Envy Labs
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Envy Labs Terms of Service
These terms of service (“Terms of Service”) govern the provision by Envy Labs, Inc. (“Envy Labs”) to you (“Customer”) of application hosting, support, and other professional technical services (the “Services”), and Customer’s usage of the same, in connection with the Service Order Form(s) (as defined below) entered into by Envy Labs and Customer. By submitting a Service Order Form Customer agrees to be bound by these Terms of Service.
1. Services. Envy Labs shall use commercially reasonable efforts to provide the Services ordered by Customer pursuant to Service Order Forms. A “Service Order Form” is any service order form submitted by Customer and accepted by Envy Labs through the service order form process designated on its website located at http://www.envylabs.com/ (or any successor URL controlled by Envy Labs) (“the Website”) or any written service order form executed by Customer and Envy Labs, in each case to order Services. These Terms of Service are incorporated by reference into each Service Order Form, and together the Service Order Form(s) and these Terms of Service constitute this “Agreement.” In the event of any conflict between these Terms of Service and a Service Order Form, the Service Order Form shall govern to the extent of such conflict.
2. Payments. (a) Fees. Customer agrees to pay the fees stated in the Service Order Form. Envy Labs’s first invoice shall include a pro-rated portion of the monthly recurring fees for the period beginning on the date Envy Labs sends an e-mail to Customer that provides access codes and passwords for use in connection with the Services (“Commencement Date”) and ending on the last day of that calendar month, and may also include set up fees or fees for other Services. Envy Labs may require payment in full by Customer of the first invoice before beginning provision of the Services. Thereafter, unless otherwise specified on a Service Order Form, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month. Fees for hosting Services that are subject to metered pricing may have different payment terms, which terms shall be specified on the applicable Service Order Form or on the portion of the Website that sets forth pricing terms for such Services. All invoices for Services are due upon Customer’s receipt of the applicable invoice; provided that if a Service Order Form specifies that Customer shall pay by credit card, Envy Labs shall automatically bill Customer’s credit card in advance for each month’s Services and send a sales receipt to Customer for the same via email. Unless otherwise set forth in a Service Order Form, all payments from Customer to Envy Labs in connection with this Agreement must be made in United States dollars. (b) Collections. Envy Labs may suspend any or all Services if payment for any Service is overdue for a period of 15 days after the date of first written (including by email) notice from Envy Labs regarding such overdue payment. Customer agrees to pay Envy Labs’s then-current reinstatement fee following a suspension of Services for non-payment. Envy Labs may charge interest on amounts that are overdue by 10 days or more at the lesser of 1.5% per month or the maximum rate permitted by law. Customer agrees to pay Envy Labs’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. © Early Termination. Without limiting any other remedy available to Envy Labs, if Envy Labs terminates this Agreement for Customer’s breach in accordance with Section 10(b)(i), 10 (b)(ii) or 10(b)(iii), Customer shall pay all fees due under this Agreement, including the monthly recurring fees for the remaining portion of the term of each Service Order Form, within 10 days following such termination. (d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on any of the Services under this Agreement (“Taxes”). Customer shall be liable for and shall pay any and all such Taxes and related charges, however designated, imposed on the provision of the Services (excluding taxes based solely on Envy Labs’s net income) regardless of whether Envy Labs fails to collect the tax at the time the related Services are provided. When Envy Labs has the legal obligation to pay or collect such Taxes, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Envy Labs with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Envy Labs original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Acceptable Use. (a) Prohibited Behavior. Customer shall not, and shall not permit users of the Customer Application (as defined in Section 12), to, in connection with the Services, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Envy Labs to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Envy Labs or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Customer Application or the Envy Labs System (as defined in Section 12); (ii) interference with others’ usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool); (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that is (1) legally obscene, (2) constitutes or promotes child pornography, (3) is in Envy Labs’s opinion excessively violent, incites violence, threatens violence or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual or the public; (vii) any other activity that places Envy Labs in the position of fostering, or having liability for, illegal activity in any jurisdiction; or (ix) activity that violates the acceptable use policy or similar set of terms of a third party Envy Labs partner that are applicable to Services used by Customer (e.g., the terms of the Amazon Web Services Customer Agreement with respect to certain of Envy Labs’s service offerings), provided that Envy Labs has made such policy or terms available to Customer in connection with the applicable Services. Envy Labs may suspend the provision of Services to Customer if Customer or a User (as defined in Section 12), of the Customer Application engages in any of the foregoing activities. (b) Security. Customer shall take reasonable security precautions in connection with its use of the Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, Envy Labs may take the Customer Application offline until the intrusion is resolved. © Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and the receipt and use of the Services, including the CAN-SPAM Act of 2003 and all other laws and regulations applicable to bulk or commercial email. Envy Labs may monitor Customer’s compliance and may block the transmission of email or other content that in Envy Labs’s opinion violates any such law or regulation. (d) Vulnerability Testing. Customer shall not attempt to probe, scan, penetrate or test the vulnerability of an Envy Labs system or network or to breach Envy Labs’s security or authentication measures, whether by passive or intrusive techniques, without Envy Labs’s prior written consent. (e) Cooperation with Investigations and Legal Proceedings. Envy Labs may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Customer’s end users that Envy Labs believes violates applicable criminal law, and (ii) provide any information it has about Customer or Customer’s end users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request. (f) Other. (i) Customer must have valid and current information on file with its domain name registrar for any domain hosted on the Envy Labs network. (ii) Customer may only use IP addresses assigned to it by Envy Labs staff in connection with the Services. (iii) Customer agrees that if the Envy Labs IP numbers assigned to Customer’s account are listed on Spamhaus, Spews, NJABL or other abuse databases, Customer will be in violation of this Agreement, and Envy Labs may take reasonable action to protect its IP numbers, including suspension and/or termination of the Services, regardless of whether the IP numbers were listed as a result of Customer’s actions.
