Terms of Service

Last updated: May 7th, 2024

We Are Arthur, Inc. (hereinafter “Endear,” “we”, or “us”) provides this website (app.endearhq.com) (the “Site”), our CRM platform (“Software”), and the associated data, services, information, tools, functionality, updates and similar materials delivered or provided by us (collectively, together with the Software, the “Service”) in compliance with the conditions set forth in these Terms of Service (the “Terms”). 

THESE TERMS AND THE AGREEMENTS (DEFINED BELOW) ARE ENTERED INTO BY AND BETWEEN ENDEAR AND THE ENTITY OR PERSON PLACING AN ORDER FOR OR ACCESSING THE SERVICE (“YOU” or “YOUR”).  BY ACCEPTING THESE TERMS, YOU ARE LEGALLY BINDING THE COMPANY OR ENTITY FOR WHOSE BENEFIT THE SERVICE IS BEING PROVIDED (OUR “CUSTOMER”) TO THESE TERMS.  IF YOU DO NOT HAVE AUTHORITY TO BIND THE COMPANY OR ENTITY AS OUR CUSTOMER, YOU MUST OBTAIN SUCH AUTHORITY BEFORE AGREEING TO THESE TERMS.  WE RESERVE THE RIGHT TO IMMEDIATELY TERMINATE OUR SERVICES AND YOUR ACCOUNT IF YOU DO NOT OR DID NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS. 

These Terms are an agreement between Endear and Customer, and, together with Endear’s Privacy Statement, Data Processing Agreement (“DPA”), Service Level Agreement (“SLA”), all applicable exhibits, attachments and any additional policy applicable to the Services, are the complete agreement of the parties regarding the Service provided by Endear and Customer’s receipt of such Service (together, the “Agreements”). These Terms shall be effective on the earliest of (a) the date you click a button indicating your agreement with these Terms  or (b) your or any Authorized Users use of the Service (the “Effective Date”).  No additional terms or conditions of sale other than those contained in the Agreement or a valid, written modification hereto shall be effective unless approved in writing by an authorized representative of both Endear and Customer. 

These Terms are subject to change in Endear’s sole discretion. If these Terms change, we will let you know by posting the revised Terms on the Service and/or otherwise making you aware of the changes. Your continued use of the Service following our notice of changes to these Terms (or other method of legal acceptance) means you accept such changes. Please refer to the “Last updated” date above to see when these Terms were last updated.

1. Definitions.

“Affiliate” means any entity that controls, is controlled by, or is under common control with the Endear or the Customer entity agreeing to these terms, where “control” means ownership of more than 50% of the voting interests of the subject entity.

“Customer Content” means any data, content or materials that Customer (including its Authorized Users) creates within or submits to the Service, including from Third-Party Platforms.

“Documentation” means Endear’s user guides, as updated from time to time.

“Authorized User(s)” means any individual who is authorized by Customer to use the Service under Customer’s Account, including Customer’s employees, consultants, contractors, or agents.

“Product(s)” means the product or line of products for which a Subscription to the Service has been purchased.  

“Subscription” means the type of subscription package that you have purchased for access to Services provided by Endear as set forth under your Account.

“Subscription Fees” means the charges applicable to your Subscription and use of the Services pursuant to the terms of this Agreement.

“Subscription Start Date” means: (i) for Custom Contracts (as defined below), either the start date identified in the Custom Contract or, if no start date is identified in the Custom Contract, the date on which you execute the Custom Contract; or (ii) for all other contracts, the date on which you execute this Agreement unless the parties agree otherwise in writing. 

“Subscription Term” means the term and duration of your Subscription, including any renewal term, during which you and Authorized Users of Customer are permitted to use the Service. 

“Third-Party Platform” means any platform, add-on, service, product, app or integration not provided by Endear that Customer elects to integrate or enable for use with the Service.

“Usage Data” means Endear’s technical logs, data and learnings about Customer’s use of the Service, but excluding Customer Content.

