MobilTech Terms & Conditions - License Agreement

MOBILETECH™ LICENSE AGREEMENT - Terms & Conditions

(Version March 2019)

IF YOU REGISTER FOR A FREE TRIAL FOR THE SOFTWARE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.

  1. Definitions. Capitalized terms used in this Agreement shall have the following meanings:

(a) “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.

(b) “Agreement” means this Agreement, its terms and conditions and all Order Forms executed by Customer from time to time.

(c) “Ancillary Services” has the meaning given in Section 11.

(d) “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 the Hosting Services; 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.

(e) “Data” means anonymous transaction data compiled from Customer, End Users and/or other users of the Software and the Services (including without limitation transaction data derived from Customer’s use of the Software or the Services) that does not specifically identify Customer or its customers, including without limitation (i) orders placed and fulfilled using the Services or Software; (ii) quantities or orders and transactions placed; (iii) items and categories of items purchased, (iv) types of accounts placing orders; and (v) other non-personally identifiable transaction information found in the Software.

(f) “Documentation” means materials, in written or other tangible form (including on magnetic media), provided by ECI that describe the Software’s functional or technical specifications, which may include user guides, installation instructions and operation guides.

(g) “End User” means an end user customer of Customer. For the avoidance of doubt, an End User is the ultimate end user of Customer’s products and services, which, subject to the provisions of Section 2, may include elements of the Software and is not acquiring Customer’s products and services for the purpose of sub-licensing, redistributing or otherwise making them available to any third party for any purpose, commercial or otherwise

(h) “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.

(i) “Fees” means the fees payable by Customer for the use of the Software and Services described in this Agreement, as set forth in the applicable Order Form(s).

(i) “Hosting Services” means hosting the Software licensed to Customer by ECI under this Agreement.

(j) “Initial Term” means one (1) year or the initial term set forth in the applicable Order Form, whichever is greater.

(k) “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.

(l) “Order Form” means the ordering documents for Customer's purchases from ECI that are executed hereunder by Customer from time to time. Order Forms accepted by ECI shall be deemed incorporated herein.

(m) “Services” means the services supplied by ECI to Customer under this Agreement, including Hosting Services, Technical Support Services or Ancillary Services.

(n) “Software” means the ECI software products specified on the applicable Order Form and such other ECI software products and services Customer may acquire the right to use from ECI after the Effective Date.

(o) “Technical Support Services” has the meaning given in Section 10.

(p) “Term” means the Initial Term plus any renewals thereof in accordance with Section 16.

(q) “Users” means individuals who are authorized by Customer to use the Software and Services, for whom subscriptions to the Software and Services have been purchased, and who have been supplied user identifications and passwords by Customer (or by ECI at Customer’s request). Users may only be employees of Customer.

  1. License Grant; Hosting Services.

(a) ECI grants to Customer a nonexclusive, nontransferable, license to access and use the Software for internal business purposes according to the terms of this Agreement during the Term. The Software consists of the application software and any third party products and services specified on the applicable Order Form that are made available to Customer. The Software and the Documentation are subject to change at any time with or without notice. Customer agrees that its purchase of the Software specified on the Order Form is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ECI with respect to future functionality or features. The Software shall be deemed to have been accepted on the first date Customer is given access thereto.

(b) ECI shall provide Hosting Services for the Software at locations as may be designated by ECI from time to time and allow Customer and its Users to access and use the Software according to the terms of this Agreement during the Term.

(c) User subscriptions for the Software are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Software. Unless otherwise specified in the applicable Order Form(s), (i) additional User subscriptions for the Software may be added upon written request to ECI; (ii) the term of the additional User subscriptions for the Software shall be coterminous with the expiration of the subscription term in effect at the time the additional Users are added; and (iii) pricing for the additional User subscriptions for the Software shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Users are added.

  1. Intellectual Property Rights; Data Rights.

(a) All right, title and interest in and to the Software and any Confidential Information made available by ECI to Customer pursuant to this Agreement, including without limitation, all Intellectual Property Rights therein, shall remain exclusively with ECI and its licensors, as applicable.

