Terms of Service
By submitting an Order Form online or by using MrElephant’s website, MrElephant Network (as defined in the SLA), products or services, Customer hereby agrees to the terms and conditions of the Agreement.
1. Services and Monthly Commitments. MrElephant agrees to provide the Products and Services in accordance with the terms and conditions of this Agreement beginning on the Effective Date. MrElephant may perform additional technical, supplemental, or professional services (other than the Products and Services) for Customer at either MrElephant’s published pricing rates or at rates mutually agreed to in writing between Customer and MrElephant. Also, MrElephant may perform remedial services as provided for in the AUP at the pricing set forth therein and without obtaining Customer’s consent in advance. If a Customer subscribes for any Product and Service for a term other than on a month-to-month basis, then each month of such term Customer shall pay MrElephant the greater of (i) the actual fees and expenses payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) and (ii) the Minimum Monthly Commitment. For purposes of this Agreement, “Minimum Monthly Commitment” shall be determined each month and shall mean with respect to each Product and Service subscribed for by Customer other than on a month-to-month basis, the greater of (A) the amount specified as the “Minimum Monthly Commitment” in the Order Form associated with the subscription for such Products and Services and (B) the highest aggregate monthly amount paid or payable by Customer with respect to all Products and Services subscribed to for a term other than on a month-to-month basis, during the current term for which Customer subscribed for such Products and Services. If for any month Customer’s aggregate monthly fees and expenses actually paid or payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) does not exceed the Minimum Monthly Commitment, then Customer shall pay the Minimum Monthly Commitment in lieu of the charges that would otherwise be due with respect to such Products and Services. All payments made by Customer with respect to such Products and Services shall be credited first towards the Minimum Monthly Commitment.
2. Term and Renewal. Unless Customer agrees to a one-year term or unless otherwise stated in an Order Form or any service description, the initial term (“Initial Term”) of this Agreement shall be month-to-month, commencing on the Effective Date and shall automatically renew (A) in the case of a month-to-month term, the first day of each month for successive one-month periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement or (B) in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a “Renewal Period”). Customer agrees to be bound by the service term selected on the Order Form or via applicable promotional codes. MrElephant may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.
3. Customer Cancellation or Non-Renewal. In order to cancel or elect not to renew any Product or Service, Customer must (i) submit an online service cancellation request (a “Cancellation Notice”) by completing the cancellation form provided at least two (2) days prior to expiration of the Initial Term or the then-current Renewal Term and (ii) upon submission of the Cancellation Notice, contact via telephone a MrElephant customer service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by MrElephant to do so otherwise. Difference Services may have a different cancellation policy. It is responsibility of the customer to properly notify MrElephant of their cancellation request, otherwise the service will not be cancelled and customer is liable for the charges.
CUSTOMER AKNOWLEDGES AND AGREES THAT NO PRODUCT OR SERVICE WILL BE CANCELLED, ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CONFIRMS VIA TELEPHONE THE INFORMATION PROVIDED IN THE CANCELLATION NOTICE AS PROVIDED IN SECTION 3 CLAUSE (ii) ABOVE.
Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by MrElephant of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within ten (10) business days after written notice from Customer describing such breach in detail is received by MrElephant (“Customer Termination”). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which MrElephant does not then provide general customer support, Customer shall pay to MrElephant an amount equal to MrElephant’s cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to MrElephant an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination. CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.
Upon termination of this Agreement, MrElephant and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to MrElephant under these Terms of Service, (ii) immediately remove from MrElephant’s premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from MrElephant Network (including all servers owned or operated by MrElephant), and (iii) return to MrElephant all software, access keys, and any other property provided to Customer by MrElephant under this Agreement. Any physical property of Customer not removed from MrElephant’s premises within forty-five (45) days after such termination shall become the property of MrElephant, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 4, 5, 6, 7 and 8 shall survive the expiration, cancellation and termination of this Agreement for any reason.
5. Payment. Customer agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively “Charges”) in US dollars. Each Customer that is a Texas resident agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial months of for Products and Services provided on a month-to-month basis) and shall be due and payable upon receipt. Any additional one-time charges, including early cancellation charges, accrued interest, late fees, service reinstatement fees, and any usage-based charges (installation or set-up fees) shall be invoiced in arrears and appear on either regular monthly invoices or separate invoices. Server rental charges are incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery. Customer also shall pay to MrElephant all expenses incurred by MrElephant in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys’ fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by MrElephant is given to Customer, MrElephant may suspend performance under this Agreement and if such past due amounts remain unpaid within five (5) days thereafter, MrElephant may terminate this Agreement. MrElephant may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of (a) 1.5% per month or (b) the maximum non-usurious rate under applicable law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to MrElephant within sixty (60) days of the invoice date. Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding. The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated
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by MrElephant for any reason constituting “MrElephant Termination” (as defined above) or by Customer for any reason other than “Customer Termination” (as defined above), all Charges under the Agreement, including all remaining monthly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable. All set-up fees, monthly service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by MrElephant according to the terms herein.
