Cognytics Terms & Conditions | ECI Software Solutions

COGNYTICS™ DASHBOARD USER AGREEMENT

IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. The following sets forth the terms and conditions (the “Agreement”) pursuant to which ECI Software Solutions, Inc. (“ECI”) agrees to provide access to the Cognytics Dashboard product (the “Software”) and, when accepted, constitute a binding written agreement between ECI and the party on whose behalf this Agreement was accepted.

BY CLICKING “I AGREE”, “YES” OR BY ACCESSING THE COGNYTICS DASHBOARD SOFTWARE, CUSTOMER AGREES TO COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS, INCLUDING THE POLICIES AND GUIDELINES LINKED TO (BY WAY OF THE PROVIDED URLS) THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT UNDERSTAND OR AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER SHOULD NOT CLICK “I AGREE” OR USE THE SOFTWARE.

  1. Definitions.
    1. Account License” means each license for which Customer has paid the applicable Fees that allows a User to access and use the Software during the Term.
  2. “Affiliate” means any entity that 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 50% of the voting interests of the subject entity.
  3. “Agreement” means this Agreement and all Order Forms associated therewith entered into by the parties from time to time.
  4. 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. ECI’s Confidential Information includes without limitation the Software; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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.
  5. Customer Data” means non-personally identifiable data and information regarding Customer and its business residing in its underlying ERP software system and/or displayed or accessible via the Software, including without limitation business data compiled from Customer and/or other users of the Software that does not specifically identify Customer or its customers.
  6. Effective Date” means the date when this Agreement was accepted by Customer.
  7. “Export Control Laws” mean (i) United States export control laws and United States laws governing exports of controlled commodities, software or technology, embargoes, sanctions and boycotts, including, but not limited to, the Arms Export Controls Act (22 U.S.C. § 2778 and 2779), the International Emergency Economic Powers Act (50 U.S.C. § 1701 et. seq.), the Trading With the Enemy Act (50 U.S.C. app. § 1 et. seq.), the Export Administration Act of 1979 (50 U.S.C. app. § 2401-2420), and all rules, regulations and executive orders relating to any of the foregoing, including, but not limited to, the International Traffic in Arms Regulations (22 C.F.R. § 120 et. seq.), the Export Administration Regulations (15 C.F.R. § 730 et. seq.), and the regulations administered by the Office of Foreign Assets Control of the United States Department of the Treasury, and (ii) all similar applicable laws, statutes and regulations in countries where Customer conducts business.
  8. “Fees” means the fees due and payable by Customer for access to and use of the Software described in this Agreement as set forth in the applicable Order Form.
  9. Initial Term” means the initial term specified in the applicable Order Form or, if no such term is specified, then the initial term is one (1) month from the Effective Date.
  10. Intellectual Property Rights” means any U.S., international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.
  11. Order Form” means ECI’s ordering documents completed by Customer that specify the Customer’s selection of Software, including without limitation, the Initial Term, the number and type of Account Licenses purchased and the corresponding Fees to be paid.
  12. Renewal Term” means each one (1) month period after the end of the Initial Term, unless otherwise specified on the Order Form.
  13. Software” means ECI’s proprietary Cognytics Dashboard software products provided pursuant to this Agreement.
  14. Term” means the Initial Term and each Renewal Term for the applicable Order Form, collectively.
  15. "User" means an employee or contractor of Customer who is has been supplied identification numbers and login information by Customer (or by ECI at Customer’s request).
  16. Term and Termination.
    1. Term. This Agreement becomes effective on the Effective Date and, unless earlier terminated as provided herein, shall remain in effect so long as there are active Order Forms in effect between ECI and Customer. Each Order Form shall be for the Initial Term set forth therein and shall automatically renew for subsequent Renewal Terms unless either party gives written notice to the other party of its intention not to renew the applicable Order Form at least thirty (30) days prior to the expiration of the then-current Term; provided, however, that to the extent Customer executes multiple Order Forms for the Software, the then-current Term of all prior Order Forms then in effect shall be extended such that they are co-terminous with the then-current Term of the most recent Order Form executed by Customer. Order Forms are non-cancellable except as expressly provided in this Agreement
  17. Suspension and Termination. ECI may suspend Customer’s right to access and use the Software if Customer breaches this Agreement or if Customer fails to pay Fees due and owing hereunder. If Customer fails to cure such breach or delinquency within fifteen (15) days of receipt of notice thereof, ECI may terminate this Agreement. In addition, ECI may terminate this Agreement if Customer breaches any other section of the Agreement and fails to cure such breach within thirty (30) days of receipt of notice thereof.
