Terms of service

By clicking “I agree” or accessing or using the WEBSITE, APPLICATION OR related materials and services (collectively, the “Services” or “Platform”) in any way as made available or enabled by eino, inc. (“EINO”), the entity or person placing an order for or accessing the Service (“Company” or “you”) agree to these Terms of Service (the “TOS” or “Agreement”), UNLESS EXPRESSLY AGREED OTHERWISE IN AN ORDER SIGNED BY AN AUTHORIZED OFFICER OF EINO IN WHICH CASE THE TERMS OF SERVICE ATTACHED TO THAT ORDER APPLY TO YOU.  You may not access or use the Services, or accept these TOS, if (a) you are not of legal age to form a binding contract with Company; or (b) you are prohibited by law from receiving or using the Services.  If you are entering into these TOS on behalf of a company or other legal entity as indicated in your log-in or registration information, you represent that you have the authority to bind such entity to these TOS and hereby do, in which case, “you” or “your” will refer to such entity as well as you as an individual. EINO and Company may each be referred to herein as a “Party” and collectively as the “Parties.” The Parties enter into this Agreement as of the Effective Date (as defined below).  

Company may change these TOS from time to time at its sole discretion, and if Company makes any substantial changes, Company will inform you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Platform.  Any changes to these TOS will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the change(s) on the Platform.  These changes will be effective immediately for new users of the Services.  Company may require you to provide consent to the updated TOS in a specified manner before further use of the Service is permitted.  Otherwise, your continued use of the Service constitutes your acceptance of the changes.  Please regularly check the TOS.

THESE TOS ARE A LEGAL AGREEMENT BETWEEN YOU AND COMPANY, AND INCLUDE LIMITATIONS OF LIABILITIES AND REMEDIES, A JURY TRIAL WAIVER, AND OTHER PROVISIONS LIMITING YOUR RIGHTS.  PLEASE READ CAREFULLY.

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1. Definitions

“Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.

“Authorized User” means an employee or contractor of Company who is authorized by Company to access and use the Service, and who has been issued a Service account by Company that is associated to a unique email address with a domain name owned or controlled by Company.

“Company Customer” means third-party entities for which Company provides or shall provide managed services related to the Services (as defined below).

“Company Data” means all data, content, and information submitted by Authorized Users into the Service and the Company-specific output that is generated by Authorized Users’ use of the Service.

“Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by EINO to Company.

“Effective Date” means the date which is the earlier of (a) Company’s initial access to the Service through any online provisioning, registration, or order process. This Agreement will govern Company’s initial  subscription, as well as, any future subscriptions made by Company that reference this Agreement.

“Order” means any EINO-provided ordering document, online registration, order description, or order confirmation referencing this Agreement.

“Outputs” means any reports, outputs, and responses that are generated through the Company’s use of the Service.  

“Service” means EINO’s proprietary AI-powered connectivity planning software-as-a-service platform, including any Outputs, as may be further identified in the Order. References to the “Service” in this Agreement include the Documentation.

“Professional Services” means any professional services related to Company’s use of the Service, such as consulting, implementation, or training services, provided by EINO to Company as expressly identified in the Order.

“Third Party Products and Content” means any applications, products, services, or content that interoperate with the Service and that are provided by Company or a third party.

1. EINO Responsibilities

1. Provision of the Service.  Subject to the terms and conditions of this Agreement and during the Term, including any restrictions on the number of Authorized Users permitted to use the Service if and as set forth in the Order, EINO grants Company a non-exclusive, non-transferrable and non-sublicensable right for Authorized Users to access and use the Service solely for the internal business operations of Company. EINO agrees to use commercially reasonable efforts to make the EINO Services available to the Company at least 99% of the time, measured monthly, during each month of the Term.
2. License to Outputs. Subject to the terms and conditions of this Agreement, EINO grants to Company a non-exclusive, non-transferable license to use the Outputs, including any reports, for Company and Company Customers use as contemplated by this Agreement. Any use of the Outputs by EINO shall be subject to the confidentiality obligations set forth in Section 6.
3. Updates and Upgrades.  The terms of this Agreement will also apply to updates and upgrades of the Service subsequently made available by EINO to Company. EINO may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.  
4. Protection of Company Data.  EINO will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Company Data, in accordance with its applicable policies and data processing addendum available at: [_________] (the “DPA”)].
5. Compliance with Laws.  EINO will comply with all laws applicable to EINO’s provisioning of the Service to its Company’s generally (i.e., without regard to the specific nature of the Company Data or Company’s particular use of the Service).
6. Support.  As part of the Service, EINO will provide Company with EINO’s standard support, Documentation, and other online resources to assist Company in its use of the Service.
7. Professional Services.  If Professional Services are ordered in the Order, EINO will provide to Company such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.