4. Customer Application; Customer Account. (a) Operation. Customer is solely responsible for design, development, configuration and operation of the Customer Application (subject only to Envy Labs’s obligation to host the Customer Application in accordance with this Agreement). Without limiting the foregoing, Customer is solely responsible for controlling the access, use, and security of the Customer Application, including the access to and security of the data residing in or processed via the Customer Application. Customer is also responsible for maintaining the security of the passwords and other measures used to protect access to Customer’s Envy Labs account and for all instructions provided to Envy Labs through Customer’s account, whether or not authorized by Customer.
5. Suspension of Services. (a) Suspension of Service. Envy Labs may suspend the provision of Services to Customer or remove any content transmitted via the Services without liability if Envy Labs reasonably believes that any Service is being used in violation of this Agreement or applicable law, if requested by a law enforcement or government agency, or as otherwise specified in this Terms of Service. Information on Envy Labs’s servers may be unavailable to Customer during a suspension of Services. (b) Notification of Suspension. Unless a law enforcement or government agency directs otherwise, Envy Labs shall use commercially reasonable efforts to notify Customer prior to suspending Services as permitted under this Agreement.
6. Warranties. Customer represents and warrants to Envy Labs that (a) the information Customer has provided for the purpose of establishing an account with Envy Labs is complete and accurate, and (b) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of this Agreement
7. Indemnification. Customer shall defend, indemnify and hold harmless Envy Labs from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees) brought or claimed by a third party arising out of or related to any of the following: (i) actual or alleged use of the Services (including the Customer Application) in violation of this Agreement or applicable law by Customer or users of the Customer Application; (ii) any dispute between Customer and its customers, contractors or end users; (iii) any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Application or arising from data or other content posted or stored on the Envy Labs infrastructure or the Customer Application by Customer or its end users; and (iv) with respect to Excluded Services (as defined in Section 13), any breach of the Amazon Web Services Customer Agreement caused by Customer (as described in Section 13). Envy Labs shall notify Customer of any indemnified claim under this Section 7 and provide Customer at Customer’s expense with information and cooperation as necessary for Customer to defend Envy Labs from such claim. Customer shall not settle any indemnified claim under this Section 7 without the prior consent of Envy Labs, which shall not be unreasonably withheld.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND ENGINE YARD DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ENGINE YARD DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability. IN NO EVENT SHALL ENGINE YARD OR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT UNLESS OTHERWISE EXPRESSLY AGREED IN A SERVICE ORDER FORM, THE SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES ENGINE YARD AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ENGINE YARD AND ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED 6 TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE ORDER FORMS IN EFFECT AT THE TIME OF THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND ABSENT SUCH LIMITATIONS ENGINE YARD WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT.
