By accepting these Terms of Service (“TOS”), either by accessing or using Elloe’s Services, authorising or permitting any agent or end-user to access or use Elloe Services, or accepting an Order Form, you agree to be bound by all terms, conditions, and notices contained or referenced in the TOS. These TOS together with a duly accepted Order Form, including all documents referenced therein, constitute a binding agreement (the “Agreement”). If you are accepting these TOS on behalf of a company, organization or another legal entity, you are agreeing to the TOS for that entity and representing to Elloe that you have the authority to bind such entity and its affiliates to this Agreement. If you register for a Trial of the Services, or otherwise use or access the Services without an Order Form having been duly accepted, you accept and agree to be bound by the provisions of these TOS.

1. DEFINITIONS
   1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
   2. “Confidential Information” means, in relation to either Party, all information (whether the information is in oral or written form or is recorded in any other medium): (a) about or pertaining to the business affairs (including products, developments, trade secrets, know-how, personnel or suppliers) of that Party or its customers (including the Personal Data); or (b) which is by its nature confidential; or (c) which is designated by the disclosing party as confidential, which is disclosed to the other Party, the other Party’s contractors, subcontractors, agents or any of the other Party’s employees, whether directly or indirectly pursuant to and in the course of the provision and/or receipt of the Services, and the performance of the Parties’ respective obligations.
   3. “Consultancy Services” means consultancy or other professional services as Elloe may provide from time to time, including onboarding & training, support, and other professional services such as assistance with importing and exporting data or assisting technical setups.
   4. “Content” means data and information available through the Services or contained within the structure of the Platform and documents, articles, presentations, pictures, images, audiovisual works, other information material, and any comments.
   5. “Customer” means the person or legal entity placing an order for or accessing Services. E.g., as defined in an Order Form.
   6. “Customer Account” means the account (also known as an ‘organization’, ‘environment’ or ‘tenant’) the Customer has been assigned on the Services which is logically separated from other customers’ accounts on the Platform. A Customer Account is managed and used by the Customer’s Permitted Users.
   7. “Customer Data” means any data or information provided by the Customer to Elloe in connection with the use of the Services, and any other data or information which is uploaded by Permitted User to the Services, as well as any Content which has been provided by a Customer End-User to Customer.
   8. “Customer End-User” means a person (natural or legal) who is an end-user whom the Customer communicates or otherwise engages with through use of the Service (e.g. a client, consumer, partner, citizen, etc.).
   9. “Elloe” means the entity defined as Elloe in the Order Form or online signup form (or the confirmation email sent following use of such signup form).
   10. “Elloe Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, a compilation of the content, code, data, and all other elements of the Services.
   11. “Documentation” means any technical description, service restrictions, as well as user instructions and guidelines, for the Services which may be made available and updated from time to time on the Services. Service restrictions includes any restrictions and obligations relating to the Services, in particular restrictions and obligations in relation to telecommunication services that may be purchased by Customer as part of the Services.
   12. “Effective Date” means the date which is the earlier of either, a) the Customer’s initial access to any Services through any online provisioning, registration or order process, or b) the acceptance date (e.g., signature date) of, or effective date stated in, an Order Form.
   13. “Fees” means any and all fees (such as subscription fees and one-time fees) payable by the Customer to Elloe for the Services.
   14. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
   15. “Intellectual Property Rights” means (a) copyright, rights related to or affording protection similar to copyright, database rights, semi-conductor topography and topography rights, patents and rights in inventions, trademarks, designs and registered design rights, rights in Internet domain names and website addresses and other rights in trade names, rights in unpatented know-how, trade secrets and other rights in Confidential Information, rights of confidence, broadcast rights, and any other intellectual or industrial property rights of any nature; (b) applications for registration (and the right to apply for registration) and renewals or extensions for any of the rights listed under (a) in this clause, which are capable of being registered in any country or jurisdiction; and (c) all other rights having equivalent or similar effect in any country or jurisdiction.
   16. “Order Form” means an ordering document, online registration, order description or order confirmation referencing these TOS.
   17. “Party/Parties” means a contracting party of this Agreement which includes any successor in title or a permitted assignee. Customer and Elloe will jointly be referred as the “Parties”.
   18. “Permitted Affiliate” means the entity specified in the Order Form which is permitted to use the Services the Customer subscribes to under this Agreement.
   19. “Permitted User” means an employee and/or independent contractor engaged by the Customer or any Customer Permitted Affiliate (if applicable) who is authorised to use the Services.
   20. “Platform” means the Elloe customer service/experience software solution, including the IT environment (servers, storage, networking equipment, etc.) under the possession or control of Elloe, by which means the Services are made available by Elloe to its Customers on a Software-as-a-Service basis.
   21. “Reseller” means any third-party entity that purchases Services from Elloe and resells such Services to the Customers, bills such customers directly and provides such customers with customer service.
   22. “Services” means the Content, Consultancy Services, Elloe Materials, Documentation, Platform, Elloe websites and all other content, services and/or products made available by Elloe or its Affiliates to the Customer.
   23. “Special Terms” means any special terms set out in an Order Form.
   24. “Subscription” means the subscription(s) the Customer purchases as specified in the Order Form, and as adjusted/selected on the Platform, by which the Customer is entitled to access and use the Services and the Documentation in accordance with this Agreement.
   25. “Subscription Term” means the initial term of this Agreement as specified in the Order Form and each successive period this Agreement renews as specified in the Order Form or these TOS.
   26. “Trial” means temporary access to the Service for the purposes of trying the Services in accordance with any selected Subscription without paying full Fees.
   27. “User Account” means an account on the Platform that is associated with a Customer Account, which allows for Permitted Users to access a Customer Account on the Services.
2. SERVICES – ACCESS, USE AND RESTRICTIONS

