Last updated: June 26, 2019
These Customer Terms of Service (the “Customer Terms”) govern your access and use of our internal communication, productivity and collaboration tools and platform (the “Services”). Please read them carefully. If you are a Customer (as defined below), these Customer Terms apply to you. Instead, if you have been given access to the Services by an organization (e.g. your employer or a third party, that here we call the “Customer”), you should refer to our End User Terms of Service (“End User Terms”), available at: ekoapp.com/terms/end-user/.
If you have any questions or feedback about these Customer Terms, please email us at: firstname.lastname@example.org. Your opinion matters to us!
These Customer Terms, together with the Services Agreement you entered into with us (the “Agreement”) form a legally binding contract between Customer and Eko. In these Customer Terms, “we”, “our” and “us” refers to the applicable Eko legal entity, part of the Eko Group.
Who is the Customer?
If you entered into an Agreement with us and purchased license(s) to the Services, you are a Customer. As a Customer, you have the right to invite users to the Services, modify and assign roles, and control permissions. In these Customer Terms, when we use the expression Customer, we refer to the company or organization that you represent and on behalf of which you have executed the Agreement. By contrast, if you haven’t entered into an Agreement with us and you have only been invited to the Services by an organization (e.g. your employer or a third party) and you signed up using your corporate email address, such organization is the Customer (as explained above), while you are an authorized end user (“Authorized End User”), and the following End User Terms shall apply to you: ekoapp.com/terms/end-user/.
1. User Content
Authorized End Users might submit content and information to the Services, such as files or messages, (“User Content”). Please note that Customer is solely responsible for: (i) providing us introductions on how to deal with User Content, (ii) informing Authorized End Users of applicable policies related to their usage of the Services, and (iii) ensuring a fully lawful transfer and processing of the User Content.
2. Eko Licenses
A valid licence is required for each Authorized End User to access and use the Services. Licenses are purchased by the Customer by entering into an Agreement with us and by accepting the related Quotation. During the term of our engagement with the Customer, Customer may easily purchase further licenses at anytime via requesting Eko a new Quotation.
3. Third-Parties Products
Our Services might include links to third-party products, or might include a web portal where such products are available for download (each, a “Third-Party Product”). Please bear in mind that these Third-Party Products are not part of our Services, and Customer is solely responsible for deciding whether enabling them or not. We do not warrant them, and we have no liability in respect to your usage of a Third-Party Product. In the same way, we will not bear responsibility with reference to User Content shared with the third party provider.
We wanna do our very best to make sure things will work between us. To this end, we commit to:
- Provide the Services: we will make the Services available to Customer with reasonable care and skill, in accordance with this Customer Terms and the Agreement.
- Protect your Data: we will always protect your data and User Content. We will not use or process User Content or Customer’s data without your prior consent for any purpose other than fulfilling our obligations under this Customer Terms and the Agreement. Our protection will include measures to prevent unauthorized access, use, modification, deletion and disclosure of User Content and Customer’s data by our personnel.
- Keep the Services Available: we will use commercially reasonable efforts to maintain all licenses, consents, and permissions necessary for keeping the Services available and for the performance of our obligations hereunder.
As you know, in all relationships that work, responsibilities shall be equally shared. Hence, you shall also commit to:
- Cooperate with Us: you shall cooperate with us and share all the information we require for the implementation and use of the Services.
- Comply with Laws: you shall always comply with all applicable laws and regulations in the performance of your obligations under this Customer Terms and the Agreement.
- Monitor your End Users: you shall ensure that your Authorized End User will access and use the Services in compliance with our Agreement, the End User Terms of Service and our Acceptable Use Policy. To this end, please bear in mind that you will be solely responsible for any breach thereof.
Our Removal Rights
If we believe that User Content might violate our End User Terms or Acceptable Use Policy, or could in anyway damage the Services or put them at risk, we reserve the right, at anytime, to remove such User Content and / or to suspend or remove the Authorized End User’s access to the Services. We will inform the Customer of any potential breach as soon as we become aware of it.
