Ephox Corporation Cloud Use Subscription Agreement
PLEASE READ THIS EPHOX SUBSCRIBER TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE CLOUD SUBSCRIPTION SERVICES (“SUBSCRIPTION SERVICES”), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CLICK ‘ACCEPT.’ BY CLICKING ON ‘ACCEPT’ YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS IF YOU HAD USED OR INSTALLED THE SOFTWARE.
The following definitions apply in this Agreement:
- “Agreement” shall have the meaning set forth in the Preamble provided herein and include any sales forms.
- “API Key” shall have the meaning set forth in Section 6.4.
- “Authorized” means a Subscriber is entitled to use the Software for a specific purpose or purposes or to access certain services provided by Ephox. Subscriber is specifically Authorized by one of the following methods:
- in a Subscriber-signed quote;
- in a receipt issued by Ephox (an “Official Receipt”).
- “Effective Date” means the date on which Subscriber clicked the “I agree” button on the Subscription Form.
- “Directives” shall have the meaning set forth in Section 6.2.
- “Monthly Active User” or “MAU” means the total number of unique users that load the Subscription Service at least once in a month as set forth in Section 3.3.
- “Official Receipt” shall mean one of the methods set forth in the definition of “Authorized”.
- “Software” means the software used by Ephox to provide the Subscription Services.
- “Subscriber” means you.
- “Subscription Fee” shall have the meaning set forth in Article 5.
- “Subscription Form” shall have the meaning set forth in Section 2.3.
- “Subscription Period” means the term for which fees have been paid as set forth in Section 2.2 herein.
- “Subscription Services” shall mean the Cloud hosted software-as-a-service provided by Ephox as set forth in the Preamble of this Agreement.
- “Support” shall have the meaning set forth in Section 7.3.
2. GRANT OF LICENSE
In partial consideration for the Subscription Fee set forth in Article 5 and subject to the terms and conditions of this Agreement, Ephox hereby grants to Subscriber a non-exclusive, limited right to use the Subscription Services under the terms and conditions of this Agreement for the scope and products provided in the Subscription Form and any sales quotes. The grant of this license shall terminate with the termination of this Agreement.
2.1 Trial Subscription License
Ephox and Subscriber may agree in advance that Subscriber will be allowed to use Subscription Services for evaluation purposes. If Ephox agrees to allow Subscriber to use the Subscription Services for evaluation purposes, then all the prohibitions of this agreement shall be used for Subscription Services but only for an evaluation term as agreed to in advance by Ephox and Subscriber. At the end of the evaluation period, Subscriber shall have the option of continuing with Subscriber Services by paying the applicable Subscription Fee as set forth in Article 5.
2.2 Paid Subscription License
The Subscription Period (“Subscription Period”) commences on the date Subscriber is Authorized to use the Subscription Services and continues until the end of the last renewal.
2.3 Subscription Period
Subscriber will be entitled to receive the Subscription Services only during the Subscription Period specified in Subscriber billing form (“Subscription Form”). Subscription Periods will either be one month or one year. Monthly subscriptions will automatically renew on a month-to-month basis until cancelled by Subscriber. Annual subscriptions will automatically renew on a year-to-year basis unless cancelled by Subscriber.
3. PERMITTED LICENSE USES AND RESTRICTIONS
3.1 Subscription Services Usages and Restrictions
- The Subscriber may use the Subscription Services to:
- develop software applications that interface with the Subscription Services to provide services embedded within their applications;
- make the Subscription Services available to end users of their application in compliance with the terms of this agreement.
- The Subscription Services provided to the Subscriber are non-exclusive and limited. Subscriber may not:
- reverse engineer the Subscription Services or its APIs;
- access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Subscriber is an employee of an Ephox competitor or an Ephox competitor;
- use the Subscription Services in a way that violates any criminal or civil law; or
- exceed usage limits specified in the Subscription Form.
3.2 Access to Subscription Services
The Software is located on servers that are controlled by Ephox. Subscribers may access the Software but Subscriber has no rights to receive a copy of the object code or source code to the Software.
3.3 Subscription Service Usage Calculation
Use of the Subscription Service is subject to the number of Monthly Active Users (“MAU”) calculated as follows:
- A count of the number of MAU as at the end of the month;
- Ephox will compare the actual number of MAU against the number of Authorized MAU;
- Ephox will notify the Subscriber if the actual number of MAU exceeds the Authorized MAU;
- Subscriber will have ten (10) days to contact Ephox to increase the Authorized MAU;
- In the event that the Subscriber does not increase the Authorized MAU by the end of the ten (10) day period, the Subscription Service will be suspended; and
- The Subscription Service will be restored upon increase of the Authorized MAU.