  18. Effect of Termination. The provisions of Sections 1, 2.2, 2.3, 3, 4.3, 8, 9.3, 10, 11, 12, 13, 15 and 16 will survive the expiration or termination of this Agreement. Upon the termination of this Agreement for Customer’s uncured breach, Customer will be obligated to pay the balance due on its account plus all Fees due and to become due for the remainder of the then-current Term of each Order Form then in effect. Customer agrees that ECI shall not be required to retain any Customer Data after the expiration or termination of this Agreement.
  19. Payment
    1. Subscription Fees. Customer will pay ECI the Fees specified in the Order Form for the number and type of Account Licenses and other products and services purchased by Customer as specified on the applicable Order Form. During the Term, subject to the provisions of Section 2.1 above, Customer may add Account Licenses and other products and services by executing additional Order Forms that are accepted by ECI. Any additional Account Licenses and other products and services purchased during the Term shall be subject to the terms and conditions of this Agreement. Customer will pay the then-current Fees for each additional Account License and other products and services purchased by Customer. All Account Licenses and other products and services added in the middle of a billing month will be charged in full for that billing month. Customer is responsible for paying for the relevant Fees for all Account Licenses purchased during the Term, whether or not such Account Licenses are active.
  20. Suspension of Services. ECI reserves the right to suspend or deactivate Customer’s access to the Software if Customer fails to pay Fees due and owing under this Agreement. Customer will continue to be charged the applicable Fees for its Account Licenses and other products and services during any such period of suspension of access to the Software.
  21. Payment. ECI will charge the credit card number provided by Customer or will invoice Customer for any Fees owed as set out in the applicable Order Form(s) on a monthly basis during the Term. All Fees are due and payable within ten (10) days of date of such invoice. All Fees set forth in the applicable Order Form will be charged or billed in advance of the relevant period of use and, once paid, are non-refundable. Customer shall pay all Fees to ECI in U.S. dollars. The Fees for any Renewal Terms will be equal to ECI’s then-current fees in effect at the time of renewal. ECI shall have the right to increase the Fees on an annual basis.
  22. Late Payment; Interest. All Fees due and unpaid for more than thirty (30) days from the due date will be charged interest at the rate of one and one half percent (1 1/2%) per month or the maximum rate allowable under applicable state law, whichever is higher.
  23. Taxes. All Fees are exclusive of taxes, if any, on the Software and any services provided in connection therewith. To the extent ECI is required to collect and remit sales, use and/or other taxes on the Software or any of the services provided in connection therewith, ECI shall include such taxes on the applicable invoices to Customer and Customer shall pay such taxes.
  24. Access to the Software; Restrictions.
    1. Access. Customer may designate administrative Users who are authorized to: (a) establish accounts for the number of Users for which Customer has purchased Account Licenses; (b) purchase additional Account Licenses; (c) grant access rights and permissions to Users; and (d) otherwise administer Customer’s use of the Software. All access and use of the Software by Users will be only as permitted in this Agreement and will be solely for the purposes of accessing and using the Software for Customer’s internal business purposes. Customer’s Account Licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the Software.
  25. Restrictions. Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software in any way; (b) modify or make derivative works based upon the Software; (c) create hypertext links to the Software; (d) reverse engineer or access the Software; or (e) impersonate another ECI user or provide false identity information to gain access to or use the Software. All rights not expressly granted to Customer under this Agreement are reserved by ECI and its licensors.
  26. Limitation on Use. During the Term, and for a period of two (2) years after the expiration or termination of this Agreement, Customer agrees that it will not develop, release, distribute or offer a product (services, software or otherwise) that has the same or similar functionality to the Software or that may otherwise compete, directly or indirectly, with the Software. Customer acknowledges that a breach, or threatened breach, by Customer of this Section 4.3 will cause irreparable harm to ECI, which harm cannot be fully redressed by the payment of damages to ECI. Customer further agrees and acknowledges that, due to the nature of ECI’s disclosure to Customer of the Software and their operation, including the Software and ECI Confidential Information, the restrictions contained in this Section 4.3 are reasonable under the circumstances.
  27. ECI may use electronic monitoring tools and technology to monitor Customer’s use of the Software in order to verify compliance with the terms of this Agreement.
  28. THE SOFTWARE (AND/OR FUTURE UPDATES THERETO) INCORPORATES LICENSE MANAGEMENT TOOLS AND TECHNOLOGY TO ENSURE CUSTOMER COMPLIES WITH THIS AGREEMENT AND TO ALLOW ECI TO EXERCISE SELF-HELP REMEDIES IN THE EVENT THAT CUSTOMER BREACHES THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE ABILITY OF ECI TO TEMPORARILY OR PERMANENTLY SUSPEND CUSTOMER’S ACCESS TO AND USE OF THE SOFTWARE. CUSTOMER CONSENTS TO SUCH LICENSE MANAGEMENT TOOLS AND TECHNOLOGY AND AUTHORIZES ECI TO EXERCISE ANY OR ALL OF THE CAPABILITIES THEREOF IN THE EVENT CUSTOMER BREACHES ANY PROVISION OF THIS AGREEMENT AND FAILS TO CURE SUCH BREACH IN ACCORDANCE WITH THIS AGREEMENT. CUSTOMER CONSENTS TO THE INCLUSION OF LICENSE MANAGEMENT TOOLS AND TECHNOLOGY IN FUTURE UPDATES AND VERSIONS OF THE SOFTWARE.
