Terms of Service old 2018

1. CERTAIN DEFINITIONS

1.1 “Certificate” means the document (in paper or electronic form) generated by the System when an Item is validated.

1.2 “Documentation” means written descriptions of System features and functionality available at https://www.entrupy.com/support/, as the same may be amended from time to time during the Term.

1.3 “Hardware” means handheld equipment used to capture Images for upload to the Software, including integrated mobile devices and any related peripherals (chargers, etc.) provided to Licensee by Entrupy.

1.4 “Intellectual Property Rights” means all intellectual and industrial property rights in any jurisdiction worldwide, including copyrights, patents, trademarks, trade names, trade secrets, mask work rights, moral and contract rights, and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.

1.5 “Item” means a single tangible item, Images of which have been captured by the Hardware and submitted to the System for verification.

1.6 “Image” means a photograph of an Item taken with the Hardware.

1.7 “System” means (a) the Hardware, and (b) the software used to analyze Item Images, which includes a mobile application and SaaS modules (collectively, “Software”), as each may evolve during the Term.

1.8 “Subscription” means the right to access and use the System granted hereunder.

1.9 “User” means an individual who may access the System. Users may include (a) your employees, consultants, contractors and agents, and (b) employees of third parties that provide services to you (i.e., warehouse operators).

2. SYSTEM OVERVIEW

2.1 Authentication.

(a) General. The System uses Images, video, data, and machine learning about the physical characteristics of categories of Items to determine if individual Items are genuine. Users take Images of an Item with the Hardware, which Images are uploaded to the System. The System uses machine learning algorithms and stored data about Item types to return a preliminary result for the Item. If needed, the preliminary result is reviewed by Entrupy personnel prior to returning a final result for the Item. Typically, final results are available within one (1) business hour of the initial upload of Item Images, but it may take longer for certain Item types. If validation is not required on the initial result, final results will be available within five (5) minutes in the System.

(b) Certificates. A Certificate is generated for each Item verified as authentic in the final result. Licensee may display the Certificate for an Item (via image on your site, printed out for physical display, or through a link to the System). Any attempt to modify a Certificate, or display of a Certificate with an object other than the Item it relates to, is a breach of this Agreement and will invalidate the Guarantee described in Section 2.1(c).

(c) Guarantee. We stand behind the authenticity of every Item verified by the System and will refund the purchase price or current value (as applicable) of any Item for which we have issued a Certificate (the “Guarantee”). The Guarantee is only available to, and must be claimed by, you, and not your customers. You are solely responsible for any promises you make to your customers based on the Guarantee, and any interactions with such customers. Details of the Guarantee process are available at entrupy.com/entrupy-financial-guarantee/.

2.2 System Access and Subscription Activation. We will ship Hardware to you promptly following receipt of your initial payment. Activation connects your Hardware to the System and completes the account creation process. Your “Subscription Start Date” will be the earlier of (a) the date you first submit Images of an Item to the System, or (b) seven (7) days following initial Hardware delivery.

2.3 Security

(a) Entrupy maintains reasonable and appropriate safeguards and procedures designed to protect the integrity of the System and prevent unauthorized use of customer data. Entrupy uses AES-256 Encryption for any personal data (i.e., User information). Entrupy uses HTTPS, SSL/TLS and other standard security protocols and practices to secure communications to and from the Entrupy servers. Physical security for the AWS network on which the System runs is managed by Amazon Web Services, which maintains Level 1 PCI DSS Compliance for all its facilities. Entrupy will grant access permissions for critical files on a need-to-know basis and with documented oversight. Entrupy will update OS software periodically on a regular basis, or whenever a security vulnerability is discovered. Entrupy will periodically maintain archives and back-ups of customer data in accordance with Entrupy’s generally applicable disaster recovery and business continuity procedures and industry standards.

(b) We are not responsible for any compromise of data caused by transmission across non-Entrupy computer networks (including the Internet).