(b) Customer hereby grants ECI a non-exclusive, fully transferable, royalty-free worldwide right and license during the Term to: (i) collect Data solely in an anonymous format that would not permit any recipient of such Data to identify Customer or End Users as the subjects of such Data, (ii) aggregate that Data with other data from other users of the Services(in a manner which does not permit identification or segregation of Data applicable to Customer), and (iii) use, disclose, market, sell and/or license Data (only when it remains anonymous and when aggregated with other data) to third parties.

  1. Use of the Services.

(a) ECI shall: (i) use commercially reasonable efforts to maintain the security of the Software and the Data; (ii) provide Technical Support Services to Customer in accordance with Section 10; and (iii) use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (aa) planned downtime, which ECI shall use commercially reasonable efforts to give Customer at least 8 hours’ notice of and shall schedule, to the extent reasonably practicable, during the weekend hours from 12:01 A.M. Central Saturday to 11:59 P.M. Central Sunday; (bb) regularly scheduled maintenance during the following periods: Friday, 9:00 PM Central – Saturday, 6:00 AM Central (for full service backups and network maintenance) and Saturday, 9:00 PM Central – Sunday, 6:00 AM Central (for patching and code releases); and (cc) any unavailability caused by circumstances beyond ECI's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ECI employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within ECI's possession or reasonable control, and denial of service attacks.

(b) Customer is responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, and reliability of all Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or Services, and notify ECI promptly of any such unauthorized access or use; (iii) obtain any consents from third parties that are required for the processing of and/or use of Data by ECI and (iv) comply with all applicable local, state, federal and foreign laws in using the Software and Hosted Services.

(c) Customer shall use the Software solely for its internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software or Hosted Services available to any third party, other than to Users; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) interfere with or disrupt the integrity or performance of the Software, the Hosted Services or the Data; or (v) attempt to gain unauthorized access to the Software, Hosted Services or its related systems or networks.

(d) Customer shall be responsible for the purchase, set-up, operation, maintenance and support of any and all software, hardware or other computer systems used by it to access and use the Software and Hosted Services, including without limitation maintenance of a local internet service provider and/or local DSL or cable modem service.

(e) Customer acknowledges and agrees that it may be required to install certain software components on its own system and within its network in order to properly access and use the Software and the Hosted Services. Customer agrees to install such components on its own system and within its network and to allow ECI to remotely access such software within its network to the extent necessary to assist Customer in trouble shooting and resolving support related issues.

(f) To the extent Customer requires an internet connection for proper use of the Software and Hosted Services, Customer shall be solely responsible for such internet connection, including without limitation all hardware, software and other equipment necessary to access the internet. THE HOSTED SERVICES 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 DAMAGES RESULTING FROM SUCH PROBLEMS.

(g) 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.

  1. Prohibitions. Customer shall not (i) modify, copy or create derivative works based on the Software; (ii) frame or mirror any content forming part of the Software, other than on Customer's own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Software; (iv) access the Software or the Hosted Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Software; (v) use the Software or Hosted Services for any purposes except as expressly provided in this Agreement; or (vi) allow any third party to access or use the Software or Hosted Services for any reason.
  2. Unauthorized Acts. Customer shall notify ECI immediately to the extent it becomes aware of any unauthorized use, or access to the Software or the Hosted Services or any other Confidential Information made available to Customer under this Agreement, by any person or entity not authorized by this Agreement to have such possession, use or access. Customer will promptly furnish full details of such possession, use or access, and will cooperate with ECI in any litigation against third parties deemed necessary by ECI to protect its proprietary and contractual rights.
  3. Confidentiality. 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 7 shall survive expiration or termination of the Agreement for a period of three (3) years.
  4. Audit Rights; License Management.

