Last Updated: June 5, 2018
Description of Users and Acceptance of Terms
The Information We Collect and/or Receive
In the course of operating the Site, and the Services, and/or interacting with you, ElasticOCR will collect (and/or receive) the following types of information.
- Contact Information
When you contact us through the “Contact Us” page, or sign up to become a Subscriber, you will be asked to provide certain information which may include first name, last name, and e-mail address (“Contact Information”). The Contact Information is used to provide the requested service or information, and to contact Subscribers and Visitors for purposes of direct marketing of our current and future services.
- Billing Information
- Customer Data and Subscriber Content
- Other Information
In addition to the Contact Information, Subscriber Content, and the Customer Data, we may collect or receive the following information (collectively, the “Other Information”):
- From Your Activity. In an ongoing effort to improve the Site, and the Services, we automatically collect certain information when Visitors visit the Site, and when Subscribers use the Services. This information consists of IP addresses, browser type and language, referring and exit pages and URLs, date and time, amount of time spent on particular pages, what sections of the Site Visitors visit, and similar information concerning your use of the Site, and the Services.
- From Cookies. We also collect information by using “cookie” technology. Cookies are small packets of data that a website stores on the hard drive of your computer or mobile device to “remember” information about your visit. We may use session cookies (which expire once you close your web browser) and persistent cookies (which stay on your computer/device until you delete them). If you do not want us to place a cookie on your hard drive, you may be able to turn that feature off on your computer or mobile device. Please consult your Internet browser’s documentation for information on how to do this and how to delete persistent cookies. However, if you decide not to accept cookies from us, the Site, and the Services may not function properly.
For Google Analytics, please visit: https://www.google.com/analytics.
How We Use and Share the Information
You authorize us to use the Contact Information, Subscriber Content, Customer Data, and the Other Information (collectively, the “Information”) to provide you the Site and the Services; solicit your feedback; inform you about our products and services; and to improve our products and services.
You also authorize us to use and/or share the Information as described below.
- We may engage other companies and individuals to perform certain business-related functions on our behalf. Examples may include providing technical assistance, order fulfillment, customer service, and marketing assistance. These other companies will have access to the Information only as necessary to perform their functions and to the extent permitted by law. We may also share your Information with any of our parent companies, subsidiaries, or other companies under common control with us.
- In an ongoing effort to better understand our users and our Site and Services, we might analyze the Information in aggregate form in order to operate, maintain, manage, and improve the Site and Services. This aggregate information does not identify you personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our Site and Services to current and prospective business partners and to other third parties for other lawful purposes.
- As we develop our businesses, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, sale of assets, dissolution, or similar event, the Information may be part of the transferred assets.
- To the extent permitted by law, we may also disclose the Information: (i) when required by law, court order, or other government or law enforcement authority or regulatory agency; or (ii) whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of ElasticOCR or others.
How We Protect Your Information
We take commercially reasonable steps to protect the Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases or the databases of the third parties with which we may share such Information, nor can we guarantee that the Information you supply will not be intercepted while being transmitted over the Internet. In particular, e-mail sent to us may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
Links to Third Party Sites
The Site may, from time to time, contain links to external websites. ElasticOCR encourages you to review the privacy and security policies of any externally linked websites that may be accessed through the Site. ElasticOCR assumes no responsibility or liability for the information, collection and disclosure practices of any external websites that a user can access through the Site. Please check the privacy policies of these external websites before you submit any personal information to them.
Accessing and Modifying Personal Information and Communication Preferences
Subscribers may access, review, and make changes to their personal information by logging in to their account. In addition, you may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any ElasticOCR marketing email. Subscribers cannot opt out of receiving transactional e-mails related to their account. We will use commercially reasonable efforts to process such requests in a timely manner. You should be aware, however, that it is not always possible to completely remove or modify information in our subscription databases.
