Enlyft, Inc. Terms of Service

Welcome, and thank you for your interest in Enlyft, Inc. (“Enlyft”) and our website and services at enlyft.com, along with the related websites, networks, applications, and other services provided by Enlyft (collectively, the “Enlyft Services”). These Terms of Service are a legally binding contract between you (“Subscriber”) and Enlyft regarding your use of the Enlyft Services.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE ENLYFT SERVICES, SUBSCRIBER AGREES THAT SUBSCRIBER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE ENLYFT SERVICES, AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”).  These Terms may be incorporated into and be a part of the agreement between Enlyft and Subscriber as set forth on an order form (“Order Form”) under which Subscriber has ordered the Enlyft Services.

If Subscriber is not eligible, or does not agree to the Terms, then Subscriber does not have Enlyft’s permission to use the Enlyft Services. SUBSCRIBER’S USE OF THE ENLYFT SERVICES, AND ENLYFT’S PROVISION OF THE ENLYFT SERVICES TO SUBSCRIBER, CONSTITUTES AN AGREEMENT BY ENLYFT AND BY SUBSCRIBER TO BE BOUND BY THESE TERMS.

1. ELIGIBILITY

Subscriber must be at least 18 years old to use the Enlyft Services. By agreeing to these Terms, Subscriber represents and warrants to Enlyft that: (a) Subscriber is at least 18 years old; (b) Subscriber has not previously been suspended or removed from the Enlyft Services; and (c) Subscriber’s registration and use of the Enlyft Services is in compliance with any and all applicable laws and regulations. If Subscriber is an entity, organization, or company, the individual accepting these Terms on Subscriber’s behalf represents and warrants that they have authority to bind Subscriber to these Terms and Subscriber agrees to be bound by these Terms.

2. ACCOUNTS AND REGISTRATION

When registering for an account on the Enlyft Services, Subscriber may be required to provide Enlyft with certain information, such as Subscriber’s name, email address, or other contact information. Subscriber agrees that the information provided to Enlyft is accurate and that Subscriber will keep it accurate and up-to-date at all times. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s account and password, and Subscriber accepts responsibility for all activities that occur under Subscriber’s account.

3. THE ENLYFT SERVICES

1. 3.1. Enlyft Services, Plan Levels, and Enlyft Data.  Enlyft grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the Subscription Term to use the Enlyft Services solely in connection with Subscriber’s internal business operations and only in accordance with the access and use parameters of Subscriber’s subscription plan level (“Plan Level”). The Enlyft Services include data or information provide or made available to Subscriber by Enlyft in connection with the Enlyft Services (“Enlyft Data”), including results or output from Subscriber’s use of the Enlyft Services, subject to parameters set according to Subscriber’s Plan Level. Enlyft reserves the right to add, change, or delete Plan Levels in its reasonable discretion upon sixty (60) days’ prior written notice so long as (a) any changes do not materially reduce the overall level of beneficial use contracted for by Subscriber hereunder; and (b) any such change applies to Enlyft’s customer base generally. If Enlyft deletes Subscriber’s Plan Level and Subscriber does not wish to transfer its subscription to another Plan Level that is available, Enlyft shall refund any prepaid subscription fees corresponding to the unused portion of its Subscription Term Level. Notwithstanding any other provision of these Terms, Subscriber acknowledges that Enlyft provides any free Plan Level “as-is”, without warranty, and will have no liability of any kind (including for both direct and indirect damages) arising out of or in connection with such free Plan Level. Enlyft represents and warrants that the Enlyft Data was gathered lawfully and that use of the Enlyft Data in accordance with these Terms will not violate any necessary consent or permission given by the provider of the applicable data.  

2. 3.2. Documentation.  Enlyft grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Enlyft Services in accordance with these Terms. “Documentation” means Enlyft-provided user documentation, in all forms, relating to the Enlyft Services (e.g., user manuals, on-line help files).

3. 3.3. Support Services.  For so long as Subscriber is current with its payment of the fees due in connection with these Terms, Enlyft will use reasonable efforts to provide Subscriber with technical support services relating to the Enlyft Services by email.

