Terms of Services - Eclipse Scheduling

PLEASE READ CAREFULLY: IF YOU ARE ACCEPTING THIS SOFTWARE-AS-A-SERVICE TERMS OF SERVICE (“AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF ECLIPSE SCHEDULING, LLC (“ECLIPSE SCHEDULING”) PRODUCTS (AS DEFINED BELOW), THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE ECLIPSE SCHEDULING SERVICES AND PRODUCTS. BY USING THE WEBSITE OR PRODUCT CUSTOMER ACCEPTS THAT THIS AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN ECLIPSE SCHEDULING AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS OF SERVICE SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CONTINUE BROWSING THE WEBSITE OR AND CUSTOMER WILL NOT BE AUTHORIZED TO USE THE PRODUCTS/SERVICES.

1. CONDITIONS TO ACCEPT THE TERMS

If you create an account on the website for the purpose of purchasing our SaaS Product, you are declaring that you are at least 18 years old. If you are not of legal age to enter into a contract, then you must review these Terms with your parent or guardian, who must accept them, to access the Services. If you are a User, the Services are intended to be used by people aged 16 years or older. If you are not aged 16 or older, please quit the website.

2. RIGHTS OF ACCESS AND USE

Access and Use. Subject to the Terms of Service of this Agreement, during the applicable License Term, Eclipse Scheduling hereby grants to Customer (Is) a non-exclusive, non-transferable and non-sublicensable license access to the Software, in each case, solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation. Customer may provide access to the SaaS Product to its and its Affiliates’ employees, contractors, and other individual users to access and use the SaaS Products on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer, and no such user is an employee or contractor of a Eclipse Scheduling Competitor (defined below). Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Eclipse Scheduling with respect to future functionality or features.

3. USE RESTRICTIONS; CUSTOMER OBLIGATIONS

As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the SaaS Product (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the SaaS Product; (c) distribute, sell, license, lease, transfer, or otherwise provide any SaaS Product to third parties except as expressly provided in this Agreement; (d) provide the SaaS Product as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any SaaS Product; or (f) use the Documentation except for supporting Customer’s authorized use of the SaaS Product; or (g) violate the Acceptable Use Policy; or (h) employ or authorize a Eclipse Scheduling Competitor to use or view the SaaS Product or Documentation, or to provide management, hosting, support or similar services with regard to the SaaS Product without the prior written consent of Eclipse Scheduling. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of any SaaS Product and notify Eclipse Scheduling promptly of any such unauthorized access or use. The Customer also agrees that any abuse or misuse of the system will result in immediate restrictions and permanent banning of the offending party’s account without any further compensation from Eclipse Scheduling.

4. PAYMENT ADDITIONAL LICENSES; REPORTING

Customer shall pay the fees for Eclipse Scheduling products and/or services as set forth in the applicable Order. If Customer is purchasing directly from Eclipse Scheduling, all fees shall be paid in U.S. dollars. Customer shall pay all applicable fees, insurance costs, and taxes, excluding taxes on Eclipse Scheduling’s net income. If the actual number of registered devices or users (as applicable) exceed the number of licenses purchased by Customer in the applicable Order, then Customer shall (a) immediately cease such excess usage or (b) purchase additional licenses to cover the excess usage. Fees for excess usage shall be based on Eclipse Scheduling’s then-current price list or specified in the Order. Customer acknowledges that Eclipse Scheduling’s delivery and support infrastructure may enable Eclipse Scheduling to access the device or user count for the SaaS Product. Upon written notice by Eclipse Scheduling, Customer shall certify in writing the number and type of registered devices or users.

5. CONFIDENTIALITY.

a. Definition.“Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. Eclipse Scheduling Confidential Information includes but is not limited to all SaaS Products (and any derivatives, performance data, benchmark results, security assessments, roadmaps, and any other technical information relating to the SaaS Products), Documentation and its derivatives, and Eclipse Scheduling’s pricing. The Terms of Service of this Agreement are the Confidential Information of both parties.

b. Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 6. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential Information.

6. SECURITY

a. To ensure that this Product remains available to all users, we may monitor network traffic to identify unauthorized attempts to upload or change information, or to otherwise cause damage to the Product. Anyone using this Product expressly consents to such monitoring. b. Unauthorized attempts to modify, alter, deface, destroy or corrupt any information stored on this Product or this system, to defeat or circumvent any security features, to probe, scan or test for vulnerabilities, to breach security or authentication measures, to forge Eclipse Scheduling headers, to install or attempt to install unauthorized software, to mount denial-of-service attacks, or to utilize this system for other than its intended purposes are expressly prohibited and may result in criminal prosecution. c. Any possible criminal activity will be reported, together with any evidence that may be gathered, to the appropriate authorities. d. If you choose or are provided with a user identification code, password, or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password whether chosen by you or allocated by us at any time if in our reasonable opinion you have failed to comply with any of the provisions of these terms of service.

