Terms of Service (Luxury Authentication)
LAST UPDATED: March 16, 2022
These Terms of Service (the “Terms of Service,” along with any applicable Order Forms (as defined below), the “Agreement”) govern the access to and use of the proprietary systems and services set forth on an applicable Order Form, including the Hardware and Software, as each may evolve during the Term, that can be used to verify the authenticity of certain physical Items (the “System”), which is licensed by Entrupy Inc. (“Entrupy” or “we” and its derivatives). “Licensee” or “you” and its derivatives refers to the individual or entity identified as the Company on the Order Form that licenses access to the System by clicking the “Buy”, “Confirm Order”, or other similar button on our website (the “Online Order Form”), or otherwise submitting an Online Order Form or other fully executed order form (collectively with the Online Order Form, the “Order Forms”) for processing by Entrupy. If you are an individual entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to enter into this Agreement on behalf of the entity you named as the Company on the Order Form. Licensee and Entrupy are, together, the “Parties”, and each is a “Party.” For the avoidance of doubt, nothing herein grants Licensee any rights to any Entrupy hardware or software products or services, including any authentication systems, that are not expressly set forth on an Order Form that has been accepted by Entrupy. An Order Form is not accepted by Entrupy until you receive a confirmation email from Entrupy confirming acceptance.
1. CERTAIN DEFINITIONS.
1.1 “Agreement Start Date” means the date you submit an Order Form to Entrupy as set forth above.
1.2 “Authentic” means that the Item being authenticated appears to be consistent with the profile of known authentic items.
1.3 “Certificate” means the document (in paper or electronic form) generated by the System when an Item is validated.
1.4 “Customers” means businesses and individuals who are customers of your business in the ordinary course operations of your business (e.g. customers of a consignment shop looking to purchase consigned items for personal use).
1.5 “Documentation” means written descriptions of System features and functionality available at https://www.entrupy.com/support/, as the same may be amended by Entrupy from time to time during the Term.
1.6 “Entrupy Marks” means the trade name, logos, trademarks and service marks of Entrupy, as provided by Entrupy to you.
1.7 “Guarantee” shall have the meaning given it in Section 2.1(c).
1.8 “Guarantee Policy” means Entrupy’s Financial Guarantee Policy made available at https://www.entrupy.com/guarantee/luxury/.
1.9 “Hardware” means handheld equipment used to capture Images for upload to the Software, including integrated mobile devices and any related peripherals (chargers, etc.) leased to Licensee by Entrupy.
1.10 “Image” means a photograph of an Item taken with the Hardware.
1.11 “Initial Subscription Period” means the period commencing on the Subscription Start Date and continuing for the period indicated on your Order Form (e.g. one (1) month or one (1) year).
1.12 “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.
1.13 “Item” means a single tangible item for which the System is used to verify authenticity.
1.14 “Renewal Date” means the first day of a Renewal Subscription Period.
1.15 “Renewal Subscription Period” shall have the meaning given it in Section 7.2.
1.16 “Software” means the software provided by Entrupy that can be used to analyze Images, which includes a mobile application and SaaS modules, including any Updates.
1.17 “Subscription” means the right to access and use the Hardware and Software in object code form in accordance with this Agreement.
1.18 “Subscription Period” means the Initial Subscription Period and each Renewal Subscription Period.
1.19 “Subscription Start Date” means 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.
1.20 “System” has the meaning given it in the opening paragraph of these Terms of Service.
1.21 “Term” means the period from the Agreement Start Date until the Subscription is terminated as set forth herein.
1.22 “Unidentified” means that the Item being authenticated does not appear to be consistent with the profile of known authentic items.
1.23 “Updates” mean any modifications, improvements, bug fixes, or other new versions of the Software module(s) you have licensed that are generally made available to all licensees of such module(s).
1.24 “User” means your authorized employees and any other individuals or entities expressly approved by Entrupy in writing in advance. Requests for additional authorized Users may be made by having the Authorized Person (as defined in the Order Form) email Entrupy at firstname.lastname@example.org.