4. 3.4. Use Restrictions.  Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) use the Enlyft Services for any illegal purpose or in violation of any local, state, national, or international law; (b) violate any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (c) rent, lease, or otherwise permit third parties to use the Enlyft Services or Documentation; (d) use the Enlyft Services to provide services to third parties (e.g., as a service bureau); (e) use the Enlyft Services (including any installation and/or use of Enlyft’s plugin) for any benchmarking activity or in connection with the development of any competitive product; (f) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Enlyft Services (except to the extent that applicable law prevents the prohibition of such activities); (g) use or access the Enlyft Services in a manner that materially impacts or burdens Enlyft or Enlyft’s servers and other computer systems, or that interferes with Enlyft’s ability to make available any product or service to any third party; (h) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Enlyft Services without permission; (i) circumvent or disable any security or other technological features or measures of the Enlyft Services; or (j) attempt to circumvent its Plan Level access or use parameters, including (but not limited to) via the creation of multiple accounts using different email addresses. If Enlyft, in its sole and reasonable discretion, suspects that Subscriber has breached any of the use restrictions in this Section 3.4, it may immediately terminate these Terms and Subscriber’s subscription to the Enlyft Services.

5. 3.5. Compliance with Laws.  Subscriber will use the Enlyft Services and Documentation in compliance with all applicable laws and regulations.

6. 3.6. Privacy. Subscriber has read and consents to the Enlyft Privacy Policy and the Enlyft Data Processing Addendum, each incorporated herein by this reference. Subscriber is solely responsible for: (a) the scope of Personal Data Subscriber accesses and/or processes via the Services according to Subscriber’s privacy practices; (b) providing notice to, and obtaining consent from, (i) all individuals whose Personal Data Subscriber uses in connection with the Enlyft Services for Subscriber’s purposes and (ii) all end users accessing or using the Enlyft Services by, through or in connection with these Terms, in each case of (i) and (ii) in compliance with all applicable laws and regulations governing use of such Personal Data; and (c) if Subscriber engages in any activity that involves or results in the “sale” or “sharing” of Personal Data (as defined under applicable laws) that was collected or processed using the Enlyft Services, Subscriber agrees to ensure that Subscriber only engages in the “sale” or “sharing” of Personal Data with affirmative consent and having provided the option to opt-out at any time and without penalty or discrimination. Failure to comply with this section is a material breach of this Agreement and may result in restricted access to the Enlyft Services. As used herein, “Personal Data” has the meaning given in the Data Processing Addendum.

7. 3.7. Protection Against Unauthorized Use.  Subscriber will use reasonable efforts to prevent any unauthorized use of the Enlyft Services and Documentation and immediately notify Enlyft at [email protected] of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Enlyft Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Enlyft to prevent or terminate unauthorized use of the Enlyft Services or Documentation.

8. 3.8. Third-Party Services.

1. 3.8.1. The Enlyft Services may provide tools that enable the import and export of information, including Subscriber Data, from and to third-party services, including through features that link Subscriber’s account on the Enlyft Services with the third-party service. Subscriber agrees that Enlyft may transfer that information from and to the applicable third-party service in connection with providing the Enlyft Services to Subscriber. Subscriber will obtain all permissions or approvals from each applicable third-party service as may be necessary or required to transfer such information to the Enlyft Services. Third-party services are not under Enlyft’s control, and, to the fullest extent permitted by law, Enlyft is not responsible for any third-party service’s use of Subscriber’s exported information.  

2. 3.8.2. To the extent that the Enlyft Services include or are accompanied by third-party software or other products that Enlyft provides to Subscriber or that is otherwise required to properly use the Enlyft Services (“Third-Party Products”), the Third-Party Products and their use by Subscriber are subject to all license and other terms that accompany such Third-Party Products. Subscriber will abide by and comply with all such terms. Enlyft assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Products.

