Terms of Use

Last Updated: November 2024

This Ethernovia Terms of Use Agreement (this “Agreement”) constitutes a legal agreement between you and Ethernovia Inc. (“Ethernovia”) governing your access and use of Ethernovia’s website located at www.ethernovia.com and all other websites we operate that link to this Agreement (collectively, the “Website”), the customer portal made available on the Website (the “Customer Portal”), and the features, information, content, and other materials that Ethernovia makes available through its Website and the Customer Portal (collectively, the “Ethernovia Materials”). The term “Services” refers to the Website, Customer Portal, Ethernovia Materials, API Information, Software, and Documentation, collectively. For the avoidance of doubt, the Ethernovia Materials do not include the Software, API Information, and Documentation (each as defined below). This Agreement is effective from the earliest date you (a) access and/or use any of the Services, (b) register for an account for the Customer Portal (“Account”), or (c) indicate your acceptance to this Agreement (the “Effective Date”).

NOTICE OF AGREEMENT TO ARBITRATE: THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 10 BELOW WHICH REQUIRES YOU TO SUBMIT CLAIMS YOU HAVE AGAINST ETHERNOVIA TO BINDING AND FINAL ARBITRATION.
ACCEPTANCE OF THIS AGREEMENT. IMPORTANT — PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS BETWEEN YOU AND ETHERNOVIA GOVERNING YOUR ACCESS AND USE OF THE SERVICES. BY ACCESSING, BROWSING, AND/OR USING THE SERVICES IN ANY MANNER, INCLUDING VISITING OR BROWSING THE WEBSITE AND/OR CREATING AN ACCOUNT: (1) YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND, AND YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, (2) IF YOU ARE ACCESSING OR USING THE SERVICES OR REGISTERING AN ACCOUNT ON BEHALF OF ANY OTHER PERSON OR ENTITY (E.G., YOUR EMPLOYER OR A LEGAL ENTITY), YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH OTHER PERSON OR ENTITY (IN WHICH CASE, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH OTHER PERSON OR ENTITY), (3) YOU AFFIRM, REPRESENT, AND WARRANT YOU MEET ALL OF THE ELIGIBILITY REQUIREMENTS SET FORTH IN SECTION 1.2 OF THIS AGREEMENT AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT, AND (4) YOU ACKNOWLEDGE AND AGREE YOU ARE ENTERING INTO THIS AGREEMENT WITH ETHERNOVIA. YOU MAY NOT ACCESS OR USE THE SERVICES (OR ANY PART THEREOF) OR CREATE AN ACCOUNT IF YOU DO NOT AGREE TO THIS AGREEMENT OR YOU DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW.

1. OVERVIEW; ELIGIBILITY

1.1 Overview and Relation to Other Agreements. This Agreement governs your use of the Services. Additional terms and conditions, guidelines, operating rules, policies, and procedures, or agreements may also apply to your use of the Services, or when using particular features, services, or materials through or in connection with the Services, including, but not limited to, the following (collectively, the “Additional Terms”):
(a) If you download from the Customer Portal, install, access, and/or use (as applicable) (i) Ethernovia’s tools, software binaries, application programming interface (“API”), and/or source code drivers (collectively, the “Software”), (ii) header files, plug-in APIs (as defined in the header files and demonstrated in plug-in example code), and related information (“API Information”), or (iii) the documentation that Ethernovia makes available for the Software and/or API Information (the “Documentation”), the end user license agreement that accompanies or is provided or otherwise made available with the Software, Documentation, and/or API Information (the “EULA”) applies and governs any such use of the Software, API Information, and/or Documentation;
(b) If you access or use the Customer Portal, such access and use is subject to the terms of the non-disclosure agreement entered into between you and Ethernovia (the “NDA”) and
(c) Ethernovia’s Privacy Policy (“Privacy Policy”).
Additional Terms will be posted or made available to you in connection with the applicable Services (or features thereof) and are incorporated by reference into this Agreement. By using the applicable Services, you accept and agree to abide by the Additional Terms. In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
1.2 Eligibility. To register an Account and otherwise access the Services, you must meet the following eligibility requirements:
(a) You must be at least 18 years old or the applicable age of majority in your jurisdiction;
(b) You must not be a competitor of Ethernovia or otherwise access or use the Services (or any part thereof) for the purpose of developing competitive products or services;
(c) You must not have been previously removed, terminated, or suspended from accessing or using the Services; and
(d) To access and/or use the Customer Portal, you must have a mutually executed NDA in place with Ethernovia.

