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Terms of Acceptable Use

These Taruvi Platform Terms of Acceptable Use (the “Terms of Use”), effective as of the date of your acceptance of these Terms of Use, as defined below (the “Effective Date”), is by and between Vantage Agora, Inc. dba EOX Vantage, an Ohio corporation with offices located at 1422 Euclid Ave Suite 830, Cleveland, OH 44115 (“EOX Vantage”), and You (“User”).  Your use of the Platform (as hereinafter defined) is predicated upon and strictly limited to both the current Software as a Service Agreement between EOX Vantage and your company (the “Company”) and that certain Master Services Agreement between EOX Vantage and Company, as well as Your adherence to these Terms of Use.

EOX VANTAGE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR CHECKING THE “ACCEPT” BOX ON THE ORDER FORM USER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) USER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF USER AND BIND USER TO ITS TERMS. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, EOX VANTAGE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF EOX VANTAGE’S SOFTWARE.

  1. Definitions.

Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Platform.

Aggregated Statistics” means data and information related to User’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

Terms of Use” has the meaning set forth in the preamble.

Authorized Users” means the Company’s employees, consultants, contractors, and agents (i) who are authorized by User to access and use the Services under the rights granted to User pursuant to the Software as a Service Agreement and (ii) for whom access to the Services has been purchased hereunder.

EOX Vantage Materials” means the Solution, Specifications, Documentation, and EOX Vantage Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are provided or used by EOX Vantage or any approved Subcontractor in connection with the Solution or otherwise comprise or relate to the Solution or EOX Vantage Systems. For the avoidance of doubt, EOX Vantage Materials include Aggregated Statistics and any information, data, or other content derived from EOX Vantage’s monitoring of User’s access to or use of the Solution, but do not include User Data.

EOX Vantage Personnel” means all individuals involved in the performance of Solution as employees, agents, or independent contractors of EOX Vantage or any approved Subcontractor.

EOX Vantage Systems” means the information technology infrastructure used by or on behalf of EOX Vantage in performing the Solution, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by EOX Vantage or through the use of third-party services.

EOX Vantage” has the meaning set forth in the preamble.

User Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of User or an Authorized User through the Services or that incorporates or is derived from the Processing of information, data, or content by or through the Services.  User Data does not include Aggregated Statistics or any other information reflecting the use of the Services by or on behalf of User or any Authorized User.

Company Systems” means the Company’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party solution.  For the avoidance of doubt, Company Systems include, but are not limited to (a) all User Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of User in connection with the Platform; (c) Company’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks.

User” has the meaning set forth in the preamble.

Documentation” means any user manuals, handbooks, or guides that Provider provides or makes available to Customer and which describe the functionality, components, feature, or requirements of the Services provided by Provider to Customer, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof, either electronically or in hard copy form.

Effective Date” has the meaning set forth in the preamble.

Electronic Signatures” has the meaning set forth in Section 9.1.

Force Majeure Event” has the meaning set forth in Section 12.5.

Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent User from accessing or using the Solution or EOX Vantage Systems as intended by these Terms of Use.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

Personal Information” means information that User provides or for which User provides access to EOX Vantage, or information which EOX Vantage creates or obtains on behalf of User, in accordance with these Terms of Use that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account Access Credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii). User’s business contact information is not by itself Personal Information.

Platform” means the information technology infrastructure branded as “TaruviTM” used by or on behalf of EOX Vantage in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by EOX Vantage or through the use of third-party services.

Process” means to take any action or perform any operation or set of operations that the Platform is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

Services” means Provider’s EOX Vantage™ Enterprise Operating System software-as-a-service offering.

Specifications” means the official, published specifications for the Solution provided by EOX Vantage from time to time.

Support Services” has the meaning set forth in Section 5.2.

Term” has the meaning set forth in the Master Services Agreement.

Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Platform that is not proprietary to EOX Vantage.

