third parties to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, timeshare, provide on a service bureau basis or otherwise commercially exploit or make available or allow any third party to access the eLive Connect Solution or the Content in any way; (ii) modify or make derivative works based on the eLive Connect Solution or the Content; (iii) create Internet “links” to the eLive Connect Solution or the Content or “frame” or “mirror” the eLive Connect Solution or the Content; (iv) decipher, decompile or reverse engineer the eLive Connect Solution or the Content or otherwise access or attempt to access the eLive Connect Solution or the Content in any manner not expressly permitted herein, including accessing the eLive Connect Solution or the Content in order to (1) build a competitive product or service, (2) build a product using ideas, features, functions or graphics similar to those on any part of the eLive Connect Solution or the Content, or (3) view any code or algorithm or copy any ideas, features, functions or graphics of any part of the eLive Connect Solution or the Content; or (v) disclose any of the confidential aspects of the eLive Connect Solution or the Content.
5.2 Customer Content.
As between Customer and eTech Services, Customer shall retain ownership and rights over any Customer Content. Customer hereby grants to eTech Services, its Affiliates and their third party suppliers and providers the right to host, use, process, display and transmit Customer Content to provide the eLive Connect Solution pursuant to and in accordance with this Agreement. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Customer Content, and for obtaining all rights, licenses, consents, authorizations and approvals related to Customer Content required by eTech Services to provide the eLive Connect Solution. Upon or within a reasonable time period after expiration or termination, eTech will delete all Customer Content. eTech Services will not offer access to the Customer Content to any other customers without Customer’s prior consent. Customer represents and warrants the following: (a) Customer shall comply with all applicable Laws, including any privacy and data security laws, in the performance of its obligations under the Agreement and its receipt and use of the eLive Connect Solution; and (b) Customer has all necessary rights, licenses, approvals, consents, and authorizations to provide the Customer Content and materials for use with the eLive Connect Solution.
5.3 Rights to Aggregate Data.
Notwithstanding anything to the contrary contained in Section 5.2, eTech Services, its Affiliates and their third party suppliers and providers shall have a perpetual, irrevocable right to use, copy, store, modify, or otherwise exploit in any manner any aggregated data or information derived from the access to or use of the eLive Connect Solution or the Content by Customer or the Customer Users; provided, that such data and information shall not be specifically identifiable to Customer or Customer’s users.
5.4 Customer’s Marks.
Customer hereby grants to eTech Services a limited, non-exclusive, non-transferable license to use, reproduce, publish, display, distribute and transmit Customer’s trade names, trademarks, service marks, logos, marks, indicia and other business identifiers (“Marks“), using the Marks as authorized pursuant to Section 11.13, or as otherwise necessary to provide the eLive Connect Solution and display the Customer Content as contemplated hereunder.
5.5 Ownership of Feedback.
eTech Services shall exclusively own any suggestions for improvements or changes, ideas, feedback, error identifications, or other information related to the eLive Connect Solution or the use thereof provided, whether orally or in writing, by Customer or the Customer Users.
6. Confidentiality
6.1 Confidentiality Obligations.
Neither Party shall use or disclose Confidential Information of, or obtained from, the other Party (in any form) to or for the benefit of any individual, partnership, corporation, company, or other legal entity or legal personal representative (“Person“) without the disclosing Party’s prior written consent. For purposes of the Agreement “Confidential Information” shall include all non-public or proprietary information which at the time of disclosure either (i) is marked as “Confidential” or “Proprietary”, or (ii) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing Party; but shall not include information that is (a) in the public domain through no fault of the receiving Party; (b) obtained independently from a third party without an obligation of confidentiality to the disclosing Party and without breach of the Agreement; or (c) independently developed by the receiving Party without reference to the Confidential Information of the disclosing Party. For the avoidance of doubt, at all times, the eLive Connect Solution shall be deemed to be Confidential Information of eTech Services.
6.2 Survival.
For Confidential Information that does not constitute “trade secrets” under applicable Law, these confidentiality obligations will expire three (3) years after the termination or expiration of the Agreement. For Confidential Information that constitutes a “trade secret” under applicable Law, including the eLive Connect Solution and the Content, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable Law.
6.3 Permitted Disclosure.
Notwithstanding Section 6.1, Customer and eTech Services shall be permitted to disclose relevant aspects of the other’s Confidential Information to its employees, contractors, and agents, to the extent such disclosure is not restricted under any Laws or the Agreement and only to the extent that such disclosure is reasonably necessary for the performance of the Party’s duties and obligations (or the determination, preservation or exercise of its rights and remedies) under the Agreement; provided, that for each such disclosure the disclosing Party shall cause the Confidential Information to be protected, held in confidence and only used by any such recipient for the purposes permitted under the Agreement.