   1. Elloe shall provide the Services to the Customer, as agreed in an Order Form, during the Subscription Term and on the terms of this Agreement.

   2. As part of the registration process, the Customer will need to create a Customer Account and admin User Account, either through the website or an alternative process provided by Elloe or a Reseller. It is the Customer’s responsibility to ensure that the information provided is accurate and not misleading.

   3. The Services may support integrations with third-party platforms permitting exchange of data or cross-functional features, between Elloe and the Customer’s third party provider. In order for the Services to communicate with such third-party platforms, the Customer may be required to input authentication credentials. By enabling the use of the Services with any third-party platform, the Customer authorises Elloe to access the Customer’s accounts with such third-party platform for the purposes of such integration and as described in this Agreement. The Customer is solely responsible for complying with any relevant terms and conditions of third-party platforms and maintaining appropriate accounts with third-party platforms.

   4. Elloe may provide some Consultancy Services, if specified in a statement of work or Order Form describing the work to be performed, incl. fees, milestones, technical specifications or related information. The Customer shall pay Elloe the rate(s) set forth in the Order Form (or, if not specified, Elloe’s standard rates). Unless otherwise agreed, the Customer shall reimburse Elloe for reasonable travel and accommodation expenses.

   5. In the event of any delays in the Customer’s provision of assistance required for the timely delivery of Consultancy Services by Elloe, Elloe may, in its reasonable discretion a) adjust any agreed timetable or delivery schedule as reasonably necessary, and b) charge a reasonable fee (which is to be communicated beforehand) for rescheduling the agreed Consultancy Services.

   6. The Customer may use anything delivered as part of the Consultancy Services for its internal business purposes, subject to the terms of this Agreement and the applicable statement of work, but Elloe will retain all ownership rights and Intellectual Property Rights to such work product, code or deliverables and any derivative, enhancement or modification thereof created by Elloe as part of the Consultancy Services.

   7. The Customer shall access and use the Services in accordance with this Agreement, the Documentation and all other operating rules and policies including, but not limited to, our Privacy Policy and procedures that may be published from time to time made available on or through the Services, and any restrictions of use specified in the TOS and the applicable Order Form. Use of and access to the Services is permitted only to Permitted Users.