6. Indemnification. Customer agrees to indemnify and hold harmless MrElephant, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Customer’s use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
7. Disclaimers; Limitation on Company Liability.
MrElephant SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES BY THE CUSTOMER OR ANY THIRD PARTIES OR ANY FAILURE OF THE PRODUCTS AND SERVICES OR (ii) ANY LOSS OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF MrElephant NETWORK, RECLAIMATION OF SERVERS BY MrElephant, FAILURE OF SERVERS, THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER OR THE NEGLIGENCE OF MrElephant. CUSTOMER IS SOLELY RESPONSIBLE FOR SAFEGUARDING, BACKING UP AND ARCHIVING ALL DATA OWNED, CONTROLLED OR TRANSMITTED BY CUSTOMER THAT RESIDES ON MrElephant NETWORK OR ANY SERVER OWNED OR OPERATED BY MrElephant.
IN NO EVENT SHALL MrElephant’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO MrElephant IN THE BILLING CYCLE IMMEDIATELY PRECEEDING SUCH CLAIM.
MrElephant PROVIDES ALL PRODUCTS AND SERVICES “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PRODUCTS AND SERVICES AND MrElephant SHALL HAVE NO LIABILITY THEREFORE.
NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST MrElephant MORE THAN TWO (2) YEARS FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE REMEDY IN THE EVENT OF MrElephant’S FAILURE TO PROVIDE ANY PRODUCTS AND SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS A RESULT OF A “QUALIFIED DOWNTIME EVENT” (AS DEFINED IN THE SLA) SHALL BE THE RIGHT TO SERVICE CREDITS (AS DEFINED IN THE SLA) SOLELY AS PROVIDED FOR IN THE SLA.
8. Miscellaneous Terms.
Notices. Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, or registered or certified mail (return receipt requested) to the address or facsimile number of Customer listed in MrElephant’s records or if to MrElephant then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the date that return confirmation is received (if sent by facsimile), (c) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).
Attn: Legal Department
PO BOX 1116
CAMPBELL, CA 95009-1116
Waiver. It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
Severability. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.
MrElephant’s Use of Customer’s Name. Customer agrees that MrElephant may, upon written consent by Customer, publicly disclose that MrElephant is providing services to Customer and may include Customer’s name in any promotional materials, such as press releases or MrElephant’s web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s written consent.
Non-Solicitation. During the term of this Agreement and for twelve (12) months following termination of this Agreement, Customer agrees that it shall not solicit for employment with Customer (or with any other party) any employee of MrElephant or interfere in the employment relationship between MrElephant and any of its employees with whom Customer has had contact in connection with this Agreement.
Ownership. MrElephant shall be the sole owner of all intellectual property, and all derivatives thereof, that MrElephant may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Products and Services.
Customer Hardware. MrElephant acknowledges and agrees that the hardware provided by Customer to MrElephant to be used in connection with any Products and Services (the “Customer Hardware”) is the property of Customer and shall be tagged and identified as such. MrElephant shall not pledge, hypothecate or otherwise encumber the Customer Hardware in any way and upon demand by Customer shall surrender the Customer Hardware to Customer, unless Customer fails to remove such Customer Hardware as provided for in Section 4 above.
Third-Party Beneficiaries. There shall be no third party beneficiaries to the Agreement, including customers, employees, agents, or insurers.
Assignment. This Agreement shall not be assignable by Customer without MrElephant’s prior written consent. MrElephant may assign the Agreement in whole or in part upon written notice to Customer. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
Governing Law, Jurisdiction, Venue. THIS AGREEMENT AND ANY DISPUTE ARISING FROM THE PERFORMANCE OR BREACH HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES AND EXCLUDING ANY APPLICATION OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. CUSTOMER (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS LOCATED IN HARRIS COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BROUGHT BY THE CUSTOMER OR MrElephant OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, (II) HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH SUITS, ACTIONS OR PROCEEDINGS MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS AND (III) TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT. A FINAL JUDGMENT OBTAINED IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN THIS SECTION 8 SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT OR JUDGMENT OR IN ANY MANNER AS PROVIDED BY APPLICABLE LAW.