6.4 Compelled Disclosure.
Notwithstanding Section 6.1, this Agreement shall not restrict any disclosure of Confidential Information pursuant to any Law; provided, that the receiving Party (to the extent it is legally permitted) shall give prior notice to the disclosing Party so that the disclosing Party may seek an appropriate protective order or other remedy or waive the provisions of the Agreement, and the receiving Party shall cooperate with the disclosing Party to obtain such protective order.
6.5 Remedies.
The Parties agree that a breach by one Party of these obligations of confidentiality will result in the substantial likelihood of irreparable harm and injury to the other Party for which monetary damages alone would be an inadequate remedy, and which damages are difficult to measure accurately. Accordingly, without limiting any other rights or remedies, the Parties agree that the non-breaching Party shall have the right, in addition to any other remedies available, to obtain immediate injunctive relief as well as other equitable relief allowed by the federal and state courts.
7. Suspension and Termination
7.1 Suspension.
eTech Services reserves the right, in its sole discretion, to suspend Customer’s or any of Customer User’s access to or use the eLive Connect Solution (including the Content), or any portion thereof, with or without prior notice: (a) in response to any violation or suspected violation of the terms and conditions contained herein (including Section 2.2); (b) in response to any violation or suspected violation of the applicable Third Party Terms by Customer or any Customer Users; or (c) if eTech Services believes that there is a significant threat to the functionality, security, integrity, or availability of the eLive Connect Solution or any Content.
7.2 Termination for Cause.
Either Party may terminate the Agreement immediately upon written notice to the other Party if such other Party commits a material breach of the Agreement and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice thereof.
7.3 Effect of Expiration or Termination.
Following any termination or expiration of the Agreement for any reason:
(a) Customer and Customer Users shall cease all access to and use of the eLive Connect Solution provided under the Agreement immediately upon the expiration or any termination of the Agreement and all Customer Marks will be removed;
(b) Customer will immediately destroy (and will ensure that the Customer Users destroy) all copies, in any form or media, of the Content within their possession, custody or control; and
(c) Customer shall be responsible for the payment of all fees, costs and expenses with respect to Customer’s access to and use of the eLive Connect Solution performed through the effective date of termination.
8. Disclaimers
8.1
ETECH SERVICES DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY SPECIFICALLY DISCLAIMS ANY SUCH REPRESENTATIONS AND WARRANTIES, OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE ELIVE CONNECT SOLUTION, THE ELIVE CONNECT CONTENT, OR ANY SERVICES TO BE PROVIDED UNDER THE AGREEMENT WILL BE ERROR-FREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, ETECH SERVICES HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES (I) AS TO THE ACCURACY, TIMELINESS, QUALITY, TRUTH, AVAILABILITY OR SUITABILITY OF ANY CONTENT PROVIDED TO CUSTOMER OR CUSTOMER’S USERS VIA THE SOLUTION, (II) THAT ANY CONTENT PROVIDED BY ETECH SERVICES VIA THE SOLUTION WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR CUSTOMER’S USERS, OR (III) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER OR CUSTOMER’S USERS VIA THE ELIVE CONNECT SOLUTION WILL MEET THEIR EXPECTATIONS OR REQUIREMENTS.
8.2
ETECH SERVICES IS NOT THE LICENSOR OR PROVIDER OF ANY OF THE THIRD PARTY CONTENT OR THIRD PARTY SERVICES MADE AVAILABLE TO CUSTOMER HEREUNDER AND OFFERS NO WARRANTIES ON ANY THIRD PARTY CONTENT OR THIRD PARTY SERVICES. ALL THIRD PARTY CONTENT AND THIRD PARTY SERVICES, AND ALL SUPPORT MATERIALS AND OTHER DATA, SOFTWARE OR OTHER ITEMS MADE AVAILABLE BY A PROVIDER OF THIRD PARTY CONTENT OR THIRD PARTY SERVICES, ARE PROVIDED “AS IS” AND “WHERE IS.”