2. CUSTOMER PORTAL ACCOUNTS

2.1 Accounts. To access and use the Customer Portal, you and each Authorized User must register an Account. In registering an Account, you agree to, and shall ensure your Authorized Users, provide and maintain account registration information (which may include, name, e-mail address, or other contact information relating to you and any Authorized Users) that is true, accurate, current, up to date, and complete. You understand and agree you are solely responsible for maintaining the confidentiality of and protecting your Account login ID and password. You are solely responsible for any activity originating from the Account, including, without limitation, any access to the Account by Authorized Users and/or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by you. You agree to notify Ethernovia immediately of any unauthorized use of or access to your or any Authorized User’s Account. “Authorized Users” means your employees, contractors, or agents whom you authorize to use the Customer Portal in compliance with this Agreement, including Administrators (defined below in Section 2.2).
2.2 Administrators; Permissions. You may designate an administrator or administrators (each, an “Administrator”) to administer and manage your Account, which includes, without limitation, the right to invite Authorized Users to access and use the Customer Portal on your behalf and to assign certain permissions and access rights to each Authorized User (“Permissions”). You acknowledge and agree that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Customer Portal. You acknowledge and agree you are solely responsible and liable for your Administrator(s) administration and management of the Account, including without limitation, the inviting and granting of access to the Account and Customer Portal to Authorized Users and the assignment of Permissions to Authorized Users. You agree you shall not permit any person other than Authorized Users to access and use the Customer Portal, and shall ensure Authorized Users use the Customer Portal solely in accordance with this Agreement. You shall be responsible for your Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by you.
2.3 Linking a Third-Party Account. You may link your Account with Third-Party Accounts, by allowing Ethernovia to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent you are entitled to disclose your Third-Party Account login information to Ethernovia and/or grant Ethernovia access to your Third-Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Ethernovia to pay any fees or making Ethernovia subject to any usage limitations imposed by such third party service providers. PLEASE NOTE YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND ETHERNOVIA DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO ETHERNOVIA BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. “Third-Party Account” means Your valid account on a third-party application or service that Ethernovia enables you to log in to via an identity service.

3. ACCESS AND USE OF THE SERVICES

3.1 Right to Access the Customer Portal and Website. Subject to this Agreement, Ethernovia grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use, and permit your Authorized Users to access and use, the Customer Portal, Website, and Ethernovia Materials over the internet, solely for your internal business purposes and in accordance with the terms of this Agreement and any related documentation made available by Ethernovia. The Software, API Materials, and Documentation are licensed to you pursuant to the EULA.
3.2 Certain Restrictions. By accessing and/or using the Services, you agree that you will not, and will not permit your Authorized Users or any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine, or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Website and/or Customer Portal, except as expressly permitted by applicable law; (c) access the Services to build a similar or competitive website, product, or service; (d) access or use the Services in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (e) except as expressly permitted herein, copy, reproduce, distribute, republish, download, display, post or transmit, in any form or by any means, any part of the Services; (f) make the Services available to, or use the Services for the benefit of, anyone other than you and your Authorized Users; (g) interfere with or disrupt the integrity or performance of the Website or Customer Portal or networks connected to the Website or Customer Portal; (h) attempt to gain unauthorized access to the Services or their related systems or networks or any data contained therein; (i) frame or mirror any part of the Services, other than framing on Your own intranets or otherwise for your own personal use or as permitted in this Agreement; (j) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (k) create any Account by automated means or under false or fraudulent pretenses, or impersonate another person or entity; (l) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information about other users for any unauthorized purpose; (m) modify, adapt, translate or create derivative works based on the Customer Portal or Website (or any part thereof), content, or any related documentation; or (n) use any part of the Services if you are a person barred from such use under the laws of the United States or of any other jurisdiction. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to this Agreement. All copyright and other proprietary notices on the Services must be retained on all copies thereof.
3.3 Modification. Ethernovia reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part), including the provision of any Ethernovia Materials, Software, API Information, or Documentation therein, with or without notice to you. You agree Ethernovia will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services, or any part thereof.
3.4 No Support or Maintenance. You acknowledge and agree Ethernovia will have no obligation to provide you with any support or maintenance in connection with the Services.
3.5 Electronic Communications. By using the Services, you consent to receiving electronic communications from Ethernovia, including without limitation, notices posted through the Website or Customer Portal, and/or via email. These electronic communications may include notices about information concerning or related to your use of the Services. These electronic communications are part of your relationship with Ethernovia, and you receive them as part of your use of the Services. You agree any notices, agreements, disclosures, or other communications we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

4. PRIVACY

Any personally identifiable information provided or collected through or in connection with your use of the Services shall only be used in accordance with this Agreement and Ethernovia’s Privacy Policy. By accessing, browsing, or using the Services, you acknowledge and consent to the use and processing of your information in accordance with this Agreement and as set forth in the Privacy Policy.

