ESKUAD SUBSCRIPTION AGREEMENT

WEBSITE TERMS OF USE

LAST REVISED ON: JULY 22, 2024

TOGETHER WITH YOUR SIGNED QUOTE FORM, THIS SUBSCRIPTION AGREEMENT (THE "AGREEMENT") FORMS A BINDING LEGAL AGREEMENT BETWEEN ESKUAD INC. ("ESKUAD") AND YOU FOR A SUBSCRIPTION TO THE ESKUAD SERVICE ("ESKUAD SERVICE"), PLUS ANY PRO SERVICE PACKAGE, DEPLOYMENT OR SET-UP PACKAGE OR OTHER PROFESSIONAL SERVICES SPECIFIED ON YOUR QUOTE FORM (COLLECTIVELY, THE "PROFESSIONAL SERVICES"). IN ORDER TO USE THE ESKUAD SERVICE AND OBTAIN THE PROFESSIONAL SERVICES, YOU WILL NEED TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE AGREEING TO BE BOUND BY IT.

IN THIS AGREEMENT, "YOU" OR "YOUR" MEANS THE INDIVIDUAL WHO ACCEPTS 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 LEGAL ENTITY TO THIS AGREEMENT. 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 YOU MAY NOT USE THE ESKUAD SERVICE OR RECEIVE THE PROFESSIONAL SERVICES. THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND ESKUAD AS OF THE DATE YOU ACCEPT IT OR USE THE ESKUAD SERVICE (THE "EFFECTIVE DATE").

1. General

This Agreement sets forth the terms and conditions pursuant to which You may use the Eskuad Service, as it may be corrected, updated, modified, enhanced or replaced by Eskuad from time to time. You shall only permit Your employees and contractors to access the Eskuad Service through Your account and You shall ensure that the number of employees and contractors (collectively, the "subscribers") permitted to access the Eskuad Service through Your account does not exceed the number of subscriptions purchased by You. Notwithstanding the foregoing, Your Quote Form may expressly permit You to access the Eskuad Service through Your account for the use and benefit of unrelated third party subscribers. You acknowledge and agree that such access and use, if permitted, requires You to assume all responsibility for managing the admin/sales admin rights of such third party subscribers; however, it does not (i) alter Your payment and other obligations, as described herein; and, (ii) operate to extend the technical support obligations that Eskuad has to You (only), as described in Section 13 (Technical Support) below. If You wish to increase the number of Your subscribers, You shall follow the procedure required by Eskuad. You will ensure that all subscribers access and use the Eskuad Service solely through a unique subscriber identification assigned by You to such subscriber. Unless otherwise expressly permitted by Eskuad, You will not permit subscribers to share their subscriber identification with any other person and You will not create generic subscriber identification(s) for use by multiple subscribers. You are responsible for the compliance by all subscribers with the Agreement and any and all activity occurring under such subscriber identification(s) and You agree to indemnify and hold Eskuad harmless from all costs, losses and damages suffered by Eskuad as a result thereof. You acknowledge and agree that Eskuad may amend this Agreement at any time by posting the relevant amended and restated terms and conditions on the Eskuad website and such amendments to the Agreement are effective as of their date of posting. Your continued use of the Eskuad Service after the amended Agreement's terms and conditions are posted to the Eskuad website constitutes Your agreement to and acceptance of the amended Agreement. If You do not agree to any changes to this Agreement, do not continue to use the Eskuad Service.

2. Subscription and Suspension Rights

Subject to the terms and conditions of this Agreement and for so long as You continue to pay the applicable fees for the Eskuad Service, You may access and use the Eskuad Service, modify specifically designated portions of the forms provided as part of the Eskuad Service (collectively, the "Forms"), input data into the Forms, archive the Forms and delete any data stored in the Forms. Notwithstanding the foregoing and without limiting Eskuad' rights and remedies under this Agreement, Eskuad reserves the right, at its sole discretion, to suspend Your access to the Eskuad Service: (i) to address technical, security or other emergency issues; or (ii) if Eskuad believes You have violated any provision of this Agreement, including without limitation, the Use Restrictions described in Section 3 below. In such circumstances, Eskuad will use commercially reasonable efforts to notify You of the reasons for suspension as soon as practicable (or if the reason for suspension is to address an emergency issue, promptly thereafter). In the circumstances described in (i), Eskuad will promptly reinstate Your access to the Eskuad Service upon resolution of the issue. In no event will Eskuad be responsible to You for damages suffered as a result of a suspension in accordance with this Section.