   8. The Customer cannot create an account or username using the names and information of another person or using words that are the trademarks or the property of another party or vulgar, obscene or in any other way inappropriate.

   9. The Customer warrants that the maximum number of natural persons that access the Services shall not exceed the number of Permitted Users (also called agents) purchased under the Customer’s Subscription and no User Account shall be used by more than one person.

   10. The total number of Permitted Users shall not exceed the total number of User Accounts permissible under the Subscription. The Customer shall be responsible and liable to Elloe in respect of all acts, omissions and defaults of such Permitted Affiliates and Permitted Users, and the Permitted Users shall only use the Services for the Customer’s and Permitted Affiliates’ internal business purposes. No Permitted Affiliates or Permitted Users shall have any right to rely on or enforce any term of this Agreement.

   11. The Customer specifically warrants on its own behalf and for each Permitted User and Permitted Affiliate not to do anything that can harm Elloe, including, but not limited to the following (non-exhaustive) actions: (a) abuse, harass, threaten, stalk, defame or in any way seek to violate the rights of another user or third-party; (b) publish or seek to distribute any material or information that is unlawful, harmful, obscene, indecent, libelous, profane, defamatory, racist, or in any other way inappropriate or objectionable; (c) use or harvest data provided by other Elloe users in a way that they would object to; (d) encourage illegal activity or activity that violates the rights of other users or third parties; (e) supply or post content calculated to deliberately mislead other users or third parties, including content falsely made to appear from or be endorsed by Elloe or third parties; (f) attempt to gain access to the Services, servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the Services or other services provided by or relied upon by users and Elloe.

   12. The Customer shall use all reasonable efforts to prevent unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access, notify Elloe immediately.

   13. Trials, campaigns, beta features, features outside of your Subscription or offer periods are offered at Elloe’s sole discretion and are subject to withdrawal at any time and without notice or compensation. This Agreement applies to all trials, campaigns or similar offers, including any other access to the Services which are not governed by an Order Form. In case the Customer accesses the Services without a duly accepted Order Form, the Party to this Agreement will be Elloe ApS.

   14. The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement and carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.

   15. If the Customer purchases telecommunication services from Elloe, such service usage shall also be governed by additional telecommunication terms that can be found .

       here

   16. Elloe may, in its sole discretion, suspend or terminate access to, or use of the Services to any User Account or Customer Account who violates this Agreement. In addition, the Customer acknowledges that Elloe and/or third-party services may choose at any time to prohibit Content from being accessed under this Agreement.

   17. Customer must ensure it, and/or its Permitted Users, (a) uses the latest released up-to-date internet browser to access the Services, and (b) ensures to update any mobile or desktop application to the latest version without undue delay after such update is released.

