Elecate, LLC

End User License Agreement for Reseller Customers

Effective Date: 2.24.2026

THIS END USER LICENSE AGREEMENT ("Agreement") is a binding agreement between you (“You” or “Primary User”) and Elecate, LLC. (“Elecate”), with a place of business located at 2967 Oak Run Pkwy Suite 400, New Braunfels, TX 78130 and (“Primary User”, together with Elecate, the “Parties”, and each a “Party”). The Parties agree to be bound as follows from the date of first use of the Services (the “Effective Date”) by Primary User or any of the Users. BY PRIMARY USER USING THE SERVICES OR AGREEING TO A DOCUMENT WITH A RESELLER FOR THESE TERMS TO APPLY TO THEIR USE OF THE SERVICES AND/OR PERMITTING USERS TO DO SO UNDER AN AGREEMENT WITH AN RESELLER, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES.
1. DEFINITIONS.
a. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity. 
b. “Reseller” means any entity authorized by Elecate (in writing under a reseller agreement) to be a reseller of Elecate products and services with whom Primary User purchased access to the Services.
c. "Aggregated Statistics" means data and information related to Primary User's and Users’ use of the Services that is used by Elecate in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
d. “Applicable Law” means all US federal, state, local and other laws, rules and regulations, ordinances, interpretive letters and other official releases of or by any governmental authority, decrees, orders and codes as the same are amended from time to time and as are applicable to a Party’s performance of its obligations under the Agreement, including any applicable law relating to the privacy or processing, protection, collection, use, or disclosure of personally identifiable information as more particularly described in any such applicable law. 
e. "Documentation" means this Agreement, or the training/Services guides that are, are accessible via login at Elecate online, and that may be updated from time to time. Updates of the Documentation are in Elecate’s sole discretion.
f. "Elecate IP" means the Services, the Documentation, and any intellectual property provided to Primary User or any User in connection with the foregoing. For the avoidance of doubt, Elecate IP includes Feedback and Aggregated Statistics, as provided herein. Herein, "intellectual property rights" means any registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, or trade secret or intellectual property rights laws in any part of the world.
g. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 
h. “PII” means (i) information about an identified or identifiable individual or household as more particularly described in any Applicable Law in any way relating to privacy and the protection, collection, use, disclosure or distribution of personally identifiable information, including without limitation to the generality of the foregoing, personally identifiable healthcare information or personally identifiable financial information, or (ii) where no Applicable Law applies, means any information that by itself or when combined with other information (such as, but not limited to, names, addresses, telephone numbers, e-mail addresses, credit card number, demographic information, static IP address and government issued identification number) can be used to identify a specific living natural person or household.
i. "Primary User Data" means all Primary User and User electronic information entered into the Services or otherwise provided from Primary User or Users to Elecate pursuant to this Agreement. 
j. “Services” means any Elecate software as a service products and related services that are ordered by Primary User through a Reseller and made available by Elecate or the Reseller online via the Primary User login or otherwise. "Services" excludes non-Elecate applications or software of any kind.
j. “Service Fees” means the fees payable for the Services
k. “Subscription Term” means the applicable annual term for the Services which has been agreed between Elecate and Reseller in writing for Primary User. 
l. "Third-Party Products" means any third-party products that Primary User or a User uses to connect with the Services. 
m. "Users" means persons who are authorized by Primary User to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Primary User or by Users. Primary User must ensure that Users not share their user identification or passwords and further protect them. Primary User is responsible for its Users who can only be created in accordance with the terms agreed with Reseller pursuant to the Reseller Agreement.
2. SERVICES
2.1. Provision of Services. Subject to and conditioned on Primary User's and its Users' compliance with the terms and conditions of this Agreement, Elecate hereby grants Primary User a non-exclusive, non-transferable (except in compliance with Section 2.3) right to access and use the Services during the applicable Subscription Term solely for use by Primary User and Users in accordance with the Documentation for their internal business purposes of catering management during the Subscription Term. Services must be paid for by Reseller to Elecate in order for any User to use the Services. Primary User agrees that Primary User’s access to Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral/written public comments made by Elecate or an Reseller regarding future functionality/features. Elecate hereby grants to Primary User for the applicable Subscription Term a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 2.3) and revocable license to use the relevant Documentation and any other manuals, instructions, or other materials that Elecate makes available to Primary User which describe the features/requirements of the Services solely for Primary User’s internal business purposes of catering management during the Subscription Term. 