  29. Customer Responsibilities.
    1. Customer is responsible for the use of all accounts established in Customer’s name to access the Software, including all activity occurring under Customer’s accounts, whether or not Customer specifically knows of or consents to such use. Customer will abide by all applicable laws and regulations in connection with Customer’s use of the Software. Customer will promptly notify ECI of any: (a) unauthorized use of any account and any other known or suspected breach of security; and (b) known or suspected unauthorized copying or distribution of the Software. Customer will provide to ECI in advance of Customer’s use of the Software accurate billing information and contact information, including without limitation, Customer’s company name, address, credit card information, and email address, and will update such information as necessary throughout the Term. Customer represents and warrants that Customer: (a) has the power and authority to enter into and perform this Agreement; (b) has not provided any false information to gain access to the Software; and (c) any billing or contact information Customer provided hereunder is correct.
  30. Customer represents and warrants to ECI that it shall perform its obligations under this Agreement in compliance with all applicable Export Control Laws. Customer agrees to obtain all necessary licenses, approvals, or authorizations from relevant governmental authorities prior to exporting or re-exporting any products, including hardware, software, technology, or technical data, acquired or to be provided under this Agreement, or the direct product of any such hardware, software, technology, or technical data (collectively, the “Items”). Customer agrees that it (i) shall not export, re-export, or transfer any Items to any country that is designated a supporter of international terrorism, or that is subject to an embargo by the U.S. Government (currently Cuba, Iran, North Korea, Sudan, and Syria); (ii) shall not engage in any transactions or dealings with any person identified on the List of Specially Designated Nationals and Blocked Persons (“SDNs”), which is maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, or the Entity List, Denied Persons List, or Unverified List, which are maintained by the Bureau of Industry and Security of the U.S. Commerce Department; and (iii) shall immediately notify ECI if Customer has any information or suspicion that there may be a violation of Export Control Laws.
  31. Technical Support. ECI will provide reasonable technical support to Customer in the form of telephone, e-mail, or online messaging services during ECI’s normal technical support hours. ECI additionally agrees to provide reasonable customer service support in the form of telephone, e-mail or online messaging services during ECI’s normal customer support hours, which are specified on the Site and may be modified from time to time. ECI will use commercially reasonable efforts to respond to all technical support and customer service inquiries.
  32. Data Rights and Responsibilities.
    1. Customer Data. Customer retains ownership of all Customer Data provided to ECI under this Agreement. Customer hereby grants ECI a non-exclusive license during the Term to use and modify the Customer Data in order to make the Customer Data accessible to Customer in the Software. Customer hereby grants ECI a non-exclusive, fully transferable, worldwide right and license during the Term to: (i) collect Customer Data solely in an anonymous format that would not permit any recipient of such Customer Data to identify Customer or Customer’s customers as the subjects of such Customer Data, (ii) aggregate that Customer Data with data from other users of the Software in a manner which does not permit identification or segregation of Customer Data applicable to Customer and other data as ECI may so elect, and (iii) use, disclose, market, sell and/or license Customer Data to third parties only as long as it remains anonymous and when aggregated with other data.
  33. Other Data. Customer hereby grants ECI a non-exclusive license during the Term to use and modify other data belonging to Customer in order to make the other data accessible to Customer in the Software. For the avoidance of doubt, other data may include, without limitation, personally identifiable data regarding Customer, its business and its customers such as names, addresses and contact information.
  34. Data Responsibility. Customer has sole responsibility for the accuracy, quality, integrity, and reliability of all Customer Data and other data accessible to Customer in the Software. Customer acknowledges that ECI does not offer disaster recovery or other back-up services for Customer Data in the Software; however, back-up services may be available under a separate ERP license agreement between Customer and ECI. Customer represents and warrants to ECI that it has full right, power and authority to collect, aggregate and use the Customer Data and other data from its customers.
  35. Compliance with Data Laws. Each party shall comply with its obligations under applicable data laws. Customer shall be responsible for ensuring that any disclosure of Customer Data to ECI is disclosed in accordance with all applicable data laws, including where appropriate, with the consent of the data subject.
