1. USING THE SERVICES; AVAILABILITY
1.1. Use of the Services. EP will provide the web-based products and hosted services identified in an Order Form (the “Services”) in accordance with this Agreement. Subject to the terms and conditions of this Agreement, EP grants you during the Term a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services solely as provided by EP. For the avoidance of doubt, EP’s payroll and payroll-related services are not covered by this Agreement including both SmartTime and SmartStart. If you receive payroll and payroll-related services from EP, the applicable Payroll Services Agreement entered into with EP (not this Agreement) will apply to those services.
1.2. Supplemental Terms. EP’s Services and Software are licensed, not sold, to you, and may also be subject to one or more of the supplemental terms below (“Supplemental Terms”). If there is any conflict between the terms in these General Terms and the Supplemental Terms, then the Supplemental Terms govern in relation to that Service or Software. The Supplemental Terms are subject to change.
1.3. Restrictions on Use. You will use the Services solely for your internal purposes and will not directly or indirectly: (i) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Services; (ii) sell, lease, sublicense or otherwise transfer the Services or any results thereof to any third party; (iii) copy, modify or make derivative works based on the Services; (iv) use the Services to store or transmit Malicious Code; (v) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vi) frame or mirror any of EP’s website pages or other content which is accessed as, or forms part of, the Services; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (viii) attempt to gain unauthorized access to the Services; (ix) access the Services in order to build or to assist a third party to build a competitive product or service; or (x) interact with the Services by means of automated software including, but not limited to, scripts, bots, robotic process automation software unless you have entered into a separate written agreement with EP. You agree to promptly notify EP upon your discovery of any unauthorized use of the Services or of any infringement of EP’s proprietary rights therein. Furthermore, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. EP’s direct competitors are prohibited from accessing the Services, or any results thereof, except with EP’s prior written consent.
1.4. Your Responsibilities. You will (i) be responsible for your and your Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality, use and processing of Your Data and the means by which You acquired Your Data; (iii) use the Services only in accordance with any applicable Documentation and applicable laws and regulations; (iv) evaluate the adequacy and results of the Services; and (v) accept responsibility for the results of the Services. You further acknowledge and agree that EP does not systematically monitor communications, content or data transmitted by you and your Users through the Services, and that EP is not responsible for any such communications, content or data.
1.5. Usage Limits. The Services may be subject to certain usage limits, including any quantities specified in an Order Form, which may include the quantity of Users eligible to use the Services. If you exceed a contractual usage limit, EP may work with you to reduce your usage so that it conforms to that limit. If, notwithstanding EP’s efforts, you are unable or unwilling to abide by a contractual usage limit, you agree to execute an Order Form for additional quantities of the applicable Services promptly upon EP’s request, and/or pay any invoice for excess usage.
1.6. No Implied Rights. Under no circumstances should anything in this Agreement be construed as granting to you, by implication, estoppel or otherwise, (i) any rights to any EP technology other than the Services specifically licensed to you pursuant to the terms and conditions of this Agreement and any applicable Order Form; or (ii) any additional rights for the Services other than any rights expressly granted in this Agreement.
1.7. Beta Services. From time to time, EP may invite you to try Beta Services at no charge. You may accept or decline any offer to access Beta Services in your sole discretion. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. EP may discontinue Beta Services at any time in its sole discretion and may never make them generally available. EP will have no liability for any harm or damage arising out of or in connection with a Beta Service.
1.8. Suspension/Termination of Services. EP may suspend or terminate your access to the Services: (i) to prevent damage to or degradation of the Services; (ii) to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (iii) if you or your Users violate Section 1.3, 1.5, or 1.6; or (iv) if any undisputed charge owing by you is thirty (30) days or more overdue. If the Services are suspended, EP will promptly restore use of the Services to you as soon as the event giving rise to the suspension has been resolved.
1.9. Future Functionality. You agree that your access and use of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by EP regarding future functionality or features.
2. INTELLECTUAL PROPERTY; FEEDBACK
2.1. EP Technology. EP or its licensors will retain all right, title and interest (including copyright and other intellectual property rights) relating to the Services and all legally protectable elements or derivative works thereof, including the Software.
2.2. Feedback. You grant EP a worldwide, perpetual, irrevocable, transferable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Users relating to the operation of the Services.