2.2. Limitations. Primary User will not (and will not permit any third party or User to): (i) modify, port, translate, localize or create derivative works based on the Services, (ii) use, copy, sell, rent, lease, market, distribute or sublicense the Services except as otherwise specifically permitted hereunder; (iii) reverse engineer, decompile, or disassemble the Services; (iv) access the Services in order to build or contribute to a competitive product or service, (v) access the Services in any manner that violates any intellectual property right of a third party, (vi) remove, or allow to be removed, any Elecate proprietary rights notice from any Elecate product, (vii) disclose the results of performance tests run on the Services to any third party without Elecate’s prior written consent, (viii) make the Services available to anyone other than Users, (ix) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (x) use the Services to store or transmit Malicious Code, (xii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (xiii) attempt to gain unauthorized access to the Services or their related systems or networks. This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of Elecate that is not expressly granted herein. Primary User shall; (a) be responsible for the administration of User identifications and passwords and Users' compliance with this Agreement and shall require Users to acknowledge their understanding of and compliance with the restrictions and responsibilities related to the use of the Services, including, without limitation, protecting their User identification and passwords and compliance with all Applicable Laws; (b) use their best efforts to prevent unauthorized access to or use of the Services, and notify Elecate promptly of any unauthorized access or use, and (c) use the Services only in accordance with the Documentation and Applicable Laws. If Primary User becomes aware of any actual or threatened activity prohibited by this Section, Primary User shall, and shall cause its Users to, immediately: (A) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services); and (B) notify Elecate immediately in writing of any such actual or threatened activity.
2.3. Users. Primary User may permit the correct number of Users to use the Services according to the tier of Services that Elecate and Reseller have agreed in writing to provide to Primary User pursuant to a Product Schedule between Elecate and Reseller. The Primary User is responsible to ensure that its Users comply with all the same obligations regarding use of the Services that it is bound by hereunder. Primary User is solely responsible for the activity that occurs on all associated User accounts. Users are required to keep their user account, username, and password secure. Primary User must notify Elecate immediately of any breach of security or unauthorized use of any User’s account. Elecate shall not be responsible for any losses arising out of the loss or theft of user information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions. If there is a security incident caused due to a failure of Primary User or its Users to follow the requirements of this Agreement, Elecate will use its best reasonable endeavors to help mitigate any damage, however there will be charges for such services at the then applicable rate charged by Elecate.
2.4. Use of Services Primary User is solely responsible for its and its Users’ compliance with all Applicable Law in the use of the Services and Elecate shall have no liability for Primary User’s or its Users’ input of data or use of the Services. Primary User agrees that Primary User (a) will confirm the accuracy of any bulk upload/API/data migration/auto-geo assignment integration into the Elecate system, and (b) further understands that bulk uploads/API/data migration are effective only as of the date of the upload(s)/migration(s). It is Primary User’s responsibility to provide updated data to Elecate. Primary User agrees to not directly send any PII by email or otherwise (to Elecate outside of the Elecate SaaS Services product offering) without prior written approval from the Elecate Chief Experience Officer. 
2.5 Changes. Elecate reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Elecate's services to its customers; (ii) the competitive strength of or market for Elecate's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with Applicable Law. 
2.6. Data Backup. The Services are programmed to perform routine data backups as set out in Elecate's backup policy in effect from time to time (the "Backup Policy"). In the event of any loss, destruction, damage, or corruption of Primary User Data for any reason, Elecate will, as its sole obligation and liability and as Primary User's sole remedy, restore the Primary User Data from Elecate's then most current backup of such Primary User Data in accordance with the then current Backup Policy. It is the Primary User and the Users responsibility to maintain their own back-ups of their original data..
2.7. Primary User Control and Responsibility. Primary User has and will retain sole responsibility for: (a) all Primary User Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Primary User or any User in connection with the Services; (c) Primary User's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Primary User or through the use of third-party services ("Primary User Systems"); (d) the security and use of Primary User's and its Users' access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Primary User Systems or its or its Users' access credentials, with or without Primary User's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
2.8. Data Privacy. The Parties agree that, between the Parties, Primary User shall serve as the business or controller and Elecate shall serve as the service provider or processor, as those terms are defined under Applicable Law. Elecate, as a service provider on behalf of Primary User, shall not access, use, process or retain Primary User Data containing PII except as necessary to perform its obligations under this Agreement except in strict accordance with the written instructions of Primary User, or as otherwise required for Elecate to meet its own legal obligations under Applicable Law. Primary User agrees however that Elecate may contact Users, in compliance with Applicable Law, with Elecate products or services, such as for example training certifications they may need from Elecate. Notwithstanding the foregoing, Elecate may use, disseminate, and otherwise process deidentified or aggregated Primary User Data to the full extent allowed under Applicable Law and pursuant to its own discretion. Elecate shall use reasonable endeavors to notify Primary User in the event that it receives any consumer rights requests under Applicable Law, if the requestor informs Elecate of the relevant employing entity who is also the Primary User, and the Primary User shall have the sole responsibility in responding to such requests, and also for ensuring the requestor’s identity. Primary User has the right to take commercially reasonable steps (as agreed between the Parties) to ensure Elecate’s compliance with Applicable Law. Elecate will notify Reseller and Primary User if Elecate makes a determination that it can no longer meet its obligations under Applicable Law. Primary User is granted the right, upon reasonable notice (with an opportunity for Elecate to cure), to take commercially reasonable steps with Elecate to remediate Elecate’s use of personal information in breach of this Agreement.
