PLATFORM SERVICE AGREEMENT

 This Platform Service Agreement (“Agreement”) is by and between Interlude US Inc. d/b/a eko, a Delaware corporation, (“Company” or “We” or “Us” or “Our”) and you (“Client” or “Authorized User” or “You” or “Your”). Client or Authorized User on the one hand, and Company are individually referred to herein as a “Party” and collectively as “Parties”. This Agreement governs your acquisition and use of Our services. 

BY STARTING USING OUR SERVICES (OR BY CLICKING TO ACCEPT, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE AGREEING TO THIS AGREEMENT WHEN SUCH OPTION IS MADE AVAILABLE TO YOU), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH ACTION AND OUR TERMS OF SERVICE LOCATED HERE: https://company.eko.com/legal AND HEREIN INCORPORATED BY REFERENCE. 

IF YOU ARE ENTERING INTO THIS AGREEMENT AS A REPRESENTATIVE OF A CLIENT, YOUR ACCEPTANCE IN ANY OF THE FORMS MENTIONED ABOVE REPRESENTS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT RELATING TO YOUR OWN ACCESS AND ALSO HAVE THE AUTHORITY TO BIND SUCH CLIENT AND ITS AFFILIATES TO THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS HEREIN, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO REFER TO SUCH CLIENT FOR WHICH YOU ARE A REPRESENTATIVE.  IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW OR DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT ON BEHALF OF A CLIENT AND MAY NOT USE THE SERVICES. 

 1. Definitions.

 “Authorized User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a Client, an individual who is authorized by such Client to bind such Client to this Agreement to use the Services, in each case, to whom the Company has allowed access associated with Your user identification and password.

 “Base Services” means the eko Platform product and services.

 “Beta Services” means new products and services that have not been made commercially available which the Company may offer for free for a specified amount of time for market testing and improvement purposes. 

 “Client” means any company or other entity that has a Company Profile on the eko Platform that contains data, documents, policy configurations, workflows, and other information relating to the entity and its Authorized Users.

 “Client and Authorized User Data” (or “Your Data”) means all information processed or stored on computers or other electronic media by the Client or Authorized User, or that is generated or gathered by or processed by any third party for, or in relation to, the Client or Authorized User, or that is otherwise generated or gathered or processed on Client or Authorized User’s behalf  by any third party including all data used to set up and maintain the Client or Authorized User’s access, use and all associated records involving or associated with the Client or Authorized User, or provided to the Company for such processing or storage, as well as any information derived from such information including, without limitation: (a) information on paper or other non-electronic media provided to Client or Authorized User for computer processing or storage, or information formerly on electronic media; (b) information provided to Company through the Services by the Client or Authorized User or any other third parties; and (c) any personal information provided by or for such Client or Authorized Users. 

 “Client Full Access Administrator” is an Authorized User who has top level access to manage all aspects of the Clients interaction with the eko Platform on behalf of the Client.

 “Client Limited Access Administrator” is an Authorized User who has access beyond that of an Authorized User but not equal to a Client Full Access Administrator to enable such person to manage some but not all of the Clients interaction with the eko Platform on behalf of the Client.

 “Free Services” means any Services that the Company makes available to You free of charge; except that “Free Services” does not include Services offered in relation to a free trial or Services for a which a fee is applicable.

 “Free-Trial Services” means any Services that the Company makes available to You free of charge for a limited time in order for You to evaluate the Services to determine if use after the free time period is desirable.

 “Manager” is an Authorized User who was given access privileges that allow such person to manage an enumerated, but adjustable, list of authorized users’ profiles and interactions with the eko Platform.

 “Non-eko Products & Services” means any product or service (regardless of whether it is web-based, mobile-based, offline or in any other form) that was not created by or for the Company and is not owned by the Company, and that interoperates with any of the Services.

 “Order Form” means the ordering document which refers to this Agreement and includes a description of the Services to be provided, the start date and term applicable to the Services, and associated fee and payment information, that is entered into between You and the Company. 

 “Services” means any Free Services, Free Trial Services, or any other service that the Company makes available to You for a fee which may be outlined further in an applicable Order Form. 

 2. Provision of Services Generally; Support.   The Services shall be available to the Client or Authorized User promptly following the Effective Date in accordance with the terms of this Agreement and any applicable Order Form including the Service Level Commitments found in the Service Level Agreement attached hereto as Schedule A and incorporated herein. The agreement between the Company and Client or Authorized User shall not restrict the Company from providing or performing the same or similar services for any third party.  The Company reserves the right in its sole discretion to (i) amend, modify or withdraw any portion of the Services at any time for any reason it deems sufficient, or (ii) cease providing any portion of the Services.  Any and all requests for support and maintenance relating to the Services by Client or Authorized User should be first directed to his or her employer through which the employer obtains the contract regarding these Services, at the option of the Client or Authorized User’s employer.  Of course, you as Client or Authorized User should feel free to reach out directly to us if the employer that was contacted initially cannot adequately handle any requests.  Services are provided under subscriptions and purchased services may be added during a subscription term under the terms specified in an Order Form including terms relating to pricing and subscription period. The Company, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to the Client or Authorized User a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to access and use the Services solely for Client or Authorized User’s own purposes during the Term (as defined in Section 23 herein).       