8.3
IN MAKING THE ELIVE CONNECT SOLUTION AND/OR ANY CONTENT AVAILABLE TO CUSTOMER OR ANY OF CUSTOMER’S USERS, ETECH SERVICES MAKES NO REPRESENTATION OR WARRANTY REGARDING THE APPROPRIATENESS OF THE SOLUTION OR ITS CONTENT WITH RESPECT TO ANY PERSON OR FOR ANY PURPOSE, INCLUDING THE APPROPRIATENESS OF CUSTOMER OR CUSTOMER’S USERS USING OR RELYING ON THE ELIVE CONNECT SOLUTION OR THE CONTENT.
9. Limitation of Liability
9.1 Damages Cap.
eTech Services’ and its Affiliates’ total aggregate liability to Customer or any other person or entity for any and all claims and damages arising from or out of the Agreement (whether in contract, tort, negligence, strict liability, breach of warranty, or otherwise) shall in no event exceed the fees actually paid by customer to eTech Services during the six (6) months immediately preceding the day the first act or omission occurred that gave rise to Customer’s claim.
9.2 Consequential Damages.
eTech Services shall not be liable to Customer or any other party, whether in contract, tort, negligence, strict liability, breach of warranty, or otherwise for any indirect, incidental, special or consequential damages arising out of or relating to its performance or failure to perform under the Agreement, including loss of revenue, business profits, interest or anticipated savings, loss of goodwill or reputation, loss of or damage to records or data, penalties or third party claims for loss or damage or other compensation arising from any act or omission of eTech Services or its Affiliates, officers, agents, and employees, even if it has been advised of the possibility of such losses or damages.
9.3 Third Party Services.
With respect to any Third Party Services, Customer agrees that: (i) the provision of the Third Party Services is subject to availability from third party providers and eTech Services shall have no liability should such services become unavailable for any reason or are no longer available under reasonable commercial terms; (ii) Customer’s access and Customer Users’ access to and use of any Third Party Services shall be subject to, and Customer shall and shall ensure that Customer Users comply with, the applicable third party terms; (iii) eTech Services makes no warranty with respect to any Third Party Services; and (iv) Customer’s sole remedy with respect to such Third Party Services shall be pursuant to the third party provider’s warranty, if any, to eTech Services, to the extent permitted by the third party provider.
9.4 Time Limitation for Claims.
No action, regardless of the form thereof, arising out of this Agreement (including the access or use of the eLive Connect Solution), may be brought by Customer more than one (1) year after the cause of action has accrued.
10. Intellectual Property Infringement
10.1 eTech Services IP Claims.
(a) eTech Services shall defend or settle, at eTech Services’ option and expense, any third party claim brought against Customer alleging that the eLive Connect Solution infringes the third party’s United States patent or registered copyrights or registered trademark (“eTech Services IP Claim“) and will pay any damages finally awarded by a court or those amounts agreed to in a monetary settlement of such action; provided, that: (i) Customer immediately advises eTech Services of the claim upon learning of the assertion of the claim; and (ii) eTech Services is given the sole right to control the defense and/or settlement of the claim, in litigation or otherwise.
(b) eTech Services shall have no obligation to indemnify or defend Customer for any third party claim pursuant to this Section 10.1, nor be required to pay losses, damages or expenses under this Section 10.1, if Customer agrees to settle any such claim without the prior written consent of eTech Services or to the extent any eTech Services IP Claim results from: (i) Customer having modified the eLive Connect Solution or the Content; (ii) Customer Content; (iii) Third Party Content or Third Party Services; (iv) the combination, operation or use of the eLive Connect Solution with software or data not provided by eTech Services; (v) eTech Services’ adherence to Customer’s written specifications or requirements; or (vi) use of the eLive Connect Solution in violation of this Agreement.
(c) In the event eTech Services becomes aware of an eTech Services IP Claim, or in the event eTech Services believes such an eTech Services IP Claim is likely, eTech Services may, in its sole discretion, either (i) appropriately modify the eLive Connect Solution or substitute a non-infringing version of the infringing component of the eLive Connect Solution, but, where reasonably possible, maintaining substantially similar functionality of the eLive Connect Solution, or (ii) obtain a license to allow for continued use of the eLive Connect Solution. If, after exercising commercially reasonable efforts, eTech Services is unable to provide either of the remedies stated in subsections (i) and (ii), then eTech Services may require Customer to immediately cease using the infringing portion of the eLive Connect Solution and refund any unused, prepaid fees Customer may have paid for such portion of the eLive Connect Solution. The obligations set forth in this Section 10.1 shall constitute eTech Services’ entire liability and Customer’s sole remedy for any actual or alleged infringement of proprietary and intellectual property rights.
