Enfonica Terms of Service¶
Last modified: August 3, 2020
If you signed an offline variant of this Agreement for use of the Enfonica Services under the same Enfonica Account, the terms below do not apply to you, and your offline terms govern your use of the Enfonica Services.
This Enfonica Agreement (the "Agreement") is made and entered into by and between Enfonica and the entity or person agreeing to these terms ("Customer"). "Enfonica" means Enfonica Pty Ltd (ABN 64 637 859 771), a company incorporated under the laws of Australia.
This Agreement is effective as of the date Customer clicks to accept the Agreement; or the date specified on the Order Form that Customer has executed (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept or execute the Order Form. This Agreement governs Customer's access to and use of the Service. For an offline variant of this Agreement, you may contact Enfonica for more information.
1. Provision of the Services.¶
1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application, and (c) use any Software provided by Enfonica as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
1.2 Console. Enfonica will provide the Services to Customer. As part of receiving the Services, Customer will have access to the Console, through which Customer may administer the Services.
1.3 Facilities. All facilities used to store and process an Application and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Enfonica processes and stores its own information of a similar type. Enfonica has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (iii) protect against unauthorized access to or use of an Application and Customer Data.
1.4 Data Location. Customer Data is stored in Australia.
1.5 Accounts. Customer must have an Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify Enfonica as promptly as possible.
1.6 New Applications and Services. Enfonica may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the "Services" definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer's agreement to additional terms.
a. To the Services. Enfonica may make commercially reasonable updates to the Services from time to time. If Enfonica makes a material change to the Services, Enfonica will inform Customer, provided that Customer has subscribed with Enfonica to be informed about such change.
b. To the Agreement. Enfonica may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Enfonica, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, please stop using the Services. Enfonica will post any modification to this Agreement to the Terms URL.
1.8 Exceptions. Enfonica may not be able to provide 30 days notice of updates to the Agreement that result from changes required by law or requirements from telecommunications providers.
2. Payment Terms.¶
2.1 Free Quota. Certain Services may be provided to Customer without charge up to the Fee Threshold, as applicable.
2.2 Online Billing.
a. At the end of the applicable Fee Accrual Period, Enfonica will issue an electronic bill to Customer for all charges accrued above the Fee Threshold based on (i) Customer's use of the Services during the previous Fee Accrual Period; and/or (ii) any Committed Purchases. For use above the Fee Threshold, Customer will be responsible for all Fees up to the amount set in the Account and will pay all Fees in the currency set forth in the invoice.
b. Enfonica will charge Customer, and Customer shall pay, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services.
c. If Customer elects to pay in advance, then you are responsible for ensuring your Account has a sufficient positive balance to cover all Fees due. If, for any reason, your Account has a negative balance, Enfonica reserves the right to suspend the Services.
d. If Customer elects to pay by invoice in arrears (and Enfonica agrees), all Fees are due as set forth in the invoice.
e. Customer's obligation to pay all Fees is non-cancellable. Enfonica's measurement of Customer's use of the Services is final. Enfonica has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Enfonica.
(a) Customer is responsible for any Taxes, and Customer will pay Enfonica for the Services without any reduction for Taxes. If Enfonica is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer at the end of each Fee Accrual Period, unless Customer provides Enfonica with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Enfonica, Customer must provide Enfonica with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local VAT or GST and the Customer is required to make a withholding of local VAT or GST from amounts payable to Enfonica, the value of Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT or GST and the grossed up amount will be regarded as a VAT or GST inclusive price. Local VAT or GST amount withheld from the VAT or GST-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that Enfonica will receives payment for its services for the net amount as would otherwise be due (the VAT or GST inclusive price less the local VAT or GST withheld and remitted to applicable tax authority).
(b) If required under applicable law, Customer will provide Enfonica with applicable tax identification information that Enfonica may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Enfonica for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
2.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Enfonica, Enfonica will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Enfonica will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Enfonica and will only be in the form of credit for the Services. Nothing in this Agreement obligates Enfonica to extend credit to any party.
2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Enfonica in collecting such delinquent amounts. If Customer is late on payment for the Services, Enfonica may Suspend the Services or terminate the Agreement for breach pursuant to Section 8.2.
2.6 No Purchase Order Number Required. For clarity, Customer is obligated to pay all applicable Fees without any requirement for Enfonica to provide a purchase order number on Enfonica's invoice (or otherwise).
2.7 Committed Purchases.
a. Commitment. Customer may have an option to request Committed Purchases in an Order Form. If Enfonica accepts the request, then notwithstanding the payment terms in the Agreement, Customer will pay the Fees for those Committed Purchases during the Committed Purchase Term selected by Customer, whether or not they are used.
b. Renewal. At the end of each Committed Purchase Term, the Committed Purchase selection will automatically renew for the same Committed Purchase Term until either party notifies the other party in writing to cancel the renewal.
c. Cancellation and Expiration. Committed Purchases may not be cancelled or refunded after they are placed, unless agreed in writing by both parties. Any use of the Services after cancellation or expiration of the Committed Purchase will be billed at standard Fee rates.
