Terms & Conditions

Definitions

Agreement means the terms of any Order, these Terms and Conditions and any Special Terms and Conditions (as defined below).  

Client means the recipient of Product or Services (or both) pursuant to an Order.

Product means any hardware, software and printed materials, provided by Eplexity or its contractors to Client.

Order means the written order which describes the Product or Services (or both) to be provided to the Client including, without limitation, a paper or web-based Order or any form completed on behalf of the Client in the course of any telephone order.

Services mean the service or those services to be provided to the Client as described in the Order.

Start Date means the date that Services or Product is supplied to the Client in accordance with the Order.  

Term means the period of time from the acceptance of the Order until the duration of the Service specified in the Order expires or terminates.  

Terms and Conditions means the following terms and conditions.

 

Applicability

Applicability of these Terms and Conditions are as follows:

    1. These Terms and Conditions apply to all Product and Services supplied to the Client under any Order.
    2. Additional terms and conditions described in the Order may also apply (“Special Terms and Conditions”).
    3. To the extent of any inconsistency, the precedence as to interpretation shall be the Order, Special Terms and Conditions, if any, and then these Terms and Conditions.

Delivery

Eplexity shall use reasonable efforts to deliver the Product and Services to Client when as specified in the Order.  Delivery of CXOS software and any other software hosted by Eplexity or by its contractors (collectively “Cloud Based Software”) occurs when first made available to Client.  All Products will be shipped FOB Origin.

Software License

To the extent that Cloud Based Software is included with the Product or acquired by separate Order by Client, Eplexity grants to Client a non-exclusive, non-transferable license to use the software and any software documentation only within the United States and Canada. Client shall have the right to use the software object code but not source code in the normal course of Client’s business and as permitted by the Acceptable Use Policy described below.  This client license shall continue for three (3) years from the delivery of the Cloud Based Software, and thereafter may be extended by agreement of the parties, which may include additional access fees.

Period of Services

  1. These Terms and Conditions shall be effective upon the date of the Order.
  2. An Order may indicate an anticipated start date.  A start date indicates when commencement of the Service process begins and Services shall be available within a commercially reasonable time on or after the indicated start date.
  3. Services shall continue for the initial Term stipulated on any Order, unless terminated earlier pursuant to this Agreement.  If no Term is indicated in the Order, the Term for Services is 12 months.  A Term shall automatically renew for additional successive 12 month Terms until credit balance will be applied to subsequent fees or refunded if the Agreement has terminated.  notice of nonrenewal is given at least 90 days prior to the expiration of the current Term.

Acceptable Use Policy

  1. Client shall comply with the Acceptable Use Policy attached as Schedule 2.
  2. The Acceptable Use Policy may be revised from time to time during the Term.  Client shall have notice not less than 14 days prior to any change to the Acceptable Use Policy and may cancel Service prior to change.  No change to the Acceptable Use Policy shall be made which is unreasonable or which undermines the purpose of this Agreement.

Passwords

  1. The Client shall be issued one or more username and password combinations (“Credentials”) for use in connection with the Services. Credentials shall be personal to the Client and the Client shall not permit any unauthorized use.
  2. All use of Credentials are presumed to be by the Client or authorized by the Client. The Client assumes all liability for any unauthorized use of the Credentials.
  3. Services may be unavailable if the Client fails to provide the correct Credentials.
  4. The Client must disclose immediately any unauthorized use or other compromise of Credentials; upon disclosure new Credentials shall be issued to replace the compromised Credentials.

Fees

  1. Fees for each Service shall be described in the Order.
  2. “Set up costs” may be invoiced immediately after acceptance of an Order.
  3. Any fees shown as recurring shall be invoiced in advance at the frequency shown in the Order.
  4. Fees do not include any applicable taxes.  Taxes will be charged when applicable.
  5. These fee terms may be modified by the terms of an Order.

Changes to Fees

Fees may be changed upon expiration of the Term and effective upon the renewal of an additional Term or as otherwise provided in an Order. Notice of fee increase shall be given not less than 60 days in advance.

Payment

  1. The Client agrees to pay for Product at the time of the Order, and for all fees for Services upon receipt of an invoice, subject to the following provisions.
  2. The Client may dispute any invoiced fees within 7 days of the invoice date without payment of the disputed portion of the fee, and thereafter may dispute any invoiced fee but must pay the full amount due.  Any fee corrections will appear as an adjustment on the next invoice and any
  3. Advance payment may be required in some circumstances.
  4. A credit under an Order may not be applied to fees under another Order unless the Orders are combined through a later Order.  
  5. If the Client fails to pay any invoice within 30 days of the invoice date or such other payment date specified in the Order, the Client agrees to pay interest on the late payment calculated at 10% (ten per cent) per annum compounded daily until the full amount due is paid.