1. Access to and Use of the Service

1. Authorized Users.  Authorized User accounts cannot be shared or used by more than one Authorized User.  Company is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts.
2. Company Responsibilities.  Company will: (a) obtain any permissions and consents required for EINO and Authorized Users to access Company Data in connection with the Service; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Company Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify EINO of any such unauthorized access or use; and (e) use the Services only in accordance with applicable laws and government regulations.
3. Usage Restrictions.  Company may not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Company and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Company does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; or (f) access the Service to build a competitive product or service.
4. Third Party Products and Content.  If Company enables Third Party Products and Content for use with the Service: (a) any use by Company or its Authorized Users of such Third Party Products and Content is solely the responsibility of Company and the applicable provider; (b) EINO does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Company acknowledges that the providers of those Third Party Products and Content may have access to Company Data in connection with the interoperation of the Third Party Products and Content with the Service, and EINO will not be responsible for any use, disclosure, modification or deletion of such Company Data.

1. Fees

1. Fees, Invoicing, and Payment.  Company will pay all fees due, including as specified in the Order or as otherwise provided on the Platform. Unless expressly provided otherwise, payment obligations are non-cancelable for the applicable term, and fees paid are non-refundable and payable in United States dollars. All fees will be invoiced by EINO in accordance with the terms set forth in the Order or EINO’s policies if not otherwise stated on an Order. Except as set forth in the Order, full payment for invoices issued must be received within 30 days from Company’s receipt of the invoice. If any fees owed by Company (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, EINO reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection, without limiting its other rights and remedies.
2. Taxes.  The fees are exclusive of, and Company will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on EINO’s net income). Should any payment for the services provided by EINO be subject to withholding tax by any taxing authority, Company will reimburse EINO for such withholding tax.

1. Proprietary Rights

1. EINO Property.  Subject to the limited rights expressly granted to Company hereunder, EINO reserves and retains, and as between EINO and Company, EINO exclusively owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by EINO hereunder other than as expressly set forth herein. If Company or any Authorized User provides EINO any feedback or suggestions regarding the Service, then Company grants EINO an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Company or any Authorized User. Unless otherwise set forth in the Order, EINO retains exclusive ownership of all work product created by EINO in connection with its performance of Professional Services.
2. Company Data.  Company grants to EINO and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Company Data, and provide necessary access to third party service providers acting on EINO’s behalf, such as EINO’s hosting services provider, only: (a) to provide, maintain, and update the Service for Company and Authorized Users; (b) to prevent or address service or technical problems or at Company's request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Company. Subject to the limited licenses granted herein, EINO acquires no right, title, or interest under this Agreement in or to any Company Data.
3. De-identified Data.  Company acknowledges and agrees that EINO may, during and after the Term, collect, use and analyze any de-identified information derived from the Company Data (collectively, the “De-identified Data”) for EINO’s lawful business purposes, including to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service.  EINO may disclose De-identified Data solely in aggregate form in connection with its business.

1. Confidentiality

1. Definition.  “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Company includes Company Data, Confidential Information of EINO includes the Service (including its software and content, other than Company Data) and the work product created from its performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
2. Protection.  The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
3. Compelled Disclosure.  The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party wishes to contest the access or disclosure.

1. Representations, Warranties, and Disclaimers

1. Mutual Representations.  Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitutes a valid and binding agreement of such Party.
2. EINO Warranties.  EINO warrants that: (a) the Service, including the Outputs, will perform materially in accordance with the applicable Documentation; and (b) EINO will perform Professional Services in a professional manner.
3. Company Warranty.  Company warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Company to make available the Company Data to EINO for its use as contemplated herein.
4. Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7.2, THE SERVICE, INCLUDING THE OUTPUTS, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND EINO EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EINO DOES NOT WARRANT THAT THE SERVICE, INCLUDING THE OUTPUTS, WILL BE UNINTERRUPTED OR ERROR-FREE.

1. Indemnification

1. EINO Indemnification.  EINO will defend Company and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Company’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and EINO will indemnify Company and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that EINO will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Company Data or Third Party Products and Content; (b) Company’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by EINO or specifically set out in the Documentation.
2. Company Indemnification.  Company will defend EINO and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Company Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Company’s or any Authorized User’s particular use of the Service violates applicable law, and Company will indemnify EINO and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Company will have no liability under this Section to the extent any such lawsuit or proceeding arises from EINO’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.
3. Procedures.  The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
4. Exclusive Remedy.  This Section 8 states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any type of claim described in this Section 8.

1. Limitation of Liability

1. Exclusion of Certain Damages.  IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
2. Liability Cap.  EXCEPT FOR CUSTOMER’S VIOLATION OF EINO’S INTELLECTUAL PROPERTY RIGHTS, CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4 OR EITHER PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR FOR ITS WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO EINO HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”).
3. Excluded Claims. Notwithstanding Section 9.2, in no event will EINO’s aggregate liability for all Excluded Claims exceed three times (3x) the General Liability Cap.  
4. Scope.  For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1, Section 9.2, and Section 9.3 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise.  The Parties agree that the exclusions and limitations set forth in Section 9.1, Section 9.2, and Section 9.3 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.