3.Proprietary Rights and Use Restrictions.

Subject to the limited rights expressly granted in this Agreement, Eskuad reserves all right, title and interest in and to the Eskuad Service and the Professional Services and any software or services used to provide the Eskuad Service and the Professional Services, including all intellectual property rights therein. No rights are granted to You other than as expressly set forth in this Agreement. The Eskuad Service and the Professional Services, including all software programs, tools, utilities, processes, methods, techniques and other materials developed by Eskuad in connection with providing the Eskuad Service and/or performing the Professional Services is the property of Eskuad and/or its licensors, and is protected by copyright and other intellectual property laws. Except as expressly permitted in this Agreement, You shall not: (a) permit any non-subscriber third party to access the Eskuad Service or any software used to provide the Eskuad Service; (b) circumvent any subscriber limits or other use restrictions that are built into the Eskuad Service which restrictions are available here: https://eskuad.com/field-operators; (c) use or permit the use of the Eskuad Service in a manner contrary to applicable law or that infringes, violates or misappropriates the rights of any third parties, including the privacy rights or intellectual property rights of such parties; (d) store or process personal information characterized as "sensitive information" under applicable privacy laws, including any health information, social insurance, social security or credit card numbers; (e) create derivative works of any software used to provide the Eskuad Service; (f) access the Eskuad Service to (i) build a competitive product or service or (ii) copy any feature, functions or graphics of the Eskuad Service; (g) sell, rent, lease, license, transfer or distribute the Eskuad Service to any third party; (h) alter, remove, or cover any proprietary notices, labels or marks from the Eskuad Service; (i) use the Eskuad Service for service bureau purposes, software as a service offering or otherwise to provide services to any third party; (j) use the Eskuad Service in the operation of critical data systems, such as those used for the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, patient data systems, life support machines or other equipment in which the failure of the Eskuad Service could lead to death, personal injury, or severe physical or environmental damage; (k) except for the purpose of interoperability or as permitted by any third party license, reverse engineer the Eskuad Service or any software used to provide the Eskuad Service.
For clarity, in relation to subsection (b) above, even if Your use of the Eskuad Service is indicated as " Configurable by Eskuad": (i) Your use remains subject to reasonable limits; and (ii) Eskuad reserves the right, at its sole discretion, to impose upper limits on various aspects of Your use of the Eskuad Service. Use in excess of such limits shall entitle Eskuad to increase the fee(s) payable by You in accordance with its then-applicable fee schedule.
Eskuad does not claim any intellectual property rights in or to the Customer Data You store in the Forms.

4.Third Party Software

To the extent that any third-party software is included in the Eskuad Service (including, without limitation, open-source software), You agree and shall ensure that Your subscribers agree to be bound by the terms and conditions of any license associated with or referenced in such third-party software. The following additional terms of service are specifically incorporated herein by reference and form a part of this Agreement in respect of Your use of certain dashboard and/or analytics functionality that may be included in Your Eskuad Service subscription – https://eskuad.com/terms-conditions. Certain open-source software included in the Eskuad Service has been modified by Eskuad, and such modifications have been noted by Eskuad in the documentation provided with such open-source software.

5. Pro Service Packages, Deployment Packages and Other Professional Services

Eskuad offers a variety of Professional Services, as described at . You agree to pay Eskuad the fees applicable to the Professional Services selected by You, as specified on Your Quote Form. Eskuad will use commercially reasonable efforts to provide such Professional Services in a professional and workman-like manner. Pro Service Deployment package hours as well as Ignite and SMB Service Plan hours must be used within six (6) months of the effective date of the applicable Quote Form or Statement of Work, failing which such hours will be forfeited. Similarly, Pro Service Professional and Platinum Service Plan hours must be used within twelve (12) months of the effective date of the applicable Quote Form or Statement of Work, failing which such hours will be forfeited.