9. 3.9. AI Features. Subscriber agrees that Enlyft may use technologies or software features powered by artificial intelligence, machine learning, or similar technologies provided by Enlyft and/or a third-party provider to provide or improve the Services (“AI Features”). Enlyft and its licensors exclusively own all right, title, and interest in and to the AI Features, including all associated intellectual property and proprietary rights. Subscriber may submit content to be processed by AI Features (“Inputs”) and receive content generated and provided back to Subscriber by AI Features based on the Input (“Output,” and collectively with Input, “AI Content”). AI Content is Subscriber Materials. Enlyft does not permit our third-party providers of AI Features to use the AI Content to train their Al models. Subscriber is prohibited from including Personal Data (e.g., name, contact information, etc.) in Subscriber’s Inputs. Subscriber may not use AI Features: (i) to develop machine learning models or similar technology; (ii) to mislead any person that Output from the Services was solely human generated; (iii) in a manner that violates applicable law or any technical documentation, usage guidelines, or other terms and conditions. Subscriber understands and agrees that, due to the experimental nature of artificial intelligence technology, Outputs may not meet Subscriber’s desired use including, without limitation, that Outputs may not be unique or may contain errors. Enlyft makes no representations as to AI Content, including without limitation the legality, distinctiveness, accuracy, completeness, or consistency thereof, or its ability to be protected under intellectual property laws. Subscriber is solely responsible for the AI Content, including the accuracy, quality, appropriateness, and legality thereof, and Subscriber will ensure that its AI Content and use of AI Features does not violate this Agreement or any applicable law or infringe, violate, or misappropriate the rights of Enlyft or any third party.  

10. 3.10. Additional Features.  Subscriber acknowledges that: (a) not all of the features or functionality of the Enlyft Services may be available at Subscriber’s Plan Level regardless of whether such feature or functionality is described in the Documentation; (b) Enlyft may develop or make available additional features or functionality of the Enlyft Services at a later date; and (c) access to such features or functionality may require payment of additional fees.

11. 3.11. Reservation of Rights; Ownership.  Subscriber will not have any rights to the Enlyft Services or Documentation except as expressly granted in these Terms. Enlyft reserves to itself all rights to the Enlyft Services and Documentation not expressly granted to Subscriber in accordance with these Terms. Enlyft owns all right, title, and interest, including all intellectual property rights, in and to the Enlyft Services, the Documentation, any other Enlyft product or services, and any improvements to the Enlyft Services, the Documentation, and any other Enlyft products or services, including any improvements made: (i) for or at the request of or in collaboration with Subscriber; or (ii) as a result of Enlyft’s use, processing, or generation of Subscriber Data.

12. 3.12. Feedback.  If Subscriber provides any feedback to Enlyft concerning the functionality and performance of the Enlyft Services (including identifying potential errors and improvements), Subscriber hereby grants Enlyft an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such feedback in any manner and for any purpose, including to improve the Enlyft Services and create other products and services, without payment or restriction.

4. FEES AND PAYMENT

1. 4.1. Fees and Payment Terms.  Subscriber will pay Enlyft the fees and other amounts due for the orders Subscriber makes for the Enlyft Services, including as set forth in an Order Form, plus any applicable sales, use, excise, or other taxes (“Subscription Fees”). If Subscriber is billed by invoice, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice, unless otherwise agreed between the parties. All Subscription Fees are in U.S. Dollars.  ALL SUBSCRIPTION FEES PAID ARE NONREFUNDABLE.

2. 4.2. Authorization. Subscriber authorizes Enlyft to charge all sums for the orders that Subscriber makes and any paid Plan Level which Subscriber selects as described in these Terms or published by Enlyft, including all applicable taxes, to the payment method specified when Subscriber places an order or as otherwise provided to Enlyft. If Subscriber pays any fees with a credit card, Enlyft may seek pre-authorization of Subscriber’s credit card account prior to Subscriber’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Subscriber’s purchase.

3. 4.3. Subscription Service (for Paid Plan Levels). The Enlyft Services may include automatically recurring payments for periodic charges (“Subscription Service”). If Subscriber activates a Subscription Service, Subscriber authorizes Enlyft to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Subscriber’s account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when Subscriber first purchases a subscription to the Enlyft Services. Subscriber’s account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until Subscriber cancels the subscription or Enlyft terminates it. Subscriber must cancel any subscription before it renews in order to avoid billing of the next periodic Subscription Fees to Subscriber’s account. Enlyft will bill the periodic Subscription Fees to the payment method Subscriber provides when Subscriber orders the Subscription Service or as updated by Subscriber. Subscriber may cancel the Subscription Service at any time as set forth in Section 5.3.   

4. 4.4. Delinquent Accounts. Enlyft may suspend or terminate access to the Enlyft Services for any account for which any amount is due but unpaid. In addition to the amount due for the Enlyft Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.

