Terms of Service
These Terms of Service (this “Agreement”) are entered into by and between ENTR Technologies Inc., a Delaware corporation (“ENTR”), and the entity or person accessing or using the ENTR Platform (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Order Forms that reference this Agreement. If you are accessing or using the ENTR Platform on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
Please note that ENTR may modify the terms and conditions of this Agreement in accordance with Section 10.3 (Amendment; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE ENTR PLATFORM, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE ENTR PLATFORM. EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
- The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by ENTR for the ENTR Platform.
“ENTR Platform” means ENTR’s SaaS-based project management platform for automating regulatory compliance for food and beverage companies.
“Order Form” means any ENTR order form, online sign-up, or subscription sign-up flow that references this Agreement.
“Third-Party Product” means any applications, integrations, software, code, online services, systems, or other products not developed by ENTR.
- ENTR Platform
- Account Registration. Customer may need to register for a ENTR account in order to use the ENTR Platform. Account information must be accurate, current, and complete. Customer agrees to keep this information up-to-date so that ENTR may send notices, statements, and other information by email or through Customer’s account. Customer must ensure that any user IDs, passwords, and other access credentials for the ENTR Platform are kept strictly confidential and not shared with any unauthorized person.
- Provision of ENTR Platform. Subject to the terms and conditions of this Agreement, ENTR will make the ENTR Platform available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive, non-transferrable, non-sublicensable right to access and use the ENTR Platform for its internal business purposes.
- Free Access Subscriptions. ENTR may provide Customer with the ENTR Platform for free or on a trial basis (a “Free Access Subscriptions”). ENTR makes no promises that any Free Access Subscriptions will be made available under the same commercial or other terms. ENTR may terminate Customer’s right to use any Free Access Subscriptions at any time in ENTR’s sole discretion without liability. Any Free Access Subscriptions are provided by ENTR “AS-IS” without any representations, warranties or support obligations.
- Data Security. ENTR will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of data, information and materials uploaded by or on behalf of Customer to the ENTR Platform (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
- Customer Responsibilities. Customer will (i) be responsible for all use of the ENTR Platform under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the ENTR Platform and notify ENTR promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the ENTR Platform and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the ENTR Platform, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and ENTR will have no liability for such failure (including under any service level agreement).
- Third-Party Products. If Customer uses Third-Party Products in connection with the ENTR Platform (such as through integrations made available by ENTR), Customer agrees and acknowledges that ENTR does not warrant or support Third-Party Products and disclaims all responsibility and liability for these items and their use in connection with the ENTR Platform.
- Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and ENTR and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
- Fees. To the extent the ENTR Platform is made available for a fee, Customer will pay ENTR for amounts as set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
- Credit Card Payment Terms. If Customer elects to pay via credit card, then Customer is responsible for either (a) enabling auto-recharge on Customer’s payment instrument or (b) ensuring that Customer’s payment instrument has a sufficient positive balance to cover all fees due. If, for any reason, Customer has a negative balance on its payment account, then ENTR reserves the right to suspend access to the paid version until all fees are paid in full.
- Invoicing Payment Terms. If Customer elect to receive invoices and ENTR approves Customer for the same, then invoices will be sent to via email in accordance with the Order Form. Except as otherwise set forth in an Order Form, Customer will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice.
- Late Payment. ENTR may suspend access to the ENTR Platform immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If ENTR has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by ENTR.
- Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of ENTR. Customer will not withhold any Taxes from any amounts due to ENTR.
- Proprietary Rights
- Proprietary Rights. As between the parties, ENTR exclusively owns all right, title and interest in and to the ENTR Platform, System Data and ENTR’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the ENTR Platform by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by ENTR regarding the ENTR Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the ENTR Platform.
- Feedback. Customer may from time to time provide ENTR suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the ENTR Platform. ENTR will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. ENTR will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
- Product Improvement and Aggregated Statistics. Customer further agrees that ENTR has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the ENTR Platform and shall be free (during and after the term hereof) to (i) use such data and other information to improve ENTR’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
- Confidentiality; Restrictions
- Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the ENTR Platform; (b) attempt to probe, scan or test the vulnerability of the ENTR Platform, breach the security or authentication measures of the ENTR Platform without proper authorization or wilfully render any part of the ENTR Platform unusable; (c) use or access the ENTR Platform to develop a product or service that is competitive with ENTR’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the ENTR Platform or otherwise offer the ENTR Platform on a standalone basis; (e) otherwise use the ENTR Platform in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form or (f) upload Special Data to the ENTR Platform. “Special Data” means data or information considered to be sensitive or otherwise subject to specific protections under applicable laws beyond any requirements that apply to “personal information” or “personal data” generally, such as for illustrative purposes, information that is regulated by the Health Information Portability and Accountability Act, the Payment Card Industry Data Security Standard, the Gramm-Leach-Bliley Act, and other U.S. federal, state or foreign laws applying specific security standards.