2. SYSTEM OVERVIEW
(a) Certificates. A Certificate shall only be generated by Entrupy and may only be requested for Items verified by the System as Authentic in the final result. Licensee may display the Certificate for an Item or provide a link to the Certificate hosted by Entrupy solely on your website or social media accounts maintained and owned by you, your online listings of Items on e-commerce, or printed out for physical display. Under no circumstances may Licensee, or any third party on behalf of Licensee, generate, reproduce, modify, display, or otherwise make available any Certificate for (i) an object other than the exact Item for which the System specifically generates it, (ii) any object that has not been verified as Authentic through the System, (iii) any object that Licensee knows or suspects to be inauthentic, or (iv) any other use except as expressly set forth herein (collectively, the “Certificate Use Restrictions”). Any attempted or actual breach of the Certificate Use Restrictions is a material breach of this Agreement and without affecting Entrupy’s other rights and remedies hereunder, will invalidate the Guarantee described in Section 2.1(c).
(b) Evidence Reports. Upon your request and subject to your payment of additional fees, Entrupy may produce an evidence report supplementing the information provided for any Unidentified Item (the “Evidence Report”).
(c) Disputes; Guarantee. To provide you with further confidence in our System’s Item verification abilities, Entrupy offers a payout amounts for Items which we have issued a Certificate (the “Guarantee”) as further described in the Guarantee Policy. Such Guarantee will not apply if Entrupy invalidates an authentication or Certificate within fifteen (15) business minutes (i.e. minutes occurring during Entrupy’s business hours, as set forth in the Documentation and Guarantee Policy) of such authentication. The Guarantee is only available to, and must be claimed by, you, and not your Customers or any third parties. You are solely responsible for any promises you make to your Customers or any third parties based on the Guarantee, and any interactions with such Customers or any third parties. Notwithstanding anything to the contrary herein, any attempted or actual breach of the Certificate Use Restrictions will invalidate any guarantee provided under this Agreement or the Guarantee Policy. The Guarantee is Entrupy’s sole and exclusive liability and responsibility for, and Licensee’s sole and exclusive remedy for, any Item incorrectly authenticated by the System. All disputes by you regarding the authenticity of an Item authenticated by Entrupy must be submitted in accordance with the Guarantee Policy, which includes, without limitation, completing a claims form and submitting proof of purchase. Additional details of the Guarantee process, including how to file a dispute claim and additional restrictions and qualifications requirements, are available in the Guarantee Policy.
2.2 Data Transmission. We are not responsible for any compromise of data or data security caused by transmission across non-Entrupy computer networks (including the internet).
3.1 Lease. Entrupy will lease and ship to you the applicable Hardware following receipt of your full payment of any amounts initially due by you, including without limitation, the set-up fees. You shall at all times maintain the Hardware in good operating condition and repair, normal wear and tear excepted (“Good Condition”) and you shall keep the Hardware in your sole possession and control at all times, unless otherwise agreed upon by Entrupy in writing. All risk of loss for any Hardware (including any replacement Hardware) shall pass to you upon Entrupy’s delivery of the Hardware to the applicable carrier or delivery service.
3.2 Return. All Hardware shall be returned to Entrupy in Good Condition within thirty (30) days of termination or expiration of this Agreement. If you fail to return such Hardware within thirty (30) days or the Hardware is not returned in Good Condition, as determined by Entrupy in its reasonable discretion, you agree you will pay Entrupy the applicable fees and costs for replacing such Hardware as may be found on our Hardware Replacement Fees schedule found at https://www.entrupy.com/replacement-fees/luxury/, as may be amended from time to time.
4. LICENSE, OWNERSHIP AND RESTRICTIONS
4.1 License Grant. Subject to this Agreement, we grant you and your Users a limited, non-exclusive, non-transferable, worldwide right, during the Term, to (a) use the System elements selected when you placed your order, including any Updates to such elements, for the sole purpose of authenticating your inventory of Items and (b) make and use a reasonable number of copies of the Documentation for your use of the System.
4.2 Authentication Services. Entrupy grants you the right to offer, sell, and provide authentication services using the System on behalf of your Customers in accordance with the terms of this Agreement for the authentication of such Customer’s personal Items for non-commercial purposes, which shall include the rights to provide Customers with copies of the Certificates, if any, generated by your use of the System on their behalf; provided that (i) you inform Customers of, and have Customers agree to, the limitations on use in connection with the Certificates stated herein, including without limitation, Section 2.1(a) and the representations and warranties listed in Section 9.1(b) and (ii) Customers use the Certificates solely for non-commercial purposes. All Certificates will be issued under your name. Entrupy reserves the right to revoke this right in its sole discretion if it suspects any abuse or misuse by you or Customers. As stated above, Customers are not protected by the Guarantee.