4. TERM & TERMINATION
This Agreement commences on the Effective Date and will remain in force until terminated. This Agreement shall immediately terminate if Subscriber does not pay the Subscription Fee as provided herein. Subscriber’s rights shall also immediately terminate under this Agreement without notice from Ephox if: (a) Subscriber fails to comply with any term(s) of this Agreement or (b) Subscriber terminates business activities or becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.
4.2 Effect of Termination
Upon termination of this Agreement, all license grants provided herein shall immediately terminate and Subscriber and any of its end users shall immediately cease using Subscription Services.
5. PAYMENT TERMS
Subscriber agrees to pay Ephox the Subscription Fee specified in the Subscription Form during the Subscription Period (“Subscription Fee”). The Subscription Fee is payable in United States dollars. A valid form of payment, such as a credit card, PayPal, or Ephox approved automatic payment, is required to subscribe to the service. The Subscription Fee is payable in advance for the Subscription Period unless Ephox agrees to invoice Subscriber according to Ephox standard terms. All customers billed manually by Ephox invoice shall be subject to net thirty (30) day term(s).
For a subscription that renews monthly, Subscription Fees are paid in advance on a month-to-month basis and will be automatically charged unless Subscriber cancels the Service before the month begins. For a subscription that renews annually, Subscription Fees will be paid in advance for each subsequent year unless Subscriber cancels the Service before the beginning of the subsequent year. Subscription Fees are non-refundable and non-transferable. When a payment or automatic payment cannot be processed, Subscriber shall have thirty (30) days from the renewal date to submit payment in order to retain services.
The fees do not include taxes (except for VAT taxes, which shall be collected by Ephox), and Subscriber shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Ephox) due as a result of any amounts paid to Ephox. Subscriber shall bear all of Ephox’s costs of collection of overdue fees, including reasonable attorneys’ fees.
6. SUBSCRIBER DATA
6.2 EU Data Protection Directives
Ephox must comply with the principles of the European Union Data Protection Directive 95/46 and the Telecoms Data Protection Directive as amended (“the Directives”) and any successor legislation, in relation to any “personal data” received by or originating from the Subscriber, to the extent that the Directives apply to “data processors.” Subscriber grants Ephox permission to place session cookies on their computer for the duration of any session. Ephox will not place residual cookies on a Subscriber’s computer. Subscriber hereby warrants that it is aware of regional and national data privacy laws and regulations and will comply with all such laws in the use of Subscription Services. In particular, Subscriber warrants that it will not use Subscription Services in violation of any data privacy laws in the United States, Europe or elsewhere in the world. Subscriber hereby represents that it will make this warranty as long as this Agreement is in force.
6.3 Subscriber Account, Password & Security
Upon completing the registration process, Subscriber shall receive credentials to allow Subscriber to use Subscription Services. Subscriber is responsible for maintaining the confidentiality of the account and is fully responsible for all activities that occur under Subscriber’s account. Subscriber agrees to immediately notify Ephox of any unauthorized use of Subscriber’s account or any other breach of security. Ephox is not liable for any loss or damage arising from Subscriber’s failure to comply with this Article 6. Subscription Services may prevent Subscriber from accessing the Subscriber Services until its identity can be confirmed if an account designation is used to access Subscription Services from more than one location or from multiple locations in sequence at once.
6.4 API Key
The use of some Subscription Services requires a secure passcode (“API Key”), which is directly associated with Subscriber’s account. Subscriber is solely responsible for the activity that occurs on Subscriber’s account, and for keeping Subscriber’s account secure, including the API Key. Subscriber is not permitted to use another account without permission. Subscriber must notify Ephox immediately of any breach of security or other unauthorized use of Subscriber’s account.
7. AVAILABILITY AND SUPPORT
7.1 System Availability
Ephox will make commercially reasonable efforts to make Software available within the defined uptime percentage of at least 99% during the monthly billing period. System unavailability for the purposes of maintenance and upgrade will be scheduled if required early Monday mornings (US East Coast time). All planned outages will be advised on the Ephox website or via email prior to the event.
Ephox will provide Subscriber Services updates when available and at its discretion. Ephox is under no obligation to develop any future functionality or enhancements. If an update for Subscriber Services is made available, it shall automatically replace the previous version of the product. Where possible Ephox will schedule Subscriber Services updates during non-business hours and will provide customers with advance notice on the login screen.
7.3 Technical Support
7.3.1 Nature of User Support
Ephox offers two levels of technical support service (“Support”) under this Agreement: Professional Support and Enterprise Support. The level of Support Subscriber is entitled to is shown on the Official Receipt.
