Terms & Conditions
Digital Presence Terms and Conditions
This Digital Presence Terms and Conditions (this “Agreement:” or the “Terms and Conditions”) provide the terms and conditions governing the use of the Service (as defined below) and the agreement that operates between You and EETech. These Terms and Conditions set forth the rights and obligations of all users regarding the use of the Service. Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. You (also referred to as the “Customer”) and EETech shall be referred to collectively as the “Parties”, and individually as a “Party.” The Parties hereto agree as follows:
At the direction of and in collaboration with Customer, EETech shall be responsible for providing the services to Customer as set forth in the Statement of Work (the “SOW”), and as may be set forth in written orders for additional or changed work, as may be entered into by the Parties (the “Services”). In the event there is a conflict between this Agreement and the SOW, the SOW shall prevail.
2. Billing and Payment
Fees are based on the Services purchased and or based on actual usage, as agreed to by both parties. Payments shall be due in advance and as per the schedule set forth in the applicable SOW or according to terms as set forth by the Parties in writing. Services will not start until the initial payment is received. Services may be terminated or suspended if payments are not received within the terms, after serving five (5) days’ notice via email pursuant to this Agreement. Payments are non-refundable.
3. Representations and Warranties General
a. Each Party represents and warrants that: (i) it has the right and authority to enter into this Agreement; and, (ii) that by entering into this Agreement, it will not violate, conflict with, or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a Party or by which it or any of its property is or may become subject or bound.
b. EETech does not warrant that any particular results will be achieved through the Services.
c. Except as otherwise provided for in this Agreement or the SOW, Customer shall not: (i) modify, adapt, reproduce, or create derivative works of the Services; (ii) sell, lease, distribute, rent, transfer or provide access to any of the Services to a third-party; (iii) use the Services for any competitive analysis or to build any products that will compete with EETech; (iv) incorporate any of the Services into a service Customer provides to a third-party, without EETech’s prior written consent; (v) interfere with or otherwise circumvent any incorporated mechanisms in the Services; or (vi) reverse engineer, decompile, decode, decrypt, disassemble, or in any way deprive source code related to the Services except to the extent expressly permitted by applicable law.
4. Compliance with the Laws
Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and to this Agreement, including copyright, privacy and communications decency laws.
5. Confidential Information
For the purposes of this Agreement, “Confidential Information” shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third-party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure / non-use obligations imposed by this Section 7. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations. In the event of any inconsistency between any separately executed non-disclosure agreement between the Parties, the confidentiality provisions of this Agreement shall control.
7. Terms of Agreement
Each of the Parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
8. Injunctive Relief
In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
9. Customer Data
All data is owned by the Customer and is to be strictly held as confidential. EETech will delete and destroy all copies of data once the Agreement is terminated with or without default.
Customer data is to be held strictly confidential notwithstanding the confidentiality period set forth in Section 7. In other words, Customer data should continue to be treated as confidential beyond the three year period set forth in Section 7.
Customer understands that it has a duty to ensure the content data utilized and obtained from the Services is in compliance with all applicable rules and regulations to include without limitation
the General Data Protection Regulation, the California Consumer Privacy act, and the Americans
with Disabilities Act. Customer will unconditionally indemnify, hold harmless, and defend EETech,
its affiliates, and their officers, directors, employees, contractors and agents (each a “EETech
Indemnified Party”) against any claims, liabilities and expenses (including court costs and
reasonable attorneys’ fees) that a EETech Indemnified Party incurs as a result of or in connection
with: a) any third-party claims arising from: (i) Customer’s data, including without limitation
Customer’s failure to follow applicable laws or obtain all necessary consents related to Customer’s data;
(ii) Customer’s use of the Product in a manner not expressly permitted by this Agreement [or the
SOW]; (iii) EETech’s compliance with any technology, designs, instructions or
requirements provided by Customer’s or a third party on Customer’s behalf; (iv) any claims, costs,
damages and liabilities whatsoever asserted by any Customer representative; or (v) any violation by
Customer of applicable laws or regulations; and (b) any reasonable costs and attorneys’ fees required
for EETech to respond to a subpoena, court order or other official government inquiry regarding
Customer data or Customer’s use of the Product.
This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
Customer shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination.
Any notices required under this Agreement shall be delivered according to the information as set forth below:
|If to EETech:
850 W. Main St.
Boise, ID 83702
Email: [email protected]
|If to Customer:
As noted on SOW or Order Form
12. General Provisions & Force Majeure
(a) This Agreement, including any amendments and attachments hereto that are referenced herein, constitute the entire agreement between the Parties. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of both Parties. No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon EETech or effective for any purpose, unless accepted by EETech in writing. It is further expressly understood and agreed that there being no expectations to the contrary between the Parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, EETech’s industry or between the Parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.
(b) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the Parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
(c) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer or EETech without the prior written consent of the other Party. Any attempted assignment, subletting or transfer other than in accordance with the preceding shall be void.
(d) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(e) No delay or failure of EETech or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by EETech or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
(f) In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”), the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately to terminate this Agreement as provided in Section 11.
(g) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument.
(h) This Agreement shall be interpreted, construed, enforced, and governed by and under the laws of the State of Idaho, USA, without regard to any principles of conflict of law.
(i) For any dispute, claim or controversy between the Parties arising out of or in connection with this Agreement or an applicable SOW, the Parties shall first attempt in good faith to resolve such dispute or claim through negotiation. If the dispute, claim or controversy cannot be amicably resolved within thirty (30) days from the date on which either Party serves written notice on the other Party of such a dispute, claim or controversy, the Parties shall resolve such dispute, claim or controversy through arbitration. Arbitration shall be administered through the American Arbitration Association (the “AAA”) in accordance with the then-prevailing rules of the AAA’s Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered into any jurisdiction thereof. The arbitration shall take place in a venue to be selected by EETech. There shall be one (1) arbitrator. The arbitrator shall be chosen by mutual agreement of the Parties from a panel of arbitrator provided by the AAA. If the Parties are unable to reach a mutual agreement on a single arbitrator, the AAA shall be empowered to make such a selection pursuant to the AAA’s procedures. Each Party shall bear and be responsible for one-half (1/2) of the cost of arbitration, with such cost to then be repaid to the prevailing Party. If one Party fails or refuses to participate in the arbitration, the other Party may seek an order from a competent court of jurisdiction to compel arbitration or seek specific performance of this provision, which event the Party who failed or refused to participate in the arbitration shall bear the costs and attorneys’ fees incurred by the other Party to enforce this provision. If no such court exists that may compel arbitration in the chosen venue, the Parties agree that a motion to compel or action to enforce specific performance of this provision may be brought in any court of competent jurisdiction located in the state of Idaho. Any and all orders issued by the arbitrator may be enforced in any court of competent jurisdiction of the prevailing Party.
(j) The headings and captions contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
(k) This Agreement sets forth the terms and conditions for all users of the Services. EETech reserves the right to change these Terms and Conditions from time to time without prior notice.