Terms of Service

To the fullest extent permitted by applicable law, this Terms of Service is an Agreement between Provider (“We”, “Us”, or “Our”) and Client (“You” or “Your”) that is binding as of the Effective Date and throughout the applicable Term. By using the Services, You agree to be bound by all of the terms and conditions herein.

  1. Your Microsoft Agreements. For all applicable Microsoft products and services You use, if any, Your use is governed by and subject to all applicable Microsoft agreements, licenses, policies, notices, and other terms and conditions, including without limitation the latest version of each of the following:
    1. Product Terms (PT)(formerly, the Product Use Rights and the Product List);
    2. Online Service Terms (OST);
    3. Service Product Use Rights (SPUR);
    4. Service Level Agreements for Microsoft Online Services (SLA); and
    5. ISV EULAs and Product List.
  2. HIPAA Business Associate Agreement. If You are a “covered entity” or a “business associate” and Your Content includes “protected health information” (“PHI”) as those terms are defined in 45 CFR § 160.103, We will only accept, use and handle the PHI in accordance with the HIPAA Business Associate Agreement (“BAA”) available on our website at https://envoy.protectedtrust.com.
  3. Definitions. Each capitalized term used in this Agreement has the meaning set forth below in both its singular and plural forms. Some terms are defined when first used and do not appear in this Definitions section. These definitions apply only to this Terms of Service. Other Provider or Third-Party agreements may have different definitions that apply to those agreements.
    1. “Content” means any and all data and/or information in any file format that is uploaded, transferred to, or otherwise stored, accessed, and/or used on the Services in any manner whatsoever by or on behalf of You, including without limitation all symbols, codes, sounds, images, videos, writings, documents, spreadsheets, presentations, databases, and computer languages and programs of every kind.
    2. “Effective Date” means 12:00:00am Eastern Time (aka, Midnight) on the earliest calendar date when You: (i) accept this Agreement by any words or action, including but not limited to clicking the “I Agree” button; (ii) have an order to license or purchase Services accepted by Us; (iii) point any domain mail exchange (MX) record or domain name system (DNS) record to Us or Our facilities; or (iv) first access, install, copy, or use the Services with Our knowledge and permission.
    3. “Party” means either or both of the Provider and/or Client.
    4. “Provider” (“We”, “Us”, or “Our”) means Protected Trust LLC, a Florida limited liability company, including Our applicable subsidiaries, Elephant Outlook LLC, IF&D Datasuites LLC, and Protected Trust Envoy LLC.
    5. “Services” means any or all of Provider’s Software and services that Client accesses, installs, copies, uses, orders, licenses, or purchases.
    6. “Software” means all proprietary, open source, and Third-Party software and related services developed, licensed, re-sold, supplied, or otherwise made available or managed onsite, in-house, or via the internet (aka, the “cloud”) by Us to or on behalf of You or any Third-Party, and all related documentation and media in any format.
    7. “Term” means a period of time beginning on the Effective Date and ending at 11:59:59pm Eastern Time on the earlier of either the day before the first anniversary of the Effective Date or such other period as may otherwise be agreed to in a writing signed by both Parties (“Initial Term”), and each one-year period of time after the Initial Term until each successive anniversary of the Effective Date (“Renewal Term”), or until the Agreement is earlier terminated as provided herein.
    8. “Third-Party” means an individual or legal entity other than Us and You and each of the foregoing’s their respective Affiliates, and specifically includes Microsoft Corporation.
    9. “User” means any individual who accesses, installs, copies, uses, or orders the Services for or on behalf of the Client.
  4. Microsoft DPOR and DA. If You are licensing or purchasing any Microsoft-related service(s), You will immediately have the person who has the Administrator role (aka, Owner)—or such other role as may be applicable or which Microsoft may authorize.
    1. Attach a Partner of Record to each and all of Your Microsoft subscriptions (or update the same, if pre-existing) to assign and maintain Us as Your sole authorized Microsoft Digital Partner of Record (“DPOR” or “POR”)—including all successor such designations and processes—for the duration of this agreement; and
    2. Assign and maintain Us as Your sole authorized Microsoft Delegated Administrator (“DA”) with full administration rights—including all such successor designations and processes.
  5. Software Ownership.  The Software is licensed, not sold, for use by You under the terms of this Agreement or any applicable Third-Party license. You have no rights, titles, or interests to any of the foregoing except as may be explicitly granted herein or in another written agreement signed by all applicable Parties.  All intellectual property, including without limitation, patents, copyrights, trademarks, and service marks (“IP”), and all related identifiers, including without limitation, all characters, symbols, depictions, graphics, logos, slogans, trade names, product names, and brand names (“Marks”) remain the exclusive property of their respective owners. You are prohibited from using any IP or Marks without each owner’s prior written permission.
