Terms of Service

This Terms of Service Agreement was last updated on November 21st, 2008.

1. Agreement to be Bound
By agreeing to create an account with Enso Interactive, LLC, a Colorado limited liability company, D/B/A Enso CMS (“Enso CMS” or “we”), completing the registration process and clicking the “I accept” button, you, as a user of Enso CMS (“User” or “you”) agree to abide by, and be bound by, the terms and conditions contained in this Terms of Use Agreement and Service Level Agreement (“TOS” or “Agreement”). From time to time, we may make changes to this Agreement. If we do, we will notify you by posting the changes here. Continuing to use Enso CMS Services after we have posted notice of these changes means that you agree to the changes.

2. Enso CMS TOS Applicable to all Users
The following TOS apply to all Users of Enso CMS Services, including the Content Management System (collectively, the “Enso CMS Services”).

3. Standard License
Subject to the provisions of this Agreement and the limitations set forth below, ENSO CMS hereby grants to Users a limited, non-exclusive, non-transferable, revocable license (the "Standard License") for the use of the Enso CMS Services during the Term of this Agreement.

4. Service Level Agreement
(a) The following defines the terms of Enso CMS’s responsibilities to Users of the Enso CMS Services and the credits due to User if those responsibilities are not met. The entire Enso Interactive liability and your exclusive remedies against Enso CMS (whether in contract, tort, warranty, or otherwise) are set forth in this Agreement. Enso CMS will ensure that its data center network will be available 99.9% of the time in a given month, excluding scheduled maintenance. Data Center Downtime does not include any planned outages (no longer than 4 hours per month) and unplanned outages (no longer than 4 hours per month) of the Data Center or any interruption in your ability to access the Service that continues for (less than 10 minutes) or results from causes beyond Enso CMS’s control, including, but not limited to (a) any failure in your own computer systems, telephone equipment, hardware, software or other equipment, (b) a Force Majeure event; or (c) any act or omission by you or anyone you authorize to use the Services. As your sole and exclusive remedy for Enso’s failure to meet the service level responsibilities set forth in this Section 4, Enso CMS will credit your account 5% of the monthly fee for each 30 minutes of network downtime, up to 100% of your monthly fee for the affected server (the “Service Credit”).

(b) In order to receive the Service Credit, you must use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to or from, or stored on, the Enso CMS servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with Enso CMS's Acceptable Use Policy. You must cooperate with Enso CMS's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You must provide Enso CMS with accurate information to help Enso CMS determine if any tax is due with respect to the provision of the Services. You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the Services stated in the Service Order(s) or other agreement between us.

5. Sole Remedies
The Service Credit shall constitute your sole and exclusive damage remedies for any failure by Enso CMS to provide Services in accordance with this Agreement.

6. Promises We Do Not Make
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property. We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. We do not promise to back up your data.

7. Unauthorized Access to your Data or Use of the Services
Enso CMS is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Enso CMS's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.

8.Who May Use the Service
You may resell the Services and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Services by any third party to the same extent as if you were using the Service yourself. ENSO CMS will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under this Agreement, and you agree that you are responsible for any claims by any person you authorize to use the Services.

9. Term; Termination
The initial term begins on the Service Commencement Date and continues for the period stated in the Service Order. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of one month each unless and until one of us provides the other with thirty (30) days advance written notice of non-renewal. Enso CMS may terminate this Agreement and the licenses granted by it herein with four business day’s notice if User fails to comply with any term or condition of this Agreement (including any payment term); provided, however, that all provisions relating to disclaimers, limitation of liability, copyright, trademarks and other proprietary rights of Enso CMS shall survive the termination of this Agreement. Upon termination of this Agreement, all licenses granted herein by Enso CMS shall terminate. All fees paid to Enso CMS are non-refundable, except as specifically provided herein.

10. Fees
(a) You agree to pay to Enso CMS the fees applicable to the Enso CMS Services selected pursuant to the current Enso CMS pricing schedule which can be found here: http://www.ensocms.com/signup/pricing/. The first invoice will include the initial one time set up fee and a prorated part of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. We may require you to pay this initial invoice before beginning the Service. Following the Service Commencement Date, monthly recurring fees will be billed monthly in advance on or around the first day of each calendar month. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears.

(b) Fees are due on receipt of invoices. Enso CMS may suspend all Services (including Services provided pursuant to any unrelated Service Order or other agreement we may have with you) if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four business days of our written notice to your billing contact. You agree that if your Service is reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. Enso CMS may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty days and Enso CMS brings a legal action to collect, you must also pay Enso CMS's reasonable costs of collection, including attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law.