 3. Provision of Services; Support.   The Company will provide applicable Company standard support for the Services to You (including, without limitation, general maintenance, bug-fixing, etc.) which shall be included in the cost provided in an applicable Order Form (and/or an upgraded level of support if offered and purchased as part of the Services provided in an applicable Order Schedule), and will use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall use reasonable efforts to provide advance electronic notice), and (ii) any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, any act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving the Company employees), Internet service provider failure or delay, denial of service attack, or any event relating to any Non-eko Applications & Services.

 4. Fees for Services.  The Client will pay all fees specified in the Order Forms applicable to each of the Services. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are based on Services subscriptions purchased (according to the usage tiers, if any), specified in the applicable Order Form, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) any Services cannot be decreased during the relevant subscription term.

 Payment. You will provide the Company with credit card information or bank account information (or You will be billed via invoicing if You are prequalified to make payment in such manner). If You provide credit card information or bank account information to the Company, You authorize the Company to charge such credit card or withdraw via ACH from such bank account any and all fees for all Services listed in an Order Form for the initial subscription term and for any renewal subscription terms that apply. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. In the case in which You are prequalified to make payment via invoicing, the Order Form will indicate that payment is allowed by such method, and You will be required to provide payment in advance or otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due within thirty (30) days of the invoice date, provided that, You will not be provided with access to the associated Services until payment is received (unless the Company provides written consent for access prior to receipt of payment). You are responsible for providing accurate billing and contact information to the Company and notifying the Company of any changes to such information.

 Overdue Charges. If any invoiced amount is not received by the Company by the due date in the Order Form, then without limiting Our rights or remedies, (a) those charges will be subject to a late payment penalty at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) the Company will have the option to condition future subscription renewals and Order Forms on payment terms shorter than those specified in previous Order Forms and/or this Section 4.

Suspension of Service and Acceleration. If any amount of fees (as provided in an applicable Order Form) owing by You under this or any other agreement for any of the Services is thirty (30) days or more overdue, You hereby authorize the Company to charge Your credit card or bank account for the outstanding balance that is due.  If the outstanding balance that has been due for thirty (30) days of more cannot be collected by Us after two successive attempts, the Company has the option to, without limiting its other rights and remedies, accelerate all unpaid fee obligations under your Order Form subscriptions so that all such obligations become immediately due and payable, and suspend Your ability to obtain the Services until such amounts are paid in full. Other than for Clients paying by credit card or direct debit whose payment has been declined, the Company will give You at least fifteen (15) days’ prior notice that Your account is overdue before suspending services to You.

 Payment Disputes.  If You dispute any overdue charges with a reasonable argument and in good faith and are cooperating with Us to resolve the dispute, the Company will not exercise our rights relating to imposing interest, accelerating payments or suspending any of the Services, provided that You will continue to pay any and all undisputed charges and payments required hereunder. 

Taxes. Our fees do not include any taxes, levies, duties or other governmental assessments of any kind, including, for example, sales, use, value added, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If the Company has the legal obligation to pay or collect Taxes for which You are responsible, the Company will include such amounts on the Order Form and You will include payment for the amount associated with Taxes unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For avoidance of doubt, the Company is solely responsible for any taxes assessable against it based on its business including that associated with income, property and employees.

 5. Provision of Free Services; Support. If You register for any Free Services, the Company will make one or more Free Services available to You free of charge subject to the terms and conditions of this Agreement including, but not limited to, any time and usage limits specified in this Agreement, and subject to any other time and usage limitations of which you are made aware through the Services or separately by the Company. Usage over any of the specified limits will require Your purchase of additional resources or services. You agree that the Company, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that the Company will not be liable to you or any third party for such termination. You are solely responsible for maintaining a backup of Your Data on a periodic bases and for extracting the most up to date version of Your Data from the Free Services prior to termination of Your access to the Free Services for any reason; provided that, if the Company terminates Your access, the Company will provide You a reasonable time period in which to retrieve Your Data. 

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT DURING USE OF THE FREE SERVICES, AND ALL OF YOUR INDEMNIFICATION OBLIGATIONS THAT ARISE DURING USE OF THE FREE SERVICES HEREUNDER.

 6. Provision of Free-Trial Services; Support.  If You register for Free-Trial Services, the Company will make one or more Free-Trial Services available to You on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which You registered to use the applicable Free-Trial Service(s), (b) the start date of any Service subscription(s) ordered by You for a fee for any Service(s) that is the same or similar to the Free-Trial Services to which You subscribed, or (c) termination of Your access to the Free-Trial Services by the Company which may be done at any time in our sole discretion. Additional trial terms and conditions that appear on the Order Form associated with the Free-Trial Services are incorporated into this Agreement by reference herein and are legally binding.

 ANY CONTENT OR DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU EITHER: (1) PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, (2) PURCHASE APPLICABLE UPGRADED SERVICES, OR (3) EXPORT SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL DURING OR AFTER THE FREE TRIAL PERIOD, YOUR DATA WILL NOT AUTOMATICALLY TRANSFER TO THE DOWNGRADED SERVICE AT THE END OF YOUR FREE TRIAL PERIOD SO YOU MUST TAKE THE STEP TO EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

 NOTWITHSTANDING ANY OTHER CONTRARY PROVISIONS OF THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE-TRIAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN EACH CASE, DURING THE FREE TRIAL PERIOD.

 Please review the applicable documentation provided to you by the Company associated with the Free-Trial Services during the trial period so that You become familiar with the features and functions of such Free-Trial Services before You make any purchases.