4.3 Ownership. Except for the limited license granted in Section 4.1, we retain all other right, title and interest in and to the System and its components, including all Intellectual Property Rights therein. Ownership and title to Hardware shall at all times be vested in Entrupy to the exclusion of you, notwithstanding your possession of such Hardware.
4.4 Restrictions. Except as expressly permitted herein, you may not (1) sell, resell, rent, or lease access to the System, (2) operate the System on a service bureau (except as expressly stated in Section 4.2), 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 your Users in accordance with this Agreement. Additionally, you may not reproduce, screenshot, display, download, save, store, or share any Images or otherwise use any Images for any purpose or in any manner that is not expressly set forth herein. Breach of this section would be deemed a material breach of this Agreement. For clarification, this Section 4.4 does not restrict you from using, displaying or distributing Certificates, solely in accordance with in the rest of the Agreement, including the license under Section 4.6. 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. Furthermore, with respect to any application accessed through or downloaded from the Apple App Store (an “Apple App Store Sourced Application”), you will only use the Apple App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system), (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service, including without limitation the following terms, which apply to any Apple App Store Sourced Application accessed through or downloaded from the Apple App Store:
(1) You acknowledge and agree that (a) the Agreement is concluded between you and Entrupy only, and not Apple, and (b) Entrupy, not Apple, is solely responsible for the Apple App Store Sourced Application and content thereof. Your use of the Apple App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App Store Sourced Application.
(3) In the event of any failure of the Apple App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App Store Sourced Application. As between Entrupy and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Entrupy.
(4) You and Entrupy acknowledge that, as between Entrupy and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple App Store Sourced Application or your possession and use of the Apple App Store Sourced Application, including, but not limited to: (a) product liability claims; (b) any claim that the Apple App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
(5) You and Entrupy acknowledge that, in the event of any third-party claim that the Apple App Store Sourced Application or your possession and use of that Apple App Store Sourced Application infringes that third party’s intellectual property rights, as between Entrupy and Apple, Entrupy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(6) You and Entrupy acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the Apple App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the Apple App Store Sourced Application against you as a third-party beneficiary thereof.
(7) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the Apple App Store Sourced Application.
(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 without Entrupy’s prior written approval. Hardware may only be used in connection with the applicable Entrupy-provided Software. You shall not sublease or in any manner deliver, transfer or otherwise relinquish possession of any of the Hardware. You must not share the Hardware or allow any party to access the Hardware except for your specifically authorized Users for use in accordance with this Agreement. Use of the Hardware (and any third-party software embedded therein) may be subject to additional terms and conditions, including from the manufacturer of such Hardware.
4.5 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 upon request. 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.
4.6 Item Information and Reports. We own all information, date, and content generated or collected by the System about Items, including all Images, Certificates, Evidence Reports, and other reports accompanying the authentication or verification of Items. We hereby grant you a revocable, nonexclusive, worldwide, royalty-free, nontransferable, nonsublicensable right and license, during the Term, to use, display, and distribute Certificates and Evidence Reports for your internal business operations, which includes providing Certificates to your Customers and end users for referential purposes. We reserve the right to revoke the licenses granted in this Section 4.6 at any time and invalidate any Certificates, upon notice, including, without limitation, for any material breach of this Agreement by you or your Users.
4.7 Entrupy Marks. During the Term, subject to the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use, display, and reproduce the Entrupy Marks, solely (a) as they appear on the Certificates, without modification, in your use, display and distribution of the Certificates for your internal business operations, (b) as they appear on any marketing materials provided by Entrupy in your distribution of such marketing materials, without modification, and (c) upon Entrupy’s prior written approval, on your website to promote your use of Entrupy’s services, provided that you do not suggest any partnership or endorsement by Entrupy of you or your business, products or services. We grant no rights in the Entrupy Marks other than those expressly granted in this section. You acknowledge our exclusive ownership of the Entrupy Marks and agree that all goodwill arising as a result of your use of the Entrupy Marks will inure solely to the benefit of Entrupy. You agree not to take any action inconsistent with such ownership. You shall not adopt, use, or attempt to register any trademarks, trade names, or service marks that are confusingly similar to the Entrupy Marks or in such a way as to create combination marks with the Entrupy Marks. At our request, you will modify or discontinue any use of the Entrupy Marks if we determine, in our sole discretion, that such use does not comply with this Agreement or our then-current trademark usage policies and guidelines. Any breach of this Section, or failure to sufficiently comply with Entrupy’s request for modification or discontinuance of use, in each case as determined by Entrupy in its sole discretion, shall be considered a material breach of this Agreement.