5.1: Scope of Work. Any material changes requested or required to be made to the Professional Services will require a change order. Eskuad will notify You of any adjustment to the fees, schedule or other terms (as applicable) resulting from any such change order. Eskuad will continue to perform the Professional Services pursuant to this Agreement or the applicable Statement of Work (if any) until the parties have agreed in writing to the change order.

5.2: Your Responsibilities. You will provide trained and qualified personnel who will perform Your duties and tasks under this Agreement and/or the applicable Statement of Work (if any) in a timely manner. Any failure by You to do so gives Eskuad the right to require reimbursement from You for any incremental costs to Eskuad arising from Your delay. You will provide Eskuad with the information, data and other materials ("Customer Materials") required in support of this Agreement and/or the applicable Statement of Work (if any) in order for Eskuad to perform the Professional Services. You are responsible for the accuracy and completeness of the Customer Materials.

5.3: Review Process. You agree to promptly review all deliverables according to the schedule in the applicable Statement of Work (if any). You acknowledge that delays in performing Your review may delay the timing and completion of other deliverables. Eskuad will promptly correct any material non-conformity of a deliverable with the applicable specification, provided that You advise of such non-conformity within fifteen (15) days of Your receipt. This process may be repeated until the deliverable is properly corrected or, at the discretion of either party, the issue may be escalated to senior management for resolution.

5.4: Expenses. Unless otherwise specified on Your Quote Form or in the applicable Statement of Work, You agree to reimburse Eskuad for reasonable travel and out-of-pocket expenses incurred by Eskuad' representatives when traveling to perform any Professional Services for You, in accordance with Eskuad' then-current Travel & Expense Guidelines. For clarity, Professional Services are performed remotely unless otherwise mutually agreed and Eskuad acknowledges and agrees that no travel or out-of-pocket expenses shall be incurred other than in accordance with this Agreement and/or the applicable Statement of Work (if any).

 

6.Payment of Fees

You agree to pay any and all fees specified on Your Quote Form in accordance with the payment frequency specified thereon. Unless otherwise specified on Your Quote Form (or in the applicable Statement of Work, if any), all fees are due and payable in advance, upon Your receipt of Eskuad' invoice. If You request additional subscribers and/or services at any time during the term of this Agreement, the fees for such additional subscribers and/or services: (i) shall commence on the date that You request the additional subscribers and/or services be added, regardless of when such subscribers actually begin using the Eskuad Service; and (ii) unless otherwise specified on Your Quote Form, shall be calculated in accordance with Eskuad' then-current list price. If the Eskuad Service for the additional subscribers and/or services commences during a year (or month, if applicable), the fees for the additional subscribers and/or services will be prorated for that year (or month, if applicable) and billed with the fees for all subscribers (both new and existing) at the beginning of the following year/month for the remainder of the then-current term. For clarity, if Your Quote Form indicates that You have a monthly subscription to the Eskuad Service, Your monthly subscription fees for the first month of service commencing on the Effective Date will be pro-rated for the number of calendar days between the Effective Date and the last calendar day in the first month of service and will be billed together with the fees for the first full calendar month that You subscribe to the Eskuad Service. All fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future ("Taxes"). You are responsible for all applicable Taxes that arise from or as a result of Your subscription to the Eskuad Service and/or purchase of the Professional Services. These Taxes are based on the "sold to" address that You provide to Eskuad. If You are exempt from payment of such Taxes, You must provide Eskuad with an original certificate that satisfies applicable legal requirements attesting to Your tax-exempt status. Tax exemption will only apply from and after the date that You provide such a certificate to Eskuad. If You dispute the correctness of any part of Eskuad' invoiced fees or expenses, You shall advise Eskuad within thirty (30) days of Your receipt of the applicable invoice, failing which such invoice must be paid in full in accordance with the terms of this Agreement. All payment obligations are non-cancelable and once paid are non-refundable except if You terminate this Agreement for an uncured material breach by Eskuad pursuant to Section 9 (Term and Termination), in which case Eskuad will provide You with a refund for any prepaid fees on a pro-rata basis, calculated from the effective date of termination.