7. Beta Services. From time to time, the Company may make Beta Services available to You during a trial period at no extra charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated in an Order Form, any Beta Services trial period will expire one (1) year from the trial start date or sooner if a version of the Beta Services becomes generally available without the applicable Beta Services designation. The Company may discontinue Beta Services at any time in the Company’s sole discretion and there is no guaranty that the Company will ever make any products or services associated with such Beta Services generally available. The Company will have no liability for any harm or damage arising out of or in connection with a Beta Service or its use thereof.

 ANY CONTENT OR DATA YOU ENTER INTO THE BETA SERVICES AND ANY CUSTOMIZATIONS MADE TO THE BETA SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL OF THE BETA SERVICES WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE BETA SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

8. Ownership of Services; License to Client and Authorized User Data.  Client is solely responsible for and hereby agrees to obtain all consents and licenses from third parties that relate to Client’s use of any third party content or music or lyrics prior to supplying (or allowing to be supplied) any such Client and Authorized User Data to Company or the Services, and shall provide proof of the same at Company’s reasonable request. The Company, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to the Client or Authorized User a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to access and use the Services solely for Client or Authorized User’s own purposes during the Term. The Client or Authorized User has no rights in or to the Services except as expressly granted in this Agreement. The Company reserves to itself all rights to the Services not expressly granted to the Client or Authorized User under this Agreement. The Company retains all copyright, trademark, patent, and other intellectual property rights in and to the Services. As between the Parties, the Client or Authorized User acknowledges that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of the Company and contain the Company’s confidential and proprietary materials.  The Client and each Authorized User hereby grants to the Company a worldwide, perpetual, and royalty free, license to host, copy, transmit and display the Client and Authorized User Data, (i) as necessary for the Company to provide the Services in accordance with this Agreement, and (ii) as part of aggregated and anonymized information for any purpose and at any time. Without limiting the foregoing, Company shall have the perpetual, worldwide right and license, at no additional cost, to use, edit and exploit any content that Client or Authorized User creates through use of the Services, in any manner and media (now known or hereafter devised), in Company’s sole discretion, solely in connection with (x) the promotion and marketing of Company’s business and/or Services, and (y) any archival and internal business purposes. For avoidance of doubt, even if a Client or Authorized User ceases its relationship with its employer at any time, the license to all Client and Authorized User Data specified in this Section 8 herein shall survive the termination of the relationship and/or the termination of this Agreement.  

 9. Usage Limits.   Some of the Services may be subject to the limits of Authorized Users specified in the Order Form associated with a usage tier chosen by a Client from options that are presented. Unless otherwise specified, the quantity of Authorized Users may not exceed the number of Authorized Users allotted for the tier chosen by You unless You initiate a new Order Form in which You authorize a change in usage tier that is associated with the increased limit in the number of Authorized Users that You require (along with the associated increase in fees) and that is to be associated with Your Company Profile within the Services. Unless otherwise specified, except with regard to any shared user account, only an authorized user of a Client or Authorized User account may access such account at any given time and a Client or Authorized User’s user ID and password may not be shared with any other individual.  A Client or Authorized User user ID may be reassigned to a new individual replacing one who no longer has authorization to use the Services.

10. Responsibilities

 Authorized User:  You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the data You supply to the Services including the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all applicable laws and government regulations, and (e) comply with terms of service of any Non-eko Applications & Services with which You are provided.  You hereby agree that, if You are provided with the authority and privileges to act on behalf of the Client, either as the Client representative that enters into this Agreement (or any extension) on behalf of the Client, or a Manager, Client Limited Access Administrator or Client Full Access Administrator for the Client, then you hereby agree to all additional responsibilities, terms and conditions under this Agreement that are associated with such title you are authorized to assume by the Client with which you are associated.

 Client:  You will (a) be responsible for your Authorized Users’ compliance with this Agreement, and all associated Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all associated Order Forms and all applicable laws and government regulations, (e) be responsible for obtaining all consents and licenses required relating to third party content and music and lyrics and other materials that You use or supply (or cause to be used or supplied) to the Company and Services, and (f) comply with terms of service of any with which You use such Services. For avoidance of doubt, to the extent that any consents or licenses are necessary relating to any content or music or lyrics You use or supply to Company or the Services in conjunction with Your use of the Services, You will be solely responsible for obtaining such rights, including, without limitation, obtaining synchronization and performing rights, licenses and any necessary corresponding master use licenses and agreements pertaining to all music and lyrics embodied in or used in connection with the Services. You hereby understand and acknowledge that Company has not entered into, nor is party to, any licenses with any performing rights society (including, without limitation, ASCAP, BMI, SESAC, or any other performing rights society) and makes no such representation or warranty of any kind.

 Manager: Your responsibilities include: (a) assisting with access and maintenance of the Authorized Users for which you are responsible within the Client’s organization, and all related access control, data and maintenance issues, and (b) maintaining the security of all Client and Authorized User Data to which You have access.

 Client Limited Access Administrator:  Your responsibilities include: (a) assisting with access and maintenance of the Client and its Authorized Users in the general function areas for which you are responsible within the Client’s organization, and all related access control, data and maintenance issues, and (b) maintaining the security and privacy of all Client and Authorized User Data to which You have access.

 Client Full Access Administrator: You hereby agree to only provide access to Authorized Users for which authorized is provided or intended by Client with which You are associated, and You shall maintain that access to preserve the security of all Client and Authorized User Data. In addition, You hereby agree to: (a) be the ultimate owner of quality data accuracy, (b) ensure that everything is configured as desired and that data your Authorized Users access is accurate, (c) ensure that workflows are being executed accurately on the platform (d) provide the Company with data, documents and answers we request to facilitate the provision of any Services by the Company, and (d) take responsibility to ensure that all fees and payments associated with the Services are made according to the terms of this Agreement. You are authorized within the Services to make purchase decisions for add-ons and additional services on behalf of the Client with which You are associated.