1. Term, Termination, and Suspension

1. Term of the Agreement.  The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (or 1 year if not otherwise specified) (the “Initial Term”). Thereafter, unless otherwise indicated in the Order, this Agreement will automatically renew for successive additional periods of 1 year each (each, a “Renewal Term”), unless either Party provides the other with written notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term. Unless otherwise specified on an Order, Company agrees that the fees for each Renewal Term will be at EINO’s then current standard lists fees on the Platform or the amount identified by EINO to Company through written notice at least 60 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
2. Evaluation Period.

1. 10.2.1.Evaluation Period. If the Order indicates that the Service is on an “Evaluation” or equivalent basis, the term will commence on the Effective Date and continue for the Evaluation Period specified on the Order (“Evaluation Period”). Following the Evaluation Period, this Agreement will automatically renew and begin the Initial Term, and continue in accordance with Section 10.2 unless Company provides written notice of non-renewal at least thirty (30) days prior to the end of the Evaluation Period. Notwithstanding the foregoing, EINO may be terminate the Services offered during the Evaluation Period for any reason.
2. 10.2.2.During the Evaluation Period, the Company shall pay the Evaluation Period fees set forth in the Order (“Evaluation Period Fees”). All Evaluation Period Fees related to Company’s access to and use of the Services during the Evaluation Period will be invoiced by EINO at the beginning of the Evaluation Period and will be due and payable within thirty (30) days after receipt of such invoice by Company.
3. 10.2.3.During the Evaluation Period, either Party may terminate this Agreement at any time, for any or no reason upon notice to the other Party. Access to the Services during the Evaluation Period is subject to all restrictions set forth in this Agreement. In addition, the Services offered during the Evaluation Period is provided for the sole and exclusive purpose of enabling Company to evaluate the Services and will not be put into productive use or included as part of the Company’s business processes in any manner, unless and until a license or subscription is ordered and paid for by Company. Such Service is provided “AS IS”, with no warranties of any kind, express or implied. Certain features may not be available for use during the Evaluation Period.

1. Suspension.  EINO may suspend Company’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Company or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) suspension of the Service is necessary, in EINO’s reasonable discretion, to protect the security of the Service or the infrastructure of EINO or its Affiliates; (c) suspension is required by applicable law; or (d) any fees owed by Company (excluding amounts disputed in reasonable and good faith) are 30 days or more overdue, provided EINO has given Company 10 or more days’ prior notice.
2. Termination for Cause.  Either Party may terminate this Agreement effective after 30 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Company, EINO will promptly refund Company any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by EINO, Company will promptly pay EINO any unpaid fees covering the period remaining in the Term after the effective date of such termination.
3. Effects of Termination.  Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to EINO prior to such termination (except as otherwise provided in Section 10.4 if EINO is terminating Company for cause) and all completed but unpaid Professional Services fees will be immediately due and payable, and (b) all rights granted to access and use the Service will immediately cease to exist.  For a period of 30 days following any termination of this Agreement, EINO will, upon Company’s request, make available to Company an export of all current Company Data in the format agreed by the Parties. After such 30-day period, EINO will have no obligation to maintain or provide any Company Data and EINO will, unless prohibited by applicable law, delete all Company Data in its systems or otherwise in its possession or under its control in accordance with EINO’s then-current data retention and deletion policies.  Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
4. Survival.  The sections titled “Protection of Company Data,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.

1. General Provisions

1. Attribution.  Company agrees that EINO may use Company’s name and logo to indicate that Company is a customer of EINO for the Service on EINO’s website, marketing materials, and in communications with existing or prospective EINO customers. Any such attribution will be consistent with Company’s style guidelines or requirements as communicated to EINO by Company.
2. Force Majeure.  Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action (each, a “Force Majeure Event”). If either Party’s nonperformance hereunder due to a Force Majeure Event persists for more than 30 days, either Party may immediately terminate this Agreement without charge or penalty upon notice to the other Party.
3. Assignment.  Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets, so long as the assigning Party provides 30-days’ prior written notice thereof to the other Party. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
4. Governing Law.  This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Any dispute, controversy or claim arising out of or relating to the Agreement, will be made exclusively in the state or federal courts located in New York, New York and both Parties submit to the jurisdiction and venue of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Notices.  All notices under this Agreement will be in writing addressed to the points of contacts of each of the Parties listed on the Order Form at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
6. Insurance. Each Party shall carry and maintain insurance in the amounts and for the occurrences for which insurance is typically carried by entities in the same or similar business.
7. Relationship of the Parties; Third Party Beneficiaries.  The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.
8. Waiver.  No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
9. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
10. 11.10.Entire Agreement.  This Agreement, including any exhibits hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Company’s access and use of the Service and any Professional Services. The failure of either Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit hereto or any Order, the terms of such exhibit or Order will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Company purchase order or other Company ordering documentation or policy (excluding Orders in EINO’s forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”

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