Suspension of Services
From time to time, and in order to always maintain the highest standard of quality, we might need to suspend the Services for a short time for updates or for maintenance purposes. In case, we will inform you of such suspension no less than ten (10) working days in advance.
Fees & Payments
As consideration for the Services, the Customer shall pay to Eko the fees described in the Quotation that we shared with you together with the Agreement. Please bear in mind that the fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction. If not otherwise specified in the Agreement, Eko will invoice the Customer in advance on a quarterly basis, and the Customer shall pay us within (30) days from the date of invoice. As described in the Agreement, if Customer fails to pay an invoice within the due date, Eko may charge interest on the overdue sum. If Customer’s failure to perform its payment obligations persists for more than sixty (60) days from the relevant invoice’s due date, Eko may also suspend the provision of Services immediately without notice.
Term and Termination
Unless otherwise specified in the Agreement, the Agreement itself and all licenses purchased by the Customer thereof are valid for an initial 1 (one) year term (the “Initial Term”), and might be earlier terminated by either you or Eko, according to the rules set out below. The earlier termination of the Agreement will result in the earlier termination of all Customer’s licenses to the Services.
Unless otherwise agreed between the parties, at the end of the Initial Term, the Agreement and all licenses shall be automatically renewed for an additional one (1) year term (the “Renewal Term”), unless earlier terminated by either you or Eko by sending a written termination notice to the other party at least sixty (60) days prior to the end of the Initial Term.
In the same way, at the end of the Renewal Term, and at the end of each possible subsequent term, the Agreement and all licenses shall be automatically renewed for an additional one (1) year term, unless terminated by either of the parties by sending a termination notice to the other party at least sixty (60) days prior to the end of the relevant term.
1. Termination with Cause
Without affecting any other right or remedy available, either party may terminate the Agreement and the licenses, in whole or in part, at any time by giving the other party no less than 30 (thirty) days written termination notice if:
(i) the other party fails to pay any amount due on the due date, and remains in default for more than sixty (60) days from the due date;
(ii) the other party commits a material breach of the Agreement or these Customer Terms and fails to remedy within thirty (30) days after having been invited to do so by the affected party in writing.
To the fullest extent permitted under applicable laws, either party may immediately terminate the licenses and the Agreement at any time by giving the other party a written immediate termination notice if:
(i) the other party ceases to carry on all or a substantial part of its business, it is declared bankrupt, or an order is made or a resolution is passed for the winding up of that party;
(ii) any event involving the other party occurs or has an effect similar to, or the other Party is subject to any proceeding in any jurisdiction that may result into, any of the events mentioned in section (i) above;
(iii) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(iv) an event of force majeure occurs and continues for a period of at least one (1) month;
(v) there is a change of control in the other party.
2. Effects of Termination
Upon any termination with cause by Customer, we will immediately refund Customer of any prepaid fees related to the remaining natural term of the licenses after the earlier termination date. In the same way, upon any termination with cause by Eko, you should correspond us any unpaid fees related to the remaining natural term of the licenses after the earlier termination date. The earlier termination of this Agreement will not affect the rights, remedies, obligations or liabilities of either Customer or Eko which arose before the termination date.
Intellectual Proprietary Rights
1. Eko’s Intellectual Property Rights
Eko owns the Services and all the connected intellectual property rights. Please bear in mind that, via the execution of the Agreement, we are licensing (and not selling) our Services to you. We only grant the Customer a non-exclusive, worldwide, royalty free, time-limited, non-transferable and non-sub licensable licence to the Services. Customer will have no intellectual property rights in, or to, the Services, other than the right to access and use them in accordance with these Customer Terms and the Agreement.
2. Customer’s Intellectual Property Rights
You own, and will continue to own, all the intellectual property rights connected to the User Content. Via the execution of the Agreement, you are granting us a non-exclusive, worldwide, royalty free, time-limited, non-transferable and non-sub licensable licence to access, use, process, copy, export and display User Content. Eko will have no intellectual property rights with reference to such User Content.