 11. Usage Restrictions.  The Client or Authorized User will not (a) make the Services available to, or use the Services for the benefit of, anyone other than the Client or Authorized User, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include it in a service bureau or outsourcing offering, (c) 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, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, if any, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on the intranets of Client or Authorized User’s employer or otherwise for the Client or Authorized User’s own personal use, (k) access the Services for the purpose of monitoring availability or functionality, benchmarking, or otherwise assist with the creation and/or evaluation of any competitive service to the Services, or (l) reverse engineer the Services (to the extent such restriction is permitted by law). 

 12. Protection of Client and Authorized User Data.  The Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client and Authorized User Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client and Authorized User Data by the Company’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 16 (Compelled Disclosure) below, or (c) as part of aggregated, anonymized information relating to our Clients and Authorized Users of the Services. The Company shall exercise commercially reasonably efforts to prevent unauthorized exposure or disclosure of Client and Authorized User Data.  The Company shall observe the Data Security, Privacy, Data Retention and e-Discovery policy that is posted on the Company the web site at https://company.eko.com/legal, including without limitation, all policies regarding retention and deletion of Client and Authorized User Data, as may be amended by the Company from time to time. Without limiting the foregoing, the Company shall act in compliance with all applicable data protection and privacy laws related to its business and provision of Services (including, without limitation, the General Data Protection Regulation and the California Consumer Privacy Act) and the Company’s Data Protection Agreement attached hereto as Schedule B and incorporated herein by such reference.  

 13. Client and Authorized User Responsibility for Data.  You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the Client and Authorized User Data that You input to the Services by or on behalf of the Client or yourself and the means by which You acquired such data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify the Company promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the Agreement and applicable laws and government regulations.

 14. Non-eko Providers.   The Company, You or third parties may make available products or services that are Non-eko Products & Services. The Services may contain features designed to interoperate with Non-eko Products & Services. To use such features, You may be required to obtain access to such Non-eko Products & Services from providers of such products and services, and may be required to grant access to the Company to Your account(s) associated with such Non-eko Products & Services. The Company cannot guarantee the continued availability of the features or the interoperability of such Non-eko Products & Services with the Services, and may cease providing and/or supporting such features without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of Non-eko Products & Services ceases to make the Non-eko Products & Services available in a manner acceptable to the Company and the Company correspondingly takes action to block or prevent the use of such Non-eko Products & Services with the Services.  

 Any usage by You of such Non-eko Products & Services, and any exchange of data between You and any Non-eko Products & Services provider in relation to any such third-party product or service, is solely between You and the applicable Non-eko Products & Services provider and You agree to comply with any applicable terms and conditions of such Non-eko Products & Services. The Company does not warrant or support, and is not liable for, any Non-eko Products & Services or any data You exchanged with the provider of such Non-eko Products & Services or the Non-eko Products & Services, whether or not such Non-eko Products & Services are designated by the Company as interoperable with the Services, unless expressly provided to the contrary in an Order Form.  If You choose to use any Non-eko Products & Services in conjunction with one or more of the Services, You grant the Company permission to allow the provider of the Non-eko Products & Services to access Your Data through such Non-eko Products & Services as required for the interoperation of such Non-eko Products & Services with the Services. The Company is not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such provider of any Non-eko Products & Services or the Non-eko Applications & Services themselves.

 15. Confidentiality.  Each Party agrees: (i) to use the confidential information of the other Party (the “Disclosing Party”)  only for the purposes associated with, and in accordance with, the terms and conditions of the Agreement; (ii) to use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care consistent with its past practices and any applicable laws, and to safeguard the Disclosing Party’s confidential information that is provided to it; and (iii) to only disclose confidential information provided by the Disclosing Party only, as allowed, to (1) employees, agents, affiliates and subcontractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written or ethical obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by the Agreement, or (2) if required by law or regulatory authorities, provided the Party which has received the confidential information (the “Receiving Party”) has given the Disclosing Party prompt notice before disclosure so that it may perform actions in an attempt to prevent disclosure at its sole option.  Each Party will protect from disclosure any confidential information disclosed by the other Party for a period commencing upon the disclosure date until three (3) years thereafter. The term “Confidential Information” does not include information that (i) becomes generally available to the public other than as a result of the Receiving Party or its representatives’ breach hereunder, (ii) is already in the Receiving Party’s actual possession, provided that such information is not known by the Receiving Party to be subject to a contractual or legal obligation of confidentiality, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be bound by a contractual or legal obligation of confidentiality with respect to such information, or (iv) is independently developed by the Receiving Party or any of its representatives without the use of, or reference to, or derived from the Confidential Information. For the avoidance of doubt, any Client and Authorized User Data shall not constitute Confidential Information for purposes herein.  

 16. Compelled Disclosure.   Each Party may disclose Confidential Information of the other Party to the extent compelled by law to do so, provided that prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, is given if the Party wishes to contest the disclosure. 