2. The Service

2.1 Provision of the Service and Availability. Endear will make available the Service to Customer and its Authorized Users during the applicable Subscription Term pursuant to these Terms and all applicable Agreements. Endear may update the content, functionality, and user interface of the Service from time to time in its sole discretion. Some features and functionality may be available only with certain versions of the Service. Customer agrees that its acquisition of the Service under these Terms is not contingent on the delivery of future features or functionality.

2.2 Account and Access Rights. To access and use the Services, you must create and register for an account (the “Account”). If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you hereby represent and warrant that you have the authority to bind your employer to our Terms.  During registration we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are fully responsible for all activity that occurs under your Account, including for any actions taken by persons to whom you have granted access to the Account. We reserve the right to change the account type, suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.  You must provide complete and accurate information during the registration process and you have an ongoing obligation to update this information if and when it changes.  In creating an Account, you will be asked to provide a username and password.  You are solely responsible for maintaining the confidentiality of your password.  Except as expressly permitted hereunder, you may not use the account, username, or password of someone else at any time. You are also solely responsible for any and all activities that occur under your registration or your user information. You agree to notify us immediately of any unauthorized use of your account, username, or password.  You agree that you will not create more than one account. We shall not be liable for any loss that you incur as a result of someone else using your account, username, or password, either with or without your knowledge.  Subject to these Terms and your Account activation, Endear grants to you a non-exclusive, non-sublicensable, non-transferable right to access and use the Service during the applicable Subscription Term pursuant to these Terms and each of the Agreements, solely for Customer’s internal business purposes.

When you create an Account, you will be prompted to set up a certain number of teams (each a, “Team” and together, the “Teams”). Subject to your Subscription package, each Admin for your Account will have the ability to add additional Teams at any time.

2.3 Affiliates. Notwithstanding anything to the contrary herein, a Customer Affiliate shall separately acquire Subscriptions under these Terms by entering a separate Agreement with Endear. For clarity, a Customer Affiliate who is not an Authorized User may not access the Service unless such Affiliate independently has subscribed to the Service. 

2.4 Acceptable Use Terms. You will not (and will not permit anyone else, including any other Authorized Users) to do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to Endear), (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (g) publish without authorization from Endear benchmarks or performance information about the Service, (h) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service other than authorized vulnerability tests, (i) transmit any viruses or other harmful materials to the Service, (j) allow Users to share User seats, (k) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (l) use the Service to store or transmit material which contains illegal content. Customer will be liable to Endear for it or any of its Authorized User’s taking the foregoing actions. We reserve the right, in our sole discretion, to protect users from violators and violations of these rules of conduct, including but not limited to removing your content, restricting your use of the Service, immediately terminating your use of the Service, or terminating your use of the Service by blocking certain IP addresses from accessing the Service.

2.5 Privacy Policy. Endear will implement and maintain reasonable administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Content pursuant to the terms of our Privacy Statement (https://endearhq.com/privacy-policy). You understand and agree that our Privacy Statement shall govern the collection, use and disposition of data obtained by us through your use of the Service.  You acknowledge and agree that we may direct Authorized Users to our Privacy Policy so that they may become familiar with our practices.  

2.6 Administration of Customer’s Account. Customer will retain administrative control over to whom it grants access to Customer Content hosted in the Service. Customer may specify one or more Authorized Users as administrators (each an “Admin”) to manage its Account and the number of Teams applicable to such Account, and Endear is entitled to rely on communications from such Admins and other Customer employees when servicing Customer’s Account. Customer is responsible for use of the Service by its Authorized Users and for their compliance with these Terms and all Agreements. Customer is solely responsible for the accuracy, quality, and legality of Customer Content. Customer will promptly notify Endear if it becomes aware of any unauthorized use or access to Customer’s Account or the Service.

