Effective starting: January 1st, 2021
Revised: March 16th, 2023
Thanks for using eOne’s Cloud Solutions. These eOne Online Cloud Solution Terms of Service (“Terms”) describe your rights and responsibilities as a customer of SmartConnect and Popdock and any future cloud solutions we bring to market. These Terms are between you and eOne Integrated Business Solutions.
By agreeing with these terms, you are agreeing on behalf of the entity you represent, or, if that does not apply, you individually. By accepting, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Cloud Solution, whichever is earlier. These Terms do not have to be signed in order to be binding.
1. What these Terms cover.
2. How Cloud Solutions are administered?
2.1. Administrators. Through the Cloud Solutions, you will be able to specify certain End Users to act as administrators, who will have important rights and controls over your use of Cloud Solutions and End User Accounts. This may include making additional purchases, creating, removing, monitoring, or modifying End User Accounts, and setting End User usage security permissions and managing access to Your Data by End Users or others. You are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Solutions for you.
2.2. Reseller as Administrator. If you order Cloud Solutions through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Reseller. As between you and eOne, you are solely responsible for any access by Reseller to your accounts or your other End User Accounts.
2.3. Credentials. You must require that all End Users keep their user IDs and passwords for the Cloud Solutions strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
3. What is included in your Cloud Solution subscriptions?
3.1. Access to Cloud Solutions. Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Solutions for your own business purposes. This includes the right, as part of your authorized use of the Cloud Solutions, to download and use any client software associated with the Cloud Solutions (if any). The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support. During the Subscription Term, we will provide Support for the Cloud Solutions in accordance with the subscription plans selected, providing there are no payments in arrears.
3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Solutions; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Solutions to a third party; (c) use the Cloud Solutions for the benefit of any third party; (d) incorporate any Cloud Solutions into a product or service you provide to a third party without specific approval from eOne; (e) interfere with or otherwise circumvent mechanisms in the Cloud Solutions intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Solutions, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) use the Cloud Solutions for competitive analysis or to build competitive products; (h) publicly disseminate information regarding the performance of the Cloud Solutions; or (i) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1. Security and Certifications. We implement and maintain physical, technical, and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure.
4.3. Improving Cloud Solutions. We are always striving to improve our Cloud Solutions. In order to do so, we use usage data and analytic techniques to better understand how our Cloud Solutions is being used.
4.4. Subpoenas. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas, or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so.
5. Terms that apply to Your Data.
5.1. Using Your Data to provide Cloud Solutions to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Solution. Subject to these Terms, and solely to the extent necessary to provide the Cloud Solution to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. These rights are granted solely for the purposes of delivering a functioning application to you. Your data will not be shared, in any form, with any third party. We may also access your accounts, End User Accounts, and your Cloud Solutions with End User permission in order to respond to your support requests.
5.2. Your Data Compliance Obligations. You and your use of Cloud Solutions must comply at all times with these Terms. You represent that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Solutions and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations of our security and data privacy policies, we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Solutions.
5.3. Mutual Indemnity. Each party will defend, indemnify, and hold the other party harmless (including Affiliates, officers, directors, agents, and employees) from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to your breach of the terms of this document. This indemnification obligation is subject to receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for response without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim and (c) all reasonably necessary cooperation by us at your expense.
5.4. Indemnity for IP Infringement. eOne shall indemnify and hold You harmless of any damages and costs awarded by a court of competent jurisdiction against You, which relate directly to a finding by such court that your use of the Online Solutions in accordance with this Agreement infringed any copyright, patent, trade secret or other intellectual property right of a third party; provided, however, This indemnification obligation is subject to receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for response without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim and (c) all reasonably necessary cooperation by us at your expense.
6. Additional Services.
6.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide in addition to the Subscription. Additional Services may be subject to additional policies and terms as specified by us.
6.2. Our Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Cloud Solutions, subject to the same usage rights and restrictions as for the Cloud Solutions.
6.3. Your Materials. You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Cloud Solutions, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
6.4. Training Not Covered. Your purchase, and our provision, of Training is subject to the specific offerings included in your selected subscription plan. Additional training is available in multiple forms including public bootcamps, private training sessions and learn as you build programs.
7. Subscriptions and renewals.
7.1. Monthly and Annual Plans. Except for No-Charge Products, all Cloud Solutions are offered either on a monthly subscription basis or an annual subscription basis, with multiyear prepayment options.
7.2. Renewals. Except as otherwise specified, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term or otherwise agreed upon term. All subscriptions require a credit card to be linked to it, and this credit card will be charged in advance for each new subscription period. If payment is not successful prior to expirations, access to your cloud software will be removed, until a successful payment has been completed. Cancelling your subscription, which is done through your account on the eOne website, means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Solution continuing to be offered and will be charged at the then-current rates.
8. Our return policy.
8.1. As part of our commitment to customer satisfaction, you may terminate your subscription for any reason effective at the next renewal date of your subscription. Upon cancellation of the subscription, no further charges will made to the credit card on file. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged.
9. Taxes not included.
9.1. Taxes. Your fees under these Terms exclude any taxes or duties payable in respect of the Cloud Solutions in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms.
10. If you purchased through a Reseller. If you make any purchases through an authorized partner or reseller of eOne (“Reseller”):
10.1. Instead of paying us, you may be required to pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Cloud Solutions if we do not receive the corresponding payment from the Reseller.
10.2. Your Subscription details (e.g., the Cloud Solutions you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the online order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such order as communicated to us.
10.3. If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
10.4. Resellers are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
10.5. The amount paid or payable by the Reseller to us for your use of the applicable Cloud Solutions under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in Section 17.2.