Support shall cover the use of the Subscription Service. During the Subscription Period, Ephox will provide technical support for problems in the operation of the Subscription Services in accordance with the following conditions:
- Professional Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.
- Enterprise Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.
7.3.2 Access to Support
Ephox will provide Subscriber access to the Ephox Online Support Center located at http://support.ephox.com where Subscriber will be provided access to documentation, community forums and a web-based support form to submit a support case.
7.3.3 Support Conditions
Ephox’s obligation to provide technical support is conditioned upon the following:
- Subscriber makes reasonable efforts to solve the problem after consulting with Ephox;
- Subscriber provides Ephox with sufficient information and resources to correct the problem either at Ephox’s offices or via remote access to Subscriber’s site, as well as access to the personnel, and hardware involved in discovering the problem; and
- Subscriber procures, installs and maintains all equipment necessary to operate Subscription Services.
7.3.4 Service Exclusions
Ephox is not obligated to provide technical support in the following situations:
- the problem is caused by Subscriber’s negligence, hardware malfunction or other causes beyond the reasonable control of Ephox;
- the problem may be attributed to third party software not licensed through Ephox; or
- Subscription Fees have not paid by Subscriber.
7.4 Changes to Subscription Services
Ephox may change, discontinue or deprecate the Subscription Services or change or remove features or functionality of the Subscription Services from time to time.
8. WARRANTY AND LIABILITY
8.1 Limitation of Liability
Ephox’s total liability under this agreement shall be limited to the amount paid by Subscriber under this Agreement. In no event shall Ephox be liable for costs of procurement of substitute goods or technology, loss of profits, or for any indirect, special, exemplary, punitive, consequential or incidental damages, even if Ephox has been advised of the possibility of such damages.
In no event will Ephox be liable for fines or penalties imposed on or by Subscriber. Furthermore, Ephox disclaims any liability for loss of or inaccuracy of Subscriber’s data or the data maintained by Subscriber on behalf of others. Ephox also disclaims liability and/or responsibility for violations of applicable privacy laws and regulations, or for breaches of security of hardware, Subscription Services or systems for which Subscriber is responsible.
Subscriber hereby agrees that Ephox will not be liable for loss of or damage to goodwill or “costs of cover” (including, without limitation, costs of procuring substitute products or services) which arise directly or indirectly out of the purchase, sale, use of and/or inability to use Subscription Services provided in connection with this agreement, whether such damages are based upon contract, tort, intentional conduct, equity or pursuant to some other theory, whether the possibility of such damages was made known to or was foreseeable by Ephox and whether such damages are asserted by Subscriber or a third party.
Subscriber agrees to assume the responsibility for insuring against or otherwise bearing the risk of damages in excess of the liability of Ephox. The limitations of liability set forth herein are intended to limit Ephox’s liability and will apply notwithstanding the failure of the essential purpose of any remedy.
Any action, claim or proceeding relating to these terms and conditions, and the Subscription Services provided in connection with the agreement or the transactions contemplated by the terms and conditions of said agreement, must be brought within twelve (12) months following the action or event giving rise to such action, claim or proceeding. Subscriber agrees to use reasonable efforts to mitigate any damages sustained by Subscriber pursuant to or in connection with the use of or Subscriber’s inability to use the Subscription Services provided in connection with this agreement.
Notwithstanding the foregoing, the disclaimer of warranties and/or the disclaimer and/or limitation of damages will not be deemed to disclaim liability specifically imposed on Ephox by statute or regulation, to the extent such liability cannot be waived or disclaimed. Some jurisdictions do not allow the disclaimer of implied warranties or the exclusion or limitation of liability for consequential or incidental damages, so the disclaimers or limitations set forth herein may not fully apply. To the extent that the disclaimers and/or limitations set forth herein are not fully enforceable under applicable law, Subscriber may have other legal rights which vary from jurisdiction to jurisdiction.
8.2 Remedies for Infringement
In the event that Ephox reasonably believes that the Subscription Services may be subject to an infringement claim, Ephox may, in its sole discretion, either: (a) substitute substantially equivalent subscription services; (b) modify the Subscription Services; or (c) terminate the license granted hereunder.
The Subscription Services, Software, and documentation contain valuable trade secrets that are the sole property of Ephox, and Subscriber agrees to use reasonable care to prevent other parties from learning of the trade secrets. Subscriber must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software and documentation. This section does not apply to any information that (a) is now, or subsequently becomes, through no act or failure to act on the part of Subscriber, generally known or available; (b) is known by Subscriber at the time of receiving such information, as evidenced by the Subscriber’s contemporaneous written records; (c) is subsequently provided to the Subscriber by a third party, as a matter of right and without restriction on disclosure; or (d) is required to be disclosed by law, provided that Ephox is given prior written notice by Subscriber of any such proposed disclosure.