- Warranties and Disclaimers
- ENTR. ENTR warrants that it will, consistent with prevailing industry standards, provide the ENTR Platform in a professional and workmanlike manner and the ENTR Platform will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient ENTR Platform or, if ENTR cannot re-perform such deficient ENTR Platform as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.
- Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit ENTR to use the same as contemplated hereunder.
- DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE ENTR PLATFORM IS INTENDED TO AUGMENT, BUT NOT REPLACE, CUSTOMER’S OWN REGULATORY COMPLIANCE SYSTEMS AND PROCESSES. ENTR DOES NOT REPRESENT OR WARRANT THAT THE ENTR PLATFORM WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INFORMATION OR INSIGHTS PROVIDED BY THE ENTR PLATFORM DO NOT CONSTITUTE PROFESSIONAL OR LEGAL ADVICE OR COUNSEL. ENTR IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
- BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH ENTR WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY ENTR. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. ENTR DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR ENTR MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
- Indemnity by ENTR. ENTR will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the ENTR Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by ENTR) in connection with any such Claim; provided that (a) Customer will promptly notify ENTR of such Claim, (b) ENTR will have the sole and exclusive authority to defend and/or settle any such Claim (provided that ENTR may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with ENTR in connection therewith. If the use of the ENTR Platform by Customer has become, or in ENTR’s opinion is likely to become, the subject of any claim of infringement, ENTR may at its option and expense (i) procure for Customer the right to continue using and receiving the ENTR Platform as set forth hereunder; (ii) replace or modify the ENTR Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. ENTR will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the ENTR Platform by Customer not in accordance with this Agreement; (C) modification of the ENTR Platform by or on behalf of Customer; (D) Customer’s Confidential Information or (E) the combination, operation or use of the ENTR Platform with other products or services where the ENTR Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states ENTR’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
- Indemnification by Customer. Customer will defend ENTR against any Claim made or brought against ENTR by a third party arising out of the Excluded Claims, and Customer will indemnify ENTR for any damages finally awarded against ENTR (or any settlement approved by Customer) in connection with any such Claim; provided that (a) ENTR will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without ENTR’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases ENTR of all liability) and (c) ENTR reasonably cooperates with Customer in connection therewith.
- Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
- Paid Subscriptions. If Customer is accessing the ENTR Platform via a paid subscription, this Agreement will be in effect for the subscription term set forth in the Order Form and automatically renew for additional, successive renewal terms of equal length unless either party provides the other party with written notice of non-renewal at least (30) days’ before the end of the then-current renewal term. In addition, each party may each terminate this Agreement (a) if the other party fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach or (b) upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
- Free Access Subscriptions. If Customer is accessing the ENTR Platform via a Free Access Subscription, each party may terminate this Agreement upon written notice to the other party.
- Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.
- Customer Data Retrieval. Upon Customer’s written request made on or prior to expiration or termination of the applicable Order Form, ENTR will give Customer limited access to the ENTR Platform for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such retrieval period and ENTR’s legal obligations, ENTR has no obligation to maintain or provide any Customer Data and will, unless legally prohibited, delete Customer Data after such expiration or termination; provided, however, that ENTR will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases ENTR will continue to protect the Customer Data in accordance with this Agreement. For clarity, during the term of the applicable Order Form, Customer may extract Customer Data using ENTR’s standard web services as described in the Documentation.
- Publicity. Customer agrees that ENTR may refer to Customer’s name and trademarks in ENTR’s marketing materials and website; however, ENTR will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
- Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
- Amendment; Waiver. ENTR reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. With respect to each Order Form, any modifications to this Agreement, shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review this Agreement from time to time for any changes or modifications. If Customer does not agree to the modified Agreement, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. . Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
- Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
- Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
- Entire Agreement. This Agreement comprises the entire agreement between Customer and ENTR with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by ENTR, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
- Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
- Government Terms. ENTR provides the ENTR Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the ENTR Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The ENTR Platform was developed fully at private expense.