10. Termination. (a) Customer. If a Service Order Form specifies that Services are provided on a month-to-month basis and Customer is not satisfied with such Services, Customer may terminate such Service Order Form at the end of the then-current calendar month and receive a refund of any monthly recurring fees paid by Customer related to periods after the date of termination (if any), provided, however, that Customer shall pay Envy Labs within 5 days after such termination (or Envy Labs may offset against any Customer refund) any unpaid fees for Services related to periods up to and including the date of termination and the remaining portion of any setup fees that had been amortized over a period of time exceeding the date of termination (if any). If a Service Order Form specifies a term for Services other than a month-to-month term (e.g., a 3-month, 1-year, or 2-year term), Customer may not terminate such Service Order Form until the end of the specified term; provided that Customer may terminate any Service Order Form without liability (except for amounts due for Services through the effective date of termination) if Envy Labs materially breaches this Agreement and fails to cure such breach within 30 days of Customer’s written notice describing the breach in reasonable detail. (b) Envy Labs. Envy Labs may terminate this Agreement or the applicable Service Order Forms without liability as follows: (i) with respect to Excluded Services (as defined in Section 13), if Customer is paying by credit card and Customer’s credit card payment is declined by the card issuer, Envy Labs shall notify Customer and Customer shall have 48 hours to remedy such payment failure, and if such failure is not remedied in such time period Envy Labs may terminate the applicable Service Order Form or this Agreement by providing Customer 48 hours notice of such termination; (ii) without limiting the previous sentence, upon notice if Customer is overdue on the payment of any amount due hereunder for a period of 30 days past the date of first written (including by e-mail) notice from Envy Labs regarding such overdue payment; (iii) upon notice if Customer materially violates any other provision of this Agreement and fails to cure the violation within 30 days of a written notice from Envy Labs; (iv) upon 1 Business Day notice if Customer uses the Services in violation of a material term of this Agreement more than once (after having received notice from Envy Labs regarding the initial violation); or (v) upon 5 Business Days notice if Envy Labs is threatened with a legal claim for intellectual property infringement related to the provision of a Service and is unable through commercially reasonable efforts to obtain a license or modify such Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
11. Use of Data; Security. (a) Customer Data. Envy Labs may use, process, transfer and disclose data of Customer and Customer’s end users that is stored in the Customer Application or otherwise stored on a network owned or controlled by Envy Labs as part of the Services (collectively, “Customer Data”) only to the extent necessary to provide the Services; provided that Envy Labs may also disclose Customer Data (i) to Envy Labs’s subcontractors in connection with the provision of Services to Customer (provided such subcontractors are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include Direct Customer Information (as defined below). (b) Direct Customer Information. Envy Labs’s use and disclosure of Customer contact, payment, financial and similar information collected by Envy Labs directly from Customer (“Direct Customer Information”) is governed by Envy Labs’s Privacy Policy located at http://www.envylabs.com/privacy. In addition, Envy Labs may transfer Customer Data and Direct Customer Information to a third party in connection with a merger or sale of Envy Labs’s business or assets, in which case the resulting transferee will be permitted to obtain and use such information subject to the terms of this Terms of Service and Envy Labs’s Privacy Policy.
12. Service Levels. (a) Definitions. (i) “Customer Application” means a Ruby, Rails, or other application which is hosted by Envy Labs as part of the Services. (ii) “Scheduled Maintenance” means occasional maintenance to add resources, upgrade software, install security patches, etc., to the Envy Labs System. (iii) “Scheduled Service Uptime” means the total minutes in a month less the time for Scheduled Maintenance. (iv) “Envy Labs System” means Envy Labs’s infrastructure and systems (including software, hardware, documentation, the Website, and related items) used to perform the Services. (v) “System Availability” means the ability of the Envy Labs System to answer User requests successfully. (vi) “User” means an Internet user of a Customer Application. (b) System Availability. Envy Labs shall use commercially reasonable efforts to provide at least 99.9% System Availability in any given month (excluding those periods in which Envy Labs is performing Scheduled Maintenance). © Service Credits. In the event that Envy Labs does not meet the minimum monthly service level for System Availability set forth herein, Customer shall be entitled to Service Credits in accordance with Table A, which credits will be applied as a refund to Customer from Envy Labs. A Service Credit may not be transferred or applied to any other Envy Labs account. Customer’s sole and exclusive remedy for any unavailability or other failure by Envy Labs to provide a Service is the receipt of a Service Credit in accordance with the terms of this Agreement. The maximum cumulative credit for any and all applicable Service Credits in a month is 100% of the total recurring fee for that month for the affected Services payable by Customer. (d) Application Monitoring. Envy Labs checks for the availability of each Customer Application no less frequently than every 5 minutes. If a Customer Application is not available for 3 consecutive checks, or if Envy Labs becomes aware that User initiated requests are unsuccessful, Envy Labs will notify Customer. (e) Calculation of Service Credits and Payment Procedures. Envy Labs shall monitor the Customer Application to determine on a monthly basis if Customer is entitled to a Service Credit. Furthermore, if Customer believes that it is entitled to a Service Credit, Customer may submit a credit request through Envy Labs’s ticketing system. If Envy Labs determines that Customer is entitled to a Service Credit, then Envy Labs will issue the Service Credit to Customer within one billing cycle. (f) Service Credit Exclusions. The System Availability service level does not apply to (and no Service Credits are available to Customer as a result of) any unavailability, suspension or termination of a Service (i) caused by factors outside Envy Labs’s reasonable control, including any force majeure event, (ii) that result from actions or inactions of Customer or of any third party, or (iii) that result from the Customer Application or other non-Envy Labs equipment, software or technology (other than third party equipment within Envy Labs’s direct control), (iv) Scheduled Maintenance, or (v) that result from a Service suspension or termination of Customer’s right to use a Service in accordance with the terms of this Agreement. (g) Scheduled Maintenance. Scheduled Maintenance typically occurs during the period of lowest anticipated system usage, which is generally between 12:00 a.m. and 5:00 a.m. U.S. Pacific Time on Sunday. During Scheduled Maintenance, certain components of the Envy Labs System may be offline, or may be operating in less redundant modes, or may be operating at reduced capacity levels, while maintenance is performed. Envy Labs will use commercially reasonable efforts to notify Customer via email of Scheduled Maintenance at least 24 hours in advance.