(a) ECI may audit Customer’s use of the Software and the Hosted Services in order to verify compliance with the terms of this Agreement, including without limitation electronic auditing means at any time during the Term of this Agreement. A physical audit shall occur no more frequently than once annually at ECI’s expense. All physical audits shall be conducted during regular business hours at Customer’s site and shall not unreasonably interfere with Customer’s business activities. ECI shall schedule any such audits at least five (5) business days in advance. If any audit by ECI yields any deficiency in the amounts paid to ECI, Customer shall promptly remit payment to ECI of such amounts plus interest calculated at the maximum rate allowed under applicable law. In addition, if an audit by ECI yields a deficiency of 5% or more in the amounts paid to ECI, Customer will promptly reimburse ECI for all reasonable costs incurred in connection with the audit.

(b) THE SOFTWARE AND THE HOSTED SERVICES (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 USE OF THE SOFTWARE AND THE HOSTED SERVICES. 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 SECTION 15. CUSTOMER CONSENTS TO THE INCLUSION OF LICENSE MANAGEMENT TOOLS AND TECHNOLOGY IN FUTURE UPDATES AND VERSIONS OF THE SOFTWARE AND THE HOSTED SERVICES THAT MAY BE SUPPLIED BY ECI TO CUSTOMER UNDER THIS AGREEMENT.

  1. Warranty.

(a) Each party represents and warrants that it has the legal power to enter into this Agreement.

(b) ECI represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Software shall perform in all material respects in accordance with the Documentation; and (iii) it owns or otherwise has sufficient rights in the Software to grant to Customer the rights to use the Software granted herein.

(b) Customer represents and warrants to ECI that: (i) prior to the Effective Date, Customer has been afforded an opportunity to conduct a thorough review and analysis of the Software and its features and functionality; (ii) Customer has determined, without reliance on any representation, warranty, promise or commitment on the part of ECI, that the Software meet its own particular needs and requirements; and (iii) ECI has not and does not make any representation, warranty, promise or commitment that the Software will meet Customer’s particular needs or requirements.

(c) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ECI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOFTWARE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SOFTWARE OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF OR ACCESS THERETO WILL BE ERROR FREE. ECI MAKES NO REPRESENTATION, WARRANTY OR COVENANT AS TO UPTIME OR AVAILABILITY OF THE SERVICES AND OFFERS NO SERVICE LEVEL AGREEMENT WITH RESPECT THERETO. TO THE GREATEST EXTENT ALLOWED BY LAW, ECI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.

(d) Waiver of Consumer Rights. CUSTOMER WAIVES ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, CUSTOMER VOLUNTARILY CONSENTS TO THIS WAIVER.

  1. Technical Support Services; Training; Other.

(a) The Technical Support Services described in this Section are included in the Fees. Customer is required to pay the Fees in order to use the Software and the Hosted Services and to receive the technical support and maintenance services described herein. If Customer fails to pay the Fees, ECI may terminate Customer’s right to use the Software and Services.

(b) As long as Customer has paid the Fees, ECI will provide the technical support services described below (“Technical Support Services”). Customer may access the Technical Support Services by contacting ECI’s support desk during ECI’s normal business hours (7:00 am to 6:00 pm, Mountain Time) in order to report Incidents (as defined below) regarding the Software or Services and to receive technical support services associated therewith. ECI shall not be obligated to provide technical support services associated with third party products or services or for financial auditing, consulting, training, system networking or other questions not directly related to the Software or Services. For the avoidance of doubt, support services shall not include training of new users of the Software. For training services, Customer may purchase additional training hours or packages from ECI, which shall be quoted from time to time by ECI at its then-current rates. ECI shall have the sole discretion to determine whether an inquiry placed by Customer constitutes a support issue that ECI is obligated to address pursuant to this Section or is a training issue that must be resolved through training provided under a separate Order Form. All Technical Support Services will be provided remotely unless otherwise agreed to in writing by the parties.