7.Privacy and Security

The primary purpose of the Eskuad Service is not to host, process or store personal information of third parties and Eskuad does not actively access, monitor, process or amend such personal information except to the extent requested by You in connection with the performance of support services and/or as an incidental part of the automated processing performed by the Eskuad Service. To the extent that You upload any personal information, You are responsible for ensuring that (i) Your use of the Eskuad Service and any personal information that You or Your subscribers choose to upload and use the Eskuad Service to host, process or store is in compliance with all applicable privacy laws; and (ii) You have provided all necessary notice, obtained all necessary consents and otherwise have all authority to provide such personal information to Eskuad for the purpose of this Agreement. Eskuad will employ security measures in accordance with applicable law and any personal information will be treated in accordance with Eskuad' privacy and security practices, as described at https://www.Eskuad.com/company/privacy-policy. Eskuad reserves the right to modify its privacy and security practices in its reasonable discretion from time to time. You agree that Eskuad may disclose Your name, logo and tradename (the "Customer Brand") in a factual listing of its customers. For avoidance of doubt, Eskuad will not use the Customer Brand for any other purpose without Your explicit consent.
Eskuad shall have no liability for any claims made against You as a result of any claims by Your subscribers or any third party related to Your misuse of their personal information. You agree to indemnify and hold Eskuad harmless from any claims, costs, losses or damages arising from any claims by Your subscribers or any third party related to Your misuse of their personal information.

8.Export and Territorial Restrictions.

The Eskuad Service contains encryption technology that is controlled for export by the U.S. government and may be subject to import and/or use regulations in other jurisdictions. It is Your responsibility to comply with laws and regulations relating to the export, import and use of the Eskuad Service. You represent, warrant and covenant that the Eskuad Service is not and will not be made available to (i) a national of or resident of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, and any other country or territory which may be added to the list of restricted countries from time to time by the U.S government or to persons or entities prohibited from receiving U.S. exports; (ii) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List. You will not, in any manner whatsoever, remove, convey, export, re-export or transmit the Eskuad Service in a manner that would contravene the spirit or the letter of any export law, regulations or policies in any country, including any international treaties or agreements, and You will not permit, encourage, assist or facilitate such activities by any other person or entity.

 

9.Term and Termination

Unless otherwise specified on Your Quote Form, upon expiration of Your initial subscription term (as specified on Your Quote Form), the term of this Agreement will automatically renew for successive renewal terms (each of which shall be equal in duration to Your initial subscription term) at Eskuad' then-current list price, absent a minimum of thirty (30) days' notice from either party that it does not wish to renew this Agreement. For clarity, unless otherwise specified on Your Quote Form, (i) Your pro service package commitment (if any) is annual; and (ii) Eskuad reserves the right to change the fees for any renewal term by providing You with not less than thirty (30) days' notice prior to the commencement of each such renewal term. Either party may terminate this Agreement for cause if the other party commits a material breach of a material provision of the Agreement and fails, within thirty (30) days after receipt of notice of such breach, to cure such breach, except that a party may terminate this Agreement for cause with immediate effect if such breach is not capable of remedy. You may terminate this Agreement for convenience by emailing Eskuad at cancellations@Eskuad.com. If You terminate for convenience: (i) all outstanding fees for the unexpired portion of the then-current initial or renewal term will become immediately due and payable, irrespective of the payment frequency or other payment terms set out in Your Quote Form or this Agreement; and (ii) if You have pre-paid all or a portion of the fees owed, such pre-paid fees will not be refunded.

 

10.Effect of Termination

Upon any termination (including non-renewal) of Your subscription to the Eskuad Service Your access to and rights to use the Eskuad Service will immediately terminate and (i) You agree to immediately cease all use of the Eskuad Service; (ii) Eskuad may immediately take such technical steps as may be necessary to prevent Your further use of the Eskuad Service; and (iii) all payments that would otherwise have been payable to Eskuad for the Eskuad Service and/or the Professional Services during the term (to the extent not already paid by You) shall become immediately due and payable. Any post-termination transition assistance required by You is subject to the mutual agreement of the parties and may require the payment of Professional Services fees.