3. PROPRIETARY RIGHTS
3.1. Reservation of Rights. The Services are not sold to Primary User or any third party. Elecate reserves all rights, title, and interest in and to Services and its underlying software covered by this Agreement, including but not limited to all related intellectual property rights. No rights are granted to Primary User hereunder (whether by waiver, implication, estoppel, or otherwise) other than as expressly set forth herein. 
3.2. Feedback and Aggregated Statistics. Any suggestions, enhancement requests, forms created, recommendations or other feedback relating to the operation/provision of the Services provided by Primary User, including by Users, or worked on by Elecate and Primary User/Users (“Feedback”), during and after the Term is and remains the intellectual property of Elecate and Elecate has all rights therein to exploit and commercialize any Feedback as Elecate chooses without compensation or other consideration to Primary User or any Users. Elecate is not required to use any Feedback. Notwithstanding anything to the contrary in this Agreement, Elecate may monitor Primary User and Users use of the Services and collect and compile Aggregated Statistics. As between Elecate, the Primary User and its Users, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Elecate without compensation or other consideration to Primary User. Primary User acknowledges that Elecate may compile Aggregated Statistics based on Feedback. Primary User agrees that Elecate may (i) make Aggregated Statistics publicly available in compliance with Applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under Applicable Law, provided that such Aggregated Statistics do not identify the Primary User’s or Users’ Confidential Information. All Users of Services may be contacted by Elecate with information about Elecate or partner events, services or products, and they will be given the opportunity to opt-out of any such communications. If Primary User receives Aggregated Statistics generally from Elecate, Primary User agrees not to attempt to re-identify any such Aggregated Statistics.
3.3. Privacy Policy and Terms. The Privacy Policy and Terms of Use online at Elecate.com apply to Elecate’s provision of Services and access to Elecate Website and Services.
3.4. Primary User Data. Elecate acknowledges that, except as provided herein, as between Elecate and Primary User, Primary User owns all right, title, and interest, including all intellectual property rights, in and to the Primary User Data. Primary User hereby grants to Elecate a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Primary User Data and perform all acts with respect to the Primary User Data as may be necessary for Elecate to provide the Services to Primary User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use Primary User Data within the Aggregated Statistics and Feedback. Elecate is not responsible for any errors due to inaccurate information provided by Primary User or Users. 
4. CONFIDENTIALITY
4.1. Definition of Confidential Information. As used herein, "Confidential Information" means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without prejudice to the generality of the foregoing Confidential Information shall include business and marketing plans, technology and technical information, product plans, pricing and designs, and business processes disclosed by a Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information. 
4.2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein. 
4.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. 
5. WARRANTIES AND DISCLAIMERS
5.1. Warranties. Elecate warrants that (i) Elecate has validly entered into this Agreement, (ii) the Services shall perform materially in accordance with the Documentation, (iii) Elecate will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and (iv) Elecate will not transmit Malicious Code to Primary User, provided it is not a breach of this subpart (iv) if Primary User or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty in this Section, Primary User’s exclusive remedy shall be as provided in Section 9.1 and Section 9.4. ELECATE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. 
5.2. Primary User Warranties. Primary User represents and warrants that (i) Primary User has validly entered into this Agreement, (ii) Primary User has collected all PII in accordance with all Applicable Law, including in relation to the provision of any notice and for obtaining any consent required under any Applicable Law, contract, or privacy policy in connection with Primary User’s provision of PII into the Services to Elecate under this Agreement, (iii) Primary User has all sufficient and necessary rights to transfer PII into the Services to Elecate under this Agreement, (iv) Primary User has the rights to use the data in the Services in the manner it chooses to utilize the Services; and (iv) Primary User will follow best practices in relation to data security. Primary User acknowledges that Primary User is solely responsible for the content uploaded into the Services and warrants that Primary User shall comply with all Applicable Law in its use of the Services and shall require all Users to acknowledge and agree to comply with Applicable Law, any applicable User terms of service or privacy policy, and the requirements of this Agreement in the same way as they apply to Primary User.  