10.2 Customer’s Indemnities.
Customer shall indemnify, defend and hold harmless eTech Services, its Affiliates, and their respective officers, directors and employees from and against any claims, losses, liabilities, proceedings, damages and expenses (including fees for attorneys and other professional advisors) arising out of or in connection with any claim or allegation that the Customer Content infringes or misappropriates any intellectual property or propriety right of any person or entity.
11. Miscellaneous
11.1 Governing Law/Jurisdiction.
This Agreement will be deemed to take place in the State of Massachusetts and will be governed by and construed in accordance with the laws of Massachusetts, excluding its conflicts of law principles. Any disputes arising from this Agreement will be adjudicated in the courts located in Essex County, Massachusetts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
11.2 Audit.
Promptly following the written request of eTech Services, eTech Services may audit Customer’s compliance with the terms of this Agreement and usage of the eLive Connect Solution, and Customer hereby agrees to provide all reasonable assistance and access to information in order to allow eTech Services to conduct such audit. Any eTech Services audit shall not unreasonably interfere with Customer’s normal business operations.
11.3 Independent Contractor.
Nothing in the Agreement is intended to create anything other than an independent contractor relationship between the Parties. No partnership, franchise, joint venture, employment or any other form of agency relationship exists or is implied between Customer and eTech Services. Neither Party may bind or commit the other to any obligation, or incur any charge or expense for, or in the name of, the other without the other Party’s prior written consent. No officer, director, employee, Affiliate or agent of either Party shall be deemed to be an employee or agent of the other Party.
11.4 Assignment.
Customer may not assign, delegate or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of eTech Services and any attempted assignment in contravention of this provision will be null and void and of no force or effect. eTech Services may assign, delegate or otherwise transfer all or a portion of its rights and obligations under the Agreement, without Customer’s consent, (a) to an Affiliate of eTech Services or (b) to any of the following: (i) a purchaser of all or substantially all of the eTech Services’ voting stock or assets; (ii) an entity with which eTech Services consolidates or merges; or (iii) any entity that acquires all or substantially all of the eLive Connect Solution.
11.5 Contact Information.
Please direct any questions, complaints or claims related to this Agreement or Customer’s use of the eLive Connect Solution to the following: info@etechnologyservices.com
11.6 Third Party Beneficiaries.
This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein express or implied will give or be construed to give to any other person or entity any legal or equitable rights hereunder.
11.7 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable with respect to a Party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable will not be affected and each remaining provision of this Agreement will be valid and enforceable to the fullest extent permitted by law.
11.8 Waiver.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement will not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor will the waiver of a breach constitute waiver of any subsequent breach.
11.9 Export Control.
Customer may not use or otherwise export or re-export the eLive Connect Solution except as authorized by United States law and the laws of the jurisdiction(s) in which the eLive Connect Solution was obtained. Customer represents and warrants that Customer is not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist sponsoring” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Customer also agrees that Customer will not use the eLive Connect Solution for any purposes prohibited by United States law.
11.10 Modification or Amendment.
eTech Services may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on eliveconnect.com or any successor website. The modification or amendment will be effective thirty (30) days after the posting of the copy. Customer will be deemed to have agreed to any such modification or amendment by Customer’s decision to continue using the eLive Connect Solution following the date in which the modified or amended Agreement becomes effective.
11.11 Survival.
The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement will survive such termination: Sections 2 (General); 5 (Intellectual Property Rights); 6 (Confidentiality); 7 (Suspension and Termination); 8 (Disclaimers); 9 (Limitation of Liability); 10 (Intellectual Property Infringement); and 11 (Miscellaneous).
11.12 Counterparts.
Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single Agreement between the Parties.
11.13 Public Relations and Media.
eTech Services may from time to time issue one or more press releases and/or engage in media activities announcing the eLive Connect Solution and the Parties’ execution of the Agreement. Customer acknowledges and agrees that eTech Services may disclose Customer as a user of the eLive Connect Solution to potential users, and may otherwise disclose Customer’s execution of the Agreement and its use of, and access to, the eLive Connect Solution.
11.14 Force Majeure.
Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated Party (a “Force Majeure Event“). Each Party shall use commercially reasonable efforts to mitigate the effect of a Force Majeure Event. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to make payments under the Agreement.
11.15 Construction.
The headings contained in the Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of the Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”
11.16 Entire Agreement.
This Agreement including the documents incorporated or referenced herein represents the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings regarding such subject matter.