13. Excluded Services. Section 12 describes the service levels and problem management procedures for hosting Services provided using hardware owned or controlled by Envy Labs. Section 12 and Table A do not apply to hosting Services that use third party hardware not controlled by Envy Labs (“Excluded Services”). Envy Labs shall have no liability for the loss, destruction, alteration or unauthorized access to data stored on third party hardware as part of an Excluded Service. If Customer purchases an Excluded Service that is hosted on hardware provided by Amazon.com, Inc. or one of its affiliates (“Amazon”), Customer agrees to comply with, and that the use of such Excluded Service is subject to, the Amazon Web Services Customer Agreement located here, including its associated privacy notice, as such agreement is updated by Amazon from time to time (“AWS Agreement”). Please note in particular the sections of the AWS Agreement titled “Amazon Elastic Compute Cloud” and “Downtime and Service Suspensions; Security.” Customer shall be responsible for liability arising from a breach of the AWS Agreement caused by an act or omission of Customer in connection with an Excluded Service. Envy Labs may suspend or terminate an Excluded Service that is subject to the AWS Agreement upon written notice to Customer (including by email) if Amazon suspends or ceases providing such Service for any reason (whether generally or through Envy Labs), and Envy Labs may modify the pricing charged to Customer or features available with respect to such Service if Amazon modifies the pricing or features of such Service. Envy Labs shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice Amazon provides Envy Labs of such events.
14. Professional Services. If Customer purchases any Professional Services pursuant to a Service Order Form, the following provisions shall apply to such Professional Services: (a) Statement of Work. All Professional Services other than standardized services require a statement of work (“SOW”) to be executed between Customer and Envy Labs as part of the applicable Service Order Form. (b) Project Management and Revisions of Scope. With respect to each SOW, Customer and Envy Labs shall each appoint a project manager (“Project Manager”) to act as a designated contact for the parties in connection with such SOW. The parties shall seek to preserve a consistent Project Manager for each SOW, but either party may change their Project Manager upon written notice to the other party. Any desired change in the scope of a SOW will require a new SOW to be executed between Customer and Envy Labs documenting that revised scope as part of a new Service Order Form. © Performance. Envy Labs will use commercially reasonable efforts to: (i) perform the Professional Services; and (ii) provide any deliverables set forth in each SOW. Customer shall make available in a timely manner at no charge to Envy Labs all data, programs, documentation, or other information and resources required by Envy Labs for the performance of all Professional Services. Customer shall be responsible for, and assumes the risk of any issues or problems resulting from, the content, accuracy, completeness or consistency of all such data, programs, documentation, or other information and resources supplied by Customer. Upon notification by Envy Labs of the completion of standardized Professional Services or the provision of any deliverable to Customer pursuant to a SOW, Customer shall review such completed Professional Services solely to determine if such services have been performed in accordance with Envy Labs’s standard specifications or the applicable specifications set forth in the applicable SOW. Customer shall either accept or reject such Professional Services in writing within 3 days after notification by Envy Labs of the completion of such Professional Services. Customer may reject such Professional Services only if such Professional Services do not conform to the applicable standard specifications or the specifications set forth in the applicable SOW. If Customer rejects any Professional Services, Customer shall provide, at the time of rejection, a written statement to Envy Labs that identifies in reasonable detail, any nonconformity with the applicable specifications. With respect to any Professional Services for which Envy Labs has not received a written notice of nonconformity prior to the expiration of the 3 day period pursuant to this Section 14, Customer shall be deemed to have accepted such Professional Services. If Customer properly rejects any Professional Services, Envy Labs shall use commercially reasonable efforts to correct confirmed nonconformities for such Professional Services that are specified in such written statement and to redeliver such Professional Services to Customer. Upon any such redelivery of any Professional Services, the foregoing provisions set forth in this Section 14 shall be reapplied until such Professional Services are accepted by Customer pursuant to this Section 14, provided, however, that upon the third or any subsequent proper rejection of the same Professional Services for the same nonconformity, Customer’s sole and exclusive remedy shall be to elect one of the following options in writing within 3 days after such rejection: (1) request that Envy Labs continue to attempt to correct and redeliver such Professional Services, in which case the above process shall be repeated; (2) notify Envy Labs