Important Notice to Non-U.S. Residents
The Site, Services, and their servers are operated in the United States. If you are located outside of the United States, please be aware that any information you provide to us maybe transferred to, processed, maintained, and used on computers, servers, and systems located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to use the Site and/or the Services, you do so at your own risk.
California Privacy Rights
B&R Business Solutions, LLC
315 Route 34, Suite 128
Colts Neck, NJ 07722
In addition, ElasticOCR does not monitor, recognize or honor any opt-out or do not track mechanisms including general web browser, “Do Not Track” settings and/or signals.
If you have any queries about the privacy statement or to report a privacy issue, please contact us in one of the following ways:
Or write to us at:
B&R Business Solutions, LLC
315 Route 34, Suite 128
Colts Neck, NJ 07722
Last Updated: June 4, 2018
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Site and/or the Services, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Site. By continuing to access or use the Site and/or the Services after we have posted a modification on the Site, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Site.
The Site is available only for individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Site and/or the Services, or any portion thereof, without notice and without reason.
DESCRIPTION AND USE OF THE SERVICES
The Services allow you to OCR your documents. We provide our Services on a subscription basis (“Subscription”). If you wish to try our Services can sign up for a free trial subscription that will last for the period of time specified when you sign up as a Subscriber (as defined below) (the “Trial Period”). Upon expiration of the Trial Period, you will have the option of continuing your subscription (the “Paid Subscription”) by entering into the Subscription Agreement. We provide Visitors to the Site and Subscribers with access to the Site, and the Services as described in this Agreement.
Visitors. No login is required for visitors. Visitors can (a) view all publicly-accessible content on the Site, and (b) e-mail us.
Subscribers. Login is required for all Subscribers. Subscribers can do all the things Visitors can do and also use the Services. As noted above, Subscribers access and use of paid Subscription to our Services is governed by the Subscription Agreement.
We are under no obligation to accept any individual as a Subscriber and may accept or reject any registration in our sole and complete discretion.
LOGIN INFORMATION; PASSWORD
During the registration process for Subscribers, we will ask you to create an account, which includes a unique login (“Email Address”), and password (“Password”). When creating your account, you must provide true, accurate, current, and complete information. Each Email Address and corresponding Password can be used by only one Subscriber. You are responsible for the confidentiality and use of your Email Address, and Password. You will promptly inform us of any need to deactivate a Password or Email Address. We reserve the right to delete or change your Password, or account’s email address at any time and for any reason.
You may view all content on the Site and the Services (the “Content”) for your own internal business use and not for any other use, including any commercial use, without the prior written consent of ElasticOCR. We, and our licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access the Site and/or the Services automatically terminates and you must immediately destroy any copies you have made of the Site and/or the Services.
The trademarks, service marks, and logos of ElasticOCR (the “ElasticOCR Trademarks”) used and displayed on the Site and the Services are registered and unregistered trademarks or service marks of ElasticOCR. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with ElasticOCR Trademarks, the “Trademarks”). Nothing on the Site and the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of ElasticOCR Trademarks inures to our benefit.
Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
SUBSCRIBER CONTENT; LICENSES
The Services allow you to upload documents that you would like to process through the Services (collectively, “Subscriber Content”). You retain all copyrights and other intellectual property rights in and to your own Subscriber Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable license to modify, compile, copy, record, synchronize, transmit, translate, format, distribute, and otherwise use your Subscriber Content to provide our Services to you. If you submit Subscriber Content to us, each such submission constitutes a representation and warranty to ElasticOCR that such Subscriber Content is your original creation (or that you otherwise have the right to provide the Subscriber Content), that you have the rights necessary to grant the license to the Subscriber Content under the prior paragraph, and that it and its use by ElasticOCR and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
By accessing and/or using the Site and/or the Services, you hereby agree to comply with the following guidelines:
You will not use the Site and the Services for any unlawful purpose;
You will not access or use the Site and the Services to collect any market research for a competing businesses;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Site;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Site;
You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Site;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site and the Services, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
You will not interfere with or attempt to interrupt the proper operation of the Site and the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Site and/or the Services, or any portion thereof, without notice.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Site and our Services (“Feedback”). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
NO WARRANTIES; LIMITATION OF LIABILITY
THE SITE AND OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ELASTICOCR DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND ELASTICOCR HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT ELASTICOCR MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITE OR ANY SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SITE OR ANY SERVICES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS PROVIDED IN ANY SUBSCRIPTION AGREEMENT BETWEEN YOU AND ELASTICOCR.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE SITE AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE SITE AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SITE AND THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.