3. LICENSE, OWNERSHIP AMD RESTRICTIONS

3.1 License Grant. Subject to this Agreement, we grant you a limited, non-exclusive, non-transferable, worldwide right during the Term to use the System elements selected when you placed your order for the purpose of authenticating Items. The license includes the right to (a) make and use a reasonable number of copies of the Documentation, and (b) use any modifications, improvements, bug fixes, or other new versions of the Software module(s) you have licensed made available to all licensees of such module(s) at no additional cost (each, an “Update”) as and when each Update is made available. Updates may require updating the mobile application on the Hardware.

3.2 Ownership. Except for the limited license granted in Section 3.1, we retain all other right, title and interest in and to the System and its components, including all Intellectual Property Rights therein. All Hardware is owned by Entrupy, is licensed to you for the Term as part of the Subscription, and must be returned to Entrupy promptly (a) upon termination of this Agreement or (b) in connection with Entrupy’s providing any replacement Hardware as set forth herein.

3.3 Restrictions. Except as specifically permitted herein, you may not (1) sell, resell, rent, or lease access to the System, except to the extent that you choose to make Authentication Summaries (as defined below) available to your customers in connection with an Item that has been verified by the System, subject to Section 2.1, (2) operate the System on a service bureau or shared access basis, (3) incorporate System elements into any other product, offering, or technology or (4) make the System available to anyone except for Users. In addition to the above, the following restrictions apply to the Software and Hardware:

(a) Software. You may not (i) repackage Software elements on a standalone basis, (ii) isolate or extract code or other elements from Software for any purpose, or (iii) except as permitted by applicable law, reverse engineer, decompile, disassemble or attempt to derive the source code of Software. In addition, Users will be required to accept any standard terms required by the applicable mobile application store operator (i.e., Apple or Android) in connection with their use of, or updates to, the mobile application during the Term.

(b) Hardware. You are strictly prohibited from modifying or tampering with the Hardware, including by attempting to extract the Software from the Hardware or installing additional software or applications on the Hardware. Hardware may only be used in connection with the System.

3.4 Open Source Software. Certain items of code provided with the Software are subject to “open source” or “free software” licenses (“OSS”), a list of which is available in the Documentation as necessary. OSS is not subject to the terms and conditions of this Agreement, except for this section and the disclaimers and limitations of liability. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS.

3.5 Item Information and Reports. We own all information generated by the System about Items, including all Images, Certificates, and reports accompanying Authentication or verification of Items (each, an “Authentication Summary”). We hereby grant you an irrevocable, perpetual, worldwide, royalty-free, transferable right to use (a) unmagnified Images of Items in any lawful manner, and (b) Authentication Summaries for your internal business operations, which includes providing Authentication Summaries to your customers or end users.

3.6 Updates.

(a) We will make all Updates available to you as and when they become generally available to our customers during the Term. Failure to install Updates (if applicable) may impact Software performance and will invalidate our support or indemnification obligations with respect to the Software.

(b) Entrupy is not required to provide new Hardware to you during the Term, except to replace broken or defective units as set forth in Section 4.2(b). However, Entrupy may, at its sole discretion, elect to provide upgraded units to you to replace older Hardware not more than once in any twelve (12) month period, and charge for the set-up cost of such replacement units. In such case, you will promptly return your replaced Hardware units (at Entrupy’s cost). Entrupy may charge you for the replacement cost of any such Hardware that is not returned within thirty (30) days of delivery of the replacement Hardware.

(c) Entrupy may make additional features or modules for the System available for an additional fee during the Term (each such offering, an “Add-On”). Add-Ons are not required for the proper functioning of the System or any Software included in your Subscription, and will be made available to you as and when made available to other Entrupy customers.

4. SERVICES

4.1 Software Support.

(a) We will use commercially reasonable efforts to resolve issues with the Software in a timely manner. Problems with Software should be reported to us via email at support@entrupy.com. As promptly as reasonably possible following an update to any operating system (“OS”) or other software that the Software is dependent upon, we will modify the Software to remain compatible with the current and immediately prior major version of such software. We are not required to support non-current versions of the Software.

(b) While we endeavor to keep the SaaS elements of the System available 24/7/365, service outages can and will occur, and we do not guarantee uptime or that the System will be continuously available.