  6. Content Ownership and License. We do not own Your Content. You represent and warrant that you are the Content owner and/or authorized licensee with full authority to grant to Us—which you hereby do—a nonexclusive, worldwide, royalty-free, fully-paid, irrevocable, transferable license and/or sub-license, as applicable, to host, cache, record, copy, access, listen to, view, and display Content solely as necessary to provide and maintain the Services, and to comply with applicable law, including without limitation applicable orders and warrants from authorized government officials.
  7. Your Rights. Subject to Your full compliance with all applicable law, this Agreement, and Our Acceptable Use Policy (“AUP”), We grant You a non-exclusive, revocable right, as applicable, to access, install, and/or use the Services during the Term. Your use of all Third-Party software, if any, is governed by the applicable license(s).
  8. Compliance with Law. Your right to use the Services is contingent upon—and will at all times be in full compliance with—all applicable local, state, national, and international laws, regulations, and ordinances, including without limitation any of the foregoing governing: safety of persons, entities, and property; security or privacy of data, information, and communications; protection of intellectual property (e.g., patent, copyright, trademark, and trade secret laws); restrictions and bans on unsolicited communications, unfair trade practices, harassment, threats, obscenities, reputation harm, publicity, use of likeness, and exports.
  9. Maintenance. We will make periodic changes, updates, and upgrades to maintain and/or improve the Services (“Maintenance”). If We ever need to perform emergency Maintenance, We will provide advance notice of such emergencies to the extent reasonably practical. However, We reserve the sole and exclusive right to take whatever emergency and non-emergency Maintenance actions it deems necessary, regardless of whether advance notice is provided.
  10. Automatic Updates. We may, at any time, in our sole discretion and without further notice, implement updates and upgrades, including without limitation alterations of functionality, relating to the Services (collectively, “Updates”) that We make generally available to Our other clients.
  11. Suspension of Service to Avoid Harm. We may temporarily suspend or discontinue the Services at any time, with or without notice to You, if We reasonably concludes that such action is necessary to avoid an imminent risk of harm to Us or any client, User, or third party.
  12. Force Majeure. We will not be in breach of this Agreement due to any failure to perform what would otherwise be Our obligations hereunder as a result of a cause beyond Our reasonable control, including any natural calamity, act of terror or a public enemy, criminal act, act of any military, civil or regulatory authority, change in any law or regulation, disruption or outage of communications, power or other utility, or other cause which could not have been prevented by Us using reasonable care.
  13. Business Continuity. If We are unable to continue providing the Services to You, at the earliest practical time, We will provide You access to, or a copy of, the most current backups of Your data, as well as all necessary information, including application settings and utilities, to facilitate a transition of Your data to You or another provider. For complete details, see the section herein titled, “Right to Copy Data.”
  14. Users; Pricing; Payments. You may increase and decrease the number of Users during the Term. Your pricing for the Services is based on the aggregate number of Services and Users. Your price level for the Services may be adjusted if You increase or decrease the number of Users for the Services during the Term and You qualify for a different price level. Price level changes are not retroactive. If You increase or decrease the number of Users, any resulting change in the payment due for the Services is not pro-rated. Prices for each price level are fixed at the time the Services are first placed and will apply throughout the Term. Prices and price levels are subject to change at the beginning of any and each Renewal Term. Payments for the Services are due and must be paid in accordance with Your selection of payment options when submitting the initial Services order associated with this Agreement.
  15. NO HIGH RISK USE. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE WHERE FAILURE OR FAULT OF ANY KIND COULD LEAD TO INJURY, DAMAGE, OR DEATH (“HIGH RISK USE”), INCLUDING WITHOUT LIMITATION ANY KIND OF MENTAL, PHYSICAL, PROPERTY, OR ENVIRONMENTAL INJURY OR DAMAGE. YOU MAY NOT USE THE SERVICES IN, OR IN CONJUNCTION WITH, ANY HIGH RISK USE, INCLUDING WITHOUT LIMITATION IN ANY MEDICAL OR OTHER LIFE-SAVING DEVICE OR SYSTEM, TRANSPORTATION DEVICE OR SYSTEM, OR ANY CHEMICAL OR NUCLEAR DEVICE, SYSTEM, OR FACILITY.
  16. Export Restrictions. You acknowledge that the laws and regulations of the U.S. restrict the export and re-export of commodities and technical data of U.S. origin, including the Services. Without limiting the foregoing, You acknowledges that the Services are or may be an encryption item subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You will not export or re-export the Services in any form in violation of U.S. export laws or any foreign jurisdiction. You will indemnify, defend, and hold Us harmless from and against any violation of such laws and regulations.