2.3. No Other Transfer of Ownership Rights. Except for the express rights granted herein, neither party will gain by virtue of this Agreement nor the provision or use of the Services any rights of ownership of any intellectual property of the other party or of any third-party.
2.4. Aggregated and Anonymous Data. You acknowledge and agree that we shall have the right to aggregate Your Data and other data (e.g., information, analysis, statistics) with respect to your use of the Services on an aggregated and anonymized basis (“Aggregated and Anonymous Data”), and we may use the Aggregated and Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose, during and after the term of this agreement, including without limitation to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by you and our other customers and third parties. For clarity, this Section does not give us the right to identify you as the source of any Aggregated and Anonymous Data. We will not publicly disclose any data that is not in an aggregate and anonymized form or that would permit a third party to identify that the Aggregated and Anonymous Data is associated with you or your Users.
3. DATA PRIVACY AND SECURITY
3.1. Privacy Notice. For information about how we collect, use, share or otherwise process information about you, please see our Privacy Notice at http://www.ep.com/privacy.
3.2. Personal Data. To the extent applicable to the particular Services, EP will comply, and will cause its subcontractors to comply, with all applicable laws pertaining to the processing of any of Your Data relating to an identified or identifiable natural person (“Personal Data”).
3.3. Consents. You consent to the processing of Your Data, which may include Personal Data, by EP and its agents to facilitate the subject matter of this Agreement, including the Services and any applicable Statement of Work. You will obtain all required consents from third parties (including your contacts, resellers, distributors, administrators, and employees) under applicable privacy and data protection laws before providing Personal Data to EP.
3.4. Security. EP will maintain commercially reasonable administrative, physical, technical and organizational measures to protect the security, confidentiality and integrity of Your Data as described in the Security Features section of our website. EP will notify you promptly upon learning of any unauthorized access to Your Data.
3.5. Data Processing Addendum. If you are subject to the General Data Protection Regulation, the California Consumer Privacy Act or any similar or successor laws or regulations and use Services and Software subject to Supplemental Terms, EP can make available our standard DPA to apply to our processing of your Personal Data.
4. WARRANTIES AND DISCLAIMERS OF FURTHER WARRANTIES
4.1. Mutual Warranties. Each party represents and warrants that (i) it has the full power to enter into the Agreement; and (ii) the performance of its obligations and use of the Services will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties.
4.2. DISCLAIMER OF FURTHER WARRANTIES. UNLESS STATED IN ANY APPLICABLE SUPPLEMENTAL TERMS, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS-AVAILABLE.” THE PARTIES DO NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIM, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. LIMITATION OF LIABILITY AND DAMAGES; INDEMNIFICATION
5.1. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT LIABILITY ARISES OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EP, ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU OR YOUR AFFILIATES, USERS OR ANY THIRD PARTY FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID TO EP BY YOU UNDER THIS AGREEMENT FOR THE APPLICABLE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
5.2. CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WILL EP, ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU, YOUR AFFILIATES, USERS OR ANY THIRD PARTY FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, COST OF REPLACEMENT GOODS OR SERVICES, OR ARISING FROM LOSS OF TECHNOLOGY, DATA, CUSTOMER INFORMATION, RIGHTS OR SERVICES OR INTERRUPTION OR LOSS OF USE OF SOFTWARE, HOSTING SERVICES, INFORMATION OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
5.3. ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT EP HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
5.4. INDEMNIFICATION. EP SHALL DEFEND YOU AND YOUR AFFILIATES, AND YOUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND CONTRACTORS, FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS ALLEGING THAT THE USE OF THE SERVICES AS PERMITTED HEREUNDER INFRINGES OR MISAPPROPRIATES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT (A “CLAIM AGAINST YOU”), AND SHALL INDEMNIFY YOU FOR ANY DAMAGES, ATTORNEY FEES AND COSTS FINALLY AWARDED AGAINST YOU AS A RESULT OF, AND FOR AMOUNTS PAID BY YOU UNDER A COURT-APPROVED SETTLEMENT OF, A CLAIM AGAINST YOU; PROVIDED, HOWEVER, THAT EP’S OBLIGATIONS UNDER THIS SECTION 5.4 SHALL NOT APPLY TO THE EXTENT A CLAIM AGAINST YOU ARISES FROM (A) YOUR DATA; (B) YOUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR MATERIAL BREACH OF THIS AGREEMENT; (C) ANY MODIFICATION, COMBINATION OR DEVELOPMENT OF THE SERVICES THAT IS NOT PERFORMED BY EP, INCLUDING IN THE USE OF ANY APPLICATION PROGRAMMING INTERFACE (API); (D) THE USE OF ANY VERSION OF THE SOFTWARE OTHER THAN THE MOST CURRENT RELEASE MADE AVAILABLE BY EP; OR (E) YOUR USE OF THE SERVICES IN AN UNINTENDED OR IMPROPER PURPOSE. THIS SECTION 5.4 STATES EP’S SOLE LIABILITY TO, AND YOUR EXCLUSIVE REMEDY AGAINST, ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION.