3. Customer Obligations.¶
3.1 Compliance. Customer is solely responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data comply with the AUP. Enfonica reserves the right to review the Application, Project, and Customer Data for compliance with the AUP. Customer is responsible for ensuring all Customer End Users comply with Customer's obligations under the AUP and the restrictions in Section 3.3 below.
3.2 Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees or exceed usage limits or quotas; (c) attempt to use the Services to access or allow access to emergency services; or (d) use the Services for High Risk Activities.
3.4 Customer Responsibilities. Customer will: (a) be solely responsible for all use, whether authorized or not, of the Services under your Account, including for the quality and integrity of Customer Data; (b) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (c) ensure that Enfonica is entitled to use your Customer Data, as needed to provide the Services.
3.5 Documentation. Enfonica may provide Documentation for Customer's use of the Services. The Documentation may specify restrictions on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.
4.1 AUP Violations. If Enfonica becomes aware that Customer's or any Customer End User's use of the Services violates the AUP, Enfonica will give Customer notice of the violation by requesting that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Enfonica's request, then Enfonica may Suspend all or part of Customer's use of the Services until the violation is corrected.
4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations) Enfonica may immediately Suspend all or part of Customer's use of the Services if: (a) Enfonica believes Customer's or any Customer End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the Enfonica network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Enfonica believes it is required to Suspend immediately to comply with applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). Enfonica will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, unless prohibited by applicable law, Enfonica will notify Customer of the basis for the Suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Use of Customer Data; Feedback.¶
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Enfonica owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. Enfonica will not access or use Customer Data, except as necessary to provide the Services and support to Customer.
5.3 Customer Feedback. If Customer provides Enfonica Feedback about the Services, then Enfonica may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Enfonica all right, title, and interest in that Feedback.
6. Beta Offerings.¶
6.1 Beta Offerings. From time to time, Enfonica may make Beta Offerings available. You may use Beta Offerings at your sole discretion. Notwithstanding any provision to the contrary in this Agreement, Enfonica may discontinue or make backwards-incompatible changes to Beta Offerings. Beta Offerings means features that are identified as beta, early access, developer preview, or any such similarly designated features, Services, products, and documentation.
7. Confidential Information.¶
7.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
7.2 Disclosure to Provide Services. Notwithstanding Section 7.1, Enfonica may use and disclose your Confidential Information as necessary to provide the Services.
7.3 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users' use of the Services.
8. Term and Termination.¶
8.1 Agreement Term. The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 8 of this Agreement.
8.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Enfonica may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 8.2(i), (ii), and/or (iii).
8.3 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Enfonica may terminate this Agreement for its convenience at any time without liability to Customer to the extent permitted by law.
8.4 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees for Committed Purchases over the remainder of the respective Committed Purchase Term become owed to Enfonica immediately; (iii) all Fees owed by Customer to Enfonica are immediately due upon receipt of the final electronic bill; (iv) Customer will delete the Software, Project, and any Customer Data; and (v) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
Customer is permitted to state publicly that it is a customer of the Services. Enfonica may include Customer's name or Brand Features in a list of Enfonica customers, online or in promotional materials. Enfonica may also verbally reference Customer as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party's right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
10. Representations and Warranties.¶
10.1 General. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
10.2 Services. Enfonica represents and warrants that the Services will perform materially in accordance with the applicable Documentation. Enfonica's sole obligation, and your sole and exclusive remedy, in the event of any failure by Enfonica to comply with this Section 10.2 will be for Enfonica to, at Enfonica's option, re-perform the affected Services or refund to you the Fees you actually paid for the affected Services.
10.3 Recordings and Monitoring. Customer represents and warrants that if Customer records or monitors communications using the Services, then Customer will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. Customer acknowledges that these representations, warranties, and obligations are essential to Enfonica's ability to provide Customer with access to recording and monitoring features, and Customer further agrees to indemnify Enfonica and its affiliates in accordance with the terms of Section 13 for claims arising out of or related to Customer's acts or omissions in connection with providing notice and obtaining consents regarding such recording or monitoring of communications using the Services.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (a) ENFONICA AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT; (b) ENFONICA DISCLAIMS ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS; (c) BETA OFFERINGS ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER, AND ENFONICA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH BETA OFFERINGS; AND (d) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ENFONICA WILL NOT BE LIABLE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR SENSITIVE DATA THAT CUSTOMER OR ANY CUSTOMER END USER SENDS TO ENFONICA.
12. Limitation of Liability.¶
12.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ENFONICA'S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
12.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ENFONICA'S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO ENFONICA UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
12.3 Emergency Services Disclaimer. NEITHER ENFONICA NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD ENFONICA HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES.
12.4 Exceptions to Limitations. These limitations of liability do not apply to violations of a party's Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.
13.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Enfonica and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Customer Data or Customer Brand Features; or (ii) Customer's, or Customer End Users', use of the Services in violation of this Agreement or the AUP.