4.2 Hardware Support.

(a) Problems with Hardware should be reported to us via email at support@entrupy.com. We may issue replacement Hardware if we cannot promptly resolve the reported issue remotely. We will pay for the replacement and shipping of any Hardware determined to have defects or failures caused by manufacturing or normal wear and tear.

(b) Entrupy may charge for the replacement, shipping, and setup cost of Hardware damaged or lost by Users, normal wear and tear excepted. Examples of such situations are damage caused by exposure to extreme conditions (heat, moisture) or improper handling (drops, impact).

4.3 Training. All Entrupy Users are eligible for the following training, provided on a per subscription basis (i.e. single sessions for all Users):

(a) An onboarding training session of up to one (1) hour, via telephone or web-based video conference, within thirty (30) days of the Subscription Start Date.

(b) Quarterly refresher training sessions of up to one (1) hour, via telephone or web-based video conference.

4.4 Contacting Support.

(a) Support may be reached anytime via email at support@entrupy.com and such requests will be responded to within one business day of submission. Support is also available via phone and in-app chat from 10 AM to 7 PM Eastern Time, Monday through Friday (excluding holidays).

(b) Access to Documentation and other online System resources is available at https://www.entrupy.com/support/.

5. YOUR RESPONSIBILITIES

5.1 System Access. Only Users may access the System. You will ensure that each User uses the System in accordance with applicable laws and this Agreement. Users may not share their System log-in credentials with any person who is not authorized to use the System. You are responsible for (a) all use of the System that occurs in connection with credentials associated with your Users, and (b) reporting any suspected loss, compromise, or unauthorized use of such credentials. We will not be liable for any loss or damage arising from you or your Users’ failure to safeguard access credentials. Only Users may use the Hardware, and you are responsible for securing all Hardware when not in use.

5.2 Connectivity. You are responsible for any network or internet connectivity required to access or use the System. An internet connection is required for the proper functioning of the Hardware, as well as to access the System’s cloud-based Software elements. The Hardware will store Images if an internet connection is not available where scanning is performed, but the Hardware must connect to the internet to submit Images to the System for verification. We are not responsible for System performance issues related to internet or network connectivity problems, and any timelines related to Authentication (i.e., time to provide initial or verified results) assume the Hardware is connected to the internet when the scanning is performed.

5.3 General. In addition to obligations identified elsewhere in this Agreement, you will provide access to such information, personnel and systems we reasonably require to support the System.

6. PAYMENTS

6.1 Fees. You will pay the amounts for the Subscription and a per-unit Hardware setup fee (the “Fees”) indicated on the date you place your order (the “Effective Date”). Subsequent Subscription Fees will be charged on the Renewal Date (as defined below) based on the Software elements included, and Subscription rates in effect on such date. Additional Fees may be charged during or following the end of each Term (as defined below) if the number of Items verified during the Term exceeds the ordinary inclusions specified in the Subscription.

6.2 Taxes. Fees do not include, and you will pay, all sales, use, excise, value-added and other taxes (“Taxes”) levied upon either party related to the System, except for taxes on Entrupy’s net income. Taxes will be added to the Fees where Entrupy is required to collect Taxes under applicable law.

6.3 Payment Provider. You agree to pay the Fees specified when you purchase a Subscription. A valid credit card or online payment account (“Payment Provider”) is required to set up an Entrupy account. Your Payment Provider agreement, and not this Agreement, governs your use of the designated credit card or online transaction account. All Fees are processed by a third party payment service and you consent to the use of such service. By providing your Payment Provider information, you authorize Entrupy, without additional notice, to charge your Payment Provider for all Fees incurred hereunder. You will keep Payment Provider information current at all times during the Term, and Entrupy may suspend or terminate your System access if we are unable to charge your Payment Provider. You hereby authorize us to automatically charge your specified payment without further notice on the Renewal Date(s) for recurring Subscriptions, and/or to place a hold on your payment method with respect to any unpaid charges for Subscriptions.

6.4 Changes. We may change our charges and billing practices at any time, either by posting notice of such change via the System or on this page, or notifying you via email, provided that any such change will take effect on the following Renewal Date (as defined below).