5. THIRD-PARTY SERVICES

Ethernovia may integrate into and/or enable you to connect and/or use in connection with the Services, third-party products, services, and/or applications (including, without limitation, those enabling you to connect with a Third-Party Account) (collectively, “Third-Party Integrations”). For the avoidance of doubt, the Third-Party Integrations are not part of or included in the terms “Services” as used through this Agreement. The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, and together with the Third-Party Integrations, the “Third-Party Services”). The Third-Party Services are not owned, operated, or controlled by Ethernovia. If you decide to use any Third-Party Services, be advised your use thereof is governed solely by the terms and conditions of the respective providers of such Third-Party Services. YOU ARE RESPONSIBLE FOR REVIEWING AND COMPLYING WITH THE APPLICABLE TERMS OF SERVICE AND PRIVACY POLICIES FOR SUCH THIRD-PARTY SERVICES. FAILURE TO COMPLY WITH THE TERMS AND CONDITIONS AND/OR PRIVACY POLICIES OF A THIRD-PARTY INTEGRATION PROVIDER MAY RESULT IN THE TERMINATION OF YOUR ACCOUNT WITH SUCH PROVIDER AND THE INABILITY TO USE A PARTICULAR FEATURE WE OFFER.

6. PROPRIETARY RIGHTS

6.1 Ownership. Ethernovia and its licensors retain all ownership, right, title, and interest in and to the Customer Portal, Website, and Ethernovia Materials, Usage Data, and any and all modifications, improvements, enhancements, derivative works of, and updates to the foregoing. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title, or interest in or to any intellectual property rights to the foregoing, except for the limited access rights expressly set forth in Section 3.1. All trademarks of Ethernovia are owned by Ethernovia, and nothing in this Agreement will be construed to transfer ownership rights or grant any permission, license, or other rights to any trademark of Ethernovia without written authorization from Ethernovia. Ethernovia and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
6.2 Feedback. If you provide Ethernovia with any feedback or suggestions regarding the Services (“Feedback”), you assign all ownership, right, title, and interest in and to the Feedback to Ethernovia and agree to take such actions and execute such documents reasonably requested by Ethernovia to implement and perfect such assignment.
6.3 Usage Data. Ethernovia may collect Usage Data and use it to operate, improve, and support the Services and for other lawful business practices. However, Ethernovia will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify you, your Authorized Users, or any other person, and (b) aggregated with data across other customers. “Usage Data” means Ethernovia’s technical logs, metrics, and analytics regarding the performance, use and operation of the Services.

7. INDEMNIFICATION

You agree to defend Ethernovia and its officers, directors, managers, representatives, employees, and agents (collectively, the “Ethernovia Indemnified Parties”) harmless from and against any claims, suits, actions, or other proceedings (each, a “Claim”) due to or arising out of (a) use or misuse of any of the Services by you, or on your behalf, or otherwise arising from your Account, (b) your or your Authorized Users’ breach of this Agreement (including, without limitation, any representations and/or warranties made by you in this Agreement), (c) your or your Authorized Users’ negligence, fraudulent misrepresentation, or intentional misconduct, or violation of any applicable laws, rules, or regulations, or (d) your or your Authorized Users’ breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any Third-Party Services, and to indemnify and hold the Ethernovia Indemnified Parties harmless from and against any liability, loss, damage, fines, penalties, cost, or expense (including reasonable attorneys’ fees) as incurred in connection with such Claim. In connection with the foregoing, indemnification obligations, (i) you agree not to settle any Claim that requires Ethernovia to incur or admit any liability without the prior written consent of Ethernovia, (ii) Ethernovia will use reasonable efforts to notify you of any such Claim upon becoming aware of such Claim; provided that, a delay in providing notice does not excuse your indemnity obligations unless you are prejudiced by such delay, (iii) you will use counsel reasonably satisfactory to Ethernovia, and (iv) Ethernovia will reasonably cooperate in the defense of such Claim at your expense. Ethernovia reserves the right, at its expense, to assume the exclusive defense and control of any Claim (without limiting your indemnification obligations), and you agree to cooperate with Ethernovia’s defense of such Claim.