  17. Other Client Restrictions. You will not, absent the prior informed, freely given, and intentional consent (aka, opt-in) of each applicable person and entity in a retained writing, use the Services to attempt to or actually do any of the following:
    1. Cause, contribute to, or participate in the communication of any unsolicited or unwanted message of any kind (“Spam”);
    2. Harvest, collect, copy, share, rent, sell or otherwise provide any personally identifiable information (“PII”);
    3. Use, download, copy, share, rent, sell or provide any directory or usage information of Ours or Our other clients, Users, or other users;
    4. Interfere with Our or any Third-Party’s use and enjoyment of the Services, or otherwise damage, disable, overburden, impair, interfere with, or disrupt the Services or any devices, networks, or other services connected to the Services;
    5. Gain unauthorized access to the Services, other accounts, or other computer systems;
    6. Rent, lease, grant a security interest in, or otherwise transfer any rights to use the Services;
    7. Reverse-engineer, modify, decompile, disassemble, translate, or otherwise attempt to derive, view, or learn source code of the Services;
    8. Defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (including without limitation rights of privacy and publicity) of others;
    9. Upload, share, or otherwise make available any file protected by intellectual property laws, including without limitation patent, copyright, trademark, and trade secret laws, except where You are the owner or duly authorized licensee;
    10. Upload, share, or otherwise make available any file containing without limitation any virus, Trojan horse, worm, time bomb, malware, cancelbot, or corrupted data that could cause or contribute to any misuse, interference, or damage to any person, entity, property, system, or information; or
    11. Alter or remove any symbols that communicate ownership, authorship, licensing, or intellectual property rights including without limitation patent, copyright, and trademark symbols or statements in or related to any data, information, or file.
  18. Termination for Convenience. For any reason, either Party may choose to terminate this Agreement effective at the end of either the Initial Term or then-current Renewal Term by providing a written notice of termination for convenience to the other Party not less than sixty (60) days prior to the end of such term.
  19. Termination for Cause. If either Party determines that the other Party has breached a material term of this Agreement, the non-breaching Party will provide the other Party written notice describing the breach and stating how it can be cured. The breaching Party will have thirty (30) days to cure the breach (“Cure Period”), but will use reasonable efforts to cure the breach promptly. If the breach is not cured within the Cure Period, the non-breaching Party may immediately terminate this Agreement.
  20. Effect of Termination. Immediately upon termination, except for Your right to copy Your data as described below, all access to and provision of the Services will end, and all sums that were not disputed by You in a writing delivered to Us prior to You receiving notice of termination for convenience, or notice of breach, are immediately due and payable in full to Us. If termination is for Your default, You will also be liable, as liquidated damages, to the sum of all monthly charges for the remainder of the then-current Initial Term or Renewal Term of this Agreement, and We will be entitled to recover from You Our reasonable expenses for court costs, litigation fees and expenses of suit, and reasonable attorneys’ fees.
  21. Right to Copy Data. Following termination or expiration of this Agreement, You will have ninety (90) days to make a copy of Your data (“Copy Period”). For each day thereafter, You will be charged a daily storage fee at Our then-current rate. We will provide You with reasonable assistance at Our expense, during the first thirty (30) days, after which You will pay Our then-current hourly rate for professional services assistance. After the Copy Period, We may, without notice or liability, permanently and irrecoverably delete Your data from all equipment not owned by You. As to PHI, you may have additional rights set forth in the BAA.
  22. All comments, feedback, suggestions, ideas, and other submissions related to the Services submitted at any time by You to Us via any method or medium—online or otherwise (collectively, “Submissions”) immediately and forever become Our property.
  23. Both Parties agree to hold in strict confidence and not to use or disclose to any Third-Party any information designated by the other Party as confidential or proprietary, or which by the nature of such information would reasonably be considered confidential or proprietary, including without limitation passwords or access keys to the Services. You are exclusively responsible for safeguarding the confidentiality of Your usernames, passwords, and access keys to the Services, and You accept sole liability for all damages that arise from every misuse of the same, even if You did not authorize such use, including uses that may incur additional fees. Each Party will immediately notify the other upon discovery of any unauthorized use or disclosure or loss of confidential information and will reasonably cooperate to help the other regain possession of the confidential information and limit its further unauthorized use or disclosure.
  24. Mutual Use of Party’s Names. Each Party grants to the other the right to list and refer to its business name in marketing materials, business development efforts, public relations materials, announcements, and other business-related communications, provided that all such uses present each Party in a positive manner. For example, We may refer to You as a client or customer, and You may refer to Us as a supplier or vendor.