5.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE SERVICES ARE PROVIDED “AS IS” AND ELECATE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ELECATE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ELECATE HAS NO RESPONSIBILITY FOR ANY CREDIT CARD/MERCHANT VENDOR’S SERVICES IN ANY WAY EVEN IF USED IN CONJUNCTION WITH THE SERVICES.
6. MUTUAL INDEMNIFICATION
6.1. Indemnification by Elecate. Elecate shall defend Primary User against any claim, demand, or proceeding made or brought against Primary User by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the US intellectual property rights of such third party in respect of use of the Services (a "Claim Against Primary User"), and shall indemnify Primary User for any damages, reasonable attorney fees and costs finally awarded against Primary User as a result of, and for amounts paid by Primary User under a court-approved settlement of a Claim Against Primary User; provided that Primary User (a) promptly provides Elecate written notice of the Claim Against Primary User; (b) allows Elecate sole control of the defense and settlement of the Claim Against Primary User (provided that Elecate may not settle any Claim Against Primary User unless the settlement unconditionally releases Primary User of all liability); and (c) provides to Elecate all reasonable assistance, at Elecate’s expense. In the event of a Claim Against Primary User, or if Elecate reasonably believe the Services may infringe or misappropriate a third party’s intellectual property rights, Elecate may, in Elecate’s sole discretion and at no cost to Primary User, (x) modify the Services so that they are no longer infringing, without breaching Elecate warranties under Section 5.1 above, (y) obtain a license for Primary User’s continued use of the Services in accordance with this Agreement, or (z) if Elecate determines that neither of the foregoing is commercially practicable and if Primary User is not permitted to continue using the Services, then this Agreement will terminate with respect to such infringing Services, and Primary User shall be entitled to recover from the Reseller an amount equal to a pro-rated portion of the applicable prepaid Service Fees paid for the Services for the remaining Subscription Term for the applicable Services. Elecate shall have no liability for any infringement claim based on Primary User or User Data, or Primary User’s or its Users’ use of the Services in a manner not permitted hereunder, where such claim would not arise but for such Primary User Data or Primary User’s or its Users’ unauthorized use of the Primary User Data or the Services. Elecate will not be held responsible for actions outside its reasonable control and retains all its defenses at law and at equity.
6.2. Indemnification by Primary User. Unless prevented by Applicable Law, Primary User shall indemnify, hold harmless, and, at Elecate’s option, defend Elecate, it’s directors, officers and employees against any claim, demand, suit or proceeding made or brought against Elecate by a third party alleging that Primary User Data, or Primary User’s or its Users’ use of the Services in a manner not permitted hereunder, (i) infringes or misappropriates the intellectual property rights of a third party or (ii) violates Applicable Law, including, without limitation, a Primary User’s breach of Section 4.2(iii) (together with Section 6.2(i), a "Claim Against Elecate"), and shall indemnify Elecate for any damages, attorney fees and costs finally awarded against Elecate as a result of, or for any amounts paid by Elecate under a court-approved settlement of, a Claim Against Elecate; provided that Elecate (a) promptly gives Primary User written notice of the Claim Against Elecate; (b) gives Primary User sole control of the defense and settlement of the Claim Against Elecate (provided that Primary User may not settle any Claim Against Elecate unless the settlement unconditionally releases Elecate of all liability); and (c) provides to Primary User all reasonable assistance, at Primary User expense. 
6.3. Exclusive Remedy. THIS SECTION 6 STATES THE INDEMNIFYING PARTY'S ENTIRE LIABILITY TO, AND THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF INDEMNIFIED CLAIM DESCRIBED IN THIS SECTION. 
7. LIMITATION OF LIABILITY. IN NO EVENT WILL ELECATE BE LIABLE UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT WITH THE PRIMARY USER UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (b) LOST REVENUES; (c) LOSS OF GOODWILL OR REPUTATION; (d) LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA; OR (e) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER PRIMARY USER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE. IN NO EVENT WILL ELECATE'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENT WITH PRIMARY USER UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED ONE (1) YEAR OF SERVICE FEES PAID BY THE PRIMARY USER IN RESPECT OF THE AFFECTED ELECATE PRODUCT(S) AND SERVICES USED BY PRIMARY USER. PRIMARY USER ACKNOWLEDGES THAT ELECATE COULD NOT MAKE ITS SERVICES AVAILABLE TO PRIMARY USER ON THE TERMS SET FORTH HEREIN IF ELECATE’S LIABILITY WERE NOT SO LIMITED.
8. TERM. This Agreement commences on the date that you begin use of the Services and continues until termination of this Agreement as provided herein by Elecate or termination of the Services by Reseller, whichever occurs first. 
9. TERMINATION
9.1 Termination for Cause (a) Elecate may terminate for cause: (i) upon thirty (30) days written notice to the other Party of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if there is a Service Suspension which is not in the opinion of Elecate commercially reasonably or practically capable of being cured.(b) Elecate may terminate (effective immediately upon notice to the Reseller and Primary User) for a breach of Section 2.2 or failure to receive required Service Fees from Reseller.
9.2. Termination for Discontinuance. Elecate may, with no liability to the Primary User or the Users, also terminate this Agreement to the extent Elecate discontinues any Services, but will give reasonable notice of such discontinuance to Primary User.  