8. DISCLAIMERS; LIMITATION OF LIABILITY

8.1 Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED BY ETHERNOVIA ON AN “AS IS” AND “AS AVAILABLE” BASIS. ETHERNOVIA AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY PURPOSE, QUALITY, OR NONINFRINGEMENT. ETHERNOVIA AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT: (A) DEFECTS (IF ANY) WILL BE CORRECTED, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS, (C) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, (C) THE SERVICES WILL BE ACCURATE, COMPLETE, SAFE, RELIABLE, OR FREE OF VIRUSES OR OTHER HARMFUL CODE, (D) THE QUALITY OF ANY INFORMATION OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (E) THE SERVICES WILL BE COMPATIBLE WITH YOUR WORK OR HOME NETWORK, COMPUTER, OR ANY THIRD-PARTY SERVICES. ANY ETHERNOVIA MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ETHERNOVIA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.2 Disclaimer – Third-Party Services. ETHERNOVIA DOES NOT ENDORSE, IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, QUALITY, TITLE, OR NON-INFRINGEMENT, AS TO ANY THIRD-PARTY SERVICES, THEIR CONTENT, OR THE MANNER IN WHICH THE PROVIDERS OF SUCH THIRD-PARTY SERVICES HANDLE YOUR DATA. IN ADDITION, ETHERNOVIA IS NOT AND WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY SERVICES. ETHERNOVIA IS NOT AND SHALL NOT BE LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR ACCESS OR USE OF ANY THIRD-PARTY SERVICES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH THIRD-PARTY SERVICES.
8.3 Limitation of Liability. IN NO EVENT SHALL ETHERNOVIA BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY WITH RESPECT TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF ETHERNOVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY’S ESSENTIAL PURPOSE, FOR ANY (A) LOST PROFIT, LOST REVENUE, OR LOST OR DAMAGED DATA, (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, TECHNOLOGY, OR RIGHTS, (C) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES, (D) FOR ANY MATTER BEYOND ETHERNOVIA’S REASONABLE CONTROL, OR (E) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF ONE HUNDRED DOLLARS (USD $100.00).
8.4 Basis of the Bargain. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES AGREE THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND ETHERNOVIA WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. ETHERNOVIA DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO ETHERNOVIA’S LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION INURE TO THE BENEFIT OF ETHERNOVIA’S SUPPLIERS.

9. TERM, TERMINATION, AND SUSPENSION

9.1 Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated.
9.2 Termination. Either party may terminate this Agreement (a) at any time and for any reason, with or without notice; and (b) immediately upon written notice if the other party materially breaches its obligations under this Agreement and does not remedy such breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
9.3 Suspension. Ethernovia may immediately and without notice suspend or terminate your rights to access or use the Services at any time for any reason in Ethernovia’s sole discretion, including without limitation if (a) Ethernovia, in good faith, believes you have used the Services (i) in violation of this Agreement, including any incorporated guidelines, terms, or rules, or (ii) in a manner that poses a security risk or an imminent risk to Ethernovia or the Services or that will interfere materially with the proper continued operation of the Services; or (b) if Ethernovia is subject to a court or governmental order stating any such access or use must cease. Ethernovia will not have any liability whatsoever to you for any termination of your rights under this Agreement.
9.4 Effect of Termination. You agree that, upon any termination of this Agreement, your Account (if applicable) and your right to use the Services will automatically terminate, and you will immediately cease all access and/or use of the Services. Sections 3.2, 6, 7, 8, 9.4, 10, and 11 will survive any termination or expiration of this Agreement.