7. TERMS AND TERMINATION

7.1 Term. This Agreement is valid from the Effective Date until the Subscription is terminated as set forth herein (the “Term”). The initial Subscription may be for either one month or one year. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically renew (and your Payment Provider will automatically be charged) on the first day following the end of such period (each a “Renewal Date”) and continue for an additional equivalent period, at the then-current price for such Subscription, unless you cancel your Subscription at least fifteen (15) days prior to the Renewal Date via email to support@entrupy.com or through the administration pages of your account on the System. If you cancel your Subscription, you may use the System until the end of the then-current Term.

7.2 Termination for Cause. Either Party may terminate this Agreement for a material breach of the other Party that remains uncured thirty (30) days after the breaching Party’s receipt of written notice thereof.

7.3 Termination For Convenience. You may terminate your Subscription without penalty within fourteen (14) days of the Subscription Start Date by emailing support@entrupy.com. In such case, we will refund the pro-rata portion of any Fees paid, less a restocking fee for the Hardware of fifteen percent (15%) of the Setup Fee.

7.4 Effect of Termination. Upon termination of this Agreement: (a) the Subscription will end immediately; (b) you will return all Hardware in your possession within thirty (30) days; (c) each Party will promptly destroy or return, at its expense, the other Party’s Confidential Information, provided that the Parties may retain limited copies of such information subject to Section 10 solely for archival purposes; and (d) you will pay any Fees accrued prior to the effective date of termination. If you terminate the Agreement for cause, we will refund prepaid Subscription Fees for periods following the date of termination. Termination-related payments will be due within fourteen (14) days of the date Hardware is returned in good working order.

7.5 Survival. Sections 1, 3.2, 3.5, 7.5, and 9 through 12 will survive termination of this Agreement.

8. WARRANTY AND DISCLAIMER

8.1 Authentication Guarantee. See entrupy.com/guarantee for information about the payment we provide for any Item authenticated by the System that is later determined not to be so (the “Guarantee Payment”). The Guarantee Payment is Entrupy’s sole and exclusive liability for, and Licensee’s (to the extent Licensee still owns the relevant Item) sole and exclusive remedy for, any Item incorrectly authenticated by the System.

8.2 Conformance.

(a) We warrant that the System will function substantially in accordance with the Documentation.

(b) Your sole remedy for a breach of the foregoing warranty will be for us to promptly modify the System so that it conforms with the warranty at no additional cost to you.

(c) The warranty provided in Section 8.2(a) is void if non-conformance is caused by (i) use of System in violation of this Agreement or (ii) your failure to use Updates provided as part of the Subscription.

8.3 Disclaimer. EXCEPT AS SET FORTH IN SECTION 8.2, THE SYSTEM IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. TO THE GREATEST EXTENT ALLOWED BY LAW, ENTRUPY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY PROVIDED FOR HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.

9. INDEMNIFICATION

9.1 By Us.

(a) We will defend, indemnify and hold you harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim that the System infringes such party’s Intellectual Property Rights (“Infringement Claims”).

(b) If an Infringement Claim is brought or threatened, we may, in our sole discretion, (i) secure the right for you to continue using the allegedly infringing item, or (ii) modify or replace the allegedly infringing item to make it non-infringing, while maintaining materially similar functionality of the affected System elements. If neither (i) nor (ii) is commercially reasonable in our sole judgment, you will, upon notice from us, cease use of the allegedly infringing item and receive an equitable adjustment of the related Fees.

(c) Section 9.1(a) does not apply to Infringement Claims that arise from: (i) your use of System in violation of this Agreement, or (ii) your failure to use Software updates provided as part of the Subscription.

(d) Entrupy’s indemnification obligations are contingent on Licensee: (a) promptly notifying Entrupy of any claim; (b) granting Entrupy sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on Licensee without its consent); and (c) providing reasonable assistance to Entrupy at Entrupy’s expense.

(e) The remedies in this Section 9.1 are Licensee’s sole remedy, and Entrupy’s entire liability, with respect to any indemnifiable claim.

9.2 By Licensee. You will defend, indemnify, and hold us, our agents, officers and employees, harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim alleging that your use of the System violates applicable law.