(c) An “Incident” means a request by Customer for technical support regarding the Software or Services that is not a training-related inquiry or the reporting of an actual bug or error in the Software or Services. Unless Customer has a separate written support agreement with ECI providing different terms than are set forth in this Section, subject to the provisions of this Section 11(c), Customer may contact ECI for an unlimited number of support Incidents so long as Customer has paid the then-current Fees. The severity of an Incident, as determined by ECI in its sole discretion, will determine the appropriate response levels for such Incident. To the extent that ECI determines, in its sole discretion, that Customer is reporting excessive Incidents and/or such reported Incidents show a poor understanding on the part of Customer of an application’s use, ECI reserves the right to require Customer to undertake billable training from ECI before normal support will be resumed or provided per the terms of this Agreement. Inquiries to ECI’s support desk regarding ECI's website, S.T.E.P.S, licensing, customization requests, and new product inquires shall not constitute Incidents. ECI reserves the right, in its sole discretion, to determine whether a Customer inquiry constitutes an Incident. If ECI determines, in its sole discretion, that a Customer inquiry to its support desk is not an Incident, ECI reserves the right to: (i) require Customer to pay ECI’s then-current hourly fee to address the support request, which fee will be quoted in writing prior to performing any work; or (ii) refer the matter to its training department for training to be provided for a separate fee.

(d) ECI is not obligated to provide any Technical Support Services for third party products or services (regardless of whether obtained from ECI or another source), including without limitation Customer’s networks.

(e) If Customer desires to receive services outside the scope of Technical Support Services, such Ancillary Services may be arranged according to terms and conditions separately agreed between ECI and Customer. For the avoidance of doubt, Ancillary Services do not include the hosting of the Software for Customer.

(f) Customer acknowledges and agrees that ECI’s employees are a valuable asset to ECI and are difficult to replace. Accordingly, Customer agree that, during the Term and for a period of one (1) year thereafter, Customer shall not solicit, recruit or offer employment or engagement (whether as an employee, independent contractor or consultant) to or hire any of ECI’s employees. Customer agrees that if it violates the terms of this Section, it will immediately pay ECI, as liquidated damages and not as a penalty, a sum equal to the annual salary of the employee solicited or hired by Customer.

  1. Ancillary Services.

(a) The parties anticipate that Customer may desire to engage ECI to perform certain professional services in connection with the licenses or access rights granted to Customer by ECI under the Agreement, including, by way of example, training, installation, configuration and/or customization of the Software (“Ancillary Services”). ECI shall use commercially reasonable efforts to perform the Ancillary Services as set forth in Order Forms accepted by ECI.

(b) Customer may request that ECI perform services by delivering a written request describing the proposed Services. ECI shall prepare a draft Order Form. Such Order Form shall describe the fees, costs and expenses payable by Customer to ECI in connection with the performance of such services. Within five (5) business days after receipt of the proposed Order Form, Customer shall notify ECI of its acceptance of such Order Form. Until the acceptance in writing of the proposed Order Form, ECI shall have no obligation to perform the proposed Services. Each Order Form, regardless of whether it relates to the same subject matter as any previously executed Order Form, shall become effective upon execution by authorized representatives of both parties.

(c) Customer may at any time request a modification to the Services to be performed pursuant to any particular Order Form by written request to ECI specifying the desired modifications. ECI shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Services pursuant to the Order Form. If accepted in writing by Customer, such modifications in the Order Form shall be performed under the terms of this Agreement. Modifications in any Order Form shall become effective only when a written change request is executed by authorized representatives of both parties.

(d) Upon ECI’s completion of the Services or Deliverables, ECI shall notify Customer in writing and Customer shall have five (5) business days to either accept the Services or Deliverables or reject them by providing ECI with a written notice of exceptions (“Notice of Exceptions”). If Customer fails to provide ECI with a Notice of Exceptions within such period, the Services and/or Deliverables will be deemed accepted without any further act required by either party. Within ten (10) business days of receiving a Notice of Exceptions from Customer, ECI shall submit a plan to correct any deficiencies in the Services/Deliverable and shall use commercially reasonable efforts to correct and re-submit the Deliverable/re-perform the Services for acceptance in a timetable agreed to by the parties. Re-performed Services and/or re-submitted Deliverables shall be subject to the same acceptance procedures set forth in this section. Customer acknowledges that its payment of all Fees in accordance with the applicable Order Form constitutes final acceptance.