that it accepts the Professional Services despite any nonconformities; or (3) terminate the applicable purchase of such Professional Services, in which case (A) Customer shall not be obligated to make any payment associated with the nonconforming Professional Services, or in case payment has already been made for such non-conforming Professional Services, Customer shall be entitled to a refund of such payment, (B) all payments made or required to be made for any prior Professional Services or any other Services shall remain non-refundable and non-creditable. (d) Payments for Professional Services. In addition to the provisions of Section 2, Professional Services will be invoiced to Customer as performed by Envy Labs, including, but not limited to, on a milestone basis or on a progress basis for time and materials engagements. (e) Use of Third Parties. Envy Labs may decide, in its sole discretion, to subcontract with third parties for the performance of all or some of the Professional Services. Customer hereby agrees that Envy Labs may cooperate with, and share Customer information with, any such third parties as reasonably necessary in relation to the performance of the Professional Services. (f) Exclusions. Sections 10(a) and 12, as well as Table A, do not apply to Professional Services.
15. Third Party Products. Envy Labs may from time to time arrange for Customer’s purchase or license of third party software, services, or other products not included as part of the Services and/or may provide support to Customer in relation to those products. Customer’s use of such third party software, services and other products is governed by the terms of the applicable license or other agreement between Customer and the third party. ENGINE YARD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS OR RELATED SUPPORT SERVICES AND, AS BETWEEN CUSTOMER AND ENGINE YARD, SUCH PRODUCTS AND SERVICES ARE PROVIDED “AS IS.”
16. Notices. (a) Notices to Envy Labs. All notices to Envy Labs under this Agreement (including notices required to be in writing) may be sent to Envy Labs via e-mail through Customer’s Envy Labs online support account. (b) Notices to Customer. Notices to Customer under this Agreement shall be given via email to the individual designated as Customer’s “Contact” on the applicable Service Order Form, or as specified in Section 17(d), or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
17. Miscellaneous. (a) Solicitation. Each party agrees that it shall not solicit any employee of the other party with whom it has had direct contact in connection with this Agreement for employment during the term of this Agreement and for 12 months thereafter. Notwithstanding the foregoing, neither party shall be precluded from (i) hiring an employee of the other party who independently approaches the hiring party, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If a party violates this provision, in addition to any other right the non-breaching party may have at law or in equity, the breaching party shall make a one-time payment to the non-breaching party in the amount of 30% of the employee’s base salary for one year. (b) Ownership. Envy Labs owns and shall retain all rights in the Services, Envy Labs’s trademarks and service marks, the Envy Labs System, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Envy Labs a non-exclusive license during the term of any Service Order Form to use, reproduce, modify, publicly perform, publicly display and distribute any content Customer provides to Envy Labs as necessary to provide the Services. © Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN SAN FRANCISCO COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Notwithstanding the foregoing, either party may bring an action in any jurisdiction to enforce its intellectual property rights, its rights in confidential information or payment obligations. (d) Modifications. Envy Labs may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting such changes on the Website, or other reasonable means. Customer’s continued use of the Services after Envy Labs’s provision of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service. Except for terms specified on a Service Order Form, the terms on either party’s purchase orders or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties. Envy Labs may make modifications to any of the Services in its discretion, provided that such modifications do not materially reduce the features or functionality of the Services. (e) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. (f) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein. (g) Survival. Sections 2, 7, 8, 9, 10, 13, 14(d), 15, 16, and 17 will survive any expiration or termination of this Agreement. (h) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry. (i) No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. (j) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect. (k) Marketing. Customer grants Envy Labs the right to use Customer’s name, mark and logo on Envy Labs’s website and in Envy Labs’s promotional materials solely to identify Customer as a customer of Envy Labs. (l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Envy Labs may provide the Services to any person, including a competitor of Customer. (m) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Envy Labs may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void. (n) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.