  36. Intellectual Property Ownership. ECI and its licensors own all right, title and interest in and to the Software, including without limitation, all Intellectual Property Rights therein and related thereto. This Agreement does not convey to Customer any rights of ownership in or related to the Software or any Intellectual Property Rights therein or related thereto, including the ECI or MarkSystems name and logo.
  37. Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, ECI may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Each party’s obligations under this Section 11 shall survive expiration or termination of the Agreement for a period of three (3) years.
  38. Indemnification. Customer shall indemnify, defend, and hold harmless ECI, its Affiliates and each of their respective officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or related to (a) claims alleging that ECI’s use of the Customer Data or other data violates the rights of, or has caused harm to, a third party; (b) Customer’s breach of this Agreement; and (c) violation of applicable law. ECI will provide prompt written notice of a claim, will give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer releases ECI of all liability and such settlement does not affect ECI’s business or Services and ECI may participate in the defense with counsel of its choosing), and will make available information and assistance upon Customer’s reasonable request.
  39. Disclaimer of Warranties. ECI AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY AS TO THE SOFTWARE OR ANY PRODUCTS OR SERVICES AVAILABLE THROUGH THIRD PARTY WEB SITES ACCESSIBLE THROUGH THE SOFTWARE. ECI DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, VIRUS-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. ECI AND ITS LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  40. Internet Delays. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ECI SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. NO SERVICE LEVELS OR GUARANTEES OF UPTIME OR AVAILABILITY OF THE SOFTWARE ARE PROVIDED.
  41. Limitation of Liability. ECI’S MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THE SOFTWARE, OR THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO ECI UNDER THIS AGREEMENT in the ONE (1) YEAR PERIOD IMMEDIATELY preceding the events giving rise to such claim. ECI WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING LOSS OF DATA, REVENUE, OR PROFITS) ARISING OUT OF, OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SOFTWARE, OR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE SOFTWARE, EVEN IF ECI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  42. 14. General.
    1. Entire Agreement. This Agreement, including the Order Form(s), constitutes the entire agreement between the parties, superseding all prior oral or written representations, agreements or understandings with respect to the subject matter hereof and thereof. There are no representations, warranties, conditions, guarantees or agreements relating to such subject matter except those expressly stated in this Agreement. To the extent there is any conflict between the terms of this Agreement and the applicable Order Form(s) or any Addendum, the terms of this Agreement shall prevail.
  43. No Assignment. Customer shall not sell, transfer, assign or otherwise convey this Agreement, or any of Customer’s rights or obligations hereunder without the prior written consent of ECI, including without limitation by operation of law to a successor in interest in connection with a merger, consolidation, sale of shares or assets or other change of control transaction involving Customer. The purported transferee shall first be required to agree in writing with ECI to assume and perform all of Customer’s obligations under this Agreement. Any attempt to assign this Agreement without ECI’s prior written consent shall be void. ECI may assign this Agreement at any time upon notice to Customer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  44. Amendments. ECI reserves the right at any time to modify this Agreement and to add new or additional terms or conditions on your use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Customer’s acceptance of any click-wrap EULA or update thereto or continued use of the Software will be deemed acceptance thereof.
  45. Notices. Any notices required or permitted hereunder shall be deemed to have been given if in writing and delivered personally, sent by overnight delivery or by first class, registered, or certified mail, postage prepaid and addressed to the receiving party at its address set forth above (or to such other address as may be notified from one party to the other following the same notice procedures). Customer shall send a copy of all such notices to the following: ECI Software Solutions, Inc., Attn: General Counsel, 4400 Alliance Gateway Freeway, #154, Fort Worth, Texas 76177.
  46. Governing Law; Jurisdiction; Jury Trial Waiver. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to its conflict of laws provisions; provided, however, that if you have a separate written agreement for an underlying ERP software system with ECI and such agreement specifies a different governing law, the governing law in such ERP software system agreement shall supersede and apply to this Agreement. The parties agree that exclusive jurisdiction for any dispute arising under or related to this Agreement shall be with the appropriate state or federal court in Dallas, Texas and each party consents to the jurisdiction of such court in any action or proceeding and waives any objection to such venue. TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT.
  47. Force Majeure. ECI will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.
  48. Injunctive Relief. Customer agrees that certain breaches of this Agreement by it may result in irreparable harm to ECI, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for such breach. Accordingly, ECI shall be entitled to seek any and all remedies available at law or in equity, including without limitation injunctive relief or specific performance.
  49. No Waiver. No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing.
  50. Severability. If any provision of this Agreement is ruled invalid or unenforceable, the provision shall be severable from this Agreement so that the remaining provisions are unaffected.
  51. Attorneys’ Fees. In any litigation, arbitration or other proceeding, by which ECI either seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, if ECI is the prevailing party, ECI shall be awarded its reasonable attorneys’ fees, costs and expenses incurred in connection therewith and any appeal related thereto.

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