9.3. Effect of Termination. Upon termination of this Agreement for any reason, Primary User’s (and any Users’) right to continue using the relevant Services under this Agreement shall immediately cease. Upon request from Primary User in writing upon termination of this Agreement, Elecate shall promptly delete all Primary User Data in the Services (in accordance with Elecate normal back-up procedures, but any Primary User Data not deleted due to a back-up procedure will not be kept for longer than six (6) months in the event of a request for deletion, and during that time Elecate’s obligations under this Agreement for confidentiality will continue to apply). All Sections intended by their nature to survive termination, including, without limitation, Sections 4, 5, 6, 7, and 9 shall survive any termination or expiration of this Agreement. 
9.4. Service Suspension. Notwithstanding anything to the contrary in this Agreement, Elecate may temporarily suspend Primary User's and any User's access to any portion or all of the Services if: (i) Elecate reasonably determines that (a) there is a threat or attack on any of the Elecate IP; (b) Primary User's or any User's use of the Elecate IP disrupts or poses a security risk to the Elecate IP or to any other customer or vendor of Elecate; (c) any User is using the Elecate IP for fraudulent or illegal activities; (d) subject to Applicable Law, Primary User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Elecate's provision of the Services to Primary User or any User is (x) prohibited by Applicable Law, or (y) deemed by Elecate to be commercially unfeasible due to Applicable Law; or (ii) any vendor of Elecate has suspended or terminated Elecate's access to or use of any third-party services or products required to enable Primary User to access the Services (any such suspension described in subclause (i) or (ii) of this Section 9.4, a “Service Suspension”). Elecate will have no liability for any liabilities or any other consequences that Primary User or any User may incur as a result of a Service Suspension.
10. GENERAL PROVISIONS
10.1. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the permissions granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of Los Angeles, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded from this Agreement. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. 
10.2. Notices. Any notice required or permitted to be delivered pursuant to this Agreement, and any permission and approval required hereunder shall, unless otherwise provided herein, be in writing and shall be deemed to have been given: (i) upon delivery, if delivered in person, (ii) upon electronic confirmation of delivery if sent by electronic mail, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid, in the case of Elecate addressed to the addressee set out in the first paragraph of this Agreement or in the case of Primary User to such other address as may be specified by Primary User (which if not provided a primary business office of the Primary User addressed to the Legal Team). Certain Elecate updates regarding the Services are provided to Primary User through a dynamic banner in the Services. 
10.3. Severability. If a provision of the Agreement or portion thereof is found to be invalid, illegal, or unenforceable under Applicable Law, it shall not invalidate or render unenforceable the remainder of such provision or the remaining provisions of the Agreement. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner.
10.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Elecate may reach out from time to time with opportunities to Primary User or Users in relation to other Elecate product opportunities and Primary User consents to this. No employee, director, or officer of Elecate shall be held personally liable under this Agreement or in any connected to the provision of the Services. There are no third-party beneficiaries to this Agreement.
10.5. Waiver. No failure or delay by either Party in exercising any right or partial right, remedy, power or privilege under this Agreement shall constitute a waiver of that right, remedy, power or privilege.
10.6. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party (as long as all Parties notified in writing sixty (60) days in advance), to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party, provided that the assignee agrees in writing to be bound by the terms of this Agreement and has sufficient funds to discharge the assignor’s liabilities hereunder. A Party's sole remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party's election, termination of this Agreement upon written notice to the assigning Party and payment of all sums owing under the terms of this Agreement. 
10.7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted, and in order to effectively amend the terms of this Agreement, any amendment must specifically call out the Section of this Agreement to be amended. In the event of any other agreement being applicable, this Agreement will take priority.
10.8. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by an event of Force Majeure (”Force Majeure” hereunder means any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labor, trade disputes, breakdowns, accidents of any kind which are beyond the reasonable control of a Party, or passage of law or any action taken by a governmental or public authority, which makes it commercially unreasonable to continue to have this Agreement in force).
10.9. Equitable Relief. Primary User acknowledges and agrees that a breach or threatened breach by Primary User of any of its obligations under Section 2.2, would cause Elecate irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Elecate will be entitled to seek equitable relief from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 
11. Service Fees
11.1. Service Fees are due in accordance with your order with the Reseller, and again on the twelve-month anniversary of the Subscription Term. Elecate does not control pricing of the Services to Primary User, but does require payment from Reseller in accordance with Elecate’s contract with Reseller for the level of Services chosen by Primary User. 
11.2. Service Fees for optional additional professional services to be included into the Services shall be invoiced to the Reseller selected by Primary User and due in accordance with your order with the Reseller in compliance with Elecate’s contract with Reseller for the type of Services chosen by Primary User.   
12. SLA. The SLA attached hereto as an Addendum below applies to this Agreement.