(e) ECI shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Order Form. ECI may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.

(f) Customer shall make available in a timely manner at no charge to ECI all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by ECI for the performance of the Services. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to ECI, office space, services and equipment (such as copiers, fax machines and modems) as ECI reasonably requires to perform the Services. Customer will assign a coordinator to ensure that tasks associated with Order Forms are met, co-ordinate appropriate schedules in connection with the applications and provide other co-ordination activities. If the Services consist of data conversion and Customer reschedules agreed to dates for such conversions, such changes may affect Customer’s “go-live” date (for which ECI shall not be responsible), ECI reserves the right to charge a fee for such change. Customer shall be responsible for preparation of its facilities and all reasonable costs thereof as required for proper installation of the Software. Customer shall be responsible for ensuring that the system requirements set out in the Documentation for installation and implementation of the Software are in place and for maintaining a proper operating environment for the Software.

(g) To the extent Customer requests that Technical Support Services be performed at Customer’s site, such services will be billable according to ECI’s then-current hourly rates on a time and materials basis, plus Customer-approved reasonable travel and lodging expenses. Where an Order Form includes quotes of the number of hours, Customer acknowledges and agrees that such quotes are an ESTIMATE ONLY, and that this amount, plus or minus any adjustment based on final labor performed by ECI, will be billed to and paid by Customer. Billable time includes labor and communication between Customer and ECI as it relates specifically to services described herein.

(h) Unless otherwise provided in the applicable Order Form, ECI will invoice Customer on a monthly basis for amounts due under the Order Form, and Customer shall pay such invoices according to the payment terms set forth therein.

(i) Ownership of all work product, developments, inventions, technology or materials (collectively, the “Deliverables”) resulting from Services performed in connection with an Order Form shall be solely owned by ECI, including without limitation all Intellectual Property Rights therein and thereto; provided, however, that Customer shall have a limited right and license to use such Deliverables consistent with its license rights set forth in the Agreement.

  1. Indemnification. Customer shall indemnify, defend and hold ECI, its Affiliates and each of their respective officers, directors, employees, contractors and agents (the “ECI Indemnitees”) harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by any of them in connection with claims made or brought against any of them involving: (i) breach of this Agreement by Customer or its employees, agents or contractors; (ii) any wrongful act or omission by Customer or any person for whom Customer is responsible; (iii) any violation of applicable law by Customer; or (iv) any claim that the Data violates the rights of, or ECI or Customer’s use thereof, has caused harm to, a third party. ECI shall (a) promptly give written notice of the claim to Customer; (b) give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases the ECI Indemnitees of all liability); and (c) provide to Customer, at Customer's cost, all reasonable assistance.
  2. Fees.

(a) Customer shall pay ECI all Fees specified in the applicable Order Form(s) hereunder. The initial Fees are set forth in the applicable Order Form(s). Fees are based on the Software license(s) and Services purchased by Customer from ECI. Payment obligations are non-cancelable, Fees paid are non-refundable, and the number of Users purchased cannot be decreased during the Term. All Fees are due and payable within thirty (30) days from date of invoice and will be invoiced to Customer by ECI on a monthly basis. Any payment not made when due will bear interest from the date due until paid at the maximum rate allowed under applicable law and, if not paid when due, will be subject to a late fee equal to 5% of the amount due. Customer will also be liable for all costs incurred by ECI to collect any past due payments, including reasonable attorneys’ fees. Customer shall reimburse ECI for any fees charged by ECI’s bank for any returned checks.

(b) If Customer's account is 30 days or more past due, in addition to any of its other rights or remedies, ECI reserves the right to suspend Customer’s access to the Software and the Services, without liability to Customer, until such amounts are paid in full.

(c) Any time after ninety (90) days following the Effective Date, and not more frequently than once annually thereafter, ECI may increase the Fees for the Software and Services upon thirty (30) days written notice to Customer, and Customer agrees to pay any such increases.

(d) All on-site support services will be billable according to ECI’s then-current rates, plus reasonable travel and lodging expenses as approved by Customer.