2.7  Customer’s Use of Third Party Services. Customer may use Third-Party Platforms or install or enable third party services for use with the Service, such as online applications, payment processors, offline software products, or services that utilize the Endear API or otherwise connect with the Service (collectively, “Third Party Services”).  Any acquisition and use by Customer or its Authorized Users of such Third Party Services is solely the responsibility of such Authorized User and Customer and the applicable third party provider. You on behalf of Customer acknowledge that providers of such Third Party Services may have access to Customer Content in connection with the interoperation and support of such Third Party Services with the Service. To the extent Customer or you authorizes the access or transmission of Customer Content through a Third Party Service, such Third Party Service terms will govern, and Endear will not be responsible for, any use, disclosure, modification or deletion of such Customer Content or for any act or omission on the part of such third party provider or its service. Further, if you or Customer enables a Third-Party Platform with the Service, Endear may access and exchange Customer Content with the Third-Party Platform on Customer’s behalf.

2.9 Support Level Services.  Subject to your proper use of the Platform and Services in accordance with these Terms and the other Agreements, Endear will provide support services in a professional manner and in accordance with the Service Level Agreement (“SLA”).

2.10  Additional Services.  These Terms shall apply to the general Services provided by Endear and that are being purchased by you. If you wish to purchase premium services or contract with Endear for customized services, then such services shall be governed pursuant to the terms of a separate agreement which shall supersede these Terms (each, a “Custom Contract”).  

3. Customer Content 

3.1  Data Use. You hereby grant Endear the non-exclusive, worldwide right to use, copy, store, transmit and display Customer Content and to modify and create derivative works of Customer Content (for reformatting or other technical purposes), but only as necessary to provide the Service and any support or technical Services under these Terms and the Agreements.  Endear, however, may freely use without restriction any anonymized, aggregate or pseudonymized personal data based in whole or in part on Customer’s Data.  Further rights and responsibilities with respect to Customer’s data can be found in the DPA.  

3.2 Endear Advertising.  Endear may publicly disclose in any medium (including, without limitation, on its website and in social media postings) that Customer is a client of Endear and/or using Endear’s Platform and Services.

4. Representations and Warranties

4.1 Mutual Warranties. Each party represents and warrants that it will comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations under these Terms and the Agreements.

4.2 Endear Obligations. Endear warrants during the applicable Subscription Term that: (a) the Service will materially conform to the applicable Documentation; and (b) Endear will not materially and continually decrease the functionality of the Service unless it provides prior notice to Customer. For any breach of the foregoing warranties, as Endear’s sole liability and Customer’s exclusive remedy, Endear will correct the non-conforming Service, and, if Endear is unable to correct the Service within a commercially reasonable time following receipt of written notice of breach, then Customer will be entitled to terminate the Service and receive a refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination.

4.3 Customer Obligations and Representations. Customer is responsible for its Customer Content, including its content and accuracy, and agrees to comply with applicable laws in using the Service. You represent and warrant that: (a) you have the right and authority to bind Customer to these Terms and are an authorized officer or employee of Customer duly authorized to enter into these types of agreements; and (b)  on behalf of Customer, you have made all disclosures and have all rights, consents and permissions necessary to use Customer Content with the Service and grant Endear the rights in Section 3.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Content.

4.4 Disclaimer. Except as expressly provided for in the Agreements or limited by applicable law, Endear does not warrant uninterrupted or error-free operation of the Service or that Endear will correct all defects or prevent third party disruptions or unauthorized third-party access. These warranties are the exclusive warranties from Endear and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. Endear warranties will not apply if there has been misuse, modification, damages not caused by Endear, or failure to comply with instructions provided by Endear. Each party disclaims all liability for any harm or damages caused by any third-party hosting providers. Endear makes beta, trial, proof of concept, and “sandbox” versions of the Service available as-is without warranties of any kind.

5. Suspension. 

Endear may suspend Customer’s, yours or an Authorized User’s access to and use of the Service and related services due to (a) a breach under Section 2.4 (Acceptable Use Terms) or Section 4.3 (Customer Obligations and Representations), (b) if Customer has an invoice that is past due, or (c) if Customer’s or its Authorized User’s actions risk harm to other customers or the security, availability or integrity of the Service, determined in Endear’s sole discretion. Where practicable, Endear will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Endear will promptly restore Customer’s or its Authorized User’s access to the Service in accordance with these Terms.