 

  1. Platform.
    • Access and Use. Subject to and conditioned on User’s compliance with the terms and conditions of these Terms of Use, EOX Vantage hereby grants User a non-exclusive, non-transferable right to access and use the Platform during the Term, solely as an Authorized User in accordance with the terms and conditions herein. Such use is limited to User’s internal use. User is responsible to undertake appropriate training in connection with the Platform and abide by the terms of these Terms of Use and all applicable local, state, national and foreign laws and regulations in connection with the Platform. User agrees that it will not: (a) use the Platform to send, transmit, post or upload any: (i) unsolicited or unauthorized advertising, promotional materials, junk mail, spam or any other form of unsolicited communication, commercial or otherwise; (ii) unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, vulgar, obscene or otherwise objectionable content or material of any kind; (iii) material that infringes or violates any intellectual property or other rights of EOX Vantage or third parties; or (iv) material that contains software viruses or other harmful or deleterious computer code, files or programs such as so-called Trojan horses, worms, time bombs, or cancelbots or other Harmful Code; (b) harvest or collect information about other users of the Platform or use such information for the purpose of transmitting or facilitating the transmission of unsolicited bulk electronic mail or communications; (c) attempt to host any data or information on the Platform requiring security clearances issued by the United States or any other government; (d) interfere with or disrupt servers or networks connected to the Platform or violate any regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Platform or other accounts, computer systems or networks connected to the Platform, through password mining or any other means; (f) allow any competitor of EOX Vantage to access or view the Platform or use same for any purpose competitive with EOX Vantage; or (g) interfere with another Authorized User’s use and enjoyment of the Platform.  For the avoidance of doubt, no competitor of EOX Vantage shall be an Authorized User.
    • Documentation License. EOX Vantage hereby grants to User a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for User’s internal business purposes in connection with its use of the Platform.
    • Service and System Control. Except as otherwise expressly provided in these Terms of Use, as between the parties:
      • EOX Vantage has and will retain sole control over the operation, provision, maintenance, and management of the EOX Vantage Materials; and
      • Company has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Company Systems, and sole responsibility for all access to and use of the EOX Vantage Materials by any Person by or through the Company Systems or any other means controlled by Company, including any: (i) information, instructions, or materials provided by any of them to the Platform or EOX Vantage; (ii) results obtained from any use of the Platform or EOX Vantage Materials; and (iii) conclusions, decisions, or actions based on such use.
    • Reservation of Rights. Except as explicitly stated herein, nothing in these Terms of Use grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Platform, EOX Vantage Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Platform, the EOX Vantage Materials, and the Third-Party Materials are and will remain with EOX Vantage and the respective rights holders in the Third-Party Materials.
    • Service Management. Each party shall, throughout the Term, maintain within its organization an account manager to serve as such party’s primary point of contact for day-to-day communications, and consultation. Each account manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under these Terms of Use. Each party shall ensure its account manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. EOX Vantage shall use commercially reasonable efforts to maintain the same account manager in place throughout the Term. If EOX Vantage’s account manager ceases to be employed by EOX Vantage or EOX Vantage otherwise wishes to replace its account manager, EOX Vantage shall promptly name a new account manager by written notice to the other party.
    • Changes. EOX Vantage reserves the right, in its sole discretion and with written notice to Company, to make any changes to the Platform and EOX Vantage Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of EOX Vantage’s services to its users; (ii) the competitive strength of or market for EOX Vantage’s services; or (iii) the Platform’s cost efficiency or performance; or (b) to comply with applicable Law. For the avoidance of doubt, the changes may not degrade the Platform, EOX Vantage Materials, or the Services.
    • Suspension or Termination of the Platform. EOX Vantage may, directly or indirectly, and by any other lawful means, suspend, terminate, or otherwise deny User’s access to or use of all or any part of the Platform or EOX Vantage Materials, if: (a) EOX Vantage receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires EOX Vantage to do so; or (b) EOX Vantage believes, in its reasonable discretion, that: (i) User has failed to comply with any material term of these Terms of Use, or accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under these Terms of Use or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) User is, has been, or is likely to be involved in any fraudulent, intentionally misleading or unlawful activities relating to or in connection with any of the Platform; User materially breaches the Master Services Agreement; or (c) these Terms of Use expires or is terminated. This Section 2.7 does not limit any of either Party’s other rights or remedies, whether at law, in equity, or under these Terms of Use.
  2. Use Restrictions; Service Usage and Data Storage.
    • Use Restrictions. User shall not, and shall not permit any other Person to, access or use the Platform or EOX Vantage Materials except as expressly permitted by these Terms of Use and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, User shall not, except as these Terms of Use expressly permits:
      • copy, modify, or create derivative works or improvements of the Platform or EOX Vantage Materials;
      • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or EOX Vantage Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      • reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform or EOX Vantage Materials, in whole or in part;
      • bypass or breach any security device or protection used by the Platform or EOX Vantage Materials or access or use the Platform or EOX Vantage Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
      • input, upload, transmit, or otherwise provide to or through the Platform or EOX Vantage Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      • damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform, EOX Vantage Systems, or EOX Vantage’s provision of services to any third party, in whole or in part;
      • remove, delete, alter, or obscure any trademarks, Specifications, Documentation warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Platform or EOX Vantage Materials, including any copy thereof;
      • access or use the Platform or EOX Vantage Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other EOX Vantage User), or that violates any applicable Law;
      • access or use the Platform or EOX Vantage Materials for purposes of competitive analysis of the Platform or EOX Vantage Materials, the development, provision, or use of a competing software service or product or any other purpose that is to EOX Vantage’s detriment or commercial disadvantage; or
      • otherwise access or use the Platform or EOX Vantage Materials beyond the scope of the authorization granted under this Section 3.1.
  1. Company Obligations.
    • Cooperation. User shall at all times during the Term provide all cooperation and assistance as EOX Vantage may reasonably request to enable EOX Vantage to exercise its rights and perform its obligations under and in connection with these Terms of Use.
    • Effect of User Failure or Delay. EOX Vantage is not responsible or liable for any delay or failure of performance to the extent caused by User’s delay in performing, or failure to perform, any of its obligations under these Terms of Use.
    • Corrective Action and Notice. If User becomes aware of any actual or threatened activity prohibited by Section 3.1, User shall, and shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and EOX Vantage Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company and EOX Vantage of any such actual or threatened activity.
  2. Support Services.
    • Service Support. The Platform includes EOX Vantage’s standard User support services (“Support Services”) at the support levels Company purchases in accordance with the EOX Vantage service support schedule then in effect and provided to User in writing, as set forth in the SLA. EOX Vantage may amend the Support Agreement from time to time in its sole discretion, with notice to User and never in a manner that materially degrades such support. For more information regarding Support Services available to you, please ask your Company System administrator.
  3. Backups.