The Site may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the Site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold harmless ElasticOCR, and its past, current, and future shareholders, employees, officers, directors, attorneys, principals, trustees, representatives, agents, partners, predecessors, successors, and assigns from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement (including, without limitation, breach of any warranties or representations made by you herein). We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
COMPLIANCE WITH APPLICABLE LAWS
The Site and the Services are based in the United States. We make no claims concerning whether the Site, the Services or the Content may be viewed or be appropriate for use outside of the United States. If you access the Site, the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Site and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Site and/or the Services at any time without prior notice or liability.
In the event of a dispute arising under or relating to this Agreement, the Site, or the Services (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 12 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New Jersey for purposes of any such action by us.
The Agreement and any action related thereto will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions.
If the Agreement is terminated in accordance with the termination provision in Section 9 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Ownership,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Controlling Law,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2018 B&R Business Solutions, LLC. All rights reserved.
Software as a Service Agreement
This Software as a Service Agreement (this “Agreement”) governs your and your Administrative Users’ (as defined below) access to and use of our Services (as defined below), which are made available to you (“Customer,” “you,” or “your”) by B&R Business Solutions, LLC d/b/a ElasticOCR (“ElasticOCR”, “we,” “our,” or “us”) via our portal at elasticocr.com (the “Portal”).
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity. Customer and ElasticOCR are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING THE “ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR ADMINISTRATIVE USERS MAY NOT ACCESS OR USE THE SERVICES.
The Parties hereby agree as follows:
- DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
- “Administrative User” means Customer’s employees, contractors, or agents authorized by Customer to access the Portal and use the Services, and to grant End Users permission to submit Customer Data to the Service on Customer’s behalf, pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Services will be limited to their provision of services to Customer.
- “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
- “API” means ElasticOCR’s application program interface, including all accompanying documentation, software, samples, specifications, and other related materials, as provided by ElasticOCR for use by Customer in connection with the Services.
- “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
- “Confidential Information” means: (i) with respect to ElasticOCR, the Services, the Portal, the API, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data and (ii) with respect to Customer, the Customer Data and any non-public information or material regarding Customer’s legal or business affairs, financing, employees, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
- “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Services, the Portal, and the API, as provided or made available by ElasticOCR to Customer whether in a written or electronic form.
- “End User” means Customer’s employees, contractors, or agents authorized by Administrative Users to submit Customer Data to the Service on Customer’s behalf, pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Services will be limited to their provision of services to Customer
- “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or the Portal, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services or the Portal to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services or the Portal.
- “Services” means ElasticOCR’s proprietary, cloud-based software as a service (SaaS) product, and our provision of access to and usage of the API and the Portal, and any integrations in connection therewith.
- “Customer Data” means any data that Customer, its Administrative Users, or its End Users submit to ElasticOCR, including, without limitation, (i) the content of any document submitted to us in connection with the Services; and (ii) the personal information (such as name, email address, and other identifying information) of Administrative Users provided at onboarding.
- “Subscription Plan” means the type of subscription ordered by Customer at the time of enrollment, which may be changed by the Customer in accordance with Section 2.2 below. The terms of each Subscription Plan, including a description of each of ElasticOCR’s Subscription Plans, along with the Fees (as defined below) associated with each Subscription Plan, and our service level and processing time commitments with respect to each Subscription Plan, are set forth on our dedicated Subscription Plan page on our Portal, found here elasticocr.com/#flexible-pricing (the “Subscription Plan Terms”), which are incorporated into and made a part of this Agreement by this reference.
