Terms of Use

Terms and Conditions
Enfocate, along with its subsidiaries and affiliates provides the information and services on its World Wide Web site(s) " www.enfocate.com" under the following terms and conditions (the “T & C”). By accessing and/or using the Site, you indicate your acceptance of these Terms.

By using our Site, you agree to not knowingly circumvent, evade, or fail to comply with all applicable Terms to the extent that they apply to you.

Laws and Regulations

Access to the site and use of it are subject to all applicable international, federal, state and local laws and regulations. User agrees not to use the Site in any way that violates such laws or regulations.

Copyright and Trademarks

The information available on or through this Site is the property of Enfocate, or its licensors, and is protected by copyright, trademark, and other intellectual property laws. Users may not modify, copy, distribute, transmit, display, publish, sell, license, create derivative works or otherwise use any content or information available on or through this Site, directly or indirectly, for commercial or public purposes. Users may not use the trademarks, logos and service marks ("Marks") for any purpose including, but not limited to use as "hot links" or meta tags in other pages or sites on the World Wide Web without the written permission of Enfocate or such third party that may own the Mark.

TAMPERING

User agrees not to modify, move, add to, delete, tamper, manipulate, or otherwise disrupt Enfocate Web site or the information contained in Enfocate 's Web site, including by not circumventing Enfocate technical controls and security measures. User also agrees not to decompile, reverse engineer, disassemble or unlawfully use, modify, copy or reproduce any of the software, copyrighted or trademarked material, trade secrets, or other proprietary or confidential information contained in the Site.

By using or accessing this web site you agree that other than with respect to the non-scheduled, non-recurring collection of data done with the express consent of the applicable company or individual, you will not access the Site in a manner that sends more requests to Enfocate servers than a human can reasonably produce in the same period of time or collect or harvest any personally identifiable information.

THIRD PARTY INFORMATION

Although Enfocate monitors the information on the Site, some of the information is supplied by independent third parties. While Enfocate makes every effort to insure the accuracy of all information on the Site, Enfocate makes no warranty as to the accuracy of any such information.

LINKS TO THIRD PARTY SITES

This Site may contain links that will let you access other Web sites that are not under the control of Enfocate. The links are only provided as a convenience and Enfocate does not endorse any of these sites. Enfocate assumes no responsibility or liability for any material that may accessed on other Web sites reached through this Site, nor does Enfocate make any representation regarding the quality of any product or service contained at any such site.

LINKS FROM THIRD PARTY SITES

Enfocate prohibits unauthorized links to the Site and the framing of any information contained on the site or any portion of the Site. Enfocate reserves the right to disable any unauthorized links or frames. Enfocate has no responsibility or liability for any material on other Web sites that may contain links to this Site.

NO WARRANTIES

Information and documents provided on this Site are provided "as is" without warranty of any kind, either express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, and non-infringement. Enfocate uses reasonable efforts to include accurate and up-to-date information on this Site; it does not, however, make any warranties or representations as to its accuracy or completeness. Enfocate periodically adds, changes, improves, or updates the information and documents on this Site without notice. Enfocate assumes no liability or responsibility for any errors or omissions in the content of this Site. Your use of this Site is at your own risk.

PRIVACY

Protecting the privacy of our clients and users of our Sites is important to Enfocate. The Enfocate Web Site Privacy Statement describes how we use and protect information you provide to us. Please visit our PRIVACY POLICY for more information.

SECURITY

Data transmitted to and from Enfocate client Sites is encrypted for the user's protection. However, the security of information transmitted through the Internet can never be guaranteed. Enfocate is not responsible for any interception or interruption of any communications through the Internet or for changes to or losses of data. User is responsible for maintaining the security and confidentiality of any password, user name or ID, or other form of user authentication required by Enfocate (“Authentication”) involved in obtaining access to password protected or secure areas of Enfocate sites and shall not disclose any confidential account access credentials or confidential information to Unauthorized Third Parties. An “Unauthorized Third Party” refers to any third party or business that seeks to access or accesses Enfocate sites or systems using the account credentials (e.g., username and password) of an Enfocate client or client employee, regardless of the their purported consent, in order to access, copy or obtain Enfocate information, whether such information is accessed, copied or obtained by an automated data gathering program or by other means, including data scrapers, data aggregators and any third parties seeking to monetize data obtained from Enfocate without Enfocate’s express consent. In order to protect you and your data, Enfocate may suspend your use of a client site, without notice, pending an investigation, if any such unauthorized disclosure or use or breach of security is suspected.

TRANSMISSION OF PERSONAL DATA

User acknowledges and agrees that by providing Enfocate with any personal information through the Site, user consents to the transmission of such personal user information over international borders as necessary for processing in accordance with Enfocate's standard business practices and the Enfocate Web Site Privacy Statement.

ACCESS TO PASSWORD PROTECTED/SECURE AREAS

Access to and use of password protected and/or secure area of the Site is restricted to authorized users only. Unauthorized access, including any access by Unauthorized Third Parties, to such areas is prohibited and may lead to criminal prosecution.