Indemnity

The Client agrees to indemnify and hold harmless the Service provider and the employees, managers and directors of the Service provider (collectively the “Indemnified Persons”) from and against all losses, costs, expenses, damages and liabilities suffered as a result of a claim or threat of claim against the Indemnified Persons (or any of them) that arises directly or indirectly from a breach of this Agreement by the Client.

Disclaimer

Other than any warranty or representation expressly made in an  Order, the Client acknowledges and agrees that the Client has not relied on any other warranty or representation.  The Client acknowledges and agrees that no implied warranty applies to the Services.

Intellectual Property Rights

  1. The Product, Services and Cloud Based Software are protected by copyright, trade secret and other proprietary rights of Eplexity and its suppliers.
  2. Cloud Based Software and is licensed, not sold, to Client. The Client acknowledges and agrees that Eplexity reserves all rights to the Product, Services and Cloud Based Software not expressly granted to Client.  Nothing in these Terms and Conditions shall be construed to grant the Client any intellectual property right or any other proprietary right.
  3. The Client acknowledges and agrees that the use of documentation applicable to the Product or Services does not create any ownership rights in or to the documentation.

Publicity

The Client agrees that the Client may be identified as using the Services in marketing materials and websites, and the client consents to the use of Client names, trademarks and logos in marketing materials. Client may withhold this consent and may withdraw consent upon 14 day advance notice.

Data Protection

The Client agrees that Client information may be used to obtain or verify credit information, to perform obligations under the Order and these Terms and Conditions; and as otherwise required under applicable law.

Warranty

For a period of 30 days (the “Hardware Warranty Period”) following delivery of the Product, Eplexity warrants Products against material defects in materials and workmanship when used normally in accordance with the documentation provided.  During the Hardware Warranty Period, Client shall promptly call Eplexity for diagnosis of the problem, and upon Eplexity’s determination that the Product is defective, Client shall return the defective Product as directed by Eplexity at Client’s expense.  Upon receipt of the defective Product, Eplexity shall ship a replacement.  For a period of 12 months following the delivery of the Cloud Based Software (the “Software Warranty Period”), Eplexity warrants the Cloud Based Software against defects in materials or manufacture. If Customer notifies Eplexity during the Software Warranty Period, Eplexity shall use reasonable efforts to correct material failures of the Cloud Based Software to function in accordance with applicable documentation. If Eplexity is unable to comply with the foregoing limited warranty, Client’s sole and exclusive remedy shall be to terminate the license,  return the Product and receive a refund of a pro rata portion of the Product cost (computed as the unexpired portion of the initial Term over in proportion to the initial Term).  Prior to termination of the Cloud Based Software license, Explexity shall have the right to correct such errors, which may include reasonable “work-around” solutions.  If the failure of the Product or Cloud Based software is not due to defects described above then the foregoing warranties shall be void and no replacement of Product or refund shall be made.   No warranty shall exist if any failure of the Product or Cloud Based Service is caused by: (i) Client’s failure to provide an acceptable operating environment; (ii) modification or change to the Product not made by Eplexity including opening the Product case; (iii) noncompliance with Product documentation; (iv) damage caused by user error, accident, misuse, spilled liquid, power surge, fire, earthquake or other external cause; or (v) any other non-warranted cause.  THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND ARE IN SUBSTITUTION FOR ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EPLEXITY RELATING TO PRODUCTS AND CLOUD BASED SOFTWARE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

Exclusions and Limitations of Liabilities

  1. Any claim by the Client of liability related to the Product, Cloud Based Software or Services provided shall be limited solely to direct loss or damages caused by gross negligence or wilful misconduct. Client shall not make any claim and shall not be allowed to recover for any claim for any special, incidental, indirect or consequential loss or damages, including, without limitation, any loss or damages arising from lost customers, lost orders, lost profits, or lost revenues.
  2. The Client agrees that the sole remedy for failure to maintain level of Service as provided in Schedule 1 shall be fee credits as provided in applicable Service level commitments.
  3. Unless through the intentional act of Eplexity, the Client agrees that no claim may be made for any loss of data and the Client is solely responsible for protection of Client data.
  4. Subject to the foregoing limitations, Client agrees that aggregate liability for any claim arising from directly or indirectly from the Agreement (inclusive of any personal injury claim) shall be limited to the lesser of (i) $5,000; (ii) the Product cost; or (iii) an amount equal to fees paid by the Client during the preceding 12 months.
  5. The Client agrees that no claim may be made more than 12 months after the event giving rise to the claim.