Each party undertakes that it shall not, at any time during the term of the Agreement, and for a period of three (3) years after its termination, disclose to any third party any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs.
Notwithstanding the above, confidential information does not include information that: (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party; (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; or (c) was independently developed by the receiving party.
Each party may disclose the other party’s confidential information only to its employees, officers, representatives or advisers who are in need to know such confidential information for the purposes of exercising their rights or carrying out their obligations under the Agreement.
Upon the termination or expiration of the Agreement, or otherwise at the request of the disclosing party, the receiving party shall promptly return to the disclosing party all documents or materials in its control, custody or possession which contain, reflect, incorporate or are based on the disclosing party’s confidential information and not retain any copies, extracts or other reproductions thereof.
Indemnification of the Customer
We are committed to indemnify the Customer from and against all and any third party claims, proceedings or lawsuits concerning possible infringement of a third party intellectual property rights exclusively by our Services (the “Third Party Claim”).
In the event of a Third Party Claim, the Customer shall immediately notify us by means of a written notice. We reserve the right to assume the exclusive defence and control of any Third Party Claim and we will indemnify the Customer for all reasonable attorney’s fees incurred and costs suffered as a result.
Indemnification of Eko
Customer shall commit to indemnify us from and against all and any third party claims, proceedings or lawsuits arising from or related to Costumer’s or any of its Authorized End Users’ breach of the Agreement, the Costumer Terms, the End User Terms or the Acceptable Use Policy (the “Third Party Proceeding”).
In the event of a Third Party Proceeding, we will immediately notify the Customer by means of a written notice and we will allow the Customer to assume the exclusive defence and control of any Third Party Proceeding. The Customer shall indemnify us for all reasonable attorney’s fees incurred and costs suffered as a result.
Limitation of Liability
Eko shall not be liable whether for negligence or breach of statutory duty, misrepresentation, restitution or otherwise for any kind of losses, regardless of whether those losses are direct or indirect. In any case, our total aggregate liability potentially arising in connection with the performance of the Agreement shall be limited to the total charges paid by the Customer to Eko during the last twelve (12) months immediately preceding the date on which the claim arose.
Customer grants Eko the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website, and in other public or private communications with existing or future customers. In the event you do not want to grant us such right, please let us know by sending an email to: email@example.com.
Neither the Customer nor Eko will be liable, for any reason, of any failure or delay in the performance of their obligations as a consequence of events beyond the reasonable control of a party, which may include, as a mere example, denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, war, terrorism, and governmental action. Should a force majeure event happen, it is understood that each of us will do its best in order to timely restore the original situation.
No Partnership or Agency
Nothing in the Agreement, these Customer Terms and, in general, in the business relationship between the Customer and Eko is intended or shall be intended as per creating a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Please take into account that, since our business evolves, we may modify from time to time these Customer Terms, the End User Terms or our Acceptable Use Policy. In the event of a material amend, we will timely provide you, via email or through the Services, with a notice, inclusive of a link to the most current version of all our terms and policies. Any material revisions to these Customer Terms will become effective on the date set forth in our notice.
No failure or delay by either party in exercising any right under the Agreement or these Customer Terms or by law shall constitute a waiver of that right, nor shall it restrict the further exercise of that or any other remedy, unless such waiver is made in writing and signed by an authorized representative of the party.
If any provision (or part of a provision) of the Agreement or this Costumer Term is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
You shall not assign any of your rights or delegate your obligations under the Agreement, these Customer Terms, the End User Term or the Acceptable Use Policy, whether by operation of law or otherwise, without our prior consent.
These Customer Terms, including the Acceptable Use Policy, and any disputes arising out of or related hereto, will be governed exclusively by the UK Law, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Please feel free to contact us if you have any questions about Eko’s Customer Terms. You may contact us at the following email address: firstname.lastname@example.org.