3. SERVICE LEVELS
   1. Elloe shall make all commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, and use commercially reasonable best efforts to provide 100% uptime, without interruptions, except for scheduled maintenance and the following “Uptime Exclusions”: (i) occasional planned downtime at non-peak hours (for which Elloe will provide advance notice); or (ii) any unavailability caused by circumstances beyond our reasonable control, including failure or delay of Internet connection, misconfiguration by the Customer or any third party acting on its behalf, issues on the Customer’s network, major country or regional wide outages in network, connectivity or telecommunications infrastructure provided by major service and telecom providers, or telecommunication services contracted directly by the Customer. The status of the Platform and the Services, and overview of planned maintenance and incidents, are available at https://status.elloe.ai, where the Customer is able to subscribe to status updates.
   2. During the Subscription Term, Elloe will provide reasonable support to the Customer. Full technical support may not be provided to customers on a Trial. Details on support will be further described in the Customer’s Order Form.
   3. All support inquiries on the Subscription can be initiated via email and web support at https://support.elloe.help
   4. If the Customer has purchased access to the Services from a Reseller, then first-line support shall be provided by the Reseller and not by Elloe.
4. FEES, PAYMENT AND ORDERING
   1. Unless otherwise agreed in an Order Form, the Customer shall pay the Fees to Elloe in full and in advance of a Subscription Term. If the Customer gets access to the Services through a Reseller, the payment terms are set forth in the agreement with the Reseller.
   2. The rates in the Order Form are valid for the initial Subscription Term and thereafter a 7% innovation fee is added annually to all Services to support the continuous development of the Services.
   3. On the Effective Date, the Customer shall provide valid, up-to-date and complete contact and billing details, and Elloe shall invoice the Customer for the Fees payable in respect of the Subscription Term.
   4. Unless otherwise agreed in an Order Form, the Customer must pay by credit or debit card, and it is a condition for use of the Services that a valid debit or credit card is provided at all times in order for the Subscription to remain active. If payment is declined by the card issuer or bank (for whatever reason), the Customer remains responsible for any amounts not remitted to Elloe, and Elloe may, in its sole discretion, either (i) invoice the Customer directly for the deficient amount, (ii) continue billing a credit or debit card once it has been updated by the Customer, (iii) suspend or disable access to the Customer/User Accounts associated with a Subscription with immediate effect until such time a valid payment has been processed and a valid credit or debit card is associated with the Subscription or (iv) terminate this Agreement in accordance with clause 5.
      1. By providing credit or debit card information, the Customer authorises Elloe to automatically charge the Customer’s credit/debit card on or around the same date each calendar month during the Subscription Term for all Fees accrued as of that date. The Customer acknowledges and agrees that the amount billed and charged each period may vary depending on the Customer’s use of the Services and may include Fees for the rest of the period and/or non-billed Fees from the previous period.
   5. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases hereunder, and Elloe shall add the amount of Taxes to its invoice to the Customer, at the appropriate rate. If Elloe has the legal obligation to pay or collect Taxes for which the Customer is responsible for under this Section, Elloe will invoice the Customer and the Customer will pay that amount unless it provides Elloe with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Elloe is solely responsible for taxes assessable against it based on its income, property, and employees.
   6. If payment of any Fees is not received by Elloe by the due date, then, without limiting Elloe’s other rights or remedies, (a) the Fees may accrue late interest at the rate of 8% of the outstanding balance per year (pro anno), or the maximum rate permitted by law, whichever is lower, and/or (b) Elloe may condition future renewals of the Subscription and Agreement on full pre-payment of all Fees for the renewal within 14 days from the receipt of the invoice by the Customer.
   7. Elloe reserves the right, at its sole discretion, to change or modify at any time the pricing of the Services by posting such changes on Elloe’s website and by notifying the Customer. The Customer will only be subject to the new pricing upon renewal of the Order Form after the end of its current Subscription Term.
   8. Subject to the other terms and limitations as specified in this Agreement, the Customer may change the Subscription at any time, by (a) upgrading the plan/bundle, fixed phone package (flat-rate package) or phone numbers or (b) adjusting quantity of agents, as long as this quantity does not fall below the minimum threshold, as specified in the Order Form. Certain changes to the Subscription can be effectuated by a Permitted User who is administrator through technical means in the Services. Any other changes requested by the Customer to the Subscription will require that the Parties to agree to it in writing.