Confidentiality

  1. All information provided to the Client which is not generally known to the public shall be “Confidential Information” and shall be treated by the Client, and its employees and contractors as confidential.  Client agrees that Confidential Information shall not be used other than as provided in this Agreement, regardless of whether such Confidential Information may have been disclosed prior to this Agreement.
  2. Client agrees not to disclose Confidential Information other than to its employees and contractors using the Services who have a reasonable need to know such information and to its board members, professional advisers and auditors who have a reasonable need to know such information in order to advise the Company or otherwise carry out their duties.
  3. Confidential Information shall not include any information which becomes public knowledge other than by breach of this Agreement, has been obtained from a third party in lawful possession of the information without a disclosure restriction or has been independently developed without the use of Confidential Information.   
  4. In the event that the Client is compelled to divulge Confidential Information pursuant to court order or subpoena or other lawful demand, the Client shall immediately and prior to release of the information provide such demand document to the Service provider
  5. Upon termination of Services or upon request of the Service provider, the Client shall promptly return or destroy all Confidential Information and shall so certify compliance in writing.  For Confidential Information stored electronically, reasonable efforts to expunge the data shall be adequate.

Rights to Terminate

  1. Services may be terminated immediately if the Client fails to pay fees when due.
  2. In the event of any breach other than non-payment of fees, notice of such breach and an opportunity to cure shall be given; if the breach is not cured within 15 days of notice then this Agreement may be terminated without further liability.  
  3. Service may be terminated by the provider if the provider is no longer commercially able to continue the supply of such Service due to a change in the legal or regulatory environment. In such an event, reasonable assistance in migrating to an alternative supplier will be provided.
  4. The Client may terminate a Service in the event of a material change to these Terms and Conditions or upon an increase in fees for that Service that is in excess of 15% of the fees previously charged (excluding any discounts that may have been offered). The Client must exercise this right to terminate within 30 days of receiving the notice of such change to Terms and Conditions or fee increase.
  5. The Client may terminate a Service upon a Force Majeure (as defined below) interruption continuing for more than 15 days.

Effect of Termination

Upon termination of this Agreement, Services shall cease.  The Client remains liable for any unpaid fees.

Rights to Suspend

  1. Prior to terminating Service, the provider may elect to instead suspend Services to allow time to resolve pending issues.
  2. Fees continue to accrue and are payable during any suspension of Service.
  3. Suspended Service shall be reinstated upon resolution of issues giving rise to the suspension.  
  4. Failure to timely resolve issues will result in termination of suspended Service.  
  5. Suspension of Service shall not be considered a waiver of a right to terminate this Agreement or a Service.   

Force Majeure

In the event of riot, war or terrorist attack, acts of God, prolonged power outage or other event beyond the reasonable control of a Service provider (a “Force Majeure”), no liability shall arise for a breach of this Agreement resulting from such event.

Miscellaneous

  1. If any part of these Terms and Conditions is unenforceable then such provision shall be stricken but shall not affect the enforcement of the remainder of this Agreement.
  2. These Terms and Conditions replace any prior terms and conditions.  
  3. A party signing on behalf of a Client represents that he or she has full authority to act for the Client.  
  4. The Agreement may only be modified in writing.
  5. Client may not assign this Agreement.
  6. Notice shall be in writing and effective upon delivery if sent by overnight courier, electronic mail (e-mail) or telephone facsimile (fax), and effective 2 days following posting if sent by United States Mail.  
  7. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for any dispute shall be Arapahoe County, Colorado.

Schedule 1: Service Level Agreement

INTRODUCTION

This Service Level Agreement (SLA) forms part of the Terms and Conditions

SERVICE LEVEL PROVISIONS

Service Level Targets

All reasonable efforts shall be made to ensure that Service is available for 100% of each calendar month. The Service will be deemed unavailable if it cannot be reached from a functioning Internet connection.  Any instances of unavailability are subject to verification by provider monitoring system.