 

11.United States Government

In the event that Eskuad provides the Eskuad Service, including related software and technology, for ultimate federal government end use such use shall be solely in accordance with the following: Government technical data and software rights related to the Eskuad Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211(Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.277-7015 (Technical Data) and FAR 12.212 (Software) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed in this Agreement, it must negotiate with Eskuad to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

12.Warranty

Eskuad warrants that it (i) has taken and will take commercially reasonable measures designed to ensure that the Eskuad Service does not contain any viruses, malicious code or undisclosed features capable of deleting, disabling, deactivating, interfering with or otherwise harming Your Customer Data; (ii) owns (or has the authority by license to) all right, title and interest in the Eskuad Service, sufficient to fulfill Eskuad' obligations under this Agreement; and (iii) will use commercially reasonable physical, organizational and technical measures to protect Customer Data against unlawful access, use or disclosure. Despite such efforts and due in part to the software-as-a-service nature of the Eskuad Service, Customer Data may be accessed by unauthorized persons when communicated across the Internet and over various networks (only part of which may be owned or operated by Eskuad). ACCORDINGLY, EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE ESKUAD SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND ESKUAD DOES NOT WARRANT THAT: (A) THE ESKUAD SERVICE AND/OR THE PROFESSIONAL SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE ESKUAD SERVICE WILL BE FREE FROM ANY DISABLING CODE; (C) OPERATION OF THE ESKUAD SERVICE WILL BE UNINTERRUPTED; (D) THE ESKUAD SERVICE AND/OR THE PROFESSIONAL SERVICES WILL BE ERROR-FREE; (E) YOU WILL ENJOY USE OF THE ESKUAD SERVICE WITHOUT INTERFERENCE; (F) ERRORS OR OTHER DEFECTS IN THE ESKUAD SERVICE WILL BE CORRECTED OR WILL BE CORRECTED WITHIN A SPECIFIC PERIOD OF TIME; OR (G) UNAUTHORIZED THIRD PARTIES WILL BE RESTRICTED FROM ACCESSING OR INTERFERING WITH CUSTOMER DATA SENT OR RECEIVED USING THE ESKUAD SERVICE. SPECIFICALLY, ESKUAD IS NOT RESPONSIBLE FOR ANY CUSTOMER DATA OR PERSONAL INFORMATION THAT IS ACCESSED BY UNAUTHORIZED PERSONS WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK COMMUNICATIONS FACILITIES OR OTHER ELECTRONIC MEANS. ESKUAD HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. AGAIN, EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND ACCURACY OF THE ESKUAD SERVICE AND THE PROFESSIONAL SERVICES IS BORNE BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

13.Technical Support

English language technical support is offered between 8:00 am – 8:00 pm Eastern Time, Monday to Friday, excluding January 1st and December 25th. Depending on shift coverage, Spanish-language technical support may also be available during the same hours as English-language technical support. Subscribers may contact technical support for assistance with downloading and installing the mobile app on their devices or with questions related to using Eskuad. Technical support can also assist subscribers with accessing and managing their data through the web-based interface. The Eskuad Technical Support available at hub.eskuad.com contains additional information regarding response objectives, service, enhancement requests, and escalations. Finally, you can request help through the web-based interface in the low right corner.

 

14.Maintenance/Upgrades

Occasionally the Eskuad Service may be temporarily unavailable due to service maintenance and/or upgrades. In an effort to minimize the impact to You, most of our maintenance and/or upgrade activities are scheduled to occur during low peak hours, as reasonably determined by Eskuad with reference to its service metrics. Eskuad will make commercially reasonable efforts to notify You of scheduled maintenance and/or upgrade activities at least five (5) business days in advance. Notifications are delivered via the Eskuad status dashboard and administration portal. Our maintenance and/or upgrade activities don't usually result in any interruption to the Eskuad Service; however, on occasion, You may see a service interruption.  If Your real-time access to the Eskuad Service is unavailable due to scheduled (or unscheduled) downtime, You may continue to work offline and data can be synchronized later, when access to the Eskuad Service is restored. The extent of the new features or functionality that may be available to You following such maintenance and/or upgrade activity will depend on Your then-current subscription entitlement.