6. Subscription.

6.1 Subscriptions. Subscriptions Fees are charged for each Customer Account (including, the number of Teams applicable to such Account) and based on either annual or monthly periods (or pro rata portions of such periods, calculated on a monthly basis) commencing on the Subscription Start Date and as elected by you and shown on your Account. Endear shall begin collecting payment for your Subscription on your Subscription Start Date and shall bill for Subscription Fees every thirty (30) days or at the interval specified in Customer's Custom Contract. Customer may purchase add-on services and products in addition to the subscribed Services at any time.Unless otherwise specified in an agreement between Endear and Customer, each Subscription Term will automatically renew for successive 30-day in the case of monthly Subscription Terms or 12-month periods in the case of annual Subscription Terms, unless either party gives the other party notice of non-renewal, in the case of an annual Subscription, 90 days before the current Subscription Term ends. Endear may waive your notice requirement in its discretion.Upon notice of non-renewal, Customer will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.

6.2 Fees and Taxes. Subscription Fees shall become due and payable beginning on your Subscription Start Date and billed in accordance with the schedule shown on your Account.  You must keep a valid payment method on file with us to pay for all incurred and recurring Subscription Fees and any fees relating to your purchase or use of any products or services offered by Endear (together with the Subscription Fees, the “Fees”). Endear will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and Endear will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments will be in U.S. currency.

The first date of billing shall occur on the Subscription Start Date and thereafter the Subscription Fees shall be paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Any other fees that are not a Subscription Fee will be charged from time to time as notified by Endear and shown on your Account. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice on the Account page of Customer.  If for any reason we are not able to process payment of Fees using an Authorized Payment Method, we may, but are not required to, make subsequent attempts to process payment using any Authorized Payment Method. If (a) no Authorized Payment Method is present by Billing Date or, (b) we are unable to successfully process payment of Fees using an Authorized Payment Method by the payment due date of any invoice, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Account during any period of suspension. If the outstanding Fees remain unpaid for 30 days following the date of suspension, Endear reserves the right to terminate your Account in accordance with Section 7.2.

You agree that in the event Endear is unable to collect the Fees owed to Endear for the Services through your Account, Endear may take any other steps it deems necessary to collect such Fees from you and that you will be responsible for all costs and expenses incurred by Endear in connection with such collection activity, including collection fees and legal costs. You further agree that Endear may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any fees and other amounts not paid when due.

All fees and charges are non-refundable except as set out in Section 7 below.  Customer is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Subscription and Service purchases, whether domestic or foreign (“Taxes”), other than Endear’s income tax. Fees and charges are exclusive of Taxes.

7. Term and Termination.  

7.1 Term.  As between Customer and Endear, the Services shall commence as of the Subscription Start Date and shall continue unless terminated in accordance with these Terms.  Except as otherwise expressly noted below, Customer shall be required to pay all Fees due and owing through the date of termination.

7.2 Termination for Cause.  Either party may terminate the Services if the other party (a) fails to cure a material breach under the Agreements within 60 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Endear may immediately terminate the Services and all Agreements with you if Customer fails to pay Fees in accordance with Section 6 above. 

7.3 Termination for Convenience.  Either party may terminate the Services and these Terms (including all Agreements) at any time for any reason as follows:  (a) for annual subscriptions, upon 90 days’ notice to the other party, and (b) for month-to-month subscriptions, at any time upon written notice. Customer will not be entitled to a refund of any pre-paid Subscription fees except as provided under Section 7.4 below.  If Customer has not already paid all applicable fees for the then-current Subscription Term, any such Subscription Fees that are outstanding (including Subscription Fees and any additional payable for the remainder of the Subscription Term) will become immediately due and payable.