11. Evaluations, trials, and betas.
11.1. We may offer certain Cloud Solutions to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms).
12. IP Rights in the Cloud Solutions and Feedback.
12.1. Cloud Solutions are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Solutions). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
13.1. The parties acknowledges that one party may disclose (“Discloser”) to the other party (“Recipient”) trade secrets and confidential information in the possession of Discloser and owned by Discloser or companies affiliated, associated or related to Discloser and acquired through the expenditure of time, effort and money, including without limitation computer programs, source code, data, software modules and related documentation, know-how, algorithms, financial information, business plans, customer information, customer data, and all proprietary software products of Discloser (collectively and individually hereinafter referred to as the “Confidential Information”).
13.2. Ownership. The Recipient acknowledges that Confidential Information is and shall be the sole and exclusive property of Discloser. The Recipient acknowledges and agrees that the Recipient shall not acquire any right, title or interest in and to the Confidential Information.
13.3. Exclusion. The obligations of the Recipient under this section shall not apply to Confidential Information which:
13.3.1. at the time of disclosure is readily available to the public other than through a breach of this Agreement;
13.3.2. is lawfully disclosed to the Recipient by a third party who has a legal right to make such disclosure;
13.3.3. the Recipient can establish, through written records, was in its possession prior to the date of first disclosure of the Confidential Information to the Recipient by Discloser; or
13.3.4. that is or has been independently acquired (without restriction on disclosure) or developed by Recipient without use of, or reliance on, the Confidential Information of Discloser in any way.
13.4. Limited Disclosure and Reproduction. The Recipient, during the term of this Agreement and thereafter, shall keep the Confidential Information strictly confidential and shall take all necessary precautions against unauthorized disclosure of the Confidential Information during the term of this Agreement and thereafter. Without limiting the generality of the foregoing, the Recipient shall not, directly or indirectly, disclose, allow access to, transmit or transfer the Confidential Information to an unauthorized third party without Discloser’s consent, nor shall the Recipient, including its principals, employees, agents and representatives, copy or reproduce the Confidential Information, or use the Confidential Information for any purpose other than as reasonably required to provide the Cloud Solutions.
13.5. 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 appropriate equitable relief in addition to whatever other remedies it might have at law.
14. Data Security.
14.2. eOne agrees that, to the extent it utilizes subcontractors to perform any portion of the Cloud Services, it shall be liable for any breach of the terms of this agreement by its subcontractors as if it had committed such breach itself.
14.3. eOne takes great caution in verifying service providers and suppliers that are used to provide its Cloud Services to ensure their standards are at least as rigorous as eOne’s. eOne does not and cannot guarantee the actions and conduct of these parties. eOne will only share confidential information with these parties as required to provide the Cloud Services.
14.4. In respect of any data security breach involving Confidential Information, eOne shall, without undue delay (and in any event, within 48 hours):
14.4.1. Notify all parties, providing details of the breach, including the type of information exposed;
14.4.2. Use reasonable endeavors to implement any measures necessary to restore the security of the compromised data;
14.4.3. Provide additional updates to the other party in a timely manner while eOne performs its investigation of the incident and its cause;
14.4.4. Assist the other party in notifying impacted data subjects and government authorities, as required;
15. Term and Termination.
15.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
15.2. Termination for Cause. Either party may terminate these Terms if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
15.3. Termination for Convenience. You may choose to stop using the Cloud Solutions and terminate these Terms at any time for any reason upon notice to us, although you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
16. Warranties and Disclaimer.
16.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
16.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses or similar harmful materials into the Cloud Solutions (but we are not responsible for harmful materials submitted by you or End Users)
16.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Solution for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services, or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 16.
16.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 16, ALL ONLINE SOFTWARE, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE ONLINE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA7 FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE ONLINE SOFTWARE NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
17. Limitation of Liability.
17.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
17.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
17.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you, (2) either party’s express indemnification obligations in these Terms.
17.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Terms document apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
18. Publicity Rights.
18.1. We will only identify you as an eOne customer in our promotional materials with your prior written consent. If prior written consent is provided, we will promptly stop doing so upon your request sent to email@example.com.
19. Dispute Resolution.
19.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms.
19.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of North Dakota, USA, without giving effect to the principles of that State relating to conflicts of laws.
19.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of these terms, nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
20. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time.
20.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
20.2 Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date.
21. Changes to the Cloud Solutions.
21.1. You acknowledge that the Cloud Solutions is on-line, subscription-based, and that in order to provide improved customer experience we may make changes to the Cloud Solutions, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Solutions, we can discontinue any Cloud Solutions, any Additional Services, or any portion or feature of any Cloud Solutions for any reason at any time without liability to you.
22. General Provisions.
22.1. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
22.2. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents, and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
22.3. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Solutions and any other subject matter covered by these Terms and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Solutions or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
23. Certain specific terms are defined in this Section, and others are defined contextually in these Terms.
“Additional Services” means Professional Services delivered by our Consulting or Support team
“Administrators” mean the personnel designated by you who administer the Cloud Solutions to End Users on your behalf.
“Cloud Solutions” means our hosted or cloud-based solutions, including but not limited to SmartConnect online and Popdock.
“Documentation” means our standard published documentation for the Cloud Solutions.
“End User” means an individual you or an Affiliate permits or invites to use the Cloud Solutions. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Solution as your customer are also considered End Users.
“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Solution.
“Feedback” means comments, questions, ideas, suggestions, or other feedback relating to the Cloud Solutions, Support or Additional Services.
“Laws” means all applicable local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order” means Subscription Purchase.
“Our Deliverables” means any materials, deliverables, modifications, derivative works, or developments that we provide in connection with any Additional Services.
“Subscription Term” means your permitted subscription period for a Cloud Solutions.
“Support” means support for the Cloud Solutions.
“Training” means eOne-provided training and certification services.