- PROVISION OF SERVICES.
- Services. During the Term (as defined below), we will provide Customer the Services associated with the applicable Subscription Plan ordered by Customer, subject to the terms and conditions of this Agreement.
- Subscription Plans. When you order the Services, you will be required to select a Subscription Plan that meets your needs. You may change your Subscription Plan at any time during the Term by following the instructions on your dashboard on the Portal. If you choose to upgrade your Subscription Plan, the change will become effective immediately, and you will be charged for any additional Fees on a pro-rated basis as of the effective date of such change. If you choose to downgrade your Subscription Plan, the change will become effective as of the first day of the immediately following billing cycle. By changing your Subscription Plan, you are agreeing to be bound by the Subscription Plan Terms associated with the new Subscription Plan you have chosen, including, without limitation, the fees associated with such Subscription Plan. We reserve the right to modify the Subscription Plans, the Services offered thereunder, and the Fees charged therefor, from time to time at our reasonable discretion. We will notify you of any changes made to the Subscription Plans, which will be posted in the Subscription Plan Terms. Any changes to the Subscription Plan Terms, including, without limitation, changes to the fees we charge for the Services, shall become effective thirty (30) days following notice to you of such change.
- Modifications. In addition to our rights under Section 2.2, we reserve the right to modify the Services, the Portal, and the API from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Services, the Portal, or the API at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Services, the Portal, or the API.
- Beta Features. From time to time, we may invite Customer to try “beta” features or functionalities of the Portal which are not generally available to our customers for production use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for production use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Services. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer’s use of any beta feature is at Customer’s own risk.
- Service Level Commitment. During the Term, ElasticOCR, or our contractors, shall host the Services on the Portal, such that the Services are available for use by Customer. ElasticOCR and/or our contractors shall periodically monitor the Portal to optimize performance of the Services, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. We will notify you of any unavailability or other issue with the Services, the Portal, or the API of which we have knowledge. Notwithstanding the foregoing, the Services are made available to you on a per-page basis up to our processing capacity limit as set forth in the Subscription Plan Terms (the “Processing Throttle”). If you exceed the Processing Throttle, we do not guarantee that the Services will be available to you. The Subscription Plan Terms set forth, in addition to the Processing Throttle, our guaranteed processing times, on a per-page basis, with respect to each Subscription Plan as set forth in the Subscription Plan Terms (the “Processing Service Level Agreement” or the “SLA”). In the event that we fail to comply with the SLA, we shall issue you a credit for the number of pages that we have failed to process in compliance with the SLA (a “Page Credit”). Documents submitted that are greater than 150 pages are excluded from the document processing SLA. These documents will be accepted, and processed at best effort. These documents will not be credited back if not delivered within the plan tier.
- FEES AND PAYMENT.
- Fees. In consideration for the Services, Customer shall pay to ElasticOCR the monthly fees set forth in the Subscription Plan Terms for the Subscription Plan selected you (the “Monthly Fees”). The billing cycles for the Monthly Fees commence on the date of enrollment and occur monthly thereafter. If the date of enrollment occurs on a date that does not occur in every calendar month (e.g., the 31st of the month), the billing cycle for that month will end on the last day of the calendar month. In addition, for each page that you submit for processing in excess of the page quota associated with your Subscription Plan, as set forth in the Subscription Plan Terms, you shall pay the overage fee set forth in the Subscription Plan Terms (the “Overage Fees”). The Monthly Fees and the Overage Fees are collectively referred to as the “Fees.” The Monthly Fees are based on Services purchased, and not on actual use. Unless otherwise expressly provided for in this Agreement, all Fees paid under this Agreement are non-refundable.