7.4 Effect of Termination. Upon expiration or termination of the Services for any reason, all Subscriptions and any other rights granted to Customer under the Agreements will immediately terminate, and Customer will immediately cease all use of the Service. Upon termination by either party pursuant to Section 7.2 (Termination for Cause), or if Endear terminates Services without cause, Endear will refund to Customer a prorated amount of prepaid, unused fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees accrued or payable to Endear for the Services in the period prior to the effective date of termination. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees.

8. Confidentiality.

8.1 Definition of Confidential Information. During the Subscription Term, each party may make available to the other party information that is identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes the Agreements, the Service, Customer Content, business plans, product plans and roadmaps, strategies, forecasts, projects and analyses, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that is: (a) publicly available when received, or subsequently becomes publicly available through no fault of the receiving party; (b) obtained by receiving party from a source other than the disclosing party without obligation of confidentiality; (c) developed independently by the receiving party; or (d) already in the possession of the receiving party without obligation of confidentiality.

8.2 Protection of Confidential Information. The receiving party will use the same care and discretion to avoid disclosure, publication, or dissemination of the disclosing party’s Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than a reasonable degree of care. The receiving party may disclose Confidential Information to its employees, Affiliates, consultants, subcontractors, or advisors (“Representatives”) who have a need to know such Confidential Information for the purpose of performing obligations under the Agreements and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in these Terms. 

8.3 Equitable Relief. In the event of a breach of this Section 8, the disclosing party may seek appropriate equitable relief in addition to any other remedy.

8.4 Compelled Disclosure. The receiving party may disclose Confidential Information to the extent required by law or court order. However, subject to applicable law, the receiving party will give the disclosing party prompt notice to allow the disclosing party a reasonable opportunity to obtain a protective order.

9. Intellectual Property Rights.

9.1 Ownership. Neither party grants the other any rights or licenses not expressly set out in the Agreements. Except for Endear’s use rights under these Terms, between the parties Customer retains all intellectual property and other rights in Customer Content and any other proprietary materials provided by Customer to Endear for Endear’s performance of its services under the SLA. Except for Customer’s use rights under these Terms, Endear and its licensors retain all intellectual property and other rights in the Service and related services, Endear technology, templates, formats and dashboards, including any modifications or improvements to these items made by Endear. Endear may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. 

9.2 Feedback. If you submit any feedback to Endear regarding the Service, Endear may use such feedback for any purpose without any restriction, compensation or obligation.

10. Indemnification.

10.1 Endear Indemnification. Endear shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software or any use of the Services by Customer or its Authorized Users in accordance with these Terms and the Agreements, infringes or misappropriates such third party's US patents, copyrights, trademarks, or or misappropriates any third-party trade secrets. 

• A. If a Third Party-Claim is made or appears possible, Customer agrees to permit Endear, at Endear’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use in a non-infringing manner. If Endear determines that neither alternative is reasonably available, Endear may terminate the Services and your rights under the Agreements, in its entirety or with respect to the affected component or part, effective immediately on upon written notice to you. 
  
• B. This Section 10.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Endear or authorized by Endear in writing; (B) modifications to the Software or Services not made by Endear; (C) Customer Content or (D) Third-Party Services. 

10.2 Customer Indemnification. Customer shall indemnify, hold harmless and defend Endear from and against any Losses resulting from any Third-Party Claim (i) due to Customer’s use of the Services in a manner not authorized by the Agreements; (ii) Customer’s breach of any of the Agreements; (iii) in the event Customer Content or any use of Customer Content or other materials provided by Customer to Endear in accordance with the Agreements, infringes or misappropriates such third party's intellectual property rights and (iv) based on your or any authorized user's (A) negligence or willful misconduct; (B) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Endear or authorized by Endear in writing; or (C) modifications to the Software or Services not made by Endear.