(a) We will make all Updates available to you as and when they become generally available to our other similarly situated customers during the Term. Updates may require updating the mobile application on the Hardware. Failure to install Updates (if applicable) may impact System performance and will invalidate our support or indemnification obligations with respect to the System.
(b) Entrupy is not required to provide new Hardware to you during the Term. Entrupy may, however, at its sole discretion, elect to provide upgraded units to you to replace older Hardware (which shall not occur more than once in any twelve (12) month period), in which case Entrupy may charge you a fee for the set-up cost of such replacement units as set forth on our Hardware Replacement Fees schedule found at https://entrupyv2.wpengine.com/replacement-fees/. In such case, you must promptly return your replaced Hardware units. Entrupy may charge you for the replacement cost of any such Hardware that is not returned in Good Condition, as determined by Entrupy in its sole discretion, within thirty (30) days of Entrupy’s delivery of the replacement Hardware as may be found on our Hardware Replacement Fees schedule found at https://www.entrupy.com/replacement-fees/luxury/, as may be amended from time to time.
(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 offered to you as and when they are generally offered to other Entrupy customers.
5.1 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 email@example.com. As promptly as reasonably possible following an update to any operating system or other software that the Software is dependent upon, we will use commercially reasonable efforts to modify the Software to remain compatible with the current and immediately prior major version of such software. We are not required to support versions of the Software other than the most current version.
(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 or error free. Certain authentications may require additional review or follow up, which may result in a delay in receipt of applicable results.
(c) Additional details about authentication services may be made available in the System or applicable documentation provided by Entrupy, including without limitation on your applicable Order Form.
5.2 Hardware Support. In the event that you are unable to access or use the Software as a result of defective Hardware, you shall notify Entrupy via email at firstname.lastname@example.org. If the problem cannot be resolved remotely, Entrupy may, at its sole discretion, repair or ship replacement Hardware after receipt of the defective Hardware from you. If you have met your maintenance responsibility under this Agreement, then the replacement will be at no cost to you; otherwise, you will pay Entrupy the applicable fees and costs for repairing or replacing such Hardware as may be found on our Hardware Replacement Fees schedule found at https://entrupyv2.wpengine.com/replacement-fees/, as may be amended from time to time. You shall be responsible for any and all damage to the Hardware as a result of unauthorized downloads, vandalism, abuse, neglect or force majeure, regardless of whether such vandalism, abuse, neglect, or force majeure is caused by you or any other third party to whom you have granted access. By way of example and not limitation, damage caused by exposure to extreme conditions (heat, moisture) or improper handling (drops, impact) will be considered damage for which you are responsible.
5.3 Training. All 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.
5.4 Contacting Support.
(a) Support may be reached anytime via email at email@example.com and we will use commercially reasonable efforts to respond to such requests within one business day of submission.
(b) Access to Documentation and other online System resources is available at https://www.entrupy.com/support/.
6. YOUR RESPONSIBILITIES
6.1 System Access. Only Users may access the System. You must not provide or otherwise make available, or permit any third party to provide or make available, any log-in credentials to any individuals or entities other authorized Users in accordance with the terms of this Agreement, and you are responsible for ensure that Users do not share their System log-in credentials with any other person, including other Users. You will ensure that each User uses the System in accordance with applicable laws and this Agreement. You are responsible for (a) all use of the System that occurs in connection with credentials associated with your Users, and (b) immediately reporting any suspected loss, compromise, or unauthorized use of such credentials or any other unauthorized use of or access to the System. 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.
6.2 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 includes functionality that allows it to 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.
6.3 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.