7. INTELLECTUAL PROPERTY

Eclipse Scheduling owns the Product, including all the source code, design features, functionality, rights, and intellectual property. The trademarks, logos, service marks, photos, videos, and content (“Platform Content”) are either owned by us or licensed to us and they are protected by copyright and trademark laws and various other intellectual property rights. The Platform Content provided within the Product are for the use of the Customer and the Users only, and may not be used for any commercial use, except through the use of the Services or otherwise expressly authorized by us. Eclipse Scheduling may continue to develop the Services, add features, and/or make them available on different platforms. We may change the concept and features of the Services at our discretion. We may separate the Services into different smaller products or make the Services a part of another product. The Customer understands and agrees that we are under no obligation to keep the Services as they are at the time of the signing of the contract and the Services are subject to change and evolve according to our development plans and Customer feedback. Eclipse Scheduling grants the Customer a nonexclusive, nontransferable, limited license, which may not be sublicensed, for the use of the Services by the Customer, Users, and Guests in accordance with the Contract and Terms of Service.

8. COPYRIGHT INFRINGEMENTS

Eclipse Scheduling cares about ownership rights. If you think that, anything you see on the Product or in the Product is copyrighted and being used without proper licensing, please notify us. If you think that, any kind of content you see on the Product or in the Products infringes upon a copyright you own or control, please notify us. You may be held liable for damages if you make substantial misrepresentations in a notification, so please make sure about the infringement and contact your lawyer first before sending the notification.

9. OWNERSHIP

Eclipse Scheduling owns and retains all right, title, and (except as expressly licensed in this Agreement) interest in and to the SaaS Product and its derivative works. The customer is not obligated to provide Eclipse Scheduling with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to Eclipse Scheduling, Customer assigns ownership of such Feedback to Eclipse Scheduling and Eclipse Scheduling may use and modify such Feedback without any restriction or payment.

10. CUSTOMER DATA

During the use of the Services, Users submit different kinds of information and data to the Workspace, such as images, videos, comments, experiences, articles, reports, descriptive text, live recordings, hyperlinks, data acquired from the web, messages, data processed through the service, personal information, and information generated by the User (“Customer Data”). Customer is the sole authority to decide what to do with Customer Data. Customers can contact us to provide instructions on what to do with it. Customers may export the content, manage Users and User roles, create integrations, manage permissions, create information types, change settings, adjust privacy, delete all or some of the Content, or share Customer Data. Customer Data is supplied by the Customer and the sole responsibility for the Customer Data belongs to the Customer. We do not check any part of the Customer Data and are not responsible in any way for its contents, including but not limited to whether it infringes on anyone else’s copyrights, violates any laws, or contains offensive or otherwise sensitive information. The way Customer Data is collected, generated, stored, and processed is decided and carried out by the Customer, and we do not have any say in it or responsibility for it. All rights, including intellectual property rights in Customer Data, belong exclusively to the Customer. Whenever a User or Guest submits content, it automatically becomes part of Customer Data and the property of the Customer. The customer has full rights to give or limit access; change privacy settings; and share, delete, or move any Customer Data that you or any User has generated and submitted, regardless of the type of content submitted. Customer hereby gives us a royalty-free, worldwide, nonexclusive license to store, process, use, access, modify, display, transfer, back up, analyze, and copy Customer Data to provide the Services, to enhance the user experience for the Customer and Users, and to share parts of Customer Data upon the request of the Customer. As the choices of the Customer may have a huge impact on how Customer Data is processed or disclosed, it is very important to bear in mind the effects of these actions.