10.3 Indemnification Process. Neither party shall have any obligation to indemnify the other unless the party seeking indemnification (the “Indemnitee”) delivers to the party from whom indemnification is sought (the "Indemnitor”) prompt written notice so that Indemnitor’s ability to defend or settle such Third-Party Claim is not materially prejudiced.  Indemnitor shall control the defense and settlement of any Third-Party Claim for which it is providing indemnification.  Indemnitee, however, may retain additional counsel of its choice at its sole cost and expense.  Indemnitor shall not settle a Third-Party Claim on behalf of Indemnitee without Indemnitee’s prior written consent, which shall not unreasonably be withheld.  

11. Limitation of Liability.

11.1 IN NO EVENT WILL ENDEAR BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ANY OF THE RELATED AGREEMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ENDEAR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ENDEAR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF THE OTHER AGREEMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO ENDEAR UNDER THESE TERMS IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11.2 Any damages that cannot be limited under applicable law shall not be subject to the limitation in Section 11.1 above. 

12. Trials. 

Endear may in its sole discretion elect to offer Customer access to the Service or Service features on a free or trial basis (“Trials”).  Any use by Customer of the Services during Trials shall be subject to these Terms. Unless otherwise agreed amongst the parties in writing, Trials are optional and either party may terminate Trials at any time for any reason. Trials may be inoperable, incomplete or include features that Endear may only release for paid Subscriptions, and their features and performance information are Endear’s Confidential Information. 

13. Miscellaneous.

13.1 Governing Law; Submission to Jurisdiction.  The Agreements, including these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to these Terms and the Agreements or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.2 Notices. Endear may give general notices related to the Service that apply to all customers by email, in-app notifications, or posting them through the Service. All notices sent by Endear shall be posted to your Account or the email associated with such Customer’s Account. Notices sent to Endear under the Agreements must be in writing and sent to the business mailing or email address specified in this Section. Notices are deemed given when received. Notices to Endear must be sent to legal@endearhq.com with a copy to We Are Arthur, Inc., 4 East 72nd Street, NY NY 10021.

13.4 Consents. Where approval, acceptance, consent, access, cooperation, or similar action by either party is required, such action will not be unreasonably withheld.

13.5 Access to Non-Production Versions of the Service. Customer may be provided with access to beta, trial, proof of concept, or sandbox versions of the Service or features within the Service (collectively, the “Non-Production Versions of the Service”). Customer acknowledges and understands that its use of the Non-Production Versions of the Service is not required and is at Customer’s own risk, and that Non-Production Versions of the Service are made available on an “as is” basis without warranties of any kind, may be discontinued or modified at any time, and may be subject to other terms. Non-Production Versions of the Service are not for production use, not supported, and not subject to availability or security obligations. Endear will have no liability for any harm or damage arising out of or in connection with Non-Production Versions of the Service. Customer acknowledges that its trial will automatically convert to a Subscription at the end of the trial and that Endear may charge Customer for the applicable Subscription fees unless Customer has notified Endear in writing of its decision to opt out during the trial.

13.6 Relationship of the Parties. Endear is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary. No right or cause of action for any third party is created by the Agreement or any transaction under it.

13.7 Force Majeure. In no event shall Endear be liable to Customer, or be deemed to have breached these Terms of any of the Agreements, for any failure or delay in performing its obligations under the Agreements, if and to the extent such failure or delay is caused by any circumstances beyond Endear’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

13.8 Severability; No Waiver. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.

13.9 Assignment. Neither party may assign these Terms or any of the Agreements without the prior consent of the other party, except that either party may assign these Terms and the Agreements in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. The Terms and each of the Agreements will bind and inure to the benefit of each party’s permitted successors and assigns.

13.10 Modifications. Endear may revise these Terms and related Agreements from time to time by posting the modified versions on its website. You are solely responsible for checking for amendments or modifications to these Terms and any Agreements.  By continuing to access your Account or use the Service after the posted effective date of modifications to these Terms or the other Agreements, you agree to be bound by the revised version of the Agreement.

13.11 Export Regulation. You agree to comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Content outside the US.

13.12 U.S. Government Rights. Each of the Documentation and the software components that constitute the Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.