7. TERMS AND TERMINATION
7.1 Term. This Agreement is valid for the Term, unless terminated earlier in accordance with this Agreement.
7.2 Subscription Period. Subscriptions shall be valid through your Initial Subscription Period. After your Initial Subscription Period, and again after any subsequent Renewal Subscription Period, your Subscription will automatically renew (and your Payment Provider (as defined below) will automatically be charged) for an additional subsequent period of equivalent duration as your Initial Subscription Period (each, a “Renewal Subscription Period”) at the then-current price for such Subscription, unless you cancel your Subscription at least seven (7) days prior to the Renewal Date via email to firstname.lastname@example.org or through the administration pages of your account for the System. If you cancel your Subscription, you may use the System until the end of the then-current Subscription Period. You will not be eligible for a prorated refund of any Fees paid for any early termination of the then-current Subscription Period.
7.3 Pausing a Subscription. You may also pause your Subscription at any time for a maximum period of one (1) calendar month per twelve (12) month period by having the Authorized Person (as defined in the Order Form) email Entrupy at email@example.com (a “Subscription Pause Period”). During a Subscription Pause Period, you will not be able to access the System, but an amount of time equal to your Subscription Pause Period shall be added to the end of your current Subscription Period.
7.4 Termination by You. You may terminate this Agreement for a material breach of Entrupy that remains uncured thirty (30) days after you provide us with written notice thereof.
7.5 Suspension and/or Termination of Subscription by Entrupy. Entrupy has the right to, immediately and without notice, suspend or terminate any Subscription or access to System or portions thereof, including any account or access rights of you or any of your Users (including the right to sell or distribute authentication services to Customers) and/or revoke and invalidate any or all Certificates, if Entrupy deems in its sole discretion that (a) timely payment cannot be charged to your Payment Provider (as defined below) for any reason, (b) you or your Users or your Customers have materially breached any provision of the Agreement, (c) doing so is required for compliance with applicable laws, rules regulations, or third party agreements (e.g., where the provision of the System, or any component thereof is, or becomes, unlawful), or (d) doing so is necessary for the protection of Entrupy, its customers, users, employees, agents, business partners, service providers, business, or any other third parties. You agree that all such terminations or suspensions of Subscriptions or other rights granted herein, including cancellation of accounts, and/or revocations or invalidations of Certificates under this Section 7.5, shall be made in Entrupy’s sole discretion and that Entrupy shall not be liable to you or any third party for any such termination, suspension, revocation, or invalidation. For the avoidance of doubt, any breach by you or any of your Users or Customers of any of your representations or warranties set forth in this Agreement shall be deemed a material breach.
7.6 Effect of Termination. Upon termination of this Agreement: (a) the Subscription will end immediately and all rights and licenses granted herein that are not perpetual shall immediately terminate; (b) you will cease using and offering use of the System immediately; (c) you will return all Hardware in your possession within thirty (30) days; and (d) you will pay any Fees accrued prior to the effective date of termination. If you terminate the Agreement for cause, as described in Section 7.4, we will refund any prepaid Subscription Fees for periods following the date of termination within fourteen (14) days of the date Hardware is returned to Entrupy.
7.7 Survival. Sections 1, 3.2, 4.3, 4.4, 7.6, 7.7, 8.1, 9.1, 9.3, 10, 12, and 13 will survive termination of this Agreement.
8.1 Fees. You will pay the amounts for the Subscription, per-unit Hardware setup fee, and any other additional fees listed on your Order Form (together, the “Fees”) on the date you place your order (with respect to the per-unit Hardware setup fee), by the Subscription Start Date (for Subscription Fees), or as otherwise indicated by Entrupy. Subsequent Subscription Fees will be charged on the Renewal Date based on the Software elements included and Subscription rates in effect on such date. Additional Fees, as detailed on the Order Form or otherwise agreed upon in writing, unless otherwise agreed in writing will be automatically charged to your Payment Provider, without further authorization, either during or following the end of each Subscription Period, including without limitation, if the number of Items verified during the Term exceeds the ordinary inclusions specified in the Subscription. Some Items may also require different Fee amounts and therefore be excluded from the Subscription price. Such Fees, unless otherwise agreed in writing, will be charged, without further authorization, through your Payment Provider either during or following the end of each Subscription period. Please see Order Form for additional details.
8.2 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.
8.3 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. 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. Upon renewal of your Subscription, if Entrupy does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your account upon demand and/or (b) you agree that Entrupy may either terminate or suspend your Subscription and continue to attempt to charge your Payment Provider (or other payment method we have on file for you) until payment is received (upon receipt of payment, your Subscription will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.5 Changes. We may change our charges and billing practices at any time, either by posting notice of such change via the System, on the Price Plan page, or on this page, or notifying you via email, provided that any such change will take effect on the following Renewal Date, so please check regularly for such notifications. If you would like to make any upgrade or downgrade to your Subscription, an Authorized Person (as defined in the Order Form) must make a request at least seven (7) days prior to the Renewal Date via email to firstname.lastname@example.org. Upgrades or downgrades made during a Subscription Period will become effective for the following Subscription Period.