5. 4.5. Taxes.  Other than net income taxes imposed on Enlyft, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Enlyft after all such taxes are paid are equal to the amounts that Enlyft would have been entitled to in accordance with these Terms as if the taxes did not exist.

5. TERM AND TERMINATION

1. 5.1. Term.  These Terms are effective as of the effective date specified on the Order Form or when Subscriber accepts the Terms or first downloads, installs, access, or uses the Enlyft Services and expire on the expiration or termination of the last Subscription Term. 

2. 5.2. Subscription Term.  Subscriber’s subscription to the Enlyft Services will commence upon Enlyft’s receipt of the applicable Subscription Fees and will continue for the duration specified for the subscription ordered by Subscriber (“Subscription Term”). The Subscription Term will automatically renew for additional terms of the same duration as the initial term, unless Enlyft provides notice of non-renewal at least 30 days’ prior to the end of the then-current Subscription Term or Subscriber terminates its subscription as set forth in Section 5.3. 

3. 5.3. Termination of Subscription.  Subscriber may terminate its subscription to the Enlyft Services at any time upon written notice to Enlyft or through the account management page of the Enlyft Services. Such termination will be effective at the end of the then-current Subscription Term.  For clarity, all Subscription Fees are nonrefundable, and Subscriber will not receive a refund of any prepaid Subscription Fees for the terminated subscription.

4. 5.4. Termination for Material Breach.  Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.4 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Enlyft may, without limitation to any of its other rights or remedies, suspend performance of the Enlyft Services until it receives all amounts due. For the avoidance of doubt, Enlyft may at its sole discretion withhold from Subscriber any cure opportunity in the event of a termination by Enlyft pursuant to Section 3.4 (Use Restrictions).  

5. 5.5. Effect of Termination.  Upon the expiration or termination of these Terms for any reason: (a) access to the Enlyft Services will automatically terminate; (b) all outstanding payment obligations of Subscriber become due and payable immediately; and (c) the following provisions will survive the expiration or termination of these Terms: Sections 3.9, 3.10, 5.5, 6, 7, 9, 10, 11, and 12.

6. SUBSCRIBER DATA

1. 6.1. Ownership.  Subscriber retains all right, title, and interest, including all intellectual property rights, in and to any data or information that Subscriber uploads or inputs into the Enlyft Services or otherwise makes available to Enlyft (“Subscriber Data”). Subscriber is solely responsible for maintaining and backing up Subscriber Data.

2. 6.2. License Grant to Enlyft.  Subscriber hereby grants Enlyft a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, and store the Subscriber Data: (a) during the Subscription Term, for the purpose of exercising Enlyft’s rights and performing its obligations under these Terms; or (b) in perpetuity, (i) to train, develop, enhance, or provide AI Features (defined below), and (ii) in a form that does not identify Subscriber as the source thereof for any Enlyft business purposes, including to develop and improve Enlyft’s products and services. Additionally, Enlyft may also use Subscriber’s and its authorized users’ Enlyft Services usage history, statistics and telemetry (“Enhancement Data”) for Enlyft’s internal analytical purposes related to its provision of Enlyft Services, including to improve and enhance the Enlyft Services and the Enlyft technology platform. For the sake of clarity, Subscriber Data in an aggregated or anonymized format is not Confidential Information (as defined in Section 7.1 below) of Subscriber.

3. 6.3. Representations and Warranties.  Subscriber represents and warrants that: (a) Subscriber has all rights necessary to grant Enlyft the licenses set forth in Section 6.2 and to enable Enlyft to exercise its rights under these Terms; (b) Subscriber’s collection and use of any Subscriber Data in connection with the Enlyft Services complies with all applicable privacy and data protection laws, rules, and regulations (collectively, “Privacy Laws”); and (c) the Subscriber Data, and the use of the Subscriber Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause Enlyft to violate any Privacy Laws or any other law or regulation.

4. 6.4. Information Security.  Enlyft will implement commercially reasonable organizational and technical measures that are designed to prevent unauthorized or unlawful access, use or disclosure of Subscriber Data.

7. CONFIDENTIALITY

1. 7.1. Definition. “Confidential Information” means any information disclosed by either party to the other party, directly or indirectly, in writing, orally, or by inspection of tangible objects, that is designated by the disclosing party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties, including customer, product, financial, and strategic information. Confidential Information does not include information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.