5.5. INDEMNIFICATION PROCEDURES. ALL INDEMNIFICATION OBLIGATIONS AS SET FORTH IN THIS AGREEMENT, INCLUDING ANY APPLICABLE SUPPLEMENTAL TERMS, ARE SUBJECT TO THE FOLLOWING REQUIREMENTS: (A) THE INDEMNIFIED PARTY WILL PROVIDE THE INDEMNIFYING PARTY WITH PROMPT WRITTEN NOTICE OF ANY SUCH ACTION OR CLAIM; (B) THE INDEMNIFIED PARTY WILL PERMIT THE INDEMNIFYING PARTY TO ASSUME AND CONTROL THE DEFENSE AND SETTLEMENT OF ANY SUCH ACTION OR CLAIM; (C) THE INDEMNIFIED PARTY WILL NOT PREJUDICE THE DEFENSE OF THE ACTION OR CLAIM; (D) EACH PARTY WILL MITIGATE SUCH DAMAGES, COSTS AND EXPENSES, AS FAR AS REASONABLY POSSIBLE; AND (E) THE INDEMNIFIED PARTY WILL PROVIDE THE INDEMNIFYING PARTY WITH SUCH ASSISTANCE, DOCUMENTS, AUTHORITY AND INFORMATION AS IT MAY REASONABLY REQUIRE IN RELATION TO THE ACTION OR CLAIM AND DEFENSE OR SETTLEMENT THEREOF.
6. PROFESSIONAL SERVICES
EP may provide Professional Services to you, including implementation, customization, configuration and software enablement services provided on a time and materials basis pursuant to an Order Form. EP hereby grants you a non-exclusive license to use any deliverables or work product created under an Order Form for Professional Services in connection with your use of the Services as authorized hereunder.
EP warrants that the Professional Services will be performed using reasonable care and skill consistent with generally accepted industry standards. For any claimed breach of this warranty, you must notify EP of the warranty claim within thirty (30) days of your receipt of the applicable Professional Services. Your exclusive remedy and EP’s sole liability with regard to any breach of this warranty will be, at EP’s option and expense, to either: (i) re-perform the non-conforming Professional Services; or (b) refund to you the fees paid for the non-conforming Professional Services.
7. FEES; PAYMENT TERMS
7.1. Fees. All fees for use of the Services and/or receipt of Professional Services shall be as set forth in the applicable Order Form (collectively, “Fees”).
7.2. Taxes. All Fees are nonrefundable, noncreditable, not subject to any right of offset and are exclusive of all taxes, including sales, use or value added taxes where applicable. You are responsible for paying any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”), associated with your purchases hereunder, specifically excluding Taxes based on EP’s net income or property.
7.3. Payment. You agree to pay all Fees within thirty (30) days from the date of EP’s valid invoice therefor. In addition, and without prejudice to any other rights or remedies available to EP, any failure to pay any amount when due will be a material breach and EP will be entitled at its own discretion to withhold or suspend the Services.
8.1. Confidentiality Obligations. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and agrees not to use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement. The receiving party will not disclose the disclosing party's Confidential Information to any third party (other than as necessary for the receiving party’s performance under the Agreement) or use the disclosing party's Confidential Information for its own or any third party's benefit, other than its own use as necessary to access and use or provide the Services.