(c) Following expiration of the initial term, we may increase the fees for the Services on thirty days advance written notice unless you have agreed to a fixed renewal term.

(d) If Enso CMS is required by law to pay taxes on the provision of the Services, you must pay Enso CMS the amount of the tax that is due or provide Enso CMS with satisfactory evidence of your exemption from the tax. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.

11. Content
(a) You understand that all information, data, text, software, music, sound, designs photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. You acknowledge that, in providing User with the ability to publish and distribute the Content, Enso CMS is acting only as a passive conduit for the distribution of such Content by the User. You retain complete discretion over the Content published and distributed by you. You agree that you will not provide any Content that is obscene, pornographic, vulgar, defamatory, racist, hateful or in bad taste. You will not provide Content that would violate the property rights of others, including copyrights, trademarks or confidential information. Enso CMS has no obligation to you, and undertakes no responsibility, to review the Content or any other User-generated materials to determine whether any such content may result in liability to third parties.

(b) Notwithstanding the foregoing, Enso CMS reserves the right to delete, move, refuse to accept or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and User hereby agrees to forfeit any fees payable in respect of such Content. Enso CMS shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Enso CMS to determine acceptable Content is done as a courtesy only.

12. User Ownership
Except as provided in this Agreement, title to and ownership of all intellectual property rights of the Content as well as all domain names, trademarks and logos licensed to Enso CMS below shall remain exclusively with the party providing it or its licensors.

13. User Content License
For the Term of this Agreement, you hereby grant to ENSO CMS a limited, non-exclusive, non-transferable, royalty-free, worldwide license to reproduce, distribute, publicly perform and publicly display the Content. You further hereby grant to Enso CMS a limited non-exclusive, non-transferable royalty-free, worldwide license to use, reproduce, distribute, create derivative works of, publicly display, publicly perform and digitally perform those elements of the Content as reasonably appropriate to service, advertise, and promote the Enso CMS Services. You further hereby grant to Enso CMS a non-exclusive, non-transferable worldwide license to use the domain names, trademarks and logos reasonably necessary or desirable for Enso CMS to perform under this Agreement.

14. Enso CMS Ownership
You acknowledge and agree that Enso CMS shall retain and own all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trade-marks and patent rights) in and to the Enso CMS Services and all copies thereof, and that nothing herein transfers or conveys to the you any ownership right, title or interest in or to the Enso CMS Services or to any copy thereof or any license right with respect to same not expressly granted herein. You agree that you will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in the Enso CMS Services by Enso CMS.

15. Warranty Disclaimer
WITH THE LIMITED EXCEPTION OF THE ABOVE MENTIONED SERVICE CREDIT GIVEN FOR DOWNTIME SET FORTH IN SECTION 4, ALL ENSO CMS SERVICES ARE PROVIDED TO USER "AS IS." ENSO CMS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. YOU ACKNOWLEDGE AND AGREE THAT THE LICENSORS AND SUPPLIERS OF ENSO CMS MAKE NO DIRECT WARRANTY OF ANY KIND TO THE USER UNDER THIS AGREEMENT. (2) ENSO CMS DOES NOT REPRESENT OR WARRANT THAT: (i) THE ENSO CMS SERVICES WILL MEET YOUR BUSINESS REQUIREMENTS; (ii)THE ENSO CMS SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (iii) ALL DEFICIENCIES IN THE ENSO CMS SERVICES CAN BE FOUND OR CORRECTED. FURTHER, THE ENSO CMS SERVICES MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES. ENSO CMS WILL NOT BE RESPONSIBLE FOR:

(a) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF ANY USER OR CLIENT;

(b) INOPERABILITY OF SPECIFIC USER OR THIRD PARTY APPLICATIONS OR EQUIPMENT;

(c) INABILITY OF THE USER OR THIRD PARTIES TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET;

(d) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET;

(e) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS; OR

(f) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.

 16. Limit of Liability
(a) FOR ANY BREACH OR DEFAULT BY ENSO CMS OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, ENSO CMS’S ENTIRE LIABILITY, SHALL IN NO EVENT EVER EXCEED ANY OF THE FOLLOWING: (i) THE FEES PAID TO ENSO CMS BY YOU PURSUANT TO THIS AGREEMENT IN THE CALENDAR YEAR IN RESPECT OF WHICH THE CAUSE OF ACTION FIRST AROSE EVEN IF THE CAUSE OF ACTION IS A CONTINUING ONE, OR (ii) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT.