Service shall not be deemed unavailable (without limitation) in the event of any of the following:

  1. Periods of scheduled maintenance of which the Client has been notified.
  2. Failure of the Client connection; or
  3. Malfunction of Client’s own computing systems;

Service Level Credits

If Service level targets are not achieved, and if the Client requests credit within twenty (20) business days after the target is not met, the Client will be issued service credits against future periods of service as detailed in the adjacent table.

The MRC (monthly recurring charges) used to calculate the Service credits will be the total monthly recurring charges (MRCs) relating to the affected Service.

Service credits lapse upon termination of the Service for which the credit is issued and are not applicable against other Service.

Performance against Service level targets will be reviewed and agreed on a quarterly basis by account management.

Server Availability

Total Downtime
in a 30 days
calendar month

MRC

Credit Percentage

99.9 to 100%

0 to 43.2 minutes

5%

98% to 99.8%

43.2 mins to
14 hrs 24 mins

10%

95% to 97.9%

14 hrs 24 mins
to 36 hrs

25%

90% to 94.9%

36 hrs to 72 hrs

50%

89.9% or below

more than 72 hrs

100%

MRC is the Monthly Recurring Charge for the service, as detailed on the Order.  The maximum Service Credit available in any calendar month is 100% of the MRC.

SUPPORT

All service requests are to be sent via email to support@eplexity.com, or by telephone at 1 (888) 501-5979.

FORCE MAJEURE

If Eplexity is prevented from carrying out any of its service level undertakings as a result of a Force Majeure event then performance of these service level undertakings is waived  until Service is restored.

Schedule 2: Acceptable Use Policy

General

The use of a Service is subject to the following terms, breach of which may result in suspension or termination of the right to use the Service.

The Service may only be used for lawful purposes. Transmission of any material through the network providing the Service, or use of any part of it, in violation of any US law or regulation is prohibited. Such prohibited transmission might include, but is not limited to: copyright material, material legally judged to be threatening or obscene, material protected by trade secret, whether or not the end user was aware of the content of the material or of the relevant law, the sending of unsolicited electronic mail.

The Client shall not knowingly use the Service for transmission of computer viruses, for transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character, or which may cause annoyance, inconvenience or needless anxiety, or for the posting of any such material to bulletin boards or newsgroups in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to intellectual property rights).

The Client acknowledges that the Service provider is unable to exercise control over the content of any information passing over the network and does not monitor or exercise any editorial control over the information passing over the network. The Client further acknowledges that the Service provider has no liability in respect of any transmission or reception of information of whatever kind, or the accuracy of the contents thereof, or the scrambling of any information or data.

 

Network and System Security

The Client is prohibited from violating, or attempting to violate system or network security. Any violations may result in criminal or civil liability to the Client. Any alleged violations will be investigated and the provider will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of system or network violations include, but are not limited to:

    1. Unauthorized monitoring or access to or use of data, networks or systems, including any attempt to probe, scan or test the vulnerability of a network and or system or to breach security or authentication measures without proper authorization; and
    2. interference with, or disrupting or disabling service to any user, host or network via means including, but not limited to, "overloading", "flooding", "mail-bombing", "denial of service attacks" or "crashing"; and
    3. sending, storage, or distribution of viruses, worms, Trojans, or other malware component harmful to a network or system; and
    4. forging any TCP/IP packet header or any part of an email header or newsgroup posting; and
    5. attempts to circumvent or alter any method of measuring or billing for the Service.


Email

The sending of unsolicited electronic mail messages using the Service is explicitly prohibited. Emails may be considered unsolicited unless all recipients have explicitly opted in to receive such emails from the sender or are expecting to receive email from the sender.

All emails sent using the Service must include a valid "Reply to:" address under the control of the Client. Email message headers must not be missing, malformed or forged. Recipients must be able to request not to receive further email correspondence from the Client and in such instances the Client should honor the request in a timely manner and should no longer send email communications to the recipient.

Posting the same or similar message to more than one newsgroup, known as cross-posting, is prohibited.

The Client must not promote content via the use of unsolicited electronic mail messages.

The network may be used by the Client to access other networks world-wide and the Client agrees to conform to any acceptable use policies any other such networks. In addition the Client undertakes to conform to any published Internet protocols and standards. In the event that communications by the Client do not conform to these standards, or if the Client makes profligate use of the network to the detriment of the provider or other provider clients, the right is reserved to restrict passage of the Client communications until the Client complies with such standards or protocols or provides undertakings acceptable in respect of the Client’s future use.

In the event that the Client is in breach of any provision of this schedule, Services may be immediately suspended without notice.

Have Questions?

Feel free to drop us a line at legal@eplexity.com!