8.2. Compelled Disclosure. If the receiving party receives any request, demand, notice, subpoena, order or other legal information request relating to legal proceedings or investigations by third parties relating to Confidential Information, the receiving party will immediately provide the disclosing party with notice of such compelled disclosure, including copies of all documentation pertaining to such request, unless legally prohibited from doing so. The receiving party shall not disclose any Confidential Information to any such third party without advance written consent from the disclosing party, or until the disclosing party has had a reasonable opportunity to contest the request, unless legally prohibited from doing so.
8.3. Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of this Section, the other party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
9. UPDATES TO THESE GENERAL TERMS
We may make changes to the General Terms from time to time. You understand and agree that if you are on using Services that are provided free-of-charge, EP will treat your continued use of the Services as acceptance of the latest version of these General Terms. If these General Terms are updated while you are using paid-for Services under an active Order Form, the new version of these General Terms will apply upon your renewal.
10. ADDITIONAL TERMS
10.1. Choice of Law. This Agreement has been entered into and will be governed by and construed under the laws of the State of California without regard to choice of law rules and state and federal courts located in Los Angeles County, California will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
10.2. Force Majeure. Neither party will be liable for any failure to perform if such failure has been occasioned by fire, embargo, strike, labor dispute, war, pandemics or epidemics, failure of public utilities, or any other circumstances reasonably beyond its control. Either party may terminate, at its option and upon notice to the other party, this Agreement (in whole or in part) if such situation continues for thirty (30) days or more.
10.3. Assignment. You may not assign or delegate your rights or obligations under this Agreement without the prior written consent of EP. EP may assign or delegate its rights or obligations under this Agreement in connection with a merger, reorganization, change of control, or sale of assets related to the Services. This Agreement will be binding upon and inure to the benefit of the parties, their successors and assigns.
10.4. Publicity. EP may list you as its customer on marketing collateral, including its website.
10.5. Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.6. Entire Agreement. This Agreement, together with the Documentation and any applicable Order Form(s) and Supplemental Terms, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous proposals, communications and understandings, written or oral. Except as otherwise expressly provided herein, this Agreement may not be modified, altered or amended except by a written instrument duly executed by both parties.
10.7. Notices. All notices related to these Terms will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) except for notices of termination or an indemnifiable claim, the day of sending by e-mail to firstname.lastname@example.org. Notices to EP will be addressed to the attention of Senior Vice President, Legal Operations at Entertainment Partners, LLC, 2950 North Hollywood Way, Burbank, California 91505.
10.8. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction or arbitrator, as applicable, that provision will be deemed limited or omitted to the minimum extent necessary, and the balance of this Agreement will continue in full force and effect.
11.1. “Beta Services” means EP services or functionality that are not generally available to its customers and made available to you at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
11.2. “Confidential Information” means any non-public information of a party, which a party designates in writing as being confidential when it is disclosed, or which given the nature of the information or circumstances in which it is provided should be treated as confidential. Confidential Information includes without limitation Your Data and EP business terms (including the terms and conditions of the Agreement and the pricing and other terms reflected in an Order Form), as well as business plans, business methods, financial information, products, services, specifications, documentation, inventions, processes, trade secrets, know-how, customers, designs, drawings, computer code, algorithms, formulas, and passwords. Confidential Information does not include information which (a) was rightfully in the possession of the receiving party prior to receiving it from the disclosing party; (b) is independently developed by the receiving party without use of or reliance upon the Confidential Information of the disclosing party; (c) was in the public domain at or subsequent to the time of disclosure (through no breach of the receiving party); or (d) is obtained in good faith from a third party not under any obligation of confidentiality.
11.3. “Documentation” means EP online user guides, documentation, and help and training materials, as updated from time to time, accessible within the Services and/or EP’s website located at www.ep.com.
11.4. “Malicious Code” means code, file, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
11.5. “DPA” means EP’s Data Processing Addendum that describes, if applicable, how we process your Personal Data.
11.6. “Order Form” means either (i) an ordering document or (ii) the online purchase summary specifying the Services to be provided by EP to you pursuant to this Agreement.
11.7. “Professional Services” means the installation, configuration, training, or other professional services related to the Services described in a mutually executed Statement of Work.
11.8. “User” means you and/or an individual who is authorized by you to access and use the Services, provided that you and/or any individual you are attempting to authorize is not an employee, consultant, contractor or agent of an EP competitor that provides payroll and/or production management services or software for the entertainment production industry.
11.9. “Your Data” means electronic data and information you submit in connection with your access to and use of the Services.