Ephox may freely assign this Agreement without restriction. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Ephox, which may be withheld in its absolute discretion. Subject to the foregoing, this Agreement will be binding upon and will vest to the benefit of the parties and their respective successors and assignors. Notwithstanding the foregoing, no transfer or assignment of Subscriber’s rights hereunder shall be effective unless and until the purported assignee agrees in writing to be bound by all of Subscriber’s obligations hereunder.
Ephox’s failure to act under this Agreement shall not indicate a waiver of rights under this Agreement. No waiver of any provision of this Agreement shall be valid unless made in writing and signed by Ephox. The failure of Ephox to require the performance of any term or obligation of this Agreement or the waiver by Ephox of any breach of this Agreement shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.
10.3 U.S. Export Restrictions
The Subscription Services may be subject to certain export restrictions of the United States Government. If Subscriber is (a) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (b) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (c) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then Subscriber may not install, download, access, use, or license the Subscription Services. By accepting the terms of this Agreement, Subscriber warrants and represents to Ephox that (1) Subscriber does not match the criteria set forth in (a), (b), or (c) above, (2) that Subscriber will not export or re-export the Subscription Services to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (a), (b), or (c) above, and (3) that neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied Subscriber export privileges.
10.4 Governing Law
This Agreement is governed by and construed and enforced in accordance with the substantive laws in force in the Santa Clara County, State of California, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this Agreement.
Ephox may provide Subscriber with notices, including those regarding changes to these terms of service, by e-mail or postings on the Service website. Subscriber may send a notice relating to this Agreement by delivery-assured service to the Chief Financial Officer, Ephox Corporation, 2100 Geng Road, Suite 220, Palo Alto, CA 94303, United States of America.
10.6 U.S. Government End Users
The Subscription Services are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Subscription Services” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212, the Commercial Computer Subscription Services is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
© Copyright 2017 Ephox Corporation. Ephox and TinyMCE are trademarks of Ephox Corporation.
Ephox Technical Support Conditions
A. PROFESSIONAL SUPPORT
1. EPHOX TECHNICAL SUPPORT SERVICE LEVELS
Ephox undertakes to provide the Support Service in accordance with the following Service Level:
- Response times within the Service Hours: 2 business days. (Business days are based on Service Hours as defined in Section A.2. below).
- Subscriber is entitled to two (2) Support tickets per calendar month.
2. SERVICE HOURS
Ephox’s service hours:
- California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.
3. REPORTING OF PROBLEMS
All problems are to be reported by a Subscriber representative through the Ephox technical support form on the Ephox website at: http://support.ephox.com. Ephox’s response to support requests submitted by email will be delayed. After submission include the Ephox Technical Support case number that was advised by email in response to the initial reporting.
4. APPLICATION TO EPHOX PRODUCTS
Ephox technical support for any release of the licensed Software will end as specified:
The later of either: (a) six (6) months after the release has been superseded; or (b) eighteen (18) months after the release was made available. Fixes for all issues will be delivered as a part of the normal release process (i.e. in the next release of the software).
B. ENTERPRISE SUPPORT
1. EPHOX TECHNICAL SUPPORT SERVICE LEVELS
Ephox undertakes to remedy problems in accordance with the following Service Levels.
- Ephox Technical Support Service Level – Problem Category 1:
- Response times within the service hours: 4 hours
- Workaround times within the service hour: 24 hours
- Ephox Technical Support Service Level – Problem Category 2:
- Response times within the service hours: 8 hours
- Workaround times within the service hour: 36 hours
- Ephox Technical Support Service Level – Problem Category 3:
- Response times within the service hours: 24 hours
- Workaround times within the service hours: 48 hours
2. SERVICE HOURS
Ephox’s service hours:
- California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.
- Queensland, Australia office: 7:30 AM to 3:30 PM Monday to Friday local time excluding Queensland public holidays
Office contact information available at http://www.ephox.com/aboutus/offices.html.
3. PROBLEM CATEGORIES
- Category 1:
Effective use (commercially tenable use) is not possible due to such malfunctions, or is unreasonably restricted or impaired.
- Category 2:
Effective use of the software is not gravely impaired, so that working with the software according to the specifications stipulated (software documentation) is possible.
- Category 3:
Effective use is not restricted due to this malfunction.
The categorization of these malfunctions into one of the malfunction classes is advised at the time that the malfunction is reported.