   9. Notwithstanding anything to the contrary in clause 4.8, the Subscription cannot be downgraded beyond the minimum thresholds as specified in the Agreement.
   10. No refunds will be offered for downgrades that have been requested before the next billing period charge is due on the Subscription. The new, lower billing period charge will be automatically applied on the usual date of the billing period charge. Except as otherwise provided in this Agreement, all amounts and Fees are non-cancellable and non-refundable.
   11. Where the Subscription is upgraded, the new, higher billing period charge will be automatically applied upon the request date and prorated until the next usual date of the billing period charge, and will continue until it is either downgraded (in accordance with clause 4.8 above) or the Agreement is terminated.
   12. Where a Subscription is downgraded, the Customer is responsible for all the data within the accounts and any loss of data caused by the downgrading and removal of any services and functionalities within the account(s) connected to the downgrade.
   13. If access to the Services is provided through a Reseller, upgrading and downgrading shall be agreed upon directly between the Customer and the Reseller.
   14. When upgrading from a Trial, the Customer will immediately be charged for the full Subscription. The Fees will be due from that date each billing period onwards and advance payment will be taken in full on each anniversary.
5. TERM AND TERMINATION
   1. Unless otherwise stated in the Customer’s Order Form, the Subscription Term shall be 12 months. The Subscription and Agreement will continuously renew for additional 12-month periods, unless otherwise terminated in accordance with this clause 5.
   2. Customer may terminate this Agreement by providing Elloe a notice of termination no less than 3 months prior to the expiration of the then-current Subscription Term. Elloe may terminate this Agreement by providing Customer with a written notice no less than 1 month before the expiration of the then-current Subscription Term.
   3. Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party, if the other Party (a) fails to cure any material breach of this Agreement (e.g. a failure to pay fees or if payment is declined by the card issuer or bank) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy (if permitted by applicable law), receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding; or (d) if any such proceeding under (c) is instituted against that Party and not dismissed within sixty (60) days thereafter.
   4. Upon termination of this Agreement, the Customer shall immediately cease all use of the Services and/or the Documentation. Each Party shall return and make no further use of any equipment, property, Documentation, Elloe Materials and other items belonging to the other Party.
   5. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed on or before the date of termination, shall not be affected or prejudiced.
6. INTELLECTUAL PROPERTY RIGHTS
   1. Upon the Customer’s purchase of Services and subject to the terms of the Agreement, Elloe grants the Customer a worldwide, non-exclusive, non-transferable, time-limited and non-sublicensable right to use the Services during the Subscription Term.
   2. To the extent Elloe provides mobile applications or desktop client software for use with the Services, subject to the terms and conditions of this Agreement, Elloe grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable license during any applicable Subscription Term to use the mobile app or desktop client software, but only in connection with the Customer’s use of the Services and otherwise in accordance with the Documentation and this Agreement. Elloe reserves the right to distribute and only permit use of aforementioned mobile applications or desktop client software, subject to the Permitted User accepting a standard end-user license agreement.
   3. The Customer acknowledges and agrees that Elloe and/or its licensors own all intellectual property rights in the Elloe Materials, Services, the Documentation and the Platform. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, design right, trade secrets, trade names, trademarks or any other intellectual property rights or licenses in, to or in respect of the Elloe Materials, the Services, the Documentation or the Platform.
   4. Elloe confirms that it has all the rights in relation to the Elloe Materials, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
7. CUSTOMER DATA, DATA PROTECTION & CONFIDENTIALITY
   1. Customer Data. The Customer shall retain all ownership rights to the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer warrants that Customer Data does not belong to a third party whose rights have been violated by the Customer Data being processed by the Services. If any Customer Data is owned by a third party, the Customer agrees to pay all royalties, fines and settlements owed to that third party, without seeking any contribution from Elloe.
      1. The Customer can freely add Content to the Services. Elloe does not monitor or assume any responsibility for Content posted onto the Services. If at any time Elloe decides to monitor the Services on any occasion it does not mean that Elloe assumes responsibility for removing any content or the conduct of any users at the time or in the future.
   2. Data Protection. In relation to Customer Data, the Customer agrees to be the data controller and to be fully authorised to manage the Customer Data in the Services. As an integrated part of this Agreement, Elloe’s standard data processing agreement found shall apply, unless a separate data processing agreement has been entered into, in which case such shall take precedence. As an integrated part of this Agreement, Elloe’s standard data processing agreement found here shall apply, unless a separate