13.2 By Enfonica. Enfonica will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Enfonica's technology used to provide the Services or (b) any Enfonica Brand Feature infringes or misappropriates the third party's patent, copyright, trade secret, or trademark.
13.3 Exclusions. This Section 13 will not apply to the extent the underlying Allegation arises from:
a. the indemnified party's breach of this Agreement;
b. modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
c. combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
d. use of non-current or unsupported versions of the Services or Brand Features;
13.4 Conditions. Sections 13.1 and 13.2 will apply only to the extent:
a. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 13.1 or 13.2 (as applicable) will be reduced in proportion to the prejudice.
b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
a. If Enfonica reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Enfonica may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
b. If Enfonica does not believe the remedies in Section 13.5(a) are commercially reasonable, then Enfonica may Suspend or terminate Customer's use of the impacted Services.
13.6 Sole Rights and Obligations. Without affecting either party's termination rights, this Section 13 states the parties' only rights and obligations under this Agreement for any third party's Intellectual Property Rights Allegations and Third-Party Legal Proceedings.
14.1 Notices. All notices must be in writing and addressed to the other party's legal department and primary point of contact. The email address for notices being sent to Enfonica's Legal Department is email@example.com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
14.2 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of Enfonica. Any attempt by Customer to assign, delegate, or transfer these Terms will be void. Enfonica may assign these Terms, in whole or in part, without consent. Subject to this Section 14.2, this Agreement will be binding on both you and Enfonica and each of our successors and assigns.
14.3 Change of Control. If Customer experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) Customer will give written notice to Enfonica within thirty days after the change of Control; and (b) Enfonica may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
14.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
14.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
14.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
14.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
14.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
14.9 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
14.10 Governing Law. THIS AGREEMENT WILL BE INTERPRETED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF QUEENSLAND, AUSTRALIA. THE PARTIES SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF BRISBANE, QUEENSLAND AND ANY COURTS THAT MAY HEAR APPEALS FROM THOSE COURTS IN RESPECT OF ANY PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT.
14.11 Amendments. Except as set forth in Section 1.7(b), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
14.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 7, 8.4, 12, 13, and 14.
14.13 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Enfonica may provide an updated URL in place of any URL in this Agreement.
14.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL. If Enfonica provides this Agreement in more than one language for the country of your billing address, and there is a discrepancy between the English text and the translated text, the English text will govern.
- "Account" means Customer's Enfonica account.
- "Console" means the online console(s) and/or tool(s) provided by Enfonica to Customer for administering the Services.
- "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
- "Allegation" means an unaffiliated third party's allegation.
- "Application(s)" means any service or other application Customer creates or provides using the Services.
- "AUP" means the acceptable use policy for the Services set forth here: https://enfonica.com/terms/aup.
- "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- "Committed Purchase" means a specified amount of credits to be purchased for expenditure on one or more specified Services during a specified time period.
- "Committed Purchase Term" means the period of time within the Term during which Customer is obligated to pay for the Committed Units.
- "Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.
- "Control" means control of greater than fifty percent of the voting rights or equity interests of a party.
- "Customer Data" means content provided to Enfonica by Customer (or at its direction) via the Services under the Account.
- "Customer End Users" means the individuals Customer permits to use the Application.
- "Documentation" means the Enfonica documentation (as may be updated from time to time) in the form generally made available by Enfonica to its customers for use with the Services at https://enfonica.com/docs.
- "Fee Accrual Period" means a calendar month or another period specified by Enfonica in the Console.
- "Fee Threshold" means the threshold (as may be updated from time to time), as applicable for certain Services, as set forth here: https://enfonica.com/pricing.
- "Feedback" means feedback or suggestions about the Services provided to Enfonica by Customer.
- "Fees" means the applicable fees for each Service and any applicable Taxes. The Fees for each Service are set forth here: https://enfonica.com/pricing. Fees may be modified by an active Committed Purchase.
- "High Risk Activities" means activities where the use or failure of the Services could lead to death, personal injury, or environmental damage.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
- "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
- "Legal Process" means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- "Order Form" means a document, provided by Enfonica to Customer, that, when executed by Customer and accepted by Enfonica, binds Customer to this Agreement. It may contain details of Fees, Committed Purchases and other instructions that both parties agree to.
- "Project" means a grouping of API resources for Customer, and via which Customer may use the Services.
- "Services" means the services as set forth here: https://enfonica.com/terms/services (including any associated APIs).
- "Software" means any downloadable tools, software development kits or other such proprietary computer software provided by Enfonica in connection with the Services, which may be downloaded by Customer, and any updates Enfonica may make to such Software from time to time.
- "Suspend" or "Suspension" means disabling or limiting access to or use of the Services or components of the Services.
- "Taxes" means any duties, customs fees, or taxes (other than Enfonica's income tax) associated with the purchase of the Services, including any related penalties or interest.
- "Term" has the meaning set forth in Section 8 of this Agreement.
- "Terms URL" means the following URL set forth here: https://enfonica.com/terms.
- "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
- "Token" means an alphanumeric key that is uniquely associated with Customer's Account.