17.  Feedback.  The Company has not agreed to, and does not agree to, treat as Confidential Information any Feedback (as defined below) the Client or any Authorized User provides to the Company, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict the Company’s rights to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client and/or the Authorized User. Notwithstanding Section 15 (Confidentiality), Feedback will not be considered Client’s Confidential Information or its trade secret. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of the Company’s products or services. Feedback does not include any suggestion or idea to the extent that it solely addresses Client’s products or services. Client and Authorized Users hereby grant to the Company a fully paid up, royalty-free, worldwide, transferable, sub-licensable (through multiple tiers of sub-licensees), irrevocable and perpetual license to incorporate into the Services or otherwise use and fully exploit any and all Feedback.

 18.  DISCLAIMER OF WARRANTY.  THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.  THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY THE COMPANY ARE PROVIDED "AS IS" AND "WITH ALL FAULTS," AND THE COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENTS' OR EMPLOYEES' REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.  In addition, the Company does not provide any warranties regarding (i) the accuracy of the results obtained through use of any of the Services, (ii) the accuracy of the data contained within any of the Services, (iii) that any of the Services will operate error free, or in an uninterrupted fashion, (iv) the security of any of the Services from intrusion or attack, or (v) the network, communications links or infrastructure You use.  

19.  LIMITATION ON LIABILITY. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CLIENT OR AUTHORIZED USER, OR ANY THIRD PARTY, FOR ANY LOST REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT PAID, TO ANY ENTITY, FOR CLIENT OR AUTHORIZED USER’S USE OF THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY.

20.  WAIVER OF TRIAL BY JURY.  EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

21.  WAIVER OF CLASS ACTION TYPE RELIEF.  ALL CLAIMS BROUGHT BY CLIENT OR AUTHORIZED USER MUST BE BROUGHT IN THE CLIENT OR AUTHORIZED USER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR PLAINTIFF IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE COMPANY AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE CLIENT OR AUTHORIZED USER’S CLAIMS.

22. Indemnification.  Except to the extent arising out of (i) Client or Authorized User’s breach or default of this Agreement, (ii) any changes, edits, modifications, or other alterations to the Services not authorized or approved by the Company, (iii) Client or Authorized User’s failure to incorporate customary software updates or upgrades or as otherwise recommended by the Company, (iv) any combining of the Services with a third-party platform, product, or service (including Client or Authorized User’s platform, product, or service) not authorized or approved by the Company, or (v) Client’s or Authorized User’s use of any third party content or music or lyrics or other materials,  the Company will defend the Client or Authorized User against any claim, demand, suit or proceeding made or brought against the Client or Authorized User by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Client or Authorized User from any damages, reasonable outside attorney fees and costs finally awarded against the Client or Authorized User as a result of, or for amounts paid by the Client or Authorized User under a court-approved settlement of such claim, provided the Client or Authorized User (a) promptly gives written notice of the claim, (b) gives the Company sole control of the defense and settlement of the claim (except that the Company may not settle any claim unless it unconditionally releases the Client or Authorized User of all liability), and (c) gives the Company all reasonable assistance, at the Company’s expense. If the Company receives information about an infringement or misappropriation claim related to the Services, the Company may in its discretion and at no cost to the Client or Authorized User (i) modify the Services so that it no longer infringes or misappropriates, without breaching the Company’s warranties, (ii) obtain a license for the Client or Authorized User’s continued use of the Services in accordance with this Agreement, or (iii) terminate the Client or Authorized User’s subscriptions for the Services upon thirty (30) days’ written notice. The above defense and indemnification obligations do not apply to the extent a claim arises from the Client or Authorized User’s breach of this Agreement and/or gross negligence or willful misconduct.

 The Client or Authorized User will defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that the Client or Authorized User’s Data (including use of any third party content or music or lyrics or other materials by or for Client or Authorized User), or its use of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify the Company from any damages, reasonable outside attorney fees and costs finally awarded against the Company as a result of, or for any amounts paid by the Company under a court-approved settlement of such claim, provided the Company (a) promptly gives the Client or Authorized User written notice of the claim, (b) gives the Client or Authorized User sole control of the defense and settlement of the claim (except that the Client or Authorized User may not settle any claim unless it unconditionally releases the Company of all liability), and (c) gives the Client or Authorized User all reasonable assistance, at the Client or Authorized User’s expense.

23. Term and Termination.  This Agreement, and the rights to access and use the Services commences on the Effective Date and continues until either: (i) all subscriptions hereunder has expired or have been terminated by either Party, or (ii) Client or Authorized User’s status changes such that Client or Authorized User is a former client, employee or contractor that is no longer entitled to the benefits hereunder (the “Term”).  The Company may terminate this Agreement for any reason immediately by revoking Client or Authorized User’s access to the Services. The term of each subscription associated with this Agreement for any of the Services, shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions for Services which are purchased for a fee (a provided in the Order Form) will automatically renew for additional periods equal to one year, unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the end of the applicable subscription term.  The Company reserves the right to increase the fees associated with any of the Services by any amount it deems necessary (in its sole judgment), but if a rate increase is planned, the Company will provide notice of the same to You at least fifteen (15) days prior to the end of the applicable subscription term.

 24.  Dispute Resolution.  In connection with any dispute between the Parties arising from this Agreement, the Parties shall attempt to resolve such dispute by utilizing the procedure specified in this Section 24 herein. 

 (a) Negotiation by Individuals:  To commence resolution of a dispute, either Party may send written notice (“Notice”) to the other Party containing a concise summary of the dispute and requesting negotiations.  Within seven (7) days following receipt of such Notice by the other Party, each Party will make such investigation as each deems appropriate and will promptly, but in no event later than thirty (30) days from the date of the Notice, communicate to attempt to resolve the dispute.  If the dispute has not been resolved within forty five (45) days of the first communication between the Parties in furtherance of resolving the dispute, an arbitration proceedings may be commenced by either Party, as set forth immediately below in Section 24(b) below.