      1. Unless specifically agreed by the Parties by integration into the data processing agreement, the Customer agrees not to use the Services to collect, store, process or transmit any special categories (sensitive) personal information as defined in the GDPR. The Customer acknowledges that Elloe is not a business associate, subcontractor, or payment card processor (as defined in HIPAA and PCI) and that the Services are neither HIPAA nor PCI DSS compliant.
   3. Confidentiality. The Parties shall keep all Confidential Information, as well as the contents of this Agreement and all negotiations in relation to the Agreement, confidential, and not disclose or permit the disclosure of the same to any third party other than its or their respective personnel, partners, or subcontractors on a need-to-know basis without the prior written consent of the other Party. Confidential Information shall be used only for the proper performance of this Agreement.
      1. The Customer shall procure that Permitted Affiliates and Permitted Users uphold the same confidentiality as stated above.
      2. The confidentiality obligation in this clause shall not apply to any Confidential Information that: (i) the receiving Party can demonstrate was known to the receiving Party or in its possession before that information was acquired from the disclosing Party; (ii) is commonly known by the public without fault of the receiving Party or any person on its behalf; (iii) the receiving Party receives from a third party that did not obtain such information as a result of a breach of a confidentiality obligation; or (iv) is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving Party shall inform the other Party of the disclosure (if possible) and discuss the timing and scope of such disclosure.
      3. The receiving Party shall notify the disclosing Party promptly if it becomes aware that any of the Confidential Information falls within the above provisions.
      4. Upon expiry or termination of this Agreement the receiving Party shall promptly return, or destroy, all Confidential Information of the disclosing Party.
   4. Notwithstanding anything to the contrary in this clause 7, Elloe shall have the right to aggregate, collect and analyse data and other information relating to the provision, use and performance of the Services, including traffic and telemetric information (all in a way that does not permit identification of any individual), and shall be free (during and after the term hereof) to (i) use such data and other information to develop and improve the Services and other Elloe offerings, and (ii) disclose such data and other information solely in an aggregated and anonymised format that does not identify the Customer or any individual. Elloe shall obtain and retain any rights to the aggregated and anonymised data mentioned above.
8. WARRANTIES AND DISCLAIMER
   1. Neither Elloe, nor any of its Affiliates, warrants that (a) the Services, (b) Documentation, and/or (c) the information obtained by the Customer through the Services will (x) be uninterrupted, (y) error-free, or (z) meet the Customer’s requirements or specific purposes. Furthermore, Elloe is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent to the use of communications facilities and the Internet.
   2. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or law are, to the fullest extent permitted by applicable law, excluded from this Agreement, and the Services are provided to the Customer on an “as is” and “as available” basis without warranties of any kind.
   3. This Agreement shall not prevent Elloe from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
   4. Elloe is not responsible for any links to third-party websites from the Services and the inclusion of any link does not imply an endorsement of a third-party website or service by Elloe.
   5. Elloe has no responsibility or liability for any third-party platforms or any Customer Data exported to a third-party platform. Elloe does not guarantee that the Services will maintain integrations with any third-party platform and Elloe may disable integrations of the Services with any third-party platforms at any time with or without notice to the Customer. For clarity, this Agreement governs the Customer’s use of and access to the Services, even if accessed through an integration with a third-party platform.
   6. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Elloe to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up maintained by Elloe. Elloe shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
   7. The Customer acknowledges and agrees that under no circumstances will Elloe endorse, be responsible or liable for, and make representations as to any aspect of any third-party services, including, without limitation, the failure of any such third-party services. Elloe is not liable for any damage or loss caused or alleged to be caused by or in connection with the Customer’s enablement, access or use of any such third-party services, or their reliance on the privacy practices, data security processes or other policies of these third-party services. Elloe does not maintain or control third-party content or the content of other websites that may be made available via the Services and is not responsible for the availability, completeness, timeliness, factual accuracy, or non-infringement of such content. Content is provided “as is,” exclusive of any warranty whatsoever.