 

15.Customer Data Access, Archival and Deletion

As used in this Agreement, "Customer Data" means the data and information You upload and/or create while using the Eskuad Service and includes without limitation, form submissions (which are generated during Your use of the Eskuad Service), as well as form definitions, data sources and form resources. You own and retain all rights to Your Customer Data. You agree to abide by and be responsible for Your compliance with applicable laws and regulations regarding Your access and use of Customer Data with the Eskuad Service.
 15.1: Customer Data Access by Eskuad. Customer Data will not be accessed by Eskuad except as necessary (by authorized personnel and at Your request) to identify, investigate or resolve technical problems with the Eskuad Service or to verify Your compliance with the terms of this Agreement. Customer Data that is accessed by Eskuad will be (i) be kept confidential; (ii) be handled in accordance with applicable laws and regulations; and (iii) not be shared with any unauthorized personnel or comingled with other data.

15.2: Customer Data Access by You. You manage and control access to the Eskuad Service and the use and processing of Your Customer Data. You are therefore responsible to develop, implement and maintain procedures to retrieve and archive Your form submissions on a regular basis. During the Term, You can access Your form submissions on the Eskuad servers for a minimum of 365 days from the date of each form submission, after which time such submissions will be archived and retained for as long as Your subscription is active (subject to Eskuad' then applicable timeline and policies for data destruction).

15.3: Customer Data Archival. Both during and following the term of this Agreement, Eskuad may maintain back-up copies of Customer Data in a secure site for disaster recovery purposes, provided such back-up copies are destroyed in accordance with Eskuad' then applicable timeline and policies for data destruction.

15.4: Customer Data Deletion. Subject to the foregoing, upon termination of this Agreement, You will no longer be able to access the Eskuad Service or Your Customer Data. On termination of this Agreement, unless otherwise deleted by You prior to termination, Your Customer Data will be (i) retained in the Eskuad Service for seven (7) days; and (ii) permanently deleted from Eskuad' Disaster Recovery storage forty-five (45) days thereafter.

15.5: Usage Data. Both during and following the term of this Agreement, Eskuad may collect, use and store data and information relating to Your use and the performance and stability of the Eskuad Service to: (a) make the Eskuad Service and the Professional Services available to You; (b) generally improve the Eskuad Service; and (c) monitor Your use of certain features or functionality of the Eskuad Service for billing purposes.


 

16.Indemnification

16.1: Your Indemnity to Eskuad. You will defend and hold harmless Eskuad and its affiliates, employees, officers, directors, agents, successors and assigns, at Your own expense, against any and all third party liability (including damages, recoveries, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) the Customer Data; (ii) Your violation of any third party rights (including third party intellectual property rights or privacy rights) as a consequence of Your use of the Eskuad Service contrary to this Agreement; and (iii) Your use of the Eskuad Service contrary to this Agreement.

16.2: Eskuad' Indemnity to You. Eskuad will defend and hold harmless You and Your employees, officers, directors, agents, successors and assigns, at Eskuad' own expense, against any and all third party liability (including damages, recoveries, interest, penalties and legal fees), directly or indirectly arising from or in connection with any third party claims that Your use of the Eskuad Service and/or the Professional Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party under the laws of the United States("Infringement Claim"). In the event of an Infringement Claim or if Eskuad reasonably believes the Eskuad Service and/or the Professional Services may infringe or misappropriate, Eskuad may in its discretion and at no cost to You: (i) modify the Eskuad Service and/or the Professional Services so that they no longer infringe or misappropriate; (ii) obtain a license for Your continued use of the Eskuad Service and/or the Professional Services in accordance with this Agreement; or, (iii) terminate the applicable Quote Form upon written notice and refund to You of any prepaid fees for the remainder of the then-current term following the effective date of termination. This Section 16(b) states Eskuad' sole liability to, and Your exclusive remedy, in respect of any Infringement Claim. The foregoing obligation does not apply to any Infringement Claim arising out of or relating to any: (a) access to, or use of, the Eskuad Service and/or the Professional Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Eskuad; (b) modification of the Eskuad Service and/or the Professional Services other than: (i) by or on behalf of Eskuad, or (ii) with Eskuad' written approval in accordance with Eskuad' written specifications; or (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to You by or on behalf of Eskuad but only to the extent that such failure on Your part caused or contributed to the Infringement Claim.