Fees and Payment

All charges associated with Customer’s Account (“Fees”) are set forth in the applicable SOF or Website, and are due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable SOF or Website. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. During the Term, the Customer may not reduce their Service Plan or User count.

Late Payments- If undisputed Fees are more than thirty (30) days overdue, then, following written notification from Enfocate, Enfocate may suspend Customer’s access to the Enfocate Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.

Payment Disputes- Enfocate will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.

Orders by Affiliates- Customer’s Affiliates may purchase Services directly from Enfocate by executing an SOF which is governed by the terms of this Agreement. Such SOF will establish a new and separate agreement between the Customer’s Affiliate and the Enfocate entity signing such SOF. If the Affiliate resides in a different country than Customer, then the SOF may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).

Term, Termination and Suspension

Term- This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.

Renewal-  Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term or one year (whichever is shorter). Enfocate reserves the right to increase the Fees at the beginning of each Subscription Term.

Suspension- Enfocate may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Enfocate to prevent or address the introduction of Malicious Software (as defined in Section  8.b below), a security incident, or other harm to Customer, Enfocate, or Enfocate' other customers.  Enfocate will notify Customer of any such suspension. Enfocate will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Enfocate Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved.  Such suspension will in no way affect Customer’s other obligations under this Agreement.

Termination for Cause- Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Free Trial Customers- Upon the expiration of Customer’s free trial, Enfocate may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Enfocate will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.

Data Export- Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other Enfocate Technology will terminate.  Enfocate strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Customer agrees, following the termination or expiration of this Agreement or an unrenewed Subscription Term, that Customer Data will be retained or deleted in accordance with the Supplemental Terms, as applicable to Customer. Where Customer Data is retained by Enfocate and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact Enfocate within fourteen (14) days following the effective date of termination to have Enfocate export Customer’s Customer Data. Customer Data cannot be recovered once it is deleted.

Confidentiality- Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information.  The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing.  If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.  The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 

Warranties/Disclaimer of Warranties

Service Warranty- Enfocate warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, Enfocate will use diligent efforts to correct the Services, Software, or  Mobile Apps so the foregoing warranty is met, and if Enfocate is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than Enfocate or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.

Malware Warranty- Enfocate warrants that the Services hosted by Enfocate will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of Enfocate or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).

Warranty Disclaimer- Except as expressly set forth in this agreement, neither party makes any other warranties, express or implied, statutory or otherwise, and all such warranties are hereby disclaimed, including but not limited to warranties of merchant ability, title, fitness for a particular purpose, or non-infringement. 

Indemnification

Indemnification by Customer- Customer will defend Enfocate and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless  Enfocate and its Affiliates from and against any damages and costs awarded against Enfocate and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.

Indemnification Procedures- In the event of a potential indemnity obligation, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent. 

Miscellaneous

 Use of Third Parties for Payment Processing- Enfocate may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Enfocate. Customer must notify Enfocate of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing Enfocate at soporte@Enfocate.net.

Assignment- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.

Entire Agreement- This Agreement, together with any SOF, the Privacy Notice, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Enfocate regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any SOF or purchase order and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Supplemental Terms, and fourth, this Agreement.  If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.

Publicity Right- Enfocate may identify Customer as a Enfocate customer in its promotional materials.  Customer may request that Enfocate stop doing so by submitting an email  at any time. Please note that it may take us up to thirty (30) days to process a request.

Relationship of the Parties- The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

Anti-Corruption- Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Enfocate.

Governing Law- This Agreement is governed by the laws of the State of California without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County for any claims or dispute relating to this Agreement.

Dispute Resolution

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in San Francisco, California. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 

Definitions

“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.

“Affiliate" or "Subsidiary"  means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.

“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.

“Documentation” means, the then-current, generally available user documentation provided by Enfocate detailing the functionalities of the Software and the Services.

“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.

“Enfocate Technology” means, (i) the Services, Software, Mobile Apps, Documentation, Enfocate’ APIs, Enfocate’ website(s) and any content published on the Enfocate’ websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) Enfocate’ Confidential Information and (iv) any modifications or derivative works of the foregoing.

“Mobile App” means, the Enfocate-branded Software applications provided by Enfocate to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).

“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).

“Service Order Form or SOF” means, (i) any service order referencing this Agreement and executed by Customer and Enfocate, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to Enfocate, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.

“Services” means, the Enfocate software-based service offerings identified on the SOF and any Updates, including any Software, API or Documentation made available by Enfocate with such offering, but excludes any applications or APIs separately provided by third parties.

“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.

“Software” means the generally available software provided by Enfocate in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.

“Subscription Term” means, the period stated on a SOF during which Customer subscribes to the Services.

“Supplemental Terms” means, the Services specific terms found, which are located currently at www.enfocate.com.

“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by Enfocate to all subscribing customers, but excludes separately priced new products or modules.

“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.

 

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