10. CONFIDENTIAL INFORMATION

10.1 “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either Party that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential.

10.2 Ownership. Each Party may have access to the other Party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing Party. This Agreement’s terms are Confidential Information of the Parties, but the existence of this Agreement is not.

10.3 Use. Each Party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section 10.3, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Subject to Section 7.4, each Party will promptly return or destroy the other Party’s Confidential Information upon termination or expiration of this Agreement. The obligations in this Section 10.3 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained.

10.4 Exceptions

(a) Confidential Information does not include, and Section 10.3 does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (ii) rightfully communicated to the recipient by entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by recipient; or (iv) approved for unrestricted disclosure by the disclosing Party.

(b) A recipient may disclose the other Party’s Confidential Information only as required: (i) by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other Party of such requirement and cooperates with the other Party’s reasonable and lawful efforts to prevent or limit the scope of such disclosure, at the other Party’s expense); or (ii) to establish its rights under this Agreement.

10.5 System Information. We collect de-personalized information data related to performance of the Software, including response times, Image processing times, usage statistics, and activity logs, (collectively, “Performance Data”). Performance Data does not include any personally identifiable information or Licensee-specific output resulting from the use of the Software (“Licensee Output”), but may include aggregated information derived from Licensee Output that does not allow for identification of Licensee. Performance Data is used to contribute to analytical models used by Entrupy, to provide our services and to operate and improve the System, and is Entrupy’s property.

11. LIABILITY

11.1 LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF DAMAGES FOR (A) ANY LOST BUSINESS, LOST PROFITS, LOST SAVINGS, LOST REVENUE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SYSTEM, EVEN IF THE PARTY FROM WHICH SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SYSTEM IN EXCESS OF THE FEES YOU PAID BY LICENSOR FOR THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

11.2 EXCEPTIONS AND APPLICABILITY. SECTION 11.1 WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD. SECTION 11.1 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.

12. GENERAL PROVISIONS

12.1 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a Party’s stock or assets.

12.2 Feedback. You hereby grant Entrupy an unrestricted, perpetual, irrevocable, royalty-free, worldwide right and license to use all feedback, suggestions, improvements, and recommendations you or your Users provide regarding the System (“Feedback”), and you acknowledge that Entrupy may use the Feedback in its sole discretion without any notice or other obligation to you.

12.3 Entire Agreement; Amendment. This Agreement (a) is the Parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. We may update this Agreement by modifying this web page, and will (x) indicate the date of any such updates above and (y) email you at the email address then on file to notify you of such update. You will be deemed to have accepted such modifications if you continue to access the System (or do not provide a termination notice within) ten (10) days’ of release of the updated Agreement. Referenced policies and procedures (i.e., the Guarantee Policy) may be changed at any time in Entrupy’s sole discretion, provided that no such change may materially change Licensee’s rights and obligations thereunder. In particular, Entrupy may not reduce the financial value of the Guarantee Payment without Licensee’s express, written consent. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement will have no force or effect.

12.4 Notices. A communication intended to have legal effect under this Agreement (a “Notice”) must be written and delivered to (a) us at the address set forth in the preamble, or (b) you at the address associated with your account by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused. Operational communications, including changing a Party’s notice address, may be delivered via email.

12.5 Export Compliance. The System and elements thereof may be subject to export laws and regulations of the United States and other jurisdictions. You represent that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Software in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea (region of Ukraine)) or in violation of any U.S. export law or regulation.

12.6 Independent Contractors. Entrupy and Licensee are independent contractors, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between them. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.

12.7 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto.

12.8 Attribution. Entrupy may identify Licensee as a client on its webpage and in standard marketing materials, provided that in doing so it complies with Licensee’s branding guidelines.

12.9 Severability. Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.

12.10 Force Majeure. Neither Party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that cannot be mitigated through the exercise of due care.

12.11 Governing Law and Venue. This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of New York without regard to its conflicts of laws provisions that would require a different result. A cause of action relating to this Agreement may only be brought in the state or federal courts in New York County, New York.

12.12 Waiver. A Party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.

12.13 Headings and Interpretation. Headings are for reference only and do not affect the Parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holidays.