16.3: Indemnification Procedures. The indemnifying party under Section 16(a) or (b), as applicable, will pay all damages finally awarded by a court of competent jurisdiction to the third party claimant or any settlement amounts that are agreed by the indemnifying party, along with all fees, costs and expenses (including reasonable attorneys' fees) incurred. The indemnifying party's obligations under this Section 16 are subject to the condition that the indemnified party will: (i) notify the indemnifying party promptly of any claims within twenty (20) business days of being served with a claim, provided that failure to give timely notice shall not relieve the indemnifying party of its indemnification obligation except to the extent that it is prejudiced by such failure; and (ii) permit the indemnifying party to control the defense and settlement of such claims (provided that the indemnifying party will not settle or compromise any claim that requires the indemnified party to make any admission of liability, pay any amount or take any actions, without the indemnified party's written consent). Without limiting the foregoing, the indemnified party will assist and cooperate with the indemnifying party, as reasonably requested by the indemnifying party, at the indemnifying party's expense, in defending or settling the applicable claim.


 

17.Limitation of Liability

ESKUAD'S LIABILITY TO YOU WILL, IN ALL CIRCUMSTANCES, BE LIMITED TO DIRECT DAMAGES ONLY AND ESKUAD' TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE ESKUAD SERVICE OR ANY OR ALL OF THE PROFESSIONAL SERVICES WILL NOT EXCEED THE AMOUNT PAID BY YOU TO ESKUAD FOR THE ESKUAD SERVICE OR THE PROFESSIONAL SERVICES GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM. THE FOREGOING LIMITATION OF LIABILITY IN RESPECT OF DIRECT DAMAGES SHALL NOT APPLY TO DAMAGES CAUSED BY THE GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD OF ESKUAD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ANY OF ITS AFFILIATES, LICENSORS OR SUBCONTRACTORS WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA OR OTHER ECONOMIC LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM A DATA BREACH OR BREACH OF SECURITY, EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE DIRECTLY ATTRIBUTABLE TO ESKUAD' GROSS NEGLIGENCE OR WILFUL MISCONDUCT), OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE ESKUAD SERVICE OR ANY OR ALL OF THE PROFESSIONAL SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY OR ANY OTHER LEGAL THEORY (INCLUDING FUNDAMENTAL BREACH AND FAILURE OF ESSENTIAL PURPOSE). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

18.Exchange of Confidential Information

Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the other party, which is of a confidential and proprietary nature ("Confidential Information"). Such Confidential Information may include, but will not be limited to, data, reports, specifications, formulae, software programs, technical data, documentations, financial information and projections, corporate strategy, methods of operation, correspondence, or any customer information, personnel information, information about marketing and sales, products or pricing, information systems and any other technology used in the Eskuad Services, disclosed for the purposes of this Agreement. Each party and its employees agree not to disclose such information to any third party and use the information for the purposes specified under this Agreement and not for any other purpose. Each party will keep the Confidential Information of the other party confidential and in its possession. However, a party may disclose all or part of the Confidential Information to its employees, contractors and professional advisors on a need-to-know basis relating solely to this Agreement. In such case, the disclosing party will require the recipient of the Confidential Information to keep and treat such information confidential under terms no less protective than those set forth herein. The provisions of this section shall not apply to any information or material which: (a) is or becomes public knowledge other than by breach of this section; (b) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; (c) is received from a third party who lawfully acquired it and is under no obligation restricting its disclosure; (d) is independently developed without access to the Confidential Information; or (e) is required to be disclosed by any court, tribunal, judicial body or other governmental authority or stock exchange. If the receiving party is required in any judicial or regulatory proceeding to disclose all or any part of the disclosing party's Confidential Information, it will give the disclosing party prompt written notice of such request prior to disclosure. Upon the request of the disclosing party, the receiving party shall promptly return to the disclosing party all copies of the Confidential Information and shall destroy all memoranda, notes, and other writings prepared by it or any of its employees or contractors based upon or including any of the Confidential Information. However, the receiving party may retain those portions of the Confidential Information that are necessary to document compliance with this section. The obligations hereunder shall continue for a period terminating on the date five (5) years from the date on which Confidential Information is last disclosed under this Agreement.