SLA Addendum A (the “Addendum”) to the End User License Agreement for Reseller Customers

ELECATE MAINTENANCE & SUPPORT ADDENDUM 

1.    Definitions. For the purposes of this Addendum, in addition to the terms defined in the text of this Addendum or in the Agreement to which it applies to, the following terms shall have the following respective definitions:
(a)    “Client Support” means the business team within Elecate that provides services to assist Primary User, as administrator of the Services, to resolve issues with the Services.
(b)    “Incident” means any set of circumstances resulting in a failure to meet a Service Level for Primary User usage of the Elecate SaaS platforms forming part of the Services except for an Incident caused by an Exclusion.
(c)    “Service Credit” is the percentage of the monthly portion of the Service Fees for the Services (that are attributable to the main SaaS product for access to the applicable areas of the Elecate Professional SaaS platform only) that is credited to Primary User for a Service Level not met pursuant to this Addendum for the month where the Service Level was not met pursuant to this Addendum.
(d)    “Service Level” means standards Elecate adheres to and by which it measures the level of service it provides as specifically set forth below.
(e)    “Software Error” means any reproducible failure of the SaaS platform Services to materially conform with a reasonable level of functionality.

2.    Service Credit Claims.
(a)    It shall be in the sole discretion of Elecate to determine whether Elecate has met the relevant Service Level. Primary User and any other parties working with Primary User and using the Services must at all times cooperate with Elecate in testing, determining, and verifying that a qualifying service outage under this Addendum has occurred.
(b)    Elecate provides the Service Credits described below subject to the terms of this Addendum. These Addendum terms will be fixed for the duration of the initial twelve (12) month term of the Subscription Term. The version of this Addendum that is current at the time the next twelve (12) months of the Subscription Term commences will apply throughout the next twelve (12) months of the Subscription Term. 
(c)    In order to be eligible to submit a claim with respect to any Incident, the Primary User must first have notified Client Support in writing of the Incident and its intention to submit a claim, using the procedures set forth by Elecate, communicated to the Primary User through the Agreement and this Addendum, within a maximum of two (2) business days following the Incident.
(d)    Primary User must provide to Client Support all reasonable details regarding the claim, including but not limited to, detailed descriptions of the Incident(s), the duration of the Incident(s), the portion of the SaaS platform Services affected and any attempts Primary User or a User made by itself to resolve the Incident.
(e)    In order for Elecate to consider a claim, Primary User must submit the claim, including sufficient evidence in Elecates consideration to support the claim, within thirty (30) days from the Incident.
(f)    Elecate will use all information reasonably available to it, namely information received by the Primary User and information collected by its Client Support Department, to validate claims and make a good faith judgment on whether the Incident is a qualifying claim under this Addendum.