11. RESTRICTIONS

Except as otherwise stated, you and any User may not do, and you shall not allow other Users to do, the following:

sell, rent, lease, sublicense, gift, transfer, transmit, publish, or make available any portion of the Services to third parties, including but not limited to your affiliates;
disable, bypass, or interfere with any part of the Services in any way to override restrictions, enable features, or change the way the Services are intended to work;
systematically retrieve data or any kind of content from the Product or the Services to create or compile, directly or indirectly, a product, database, software, or directory without our prior permission;
collect usernames or emails of Users for marketing purposes such as sending unsolicited emails;
deceive, divert, or mislead us or Users of the Services to obtain sensitive account information or access Customer Data;
intentionally contact support with improper requests;
intentionally submit false reports of misuse or misconduct;
attempt to impersonate any User without permission for improper actions;
copy any part of the content that comes with the Services to use elsewhere, other than for promoting the Services, without prior permission from us;
try to access, derive, or extract any part of the source code of the Services and its components by reverse engineering, decompiling, decrypting, hacking, using special apps, or any other means;
use any kind of automated software or hardware to access or monitor the Services for any reason;
knowingly use methods or technologies that would impose unreasonable loads on the infrastructure that serves the Services;
modify, translate or change any part of the Services without prior permission from us;
copy or create any derivatives of the Product or any part thereof;
develop or use any technology to impede the Services;
interfere with the integrity of the Services;
override or attempt to override the authentication process of the Services;
remove, modify, or conceal logos, trademarks, attributions or other proprietary rights affixed to or provided within the Product or any third party we work with without our prior written approval;
use or display logos, marks and other attributions related to us or the Services other than promoting the Services without our prior written approval;
use, copy, or imitate parts of the Services, or content within the Product, to develop a competing service or product;
use the Services for any illegal purposes or in a way that would be unlawful;
use the Services in a way that would be harmful to Users, Customers, or any third parties;
use the Services for the purpose of unauthorized marketing activities;
post disparaging, harmful, offensive, or fraudulent content that is open to the public that might harm us or other Users of the Services;
try to hack, access, or obtain login credentials, accounts, or the content of Customers, individuals or organizations;
attempt to upload or transmit any harmful code such as viruses or Trojans to the Product that might interfere with, disrupt, alter, or modify the performance or integrity of the Services;
Attempt to upload or transmit any material that acts as a passive or active information collector or transmitters, such as web bugs, cookies, or 1×1 gifs; or use the Services in any way that would be a breach of the Contract.

The customer agrees to be liable to us for any act listed above carried out by any User that would be a breach of the Terms of Service as if such acts or breaches were done by the Customer.

12. INDEMNITY

a. Indemnification by Eclipse Scheduling. Eclipse Scheduling shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the SaaS Product infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.

b. Remedies. If a claim occurs or in Eclipse Scheduling’s opinion is reasonably likely to occur, Eclipse Scheduling may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SaaS Product, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.

c. Exclusions. Eclipse Scheduling shall have no obligations under this Section if the claim is based upon or arises out of (i) any modification to the applicable SaaS Product not made by or at the direction of Eclipse Scheduling, (ii) any combination or use of the applicable SaaS Product with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by Eclipse Scheduling, (v) Customer’s failure to use the SaaS Product in accordance with the applicable Documentation, and/or (vi) use of the SaaS Product outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and Eclipse Scheduling’s entire liability, with respect to infringement of third-party intellectual property rights.

d. Indemnification by Customer. Customer shall at its cost and expense (i) defend or settle any claim brought against Eclipse Scheduling and its directors, officers and employees (“Eclipse Scheduling Indemnitee(s)”) by an unaffiliated third party alleging that the Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold Eclipse Scheduling Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim. “Customer Data” means any data originated by Customer or Customer Representatives that Customer or Customer Representatives submit to the SaaS Product.

e. Procedures. Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the Indemnitor prompt written notice of such claim, (ii) permitting the Indemnitor to solely control and direct the defense or settlement of such claim, provided the Indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent, and (iii) providing the Indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.

13. SUPPORT AND MAINTENANCE SERVICES

a. Support and Maintenance Services. Support and maintenance services shall be provided in accordance with the support and maintenance Terms of Service.

b. Third-Party Services. The Software may contain features designed to interface with applications or services provided or made available by third parties (“Third Party Services”). In order to use a feature in connection with a Third-Party Service, the Customer must have a license from the provider of the relevant Third-Party Service. If the Third-Party Services are no longer available or if the applicable third-party provider no longer allows the Third-Party Services to interface with the Software, then such features will no longer be available or function in the Software. Eclipse Scheduling and the provider of the applicable Third-Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third-Party Service. Further, Eclipse Scheduling disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third-Party Service.