 

19.Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware and the federal laws of the United States applicable therein, without giving effect to the principles of conflicts of law and excluding the body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Delaware for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof. Each of the parties hereby waive: (a) the right to trial by jury of any such suit, action or proceeding; (b) any right, claim or entitlement to any punitive or exemplary damages whatsoever; and (c) any right, claim or entitlement to participate in a class action relating to this Agreement.

 

20.Force Majeur

In no event shall Eskuad be liable to You, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Eskuad's reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot, or other civil unrest, problems with telecommunication providers, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

 

21.Entire Agreement; Amendment; Waiver; Severability; Assignment; Survival

This Agreement is the entire agreement between Eskuad and You with respect to both the Eskuad Service and the Professional Services and supersedes all prior or contemporaneous oral or written agreements, communications, proposals, representations and warranties, and prevails over any conflicting or additional terms of any quote, order, acknowledgment, purchase order or other communication between the parties relating to its subject matter, regardless of any failure by You to object to such matters. No waiver of this Agreement will be binding unless in writing and signed by a duly authorized representative of the party or parties hereto that will be bound by it. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be severed from this Agreement and the remaining provisions will remain in full force and effect. Either party may assign this Agreement in its entirety without consent of the other party to its successor in interest in connection with a sale of all or substantially all assets or equity not involving a direct competitor of the other party. This Agreement may be executed in one or more counterparts (including electronically), each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Sections 1, 3, 6, 7, 8, 9, 10, 11, 12, 15 – 21 (inclusive) of this Agreement, and such other provisions as are necessary for the interpretation thereof will survive expiration or termination of this Agreement.

 

Acceptable use of our services

Our Terms and Policies

You must use our Services in accordance with our published Terms and Policies. If we disable your account due to a violation of our Terms, you will not create another account without our permission.

Legal and acceptable use

You must access and use our Services only for legal, authorized, and acceptable purposes.

You will not use (or help others use) our Services in ways that: (a) violate, misappropriate or infringe the rights of Eskuad, our users, or others, including the rights of privacy, publicity, intellectual property or author or other rights of property; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, aggressive, racially or ethnically offensive, or that promote or encourage conduct that would be illegal, or otherwise inappropriate, including the promotion of violent crime ; (c) involve the publication of falsehoods, misstatements or misleading statements; (d) impersonate someone else; (e) involve the sending of illegal or inadmissible communications; or (f) involve any other non-personal use of our Services unless we authorize otherwise.

Harm to Eskuad or our users

You must not (nor should you assist others to) access, use, copy, adapt, modify, prepare derivative works from our Services, or distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services in unacceptable or unacceptable ways, unauthorized, or in ways that affect us, harm or damage us, our Services, our systems, our users or others.

You must not, directly or through automated means: (a) reverse engineer, alter, modify, create derivative works, decompile or extract code from our Services; (b) send, store, or transmit a virus or other harmful computer code through or on our Services; (c) obtain or attempt to obtain unauthorized access to our Services or systems; (d) disrupt or interfere with the integrity or performance of our Services; (e) create accounts for our Services through automated or unauthorized means; (f) collect information about our users in any unauthorized or unacceptable way; (g) sell, resell, rent or charge for our Services; or (h) distribute or make available our Services on a network where they could be used on multiple devices at the same time.

Maintain the security of your account

You are responsible for maintaining the security of your device and your Eskuad account, and you must immediately notify us of any unauthorized use or security breach of your account or our Services.

Licenses

Your rights

Eskuad does not claim ownership of the information you submit for your Eskuad account or through our Services.

You must have the necessary rights to such information that you submit for your Eskuad account or through our Services, as well as the right to grant the rights and licenses in our Terms.

Eskuad Rights

We own all copyrights, trademarks, domains, logos, trade images, trade secrets, patents, and other intellectual property rights associated with our Services.

You may not use our copyrights, trademarks, domains, logos, trade images, patents, and other intellectual property rights unless you obtain our explicit permission and only in accordance with our Brand Guidelines.