  25. Website Materials Use and Removal. We are under no obligation to post, forward, transmit, distribute or otherwise provide any materials available on websites We own or operate, including materials provided by We reserve the sole and exclusive right to remove any such materials from Our websites at any time.
  26. Cross-Border Data Transfer; Safeguards. Personal information provided by or on behalf of You to Us may be transferred to and stored and processed in the United States of America (“U.S.”). Personal information provided by or on behalf of You to any Third-Party may be transferred to and stored and processed as provided in the Third-Party agreement(s). Regarding all of the foregoing actions related to such information, You attest that You have obtained all legally required consents, if any, and hereby authorizes the transfer of all such information to the U.S. from every country in which it was obtained. As required by law, We will abide by all active and applicable data protection-related agreements between the U.S. and the European Union (e.g., Safe Harbor, Privacy Shield, or Global Data Protection Regulation).
  27. LIMITATION OF LIABILITY.
    1. WE ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, DAMAGES TO SOFTWARE OR HARDWARE, OR YOUR COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. SUBJECT TO ALL OTHER LIMITATIONS OF LIABILITY HEREUNDER, OUR TOTAL AGGREGATE LIABILITY OF ARISING FROM OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE TOTAL NET PAYMENTS PAID BY YOU TO US FOR THE SERVICES IN THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES;
    2. WE ARE NOT LIABLE FOR DAMAGES TO, OR LOSS OR THEFT OF, YOUR PERSONAL PROPERTY, INCLUDING WITHOUT LIMITATION, SOFTWARE, HARDWARE, OR OTHER EQUIPMENT OR MATERIALS STORED AT, USED BY, OR SHIPPED TO OR FROM US. UNDER NO CIRCUMSTANCES WILL WE BE CONSIDERED THE OFFICIAL CUSTODIAN OR RECORD KEEPER OF YOUR DATA OR CONTENT FOR REGULATORY OR OTHER PURPOSES; AND
    3. THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, IF ANY, ARE THE EXCLUSIVE WARRANTIES FROM WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED. WE SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, ERROR-FREE SERVICES, UNINTERRUPTED SERVICES, IMPENETRABLE SECURITY, OR THAT THE SERVICES WILL MEET EVERY CONCEIVABLE CLIENT REQUIREMENT. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OR REPRESENTATION OF ANY KIND ON OUR BEHALF.
  28. Governing Law. This agreement is governed by the laws of the State of Florida excluding those laws relating to choice of law and as if it were performed entirely within Florida.
  29. Communications with Client. The Services are conducted electronically and We may communicate electronically and via postal mail or other carriers with You and any Users for any matters relating to the Services or Software, including without limitation educational information and notifications regarding product updates, incentive and rewards programs, training opportunities, and legal or other notices of any kind.
  30. Notices to Us. All notices from You to Us must be in writing and delivered to the following address via a tracking method that can be verified by Us (e.g., FedEx, UPS, or USPS certified mail, return receipt requested):
    Attn: Legal
    Protected Trust, LLC
    199 Ave B NW, Ste 240
    Winter Haven, FL 33881
  31. Third-Party Beneficiaries; Assignment. Except as expressly provided herein, this Agreement does not create any Third-Party beneficiary rights. You will not assign, sub-license, sub-contract, charge or otherwise encumber any of Your rights or obligations under this Agreement without Our prior written consent.
  32. Severability.
    1. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
    2. If an unenforceable provision is modified or disregarded in accordance with this section, then the rest of this Agreement will remain in effect as written; and
    3. Any unenforceable provision will remain as written in any circumstance other than those in which the provision is held to be unenforceable.
  33. Survival. Any terms and conditions which by their nature extend beyond termination remain in effect until fulfilled and apply to the Parties’ respective successors and assignees.
  34. Amendments to this Agreement. We may update this Agreement at any time by publication of such updates, which will become binding when You next use any of the Services.
  35. NOTICE OF ELECTRONIC CHECK CONVERSION. WHEN YOU PROVIDE A CHECK AS PAYMENT, YOU AUTHORIZE US TO USE INFORMATION FROM YOUR CHECK TO MAKE A ONE-TIME ELECTRONIC FUND TRANSFER FROM YOUR ACCOUNT. IN CERTAIN CIRCUMSTANCES, SUCH AS FOR TECHNICAL OR PROCESSING REASONS, WE MAY PROCESS YOUR PAYMENT AS A CHECK TRANSACTION.
  36. Entire Agreement. This Agreement, in combination with other signed agreements, if any, between the Parties (e.g., a Master Services Agreement, Order Agreement, Service Orders, BAA, etc.) comprise the entire agreement between the Parties with respect to the Services and supersedes all prior or contemporaneous communications and proposals, whether oral or written and whether electronic or non-electronic.

 

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