   8. Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the Customer’s use of the Services. Elloe shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts in connection with the Services, or any actions taken by Elloe at the Customer’s direction.
   9. The Services are not intended to support emergency calls to any emergency service, and the Customer shall not use it for such purposes.
9. LIMITATION OF LIABILITY, REMEDY AND DAMAGES
   1. Elloe and its Affiliates shall not be liable in tort, contract, misrepresentation, restitution or otherwise for any indirect loss, including but not limited to loss of profits, loss of business or goodwill or loss or corruption of data or information, pure economic loss, or for any special, indirect, incidental or consequential loss, costs, damages, charges or expenses however arising under or in connection with this Agreement, including the inability of Customer to use the Services to contact, or act as, emergency services.
   2. Unless permissible under the applicable law, neither party limits its liability in respect of death or personal injury caused by its negligence, or that of its employees, agents or contractors; fraud by it or its employees; or breach of any obligation as to title implied by law.
   3. The total and aggregate liability of, collectively, Elloe and its Affiliates to, collectively, the Customer and all Permitted Affiliates and Permitted Users, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the performance or non-performance or contemplated performance of this Agreement shall be limited to the total Fees paid for the Customer’s Subscription during the six (6) months immediately preceding the date of the first incident out of which the claim arose.
10. INDEMNIFICATION
    1. The Customer shall defend, hold harmless and indemnify Elloe and its Affiliates, subsidiaries and partners, and their respective officers, directors and employees, on demand, from and against all loss, fines, fees, liability, claims, actions, proceedings, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s (including its Permitted Affiliates and Permitted Users) use of the Services and/or Documentation, provided that the Customer is given swift notice of any matter under this clause and Elloe provides reasonable co-operation to the Customer (at the Customer’s expense). The Customer is given sole authority to defend or settle the relevant claim provided that no settlement shall be made which prejudices the Elloe’s rights or places Elloe under any obligations (in addition to those in this Agreement) without the prior written approval of Elloe (such approval not to be unreasonably withheld).
    2. Elloe shall defend the Customer, its officers, directors and employees against any justified claim brought by a third party that the Services infringe any effective patent (as of the Effective Date), copyright, trademark, database right or right of confidentiality and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of any such claims. Elloe shall be given swift notice of any matter for which the Customer wishes to be indemnified under this clause, and the Customer provides reasonable co-operation to Elloe (at Elloe’s expense). Elloe is given sole authority to defend or settle the relevant claim provided that no settlement shall be made which prejudices the Customer’s rights or places the Customer under any obligations (in addition to those in this Agreement) without the prior written approval of the Customer (such approval not to be unreasonably withheld).
    3. In the defense or settlement of any claim, Elloe may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 days’ notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.
    4. In no event shall Elloe, its employees, agents, suppliers and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on a modification of the Services by anyone other than Elloe, or in case of the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Elloe or in case of the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Elloe or any appropriate authority.
11. MARKETING AND ANNOUNCEMENTS
    1. The Customer agrees to participate in reasonable promotional and marketing activities including Elloe’s use of the Customer’s name and logo, and the disclosure of the Customer as being a customer of Elloe.
    2. At Elloe’s request, the Customer agrees to the issuance of a joint press release within 3 months of the Customer’s initial access to the Services. Each Party shall have the right to approve the press release in advance, but such approval shall not be unreasonably withheld.
12. GENERAL PROVISIONS
    1. Force Majeure. Neither Elloe nor any of its Affiliates shall have any liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Elloe or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Elloe’s sub-contractors or any of its Affiliates’ sub-contractors, provided that the Customer is notified of such an event and its expected duration. The Parties agree that eruption of an epidemic or pandemic and possible governmental restrictions imposed due to the eruption may constitute a force majeure event under this clause.