 (b) Arbitration:  Arbitration shall commence upon written notice (“Arbitration Notice”) by either Party to the other and to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”).  Such dispute shall be conducted before a single arbitrator.  Such arbitrator shall be a lawyer knowledgeable and experienced in the field of software licensing, and shall not be affiliated with either Party, or otherwise have any current or previous relationship or association with either Party.  Each Party shall designate in writing a list of potential arbitrators within thirty (30) days of the Arbitration Notice.  The Parties consent to use any arbitrator whose name appears on both Parties’ list of potential arbitrators, subject to the arbitrator’s availability.  If no arbitrator appears on both Parties’ lists, or if the Parties cannot agree on an arbitrator within sixty (60) days of the Arbitration Notice, the arbitrator shall be selected by the office of the JAMS in New York County, New York or, if such office does not exist, the JAMS office nearest to New York, New York.  After an arbitrator is selected, the Parties shall promptly consult with the arbitrator to determine the details of the arbitration process including a schedule and the dates and location of the arbitration hearing. The arbitrator’s decision shall be final and legally binding on both Parties and judgment may be entered thereon.  Unless provided otherwise herein, the arbitration shall be governed by the applicable JAMS rules, including the Comprehensive Arbitration Rules and Procedures, applicable at the time of the Notice of Arbitration.  Each Party shall be responsible for its share of the costs of the arbitration hearing as specified in the JAMS rules.  In the event a Party fails to participate in the arbitration after having been provided Notice, unsuccessfully challenges the arbitrator's decision, or fails to comply with the arbitrator's decision, the other Party is entitled to costs of the associated litigation, including reasonable attorney's fees for having to compel arbitration or defend or enforce the award.  

 25. General.  This Agreement and all its part are governed by the laws of the State of New York, without reference to its principles of conflicts of laws.  Each Party hereby expressly consents to the personal jurisdiction of either the New York state courts sitting in New York County or the United States District Court for the Southern District of New York.  The U.N. Convention on Contracts for the International Sale of Goods does not apply. The Company may freely assign this Agreement, without consent.  The Client or Authorized User may not assign this Agreement.  If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between the Parties with respect to the Services and supersedes all prior agreements, proposals, representations and undertakings between the Parties in relation to the subject matter hereof (whether written or oral) and may not be modified or amended by the Client or Authorized User without the prior written consent of the Company. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by a duly authorized signatory of the Party against whom the waiver is to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.

{END OF ADDENDUM A}

 

SCHEDULE A

Service Level Agreement

 This appendix sets out the level of service and technical support for the Service when Client’s account is in good financial standing. Company acknowledges and agrees that a consistent failure to meet the level of service and technical support in this appendix (“Service Level Commitments”), as evidenced by more than six (6) months of failing to meet the same Service Level Commitment in any given twelve (12) month period, shall be deemed to be a breach of this Agreement by Company that shall give Client the right to terminate this Agreement in accordance with Section 23 of the Agreement.  In the event that Company fails to meet a given Service Level Commitment in any two (2) months of a given three (3) month period, the parties agree that the parties shall appoint a panel of subject matter experts from both parties that shall jointly develop and approve a remediation plan intended to address such failures on a prospective basis.

 1.  Downtime

 For the purposes of this Agreement, a unit of downtime is one period of at least 30 minutes (“Unit”) during which the Service or a material component of it is unavailable because of problems with, or the unscheduled maintenance of, the Service’s hardware or system software (“Downtime”). Downtime does not include (i) problems caused by factors outside of Company’s reasonable control, (ii) problems resulting from any actions or inactions by Client or any third party, (iii) problems resulting from Client’s equipment and/or third party equipment not within Company’s sole control, (iv) network unavailability during scheduled maintenance of Company’s network and/or servers or planned, modifications, upgrades, bug-fixes, reloads or any other improvement or fixes relating to the Services, or (v) Service unavailability due to any Force Majeure Event.

 Subject to the limitations set out below, Company’s target is that that Downtime will not exceed eight (8) Units of Downtime in any given calendar month, excluding regularly scheduled maintenance. Company has no control over third party services including, without limitation, the Internet; and Company’s Services are subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Company shall be responsible for keeping accurate records of any instances of Downtime.  In addition, Company shall track all reports of Downtime by Client or its Users and report to Client the Units of Downtime experienced by the Service each month. 

 Each invoice from Company to Client shall indicate the number of Units of Downtime in the relevant invoice period.  

 2.  Technical support

Client may raise support tickets in Company’s incident tracking system on a 24 hour per day, 7 day per week basis in respect of errors with the software. Support tickets shall be initially addressed by Company’s team dedicated to Client.

 Company responses to support tickets will be determined by the priority level of the problem as defined below. Company shall meet the following response time Service Level Commitments relating to support tickets received from Client at least ninety-seven percent (97%) of the time: 

 

Priority Level

Description

Response times

“Priority 1”

The entire Service is not working

2 hours

“Priority 2”

A major component of the software is not working that materially restricts the use or performance of the Service

4 hours

“Priority 3”

A minor component of or enhancement to the software is not working but is only causing a minor impact on the operation of the Service

8 hours

“Priority 4”

A problem that does not restrict the operation of the Service

At Company’s discretion

 

Priority Level classification shall be in Company’s reasonable discretion based on the reproducibility of the reported issue by Company’s engineering team.  In the event that Client needs to escalate the priority level of a problem, or Company fails to respond within the above time periods, Client may escalate the problem to Company Client Services Manager, or if necessary, to Company senior management.