9. WARRANTY AND DISCLAIMER
9.1 Representations and Warranties by Licensee. You represent and warrant on behalf of yourself and your Users that:
(a) You have full power and authority to enter into and perform this Agreement, and the person who submitted the Order Form on your behalf has been duly authorized and empowered to enter into this Agreement;
(b) You will not: (i) modify or tamper with any Certificates or other reports generated or provided by Entrupy at any time, without the prior written approval of Entrupy, (ii) use, display, distribute, or otherwise represent to any third party that any Certificate has been issued for an item that is any item other than the Item that was authenticated by the System and that is the subject of such Certificate, or (iii) reproduce or use any Certificates, or reproduce, display, or otherwise use any Entrupy Marks or branding, or anything similar thereto, in any way other than as permitted by this Agreement, including without limitation in any manner that could mislead purchasers about the authenticity or status of an object;
(c) Your use of the System shall comply with all applicable laws, rules, and regulations;
(d) You will not submit any false or misleading Images or data to the System; including without limitation by doing or permitting any of the following:
- Submitting Items with tampered date codes or serial numbers,
- Submitting Images or data that relates to regions belonging to any items other than the Item subject to authentication by the System,
- Attempting to provoke a false positive by bad input, or
- Using Entrupy or the System, or any portion thereof, in connection with the undertaking of a counterfeiting scheme (e.g. indicated by unusually high rates of Unidentified results) or unauthorized distribution scheme.
For the avoidance of doubt, a breach of this Section 9.1(d) shall be deemed a material breach.
9.2 Limited Warranty by Entrupy.
(a) We warrant that the System will function substantially in accordance with the Documentation during the Term.
(b) Your sole and exclusive remedy for a breach of the foregoing warranty will be for us to promptly modify the System so that it conforms with the Documentation at no additional cost to you.
(c) The warranty provided in Section 9.2(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.
9.3 Disclaimer. EXCEPT AS SET FORTH IN SECTION 2.1(c) AND 9.2(a), THE SYSTEM AND SERVICES PROVIDED HEREIN ARE 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 A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE IN TRADE.
10. INDEMNIFICATION. You will defend, indemnify, and hold us, our affiliate, agents, officers, directors, employees, licensors, and suppliers harmless from all losses, damages, costs and expenses, including reasonable and related attorneys’ fees and court costs, related to a third party claim in connection with (a) your, or a User’s, use of the System, (b) your, or a User’s, breach of this Agreement, including the representations and warranties herein or (c) allegations that your use of the System violates applicable law
11. SYSTEM INFORMATION. We collect information and 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 or de-identified information derived from Licensee Output that would not be reasonably expected to identify 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.
12. LIABILITY. ENTRUPY WILL NOT 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 ENTRUPY 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 FOR THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
13. GENERAL PROVISIONS
13.1 Assignment. You may not assign this Agreement without Entrupy’s prior written consent. Any attempted assignment in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns. Entrupy may freely assign this Agreement.
13.2 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.
13.3 Entire Agreement; Amendment. This Agreement, along with any mutually agreed upon amendments and addenda, (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. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement, other than the Order Form, will have no force or effect.
13.4 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 at https://www.entrupy.com/support/, as may be amended from time to time, or (b) you at the address associated with your account by personal delivery, certified mail (postage pre-paid, return receipt requested), email correspondence, 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. You are responsible for keeping your account contact information up to date.
13.5 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 or in violation of any U.S. export law or regulation.
13.6 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.
13.7 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto.
13.8 Attribution. Entrupy may identify Licensee as a client on its webpage and in standard marketing materials.
13.9 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.
13.10 Force Majeure. Neither Party will be liable for a failure to fulfill its obligations (excluding payment obligations) due to causes beyond its reasonable control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war, and epidemics, that cannot be mitigated through the exercise of due care.
13.11 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. Each Party agrees that any and all causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located in New York County, New York.
13.12 Waiver. A Party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.
13.13 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.