    2. Amendments and waivers. Elloe reserves the right, at its sole discretion, to change, modify, add, or remove parts of this Agreement at any time by posting such changes on the website or by notifying the Customer. Other than for changes addressing new functions or taken in order to comply with applicable law, we will notify the Customer 30 days in advance of making effective changes to these TOS that impact the rights or obligations of any party to these TOS, for example via a service notification or an email to the email address associated with the Customer’s account. By continuing to access or use the Services after those revisions become effective, the Customer agrees to be bound by the revised TOS. No variation, supplement, modification, or amendment of this Agreement will be effective unless it is in writing. No conduct, delay or failure to enforce or exercise rights or remedies under this Agreement or by law shall constitute a waiver. No waiver will be effective unless in a writing signed by a duly authorised representative of a Party. No provision of any business form by the Customer will supersede the TOS of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
    3. Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provision will be limited to the extent necessary so that this Agreement will give effect to the commercial intention of the Parties. The other provisions of this Agreement shall remain in force.
    4. Entire agreement. This Agreement constitutes the complete and exclusive agreement between the Parties and supersedes all previous written and oral communication and agreement between them relating to its subject matter. In case of any inconsistency within the clauses of the Agreement, the following order of precedence shall apply, unless otherwise stipulated in the given documents: 1) an Order Form, 2) these TOS, and 3) the Documentation.
    5. Modification of Services. The Customer acknowledges that the Services are primarily digital subscription-based products, and that in order to provide such, Elloe may change the Services and/or update the Documentation from time to time as Elloe sees fit.
    6. Assignment. The Customer shall not assign, sub-contract or in any other similar way transfer this Agreement to a third party without the prior written consent of Elloe, which shall not be unreasonably withheld. Elloe may at any time assign, transfer, charge or deal in any similar way with all or part of its rights or obligations under this Agreement.
       1. Subcontractors. Elloe may use the services of sub-contractors and permit them to exercise the rights granted to Elloe under this Agreement, provided that Elloe remains responsible for (i) compliance of any such sub-contractor with this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
    7. Independent contractors. The Parties are independent contractors. Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise a Party to act as agent, on behalf of or otherwise bind the other Party.
    8. Notices. Except as otherwise provided in this Agreement, any notice or communication required to be given under this Agreement shall be in writing and shall be delivered by email, Elloe web support or sent by pre-paid first-class post or recorded delivery post to the other Party at the addresses set out in the Order Form or such other address as may have been notified by that Party for such purposes.
       1. Notices delivered by hand shall be deemed to have been received when delivered. Notice sent by pre-paid post or recorded delivery post shall be deemed to have been received at the time it is delivered in the normal course of post. By email & web support when read.
       2. Any notices to Elloe regarding disputes and claims must be sent to, the following address unless otherwise notified by Elloe: Elloe Inc. Attn: Legal Department 2955 Campus Dr #110, San Mateo, CA, USA 94403 Email: [email protected] (confirmation of receipt required)
    9. Governing law & jurisdiction. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether in contract, tort or otherwise, the Parties shall use their best efforts to resolve such dispute. The complaining Party shall provide written notice to the other Party describing in detail the dispute. If the Parties are unable to resolve the dispute within thirty (30) days of the detailed description of the dispute, each Party is entitled to submit the matter to be resolved by the courts (as referenced below).
       1. If the Order Form to which these TOS are referenced is between Customer and Elloe ApS, or if the Customer accesses the Services without a duly accepted Order Form, meaning that the Party to the Agreement is Elloe ApS as further governed by the preamble to the Agreement, this Agreement and any disputes arising out of or related hereto will be governed exclusively by the laws of Kenya exclusive of its choice of law provisions. Any suit hereunder will be brought in the district court of Kenya, and the Parties submit to the personal jurisdiction thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
       2. If the Order Form to which these TOS are referenced is between Customer and Elloe Inc., this Agreement and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Delaware exclusive of its choice of law provisions. Any suit hereunder will be brought in the federal or state courts located in the State of Delaware, and the Parties submit to the personal jurisdiction thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. 
    10. United States Federal government end use provisions. The Services were developed at private expense and are “Commercial Items” as defined in 48 CFR 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202-1 through 227.7202-4, as applicable. The Services are licensed to U.S. Government end users only as Commercial Items and with only those rights granted to all other end users pursuant to the terms and conditions of this Agreement.