(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ENSO CMS EVER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST ENSO CMS BY ANY OTHER PERSON, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.

(c) ENSO CMS SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY CONTENT, DATA, EQUIPMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.

(d) Neither party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to Enso CMS) more than two years after the cause of action has arisen or the date of discovery of such cause, whichever is later.

17. Indemnification
(a) Subject to Section 16 above, Enso CMS agrees to defend you from and against all third party claims, suits and proceedings brought against you, and will pay all final judgments awarded or settlements entered into on such claims, arising out of or resulting from a claim that User’s use of the Service as permitted under this Agreement infringes any copyright, trade secret or duly issued United States patent. In the event the Service becomes, or in Enso CMS’s opinion are likely to become, the subject of any such suit or action for infringement, Enso CMS may, at Enso CMS’s option and expense, (a) procure for User the right to continue using the Services, as applicable,

(b) replace or modify the Services, as applicable, so that it becomes non-infringing or (c) if neither (a) nor (b) are commercially feasible, expire the User ID assigned to you, accept return of the Services and give you a refund of the fees paid by you hereunder for the last 6 months, less a reasonable allowance for the period of time you has used the Services. Notwithstanding the foregoing, Enso CMS will have no obligation under this Section 17 or otherwise with respect to (a)any infringement claim based upon (i) any use of the Services not in accordance with this Agreement or for purposes not intended by Enso CMS, (ii) any use of in combination with other products, equipment, software, or data not supplied by Enso CMS, (iii) any use of any release of the Services other than the most current release made available to User or (iv) any modification of the Services by any person other than Enso CMS and/or (b) to refund any development costs for the Services.

(b)You agree to indemnify, defend and hold Enso CMS harmless from and against any and all third party losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) Enso CMS’s use or possession of the USER Content, (b) any breach by you of any terms, conditions, representations or warranties set forth herein or (c) any claims by any third party you authorize to use the Services, or your vendors.

(c) The indemnifying party’s indemnification obligations under this Section 17 are conditioned upon the indemnified party: (a) giving prompt notice of the claim to the indemnifying party; (b) granting sole control of the defense or settlement of the claim or action to the indemnifying party (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or, result in any ongoing material liability to the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim.

18. Confidential Information
(a) Confidential Information will include, but not be limited to, each party's proprietary software, technology, trade secrets and customer information, to the extent identified as confidential or proprietary, and the terms and conditions of this Agreement. Each party agrees, during the term of this Agreement and for a period of one (1) year thereafter, (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party shall not be in violation of this Section 18 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the receiving party provides the other party with prior written notice of such disclosure in order to permit either party to seek confidential treatment of such information.

(b)The restrictions on use and disclosure of Confidential Information set forth above shall not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records; (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.

19. Modifications To Service
Enso CMS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Enso CMS Services (or any part thereof) with or without notice. You agree that Enso CMS shall not be liable to User or to any third party for any modification, suspension or discontinuance of the Service, except that if Enso CMS discontinues the Services, you shall be entitled to the refund of any unearned fees for those Services.

20. Waiver and Amendment
Any waiver, modification, or amendment of any provision of this Agreement or other agreement for Enso CMS Services, initiated by you, will be effective only if accepted in writing and signed by an authorized representative of Enso CMS.

21. Independent Contractors
Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Enso CMS and its User. Each party will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.

22. Assignment
You may not assign the Agreement without Enso CMS's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.

23. Export Administration
You agree to comply with all applicable export and import control laws and regulations in its use of the Data Center, the Services and any data downloaded in connection therewith. You further agree not to provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations. User will defend, indemnify, and hold harmless Enso CMS from and against any violation of such laws or regulations by User or any of its agents, officers, directors, or employees. You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Enso CMS is legally prohibited to provide the Services.

24. General
(a) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 1 day after deposit with an overnight courier, 5 days after deposit in the mail, or upon confirmation of receipt of facsimile or email.

(b) Force Majeure. If the performance of this Agreement, or any obligation thereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; terrorism; epidemic; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable
control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed.

(c) Severability. To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.

(d) Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement.

(g) Attorney’s fees. If Enso CMS takes any action to enforce this Agreement, Enso CMS will be entitled to recover from you, and you agree to pay, all reasonable and necessary attorneys’ fees and any cost of litigation, in addition to any other relief, at law or in equity, to which Enso CMS may be entitled.

(h) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict or choice of law rules or principles. User hereby submits to the exclusive jurisdiction of the state and federal courts of the State of Colorado for any legal action arising out of this Agreement or the performance of the obligations hereunder.