3.    Exclusions. Service Levels do not apply to any performance or availability issues:
(a)    Due to circumstances or factors outside Elecate’s reasonable control;
(b)    That resulted from Primary User’s or third-party hardware or software, or as a result of a customization or report generation requested by Primary User;
(c)    Caused by the failure or deficient performance of power, equipment, products, services, or systems not provided by Elecate;
(d)    That resulted from actions, inactions, misconduct or accident of Primary User, Users, or third parties or any other breach of the Agreement;
(e)    Caused by Primary User’s or User’s use of the Services after Elecate advised Primary User or User to modify its use of the Services, if Primary User did not modify its use as advised;
(f)    During Scheduled Downtime (maintenance or upgrades);
(g)    Where the subject impact, risk, or non-conformity, as applicable, is of little or no importance or significance;
(h)    During beta, test, and trial services (as determined by Elecate); or
(i)    Caused by the failure by Primary User or a User to take an action required by Elecate to resolve an Incident.
Sections 3 (a) – (i) above referred to herein as the “Exclusions”.

4.    Service Credits.
(a)    The amount and method of calculation of Service Credits is described below in connection with each Service Level description.
(b)    Service Credits are Primary User’s sole and exclusive financial remedy for any Incidents.
(c)    The Service Credits awarded in any calendar month shall not, under any circumstance, exceed Primary User’s monthly Service Fees for the basic access subscription to the affected SaaS product forming part of the Services.
(d)    Service Credits do not apply to and do not include work performed for one-time Service Fees associated with the Services, or to any taxes, programming work Service Fees, customization Service Fees, or any fees associated with other vendors providing services to Primary User or Users.
(e)    Service Credits will not result in any refunds and can only be applied against amounts payable by Primary User.
(f)    Service Credits are only paid to Primary User and other Users are not entitled to any compensation.

5.    Monthly Uptime Service Levels for the Elecate SaaS platform in the Elecate SaaS platform portion of the Services.
(a)    Definitions.
(i)    “Downtime” is defined as any period of time when Primary User is unable to access the affected SaaS platform Services.
(ii)    “Scheduled Downtime” is defined as: (i) Downtime within pre-established maintenance windows; or (ii) Downtime during major version upgrade.
(iii)    “Monthly Uptime Percentage” for a specific Primary User is calculated by taking the total number of minutes in a calendar month minus total number of minutes of Downtime experienced in a given calendar month, divided by the total number of minutes in that calendar month. 
(b)    Uptime Service Levels and Monthly Service Credit.

Monthly Uptime Percentage      Applicable Monthly Service Fees Credit

       >=99.5%                                      0.0%

       < 99.5%                                       5%
    
6.    Support.
(a)    Submission of Error Reports. Primary User may report Software Errors to Elecate by telephone, e-mail, or the internet. Primary User will use reasonable efforts to provide information requested by Elecate regarding a reported Software Error. Elecate will maintain a record of all submitted Software Error reports and track Elecate actions toward problem resolution.
(b)    Correction of Software Errors. Elecate will endeavor to correct all Software Errors reported by Primary User in accordance with this Addendum and the Table below.
(c)    Unless otherwise mutually agreed in writing, upon receiving a Software Error report from Primary User, and provided that the Software Error can be recreated, Elecate shall respond and use commercially reasonable efforts to correct the Software Error in accordance with this Addendum. “Response” means confirming receipt of a Software Error, verifying details, attempting to duplicate the Software Error, and confirming status to Primary User. “Resolution” means providing Primary User requestor with an answer, a patch being made to the Services or a resolution action plan. Furthermore, the Primary User and, where applicable, the Primary User's authorized Users are required to assist Elecate in resolving Software Errors, and any Service Level standards referred to in this Addendum will be extended/changed if the Primary User or these other involved parties fail to cooperate or provide necessary resources or information.

(d)