Company support personnel shall use commercially reasonable efforts to promptly resolve requests for support in accordance with the following time periods:

 Priority 1
Target to provide a work-around or fix within 24 hours of Company identifying the problem as a software issue.

 Priority 2
Target to provide a work-around or fix within 48 hours of Company identifying the problem as a software issue.

 Priority 3
Target to provide a fix in the form of an update, or an enhancement in a new release of the software.

Priority 4
The problem or requested enhancement is classified as a low priority and Company may elect, in its sole discretion, to provide a correction in the form of an update, or an enhancement in a new release of the software.

 Client shall nominate two named administrators who shall have access to raise support tickets.

 If Company determines that an issue is due to causes other than Company’s deliverables or software provided by Company, Company shall not have an obligation to resolve such issues unless Company agrees to do so pursuant to a consulting services SOW executed by and between the Parties.  Company’s sole obligation with regard to issues in third party products and services provided as part of the Services shall be to coordinate and facilitate issue resolution between Client and the relevant third-party Company.

 Company may provide, if requested, consulting assistance to troubleshoot Client’s non-deliverable, non-software issues, including, without limitation, content or configuration issues, but such consulting is not covered by this Agreement and may be chargeable at Company’s standard consulting rates.

Company may provide, if requested, consulting assistance in relation to integration with third party systems, but such consulting is not covered by this Agreement and may be chargeable at Company’s standard consulting rates.

 

SCHEDULE B

Data Protection Agreement

This Data Protection Addendum ("DPA") forms part of the Agreement between JBF Interlude 2009 Ltd. and its affiliates ("eko") and the entity entering the Agreement as a Client of eko’s services ("Services"). 

 This DPA is supplemental to the Agreement and sets out the roles and obligations that apply when eko processes Personal Information falling within the scope of Privacy Laws on behalf of Client in the course of providing the eko services (“eko Services”). 

 All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. 