The EOX Vantage Systems are programmed to perform routine data backups as set out in EOX Vantage’s backup policy in effect from time to time (the “Backup Policy”). In the event of any loss, destruction, damage, or corruption of User Data caused by the EOX Vantage Systems or Platform, EOX Vantage will, as its sole obligation and liability, use commercially reasonable efforts to restore User Data from EOX Vantage’s then most current backup of such User Data in accordance with the then-current Backup Policy.

  1. Privacy and Security.
    • User Control and Responsibility. Company has and will retain sole responsibility for: (a) all Company Systems; (b) the security and use of User’s and its Authorized Users’ Access Credentials; and (c) all access to and use of the Platform and EOX Vantage Materials directly or indirectly by or through the Company Systems or its or its Authorized Users’ Access Credentials, with or without User’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    • Access and SecurityUser shall employ all commercially reasonable safeguards necessary to: (a) securely administer its Access Credentials and protect against any unauthorized access to or use of the Platform; and (b) control the content and use of User Data, including the uploading or other provision of User Data for Processing by the Platform. EOX Vantage shall use commercially reasonable security measures that are standard in its industry and designed to prevent unauthorized intrusions and access or loss, including firewall protection, antivirus protection, security patch management, backup management, and intrusion detection.
  2. Fees.

User’s access to the Platform is predicated on Company’s prompt and current payment to EOX Vantage of all the fees set forth in the current Service Order(s) between the Company and EOX Vantage (“Fees”), inclusive of required updates, upgrades, pushes, etc., and in accordance with the terms and conditions of the Master Services Agreement.