14. WARRANTIES

a. SaaS Product. Eclipse Scheduling represents and warrants to Customer that the SaaS Product materially conforms to the specifications specified in the relevant Documentation. The customer must notify Eclipse Scheduling of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Product. Customer’s sole and exclusive remedy and the entire liability of Eclipse Scheduling for Eclipse Scheduling’s breach of this warranty will be for Eclipse Scheduling, at its option, to (i) repair such SaaS Product (and/or deliver new applicable Software) or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to Eclipse Scheduling for the unused period of any such terminated License Term.

b. Exclusions. The express warranties do not apply if the applicable SaaS Product (i) has been modified, except by or at the direction of Eclipse Scheduling, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.

c. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION, THE SAAS PRODUCT, HARDWARE, AND SERVICES ARE PROVIDED “AS IS,” AND ECLIPSE SCHEDULING PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ECLIPSE SCHEDULING SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

15. TERM AND TERMINATION

The access rights granted herein with respect to the SaaS Product shall remain effective until the License Term for the relevant SaaS Product expires or the license for the relevant SaaS Product is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 15, or expiration of the applicable License Term. If Eclipse Scheduling agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay) unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason. For ninety (90) days after the expiration or termination of this Agreement, upon Customer’s request, Eclipse Scheduling shall permit Customer to access the SaaS Product solely to the extent necessary for Customer to retrieve applications uploaded to such SaaS Product by Customer. After such 90 days, Eclipse Scheduling may delete all Customer Data in Eclipse Scheduling’s possession or control.

16. LIMITATION OF LIABILITIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 11 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO ECLIPSE SCHEDULING FOR THE RELEVANT SAAS PRODUCT, HARDWARE, OR SERVICE DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 16.

17. GENERAL

a) Export/Import. The SaaS Product and Documentation may be subject to U.S. and foreign import and export control laws and regulations. The customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.

b) U.S. Government End Users. The SaaS Product and Documentation are “commercial items,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.227.7202-1 through 227.729204, the SaaS Product and Documentation are being licensed to U.S. Government end users only as “commercial items” and with only those rights as are granted to all other end users pursuant to the Terms of Service of this Agreement.

c) Governing Law and Jurisdiction. Except as otherwise provided, this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the Federal laws of the United State of America and the state laws of New York excluding its conflicts-of-law principles.

d) Assignment. Neither party may assign this Agreement without the prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 19d shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

e) Data Communications. Eclipse Scheduling shall only collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information (i) for this Agreement, including without limitation, to implement and deliver the SaaS Product and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customers shall make such disclosures, obtain such consents, and provide such access, choices, and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules, or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to Eclipse Scheduling by Customer in performance by Eclipse Scheduling of its obligations under this Agreement. Eclipse Scheduling collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata, and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. Eclipse Scheduling may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.

f) Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Eclipse Scheduling’s or its suppliers’ intellectual property rights in the SaaS Product or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.

g) Publicity. Eclipse Scheduling may publicly disclose that Customer is a customer of Eclipse Scheduling and a licensee of the SaaS Product, including in a list of Eclipse Scheduling customers and other promotional materials.

h) Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

i) Customer Affiliates. An Affiliate may purchase Eclipse Scheduling products and/or services either by executing a participation agreement with Eclipse Scheduling or through Eclipse Scheduling’s acceptance of an Order issued by such Affiliate or Authorized Reseller (as applicable). Upon execution of a participation agreement by Affiliate or, if the Affiliate issues a purchase order referring to this Section 12.i, that is accepted by Eclipse Scheduling, such Affiliate shall be deemed to have purchased such products and/or services hereunder, and such Affiliate shall be bound by and shall comply with the Terms of Service of this Agreement as a “Customer” under the Agreement.

j) Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.

k) Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Order. All legal notices to Eclipse Scheduling will be given in writing to: Eclipse Scheduling 2071 Adam Clayton Powell Jr. Blvd. Unit #2 New York, NY 10027 Email: admin@eclipsescheduling.com Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with Eclipse Scheduling and Customer’s standard ordering procedures.

l) Entire Agreement. This Agreement consists of these Terms of Service, and the attached schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation, or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.

m) Modification and Discontinuation. We reserve the right at any time and from time to time to modify, edit, delete, suspend or discontinue, temporarily or permanently this Website (or any portion thereof) and/or the information, materials, products and/or services available through this Website (or any part thereof) with or without notice. You agree that we shall not be liable to you or any third party for any such modification, editing, deletion, suspension or discontinuance of this Website. You agree that Eclipse Scheduling may, in its sole discretion, at any time terminate your access to the Product and any account(s) you may have in connection with the Product.