2. 7.2. Non-Use and Non-Disclosure.  Both parties will not, during or subsequent to the term of these Terms, use the other party’s Confidential Information for any purpose other than the purposes specified in these Terms, or disclose the other party’s Confidential Information to any third party.  Either party may disclose the other party’s Confidential Information if required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure.  Except as otherwise specified in these Terms, it is understood that Confidential Information will remain the sole property of the disclosing party.  Both parties further agree to take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information.

8. MODIFICATION OF THESE TERMS

Enlyft reserves the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies Subscriber’s rights or obligations, Enlyft may require that Subscriber accepts the modified Terms in order to continue to use the Enlyft Services. Material modifications are effective upon Subscriber’s acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

9. DISCLAIMER

THE ENLYFT SERVICES ARE PROVIDED “AS IS”. ENLYFT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ENLYFT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  ENLYFT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE ENLYFT SERVICES. ENLYFT DOES NOT WARRANT THAT THE ENLYFT SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE ENLYFT SERVICES WILL BE SECURE OR UNINTERRUPTED. ENLYFT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE ENLYFT SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE ENLYFT SERVICES WILL ALWAYS BE AVAILABLE. ENLYFT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE ENLYFT SERVICES. THE ENLYFT SERVICES MAY BE MODIFIED, DISCONTINUED, OR CANCELLED AT ANY TIME FOR ANY REASON AT THE SOLE DISCRETION OF ENLYFT. SUBSCRIBER USES THE ENLYFT SERVICES AT SUBSCRIBER’S OWN RISK.

10. SUBSCRIBER INDEMNIFICATION

1. 10.1. Defense.  Subscriber will defend Enlyft from any actual or threatened third-party claim, proceeding, or suit (“Claim”) arising out of or based upon Subscriber’s use of the Enlyft Services or Subscriber’s breach of any of the provisions of these Terms. Enlyft will: (a) give Subscriber prompt written notice of the Claim; (b) grant Subscriber full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Enlyft will not defend or settle any Claim without Subscriber’s prior written consent. Enlyft will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.

2. 10.2. Indemnification.  Subscriber will indemnify Enlyft from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Enlyft in any Claim under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Enlyft in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 10.1.

11. LIMITATIONS OF LIABILITY

1. 11.1. Disclaimer of Indirect Damages.  EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 10, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THE ENLYFT SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY WAS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

2. 11.2. Cap on Liability.  EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 10, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR THE ENLYFT SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ENLYFT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

3. 11.3. Independent Allocations of Risk.  EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ENLYFT TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.

12. GENERAL

1. 12.1. Relationship.  Enlyft will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of these Terms.

2. 12.2. Assignability.  Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Enlyft. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.

3. 12.3. Subcontractors.  Enlyft may utilize a subcontractor or other third party to perform its duties under these Terms so long as Enlyft remains responsible for all of its obligations under these Terms.

4. 12.4. Consent to Electronic Communications.  By using the Enlyft Services, Subscriber consents to receiving certain electronic communications from Enlyft. Subscriber agrees that any notices, agreements, disclosures, or other communications that Enlyft sends to Subscriber electronically will satisfy any legal communication requirements, including that those communications be in writing.

5. 12.5. Force Majeure.  Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

6. 12.6. Governing Law.  These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms.

7. 12.7. Arbitration. Any controversy or claim arising out of or relating to these Terms, or any breach of these Terms, will be determined by binding arbitration administered by, and in accordance with the rules of, the American Arbitration Association. Any arbitration will be conducted by one arbitrator in King County, Washington and will be conducted (and the award rendered) in English. The award rendered by the arbitrators will be final and binding on the parties, and the arbitral judgment may be entered in any court of competent jurisdiction. Nothing in this Section 12.7 prevents either party from applying to a court of competent jurisdiction for equitable or injunctive relief.

8. 12.8. Waiver.  The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.

9. 12.9. Severability.  If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Enlyft Services under these Terms is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Enlyft Services will immediately terminate.

10. 12.10. Entire Agreement.  These Terms, together with any Order Form or other agreements executed by the parties that incorporate these Terms, are the complete expression of the agreement between these parties regarding Subscriber’s use of the Enlyft Services. These Terms supersede, and these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not affect the validity of any agreements between the parties relating to professional services relating to the Enlyft Services that Enlyft may provide.

For older terms, click here.