  1. Electronic Signatures
    • By accepting a user role in the EOX Vantage Systems, each Authorized User’s use of electronic signature in the EOX Vantage Systems becomes the legally binding equivalent to full handwritten signatures, and shall consider the electronic signatures as treated therein (“Electronic Signatures”) to be equivalent to handwritten signatures, initials, and other general signings, unless specifically excepted by regulations(s) effective on or after the Effective Date.
    • User agrees, when reasonably requested, to provide accurate, current and complete information. This applies to records in electronic form that are created, modified, maintained, archived, retrieved, or transmitted, under any records requirements set forth in agency regulations.
    • User agrees and warrants in its acceptance and its users’ use of Electronic Signatures that its users will not impersonate any other Person or entity.
    • User is solely responsible and liable for any activity from its account with respect to the use of Electronic Signatures. User and it is responsible for maintaining the confidentiality of all Access Credentials and for any liability resulting from User’s disclosure of such credentials. User agrees that, upon becoming aware that its Access Credentials are (or possibly are) being used without authorization, User will immediately change such credentials and promptly notify EOX Vantage.
    • User acknowledges that information, communications, electronic records (such as a combination of text, graphics, data, audio, pictorial, or other information represented in digital form), and other materials may be accessible to it through its use of the Electronic Signature and may be proprietary to the user and/or the user’s institution(s).
    • User acknowledges that materials available through the Electronic Signature process may be protected by copyright, trademarks, and other Intellectual Property Rights. User agrees that its use of such materials is governed by all applicable laws and regulations, and by any further restrictions placed on such materials by their owners or licensors.
  2. Intellectual Property Rights.
    • EOX Vantage Materials. All right, title, and interest in and to the EOX Vantage Materials, including all Intellectual Property Rights therein, are and will remain with EOX Vantage and, with respect to Third-Party Materials, the applicable third-party, EOX Vantage owns all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. User has no right, license, or authorization with respect to any of the EOX Vantage Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the EOX Vantage Materials are expressly reserved by EOX Vantage. In furtherance of the foregoing, User hereby unconditionally and irrevocably grants to EOX Vantage an assignment of all right, title, and interest in and to the Aggregated Statistics, including all Intellectual Property Rights relating thereto.
    • User Data. As between User and EOX Vantage, User and/or Company, as the case may be, is and will remain the sole and exclusive owner of all right, title, and interest in and to all User Data, including all Intellectual Property Rights relating thereto.
    • Consent to Use User Data. Subject to Section 10.2, User hereby grants all such rights and permissions in or relating to User Data as are necessary to EOX Vantage, its approved Subcontractors, and EOX Vantage Personnel to enforce these Terms of Use and exercise EOX Vantage’s, its approved Subcontractors’, and EOX Vantage Personnel’s legal rights and perform EOX Vantage’s, its approved Subcontractors’, and EOX Vantage Personnel’s obligations hereunder, in all cases in compliance with Exhibit A to the Master Service Agreement.
    • Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms of Use that, by its nature, should survive termination or expiration of these Terms of Use, will survive any expiration or termination of these Terms of Use: Section 3.1 and Section 11.
  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
    • IN NO EVENT WILL EOX VANTAGE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EOX VANTAGE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • IN NO EVENT WILL EOX VANTAGE’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR (i) THE PLATFORM OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT ARE THE SUBJECT OF THE CLAIM.
    • THE LIMITATIONS SET FORTH IN SECTION 11.1 AND SECTION 11.3 SHALL APPLY EVEN IF THE USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
  2. Miscellaneous.
    • Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms of Use.
    • Interpretation. For purposes of these Terms of Use: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms of Use as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms of Use: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Terms of Use; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms of Use to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Terms of Use to the same extent as if they were set forth verbatim herein.
    • Headings. The headings in these Terms of Use are for reference only and do not affect the interpretation of these Terms of Use.
    • Entire Agreement. These Terms of Use, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms of Use and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms of Use, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, these Terms of Use, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to these Terms of Use as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
    • Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms of Use, for any failure or delay in fulfilling or performing any term of these Terms of Use, when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, outbreaks of pandemic disease, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate these Terms of Use if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) days or more.
    • Equitable Relief. User acknowledges and agrees that a breach or threatened breach by User of any of its obligations under Section 3.1, Section 4.3, or Section 10 may cause EOX Vantage irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, EOX Vantage will be entitled to pursue equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Governing Law; Submission to Jurisdiction. These Terms of Use are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of laws provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cleveland and County of Cuyahoga, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.