  1. Definitions 
    1. For the purposes of this DPA: 
      1. "Agreement" means the terms and conditions or other written or electronic agreement between eko and Client setting out the provision and use of the eko Services. 
      2. CCPA” means the California Consumer Privacy Act. 
      3. Personal Information” means Client and Authorized User Data that, alone or in combination with other information, can be used to identify an individual person.
      4. Privacy Laws” means applicable privacy and data protection laws and regulations such as the California Consumer Privacy Act of 2018 (as may be amended from time to time, the “CCPA”) to the extent it applies to the Service.
      5. The terms “Business”, “Service Provider”, “Third Party”, “Personal Information”, “Consumer”, “sell”, and “Business Purposes” have the meanings given to them in the CCPA. 
  2. Compliance with Privacy Laws. eko represents and warrants to Client that its collection, access, use, storage, processing, disposal and disclosure of Personal Information does and shall at all times comply with all Privacy Laws. 
  3. Roles and Responsibilities 
    1. As between eko and Client, Client is the Business for purposes of the CCPA with respect to the Personal Information, that is provided to eko for processing under the Agreement and as described in Annex 1 and eko shall process the Personal Information as a Service Provider on behalf of Client.
    2. Client shall be responsible for: 
      1. Complying with all applicable laws relating to privacy and data protection in respect of its use of the eko Services, its processing of the Personal Information, and any processing instructions it issues to eko; 
      2. Ensuring it has the right to transfer, or provide access to, the Personal Information to eko for processing pursuant to the Agreement and this DPA; and
      3. Ensuring that it shall not disclose (nor permit any data subject to disclose) any Sensitive Personal Information to eko for processing. 
    3. eko shall process the Personal Information only for the purposes described in the Agreement and in accordance with the lawful, documented instructions of Client (including the instructions of any users accessing the eko Services on Client's behalf) as set out in the Agreement, this DPA or otherwise in writing. eko shall not: 
      1. sell the Personal Information;
      2. retain, use, or disclose Personal Information for any purpose other than for the specific purpose of performing the eko Services;
      3. retain, use, or disclose the Personal Information for a commercial purpose other than providing the eko Services;
      4. retain, use, or disclose the information outside of the direct business relationship between eko and the Client. eko certifies that it understands these restrictions and will comply with them. 
  4. Security
    1. eko shall implement appropriate technical and organizational measures to protect the Personal Information from any unauthorized access to or use, disclosure, alteration, or destruction of Personal Information that materially compromises the privacy or security of Personal Information (a “Security Incident”). 
    2. eko shall ensure that any personnel that it authorizes to process the Personal Information shall be subject to a duty of confidentiality. 
    3. Upon becoming aware of a Security Incident, eko shall notify Client without undue delay and shall provide reasonable information and cooperation to Client so that Client can fulfill any data breach reporting obligations it may have under applicable laws. Where possible, the notice to Client shall describe the nature of incident, the number of individuals impacted, the type of records impacted, and any other information that may be relevant, as deemed by eko. Following eko’s notification to Client of a Security Incident, the parties shall coordinate with each other to investigate the Security Incident. The Parties agree to coordinate in good faith on developing the content of any related public statements.
    4. Client agrees that, without prejudice to eko’s obligations under this DPA: 
      1. Client is solely responsible for its use of eko’s products and services, including (1) making appropriate use of the products and services to ensure a level of security appropriate to the risk in respect of the Personal Information; and (2) securing the account authentication credentials, systems and devices Client uses to access the products or services; and
      2. eko has no obligation to protect the Personal Information that Client elects to store or transfer outside of eko’s and/or its sub- processors’ systems.
  5. Sub-processing
    1. Sub-processors. Client agrees that eko may engage eko affiliates and third party sub-processors ("Sub-processors") to process Personal Information on eko's behalf provided that: 
      1. eko shall maintain an up to date list of Sub-processors which it shall update with details of any change in Sub-processors at least five (5) days prior to any such change and shall notify Client in advance of such change; 
      2. eko imposes on such Sub-processors data protection terms that require it to protect the Personal Information to the standard required by Privacy Laws; 
      3. eko remains liable for any breach of the DPA caused by a Sub-processor; and
      4. All such Sub-processors shall be Service Providers for purposes of the CCPA.
    2. Client may object prior to eko's appointment or replacement of a Sub-processor provided such objection is based on reasonable grounds relating to data protection. In such event, the parties shall cooperate in good faith to reach a resolution and if such resolution cannot be reached, then eko, at its discretion, will either not appoint or replace the Sub-processor or, will permit Client to suspend or terminate the affected eko Service (without prejudice to any fees incurred by Client prior to suspension or termination). 
  6. Cooperation and Audits 
    1. eko shall provide reasonable assistance to Client, insofar as this is possible and at Client's expense, to enable Client to respond to requests from consumers seeking to exercise their rights the CCPA. In the event such request is made directly to eko, eko shall promptly inform Client of the same. Client authorizes eko to respond to requests from data subjects or Consumers seeking to exercise their rights under the CCPA in order to clarify requests. 
    2. If requested and upon reasonable prior written notice from Client, eko shall provide commercially reasonable assistance to Client in completing any privacy impact assessments and/or data protection impact assessment, and any prior consultations with government authorities, that Client considers necessary to comply with applicable Privacy Laws. Client shall be responsible for reasonable costs and expenses incurred by eko related to any such assistance. Upon Client request, eko shall provide Client information reasonably necessary to demonstrate compliance with applicable Privacy Laws.
    3. Upon Client’s reasonable request, and no more than once per calendar year, eko will make available for Client’s inspection and audit, copies of certifications, records or reports demonstrating eko’s compliance with this DPA. In the event that Client reasonably determines that it must inspect eko’s premises or equipment for purposes of this DPA, then no more than once per calendar year, any audits described in this Section 6(c) will be conducted, at Client’s expense, through an independent third- party auditor (“Independent Auditor”) designated by Client. Before the commencement of any such on-site inspection, Client and eko shall mutually agree on reasonable timing, scope, and security controls applicable to the audit (including without limitation restricting access to eko’s trade secrets and data belonging to eko’s other Clients). Any inspection will be of reasonable duration and will not unreasonably interfere with eko’s day-to-day operations. All Independent Auditors are required to enter into a non-disclosure agreement containing confidentiality provisions reasonably acceptable to eko and intended to protect eko’s and its Clients’ confidential and proprietary information. Client will make (and ensure that any Independent Auditor makes) reasonable endeavors to avoid causing any damage, injury or disruption to eko’s premises, equipment, personnel and business in the course of such an audit or inspection. To the extent that Client or any Independent Auditor causes any damage, injury or disruption to the eko’s premises, equipment, personnel and business in the course of such an audit or inspection, Client will be solely responsible for any costs associated therewith. eko will be assessed against industry security frameworks or standards including, but not limited to, SOC 2 standards. Upon request, eko shall provide a summary copy of its most recent certified audit report to Client, which reports shall be subject to eko’s confidentiality terms under the Agreement. 
  7. Return/Deletion of Data. eko retains the Personal Information for up to thirteen (13) months after the termination of any Agreement for the purposes of future account reactivation. Any confidentiality obligations and use restrictions in the Agreement will continue to apply to such Personal Information for the duration of retention. Notwithstanding the foregoing, upon request by Client at the termination of the Agreement, eko shall delete or return to Client the Personal Information in eko's possession, except to the extent such data may be required to be retained by eko under applicable laws.
  8. Liability. Each party’s liability to the other taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the limitations on liability set forth in the Agreement. eko’s total liability for all claims from the Client arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement.
  9. Miscellaneous 
    1. Except as amended by this DPA, the Agreement will remain in full force and effect. 
    2. Any claims brought under this DPA shall be subject to the Agreement, including but not limited to the exclusions and limitations of liability set forth in the Agreement. 
    3. This DPA is incorporated into and forms part of the Agreement. For matters not addressed under this DPA, the terms of the Agreement apply. With respect to the rights and obligation of the parties vis-à-vis each other, if there is a conflict between this DPA and the Agreement, the DPA will control. 
    4. This DPA shall be governed by, and construed in accordance with, the laws of the State of New York and the courts of New York, New York shall have exclusive jurisdiction to hear any dispute or other issue arising out of, or in connection with, this DPA. 
    5. Client agrees that eko may modify this DPA at any time provided. If eko makes any material modifications to this DPA, eko shall provide Client with at least ten (10) days notice (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect by either: (i) sending an email to the email address of the designated account owner in Client’s eko Services account; or (ii) alerting Client via the user interface. If Client reasonably objects to any such change, Client may terminate the Agreement by giving written notice to eko within ten (10) days of notice from eko of the change. 

 

Last Revised: June 13, 2022