- Recurring Charges. ElasticOCR automatically charges you for the Fees and Taxes (as defined below) on a monthly recurring basis, using the payment information we have on file. By placing an order for the Services, you agree and acknowledge that you are responsible for a recurring payment charge during the Term at our then-current Fee rates, and you agree that ElasticOCR may submit monthly charges to the credit card or other payment information we have for you on file, without further authorization from you, until you provide notice to ElasticOCR that you wish cancel your subscription pursuant to Section 3.3. You further accept responsibility for all recurring charges prior to termination, including, where applicable, any charges processed by us after the expiration date of your payment card. You may update your payment information at any time during the Term by following the instructions on your dashboard on the Portal.
- Cancellation. You may cancel your subscription to the Services, thereby terminating your recurring payments, by sending us written notice of your desire to cancel, or by following cancellation instructions on your dashboard on the Portal. We must receive cancellation notices at least five (5) days prior to the end of the then-current billing cycle in order for your subscription to terminate as of the last day of your billing cycle. If we receive a cancellation notice less than five (5) days prior to the end of the billing cycle, your subscription to the Services shall terminate at the end of the following billing cycle, and you shall be automatically charged for such billing cycle in accordance with Section 3.2.
- Taxes. Fees set forth in the Subscription Plan Terms are in addition to, and do not include, any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for Customer’s account if applicable. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the execution of this Agreement. If we are required to collect and remit Taxes on Customer’s behalf, we will automatically charge Customer for such Taxes in accordance with Section 3.2. Customer hereby agrees to indemnify, defend, and hold ElasticOCR, our Affiliates, our suppliers and hosting providers, and our and their respective Representatives (as defined below) harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any such parties in connection with any Taxes and related costs, interest, and penalties paid or payable by ElasticOCR on Customer’s behalf. For the avoidance of doubt, we will only be responsible for taxes related to our income, property, franchise, or employees.
- No Contingency for Future Commitments. Customer agrees that payment of the Fees under this Agreement is not contingent on the delivery of any future Service or Portal functionalities, features, or any other future commitments, except as otherwise expressly set forth this Agreement.
- TERMINATION AND SUSPENSION.
- Term. The term of this Agreement (the “Term”) commences on the Effective Date and will continue in effect thereafter, on a calendar month-to-calendar month basis, until you cancel your subscription in accordance with Section 3.3 above, or until this Agreement is otherwise earlier terminated pursuant to Section 4.2 below.
- Termination. In addition to your cancellation rights set forth in Section 3.3, we may terminate this Agreement at any time, for any reason or no reason, upon thirty (30) days’ prior written notice to you. Further, either Party may terminate this Agreement immediately upon written notice to the other Party, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Finally, we may terminate this Agreement (i) upon five (5) business days’ written notice to you if you or any of your Administrative Users breach Section 8 of this Agreement, and such breach is not cured within such five (5) business day period, or (ii) upon written notice to you under the limited circumstances set forth in Section 11.2 below.
- Suspension of the Services. We may suspend the Services upon written notice (email notice acceptable) to Customer if any recurring charge fails to be paid due to a change in your payment information or other issue with your payment information. If we suspend the Services under this Section 4.3, we will reinstate the Services if and when you provide us with correct payment information and all overdue payments are processed, and payment received in full. We reserve the right to charge you a re-activation fee to reinstate the Services.
- Effect of Termination. Upon termination of this Agreement: (i) we will stop providing the applicable Services, and Customer will immediately cease, and cause its Administrative Users and End Users to cease, all access to and use of the Services; (ii) we will automatically charge your payment information for any and all unpaid Fees and applicable Taxes due through the effective date of termination; and (iii) each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.
- Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 3 (“Fees and Payment”) until Customer has paid all Fees and applicable Taxes, Section 4.4 (“Effect of Termination”), this Section 4.5 (“Survival”), Section 5 (“Confidentiality; Feedback”), Section 6 (“Data”), Section 7 (“Intellectual Property”), Section 9 (“Representations and Warranties; Our Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), and Section 12 (“General Provisions”).
- CONFIDENTIALITY; FEEDBACK.
- Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information. Notwithstanding anything to the contrary contained in this Section 5, ElasticOCR reserves the right to use and disclose Customer Data as permitted under Section 6 hereof.
- Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 5.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
- Feedback. During the Term, Customer may elect to provide us with feedback, comments, and suggestions with respect to the Services and/or the Portal (“Feedback”). Customer agrees that ElasticOCR will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.
- Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data only for the purpose of providing the Services hereunder and as set forth in Section 6.3 below.
- Data Processing and Retention. At the time of onboarding, Customer will be required to choose a data processing region (“Processing Region”). We will collect, process, handle, and store all Customer Data in the Processing Region selected by you. ElasticOCR is not responsible for verifying that you have chosen the Processing Region in which Customer is located. Customer may modify its selected Processing Region at any time upon written notice to ElasticOCR. Upon expiration or termination of the Agreement, we may, but are not obligated to, retain an archival copy of the Customer Data kept in the normal course of business. Notwithstanding the foregoing, ElasticOCR reserves the right to delete all Customer Data from its servers and archives within thirty (30) days of the earlier to occur of (i) expiration or termination of this Agreement, and (ii) the date that Customer submits such Customer Data for processing via the Services. Accordingly, all Customer Data submitted for processing must be collected by Customer within thirty (30) days of such submission, and ElasticOCR cannot guarantee that any Customer Data will be available for retrieval after the expiration of such thirty (30) day period.
- Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the Customer Data, as well as any Usage Data (as defined below) that we may collect, in an anonymous and aggregated form (“Aggregate Data”) for the purposes of operating, maintaining, managing, and improving our Services and the Portal. Aggregate Data does not identify Customer, Administrative User, or End User. Customer hereby agrees that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data. “Usage Data” means the data that we collect in connection with our monitoring of the performance and use of the Portal and the Services by Customer, Administrative Users, and End Users, including, without limitation, date and time that Administrative Users access the Portal, the portions or pages of the Portal visited, the frequency and number of times such pages are accessed, the number of times the Services are used in a given time period, and other usage and performance data.
- INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Services, the Portal, the API, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of ElasticOCR. Subject to Section 6.1 and Section 6.3, all right, title, and interest in and to Customer Data, and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property.
- USE AND LIMITATIONS OF USE.
- Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Administrative Users to use the Services, the Portal, or the API; (ii) allow an Administrative User to share with any third party his or her access credentials described in Section 8.3; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services, the Portal, or the API; (iv) modify, adapt, or translate the Services, the Portal, or the API; (v) make any copies of the Services, the Portal, or the API; (vi) resell, distribute, or sublicense the Services, the Portal, or the API, or use either of the foregoing for the benefit of anyone other than Customer or the Administrative Users; (vii) save, store, or archive any portion of the Services outside the Portal, other than those outputs generated through the intended functionality of the Services as set forth in the Documentation without the prior, written permission of ElasticOCR in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Portal; (ix) use the Services, the Portal, or the API in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; or (x) introduce, post, or upload to the Portal any Harmful Code.
- Compliance. We have the right to monitor Customer’s compliance with this Section 8. If any such monitoring reveals that Customer is not using the Services, the Portal, or the API in compliance with this Section 8, then Customer will remedy any such non-compliance within five (5) business days of receiving notice from us. Failure to remedy such default shall be deemed a material breach of this Agreement by Customer.
- Onboarding of Administrative Users. Administrative Users must log into the Portal to use the Services. During the initial registration, an Administrative User will be prompted to create an account, which includes their email address, a password, and certain additional information that will assist in authenticating the Administrative User’s identity when he or she logs-in in the future (collectively, “Account Details”). When creating an account, an Administrative User must provide true, accurate, current, and complete information. Customer is solely responsible for the confidentiality and use of Administrative Users’ Account Details, as well as for any use, misuse, or communications entered through the Portal. Administrative Users may identify to ElasticOCR those End Users who are permitted to submit Customer Data on Customer’s behalf and use the Services via application integration. End Users shall not have access to the Portal and shall not create accounts with ElasticOCR. Administrative Users will promptly inform us of any need to deactivate an account or change any Account Details. We reserve the right to delete or change Administrative Users’ Account Details at any time and for any reason. We will not be liable for any unauthorized use of an Administrative User’s account. Customer is responsible for the acts and omissions of its Administrative Users, End Users, and any other person who accesses the Portal and/or uses the Services using any Administrative User’s access credentials.
- REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
- Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder. In addition, you represent and warrant that you have all necessary rights to provide us with the Customer Data and to grant to us the licenses thereto that are granted under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE SERVICES, THE PORTAL, THE API, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY ELASTICOCR HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER ELASTICOCR (NOR OUR SUPPLIERS OR SERVICE PROVIDERS) MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
- Indemnification by Customer. Customer will indemnify, defend, and hold ElasticOCR, our Affiliates, our suppliers and service providers, and our and their respective Representatives harmless from and against any and all Losses incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from Customer’s or any of its Administrative Users’ or End Users’ (i) breach or violation of this Agreement, including any of Customer’s representations and warranties hereunder; or (ii) gross negligence or willful misconduct.
- Indemnification by ElasticOCR. ElasticOCR will indemnify, defend, and hold Customer and its Representatives harmless from and against any and Losses incurred by any such parties in connection with any third-party Claim (i) arising from ElasticOCR’s gross negligence or willful misconduct, or (ii) alleging that the Services, the Portal, the API, or any underlying technology therein infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”). In the event that we reasonably determine that the Services, the Portal, or the API are likely to be the subject of a third-party Claim, we will have the right (but not the obligation), at our own expense, to: (i) procure for Customer the right to continue to use the Services, the Portal, and the API as provided in this Agreement; (ii) replace the infringing components of the Services, the Portal, or the API with other components with equivalent functionality; or (iii) suitably modify the Services, the Portal, or the API so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to Customer. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any Infringement Claim to the extent the Infringement Claim arises from or is based upon (i) Customer’s, its Administrative Users’, or its End Users’ use of the Services, the Portal, or the API not in accordance with the Documentation or this Agreement; (ii) any unauthorized modifications, alterations, or implementations of the Services, the Portal, or the API made by or on behalf of Customer (other than by ElasticOCR); (iii) use of the Services, the Portal, or the API in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; (iv) use of the Services, the Portal, or the API in a manner or for a purpose for which they were not designed; or (v) any allegation that the Customer Data infringes or misappropriates any third-party intellectual property rights. This Section 11.2 states Customer’s sole and exclusive remedy, and our sole and exclusive liability, regarding any Infringement Claim
- Procedure. The indemnification obligations set forth in Section 11.1 and Section 11.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
- GENERAL PROVISIONS.
- Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that, in the case of Customer making the assignment or transfer, the assignee or transferee is not a direct or indirect competitor of ElasticOCR, and, further provided, that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
- Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, without regard for choice of law provisions thereof.
- Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
- Notices. All notices that we are required to give you under this Agreement may be given via your dashboard on the Portal, and will be effective as of the date we post such notice. All notices that you are required to give us under this Agreement must be in writing and will be delivered either personally or by e-mail, national overnight courier or the U.S. Postal Service. Notices from you will be effective upon: (i) actual delivery to us, if delivered in person or by e-mail, or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.
- Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
- Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
- Force Majeure. Neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
- Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
- Publicity. During the Term, we may refer to Customer as a customer and user of the Services. In connection therewith, we may use Customer’s name and corporate logos. Any goodwill arising from the use of such name and logos will inure solely to Customer’s benefit. All other publicity regarding this Agreement will be mutually coordinated and approved in advance in writing by the Parties.
- Export. Customer will not export or re-export, either directly or indirectly, the Services or the Portal, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit Administrative Users, End Users, or any third parties to access or use the Services or the Portal in violation of any United States export embargo, prohibition, or restriction.
- Complete Understanding. This Agreement, including the Subscription Plan Terms, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THESE TERMS OF SERVICE, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.