10. GOVERNING LAW; DISPUTE RESOLUTION

10.1 Governing Law. The laws of the State of California will govern this Agreement and any claims, actions, and/or disputes arising under this Agreement, without regard to any applicable conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods in its entirety and the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA are expressly excluded from this Agreement.
10.2 Dispute Resolution. If a dispute arises out of or relates to this Agreement, the parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including, if necessary, meetings between the executives of each party. If the parties have not resolved the dispute within thirty (30) days after the initial meeting to resolve the dispute, then before resorting to litigation, the parties agree to submit the dispute to binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules before a single arbitrator in Santa Clara County, California. If the parties cannot agree upon selection of an arbitrator, then AAA shall appoint an arbitrator experienced in the Ethernovia’s industry. The arbitration will be conducted in English. The arbitrator must provide detailed written findings of fact and conclusions of law in support of any award. Each party shall bear its own costs and expenses related to the arbitration, including attorneys’ fees, except the costs and fees of the arbitrator shall be shared equally by the parties, unless the arbitrator determines a different allocation is necessary to ensure a just and equitable result. Each party acknowledges this provision constitutes a material inducement upon which the other party has relied in entering into this Agreement. Notwithstanding anything to the contrary herein, in the event of any actual or alleged violation of Ethernovia’s intellectual property rights or confidential information in any court with competent jurisdiction in any country, Ethernovia shall be entitled to equitable and other appropriate relief, including without limitation, injunction and/or specific performance, damages (if appropriate), and recovery of costs and expenses incurred (including reasonable attorneys’ fees) without having to prove damages or the inadequacy of damages or to post a bond or other security.

11. GENERAL TERMS

11.1 Notice. All notices, permissions, and approvals hereunder must be in writing and will be deemed given upon: (a) receipt if given by personal delivery or by courier, (b) the third business day after mailing by registered U.S. mail, postage prepaid, or (c) upon receipt, as evidenced by acknowledgment or confirmation of receipt, if sent by email. Notices to Ethernovia shall be addressed to:

Ethernovia Inc.
97 E. Brokaw Rd., Suite 360
San Jose, CA 95112, USA
[email protected]

11.2 Modifications to this Agreement. Ethernovia reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted at https://www.ethernovia.com/portal-and-website-terms-of-use/. Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above. If Ethernovia makes any material changes to this Agreement, Ethernovia will provide you with reasonable prior notice of these changes by sending a notification to the email address Ethernovia has on file for you or, if Ethernovia does not have an email address on file, by posting a prominent notice on the Website and/or Customer Portal. You are responsible for providing Ethernovia with your most current e-mail address. If the last e-mail address you provided Ethernovia is not valid, or for any reason is not capable of delivering to you the notice described above, Ethernovia’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Material changes to this Agreement will become effective on the date set forth in the notice. It is your responsibility to regularly visit and review this Agreement for updates, changes, and modifications. If you do not agree to any updates or modifications to this Agreement, you must cease all use and access of the Services. Your continued access or use of the Services after the applicable effective date of the revised Agreement will constitute your acceptance of the revised Agreement.
11.3 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Ethernovia, or any products utilizing such data, in violation of the United States export laws or regulations. In addition to the above, in the absence of authorization by U.S. and local law and regulations, as required, the Services may not be used or exported or reexported to (a) any U.S. sanctioned or embargoed country, or to nationals or residents of such countries; or (b) any person, entity, organization or other party identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Debarred Parties List, as published and revised from time to time.
11.4 U.S. Government Rights. The Customer Portal, and each software component that Ethernovia uses to provide the Services, is a commercial computer software program developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to you), any software underlying the Services (including the Customer Portal) is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to you), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.
11.5 Entire Agreement. This Agreement and the Additional Terms (including, without limitation, the Privacy Policy and, as applicable, the NDA and EULA) constitute the entire agreement between you and Ethernovia regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
11.6 Waiver; Severability. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The failure of Ethernovia to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. In the event any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and a valid, legal, and enforceable provision of similar intent and effect shall be substituted for such invalid, illegal, or unenforceable provision.
11.7 Assignment. You may not assign or transfer this Agreement or any of your rights or obligations under this Agreement without the prior written consent of a duly authorized representative of Ethernovia. Any attempted assignment or transfer in violation of the foregoing shall be void and without effect. Ethernovia may freely assign this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.8 Independent Contractor. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
11.9 No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of you and Ethernovia, and no other person or entity shall have any rights, interests, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
11.10 Interpretation; Language. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. This Agreement is written in the English language, and the governing language of this Agreement shall be English. You hereby waive and agree not to assert any right to have this Agreement written in the language of your place of residence.
11.11 Force Majeure. Ethernovia shall not be liable for any failure to perform any obligation in relation to the Services or under this Agreement caused by an event beyond Ethernovia’s control, including without limitation to any act of nature, terrorism, war, political insurgency, insurrection, pandemic, epidemic, riot, civil unrest, the act of civil or military authority, uprising, earthquake, flood, or any other natural or man-made event outside of Ethernovia’s control.