(e) All prices are exclusive of taxes, if any, on the Software and Services; all sales and use taxes required to be remitted by ECI shall be payable by Customer upon invoice by ECI.

  1. IP Infringement. ECI shall, at its sole cost and expense, defend and settle any claim brought by a third party against Customer alleging that the Software infringes any U.S. patent, trade secret, trademark or copyright of any third party (“Infringement Claim”). ECI shall have the sole and exclusive right to defend and settle any Infringement Claim. In the event of an Infringement Claim, ECI shall also have the right, at its sole cost and expense, to (i) repair or replace the Software so that they are non-infringing (providing the repaired or replacement software has the same or substantially similar functionality as the Software); or (ii) acquire a license for Customer to continue to use the Software. If neither (i) nor (ii) are reasonably possible to ECI, then ECI may terminate this Agreement upon written notice and pay to Customer an amount equal to the total Fees paid by Customer in the six (6) month period immediately preceding such termination. This Section states Customer’s sole and exclusive remedy, and ECI’s sole and exclusive obligation, with respect to an Infringement Claim. ECI shall have no obligations under this Section to the extent that Customer modifies (or has modified on its behalf) the Software or Services or combines the Software or Services with other software, hardware or other technology not provided by ECI.
  2. LIMITATION OF LIABILITY. ECI SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THE SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF ECI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECI’S MAXIMUM CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES, COSTS, LOSSES, LIABILITIES AND EXPENSES OF ANY KIND AND NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
  3. Term; Termination.

(a) This Agreement commences on the Effective Date and, unless earlier terminated as provided in this Agreement, shall be for the Initial Term. Thereafter, this Agreement and all Order Forms then in effect shall automatically renew at the Fees then in effect for additional one (1) year periods, unless either party provides the other party with written notice of its intent not to renew this Agreement at least thirty (30) days prior to the end of the then-current term.

(b) ECI may terminate this Agreement: (i) immediately upon written notice if Customer directly or indirectly discloses or provides the Software or Services to any third party not authorized under the terms of this Agreement; (ii) upon thirty (30) days prior written notice if Customer breaches this Agreement and fails to cure such breach within such thirty (30) day notice period; (iii) immediately if Customer permanently ceases to operate its business; or (iv) immediately upon an assignment for the benefit of Customer’s creditors; a petition of bankruptcy filed by or against Customer; a receiver, trustee in bankruptcy, or similar officer is appointed to take control of all or part of Customer’s business; or Customer is adjudicated bankrupt.

(c) Upon termination or expiration of this Agreement, Customer shall immediately cease using the Software and the Services, delete all copies of the Software in its possession and return all of the copies of Confidential Information to ECI, certify to ECI that Customer has retained no copies thereof, and certify in writing to ECI that it may no longer use the Software or the Services. In the event of termination through Customer’s breach, all Fees due and to become due over the remaining period of the then-current Term shall immediately become due and payable. Upon termination of this Agreement, ECI’s obligations hereunder shall cease. The provisions of Sections 1, 3, 5, 7, 9, 10(g), 12, 13, 15, 16(c-d) and 17 shall survive any termination or expiration of this Agreement.

(d) Upon written request by Customer made not later than thirty (30) days after the effective date of the termination of this Agreement, provided that Customer has paid ECI all Fees due and owing under this Agreement, ECI will make available to Customer for download a file of Customer’s data residing in the Software in a format supported by the Software and the Services. ECI reserves the right to charge an additional fee for the provision of such file. After such 30-day period, ECI shall have no obligation to maintain or provide any of Customer’s data and shall have the right, unless prohibited by applicable law, to delete all of Customer’s data in the Software and/or the Services or otherwise in its possession or under its control.

  1. Miscellaneous.

(a) This Agreement, including the applicable 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.

(b) Customer shall not sell, transfer, assign or otherwise convey this Agreement or the Software, 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. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

(c) 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 and/or the Services. 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 and/or the Services will be deemed acceptance thereof.

(d) 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 Fwy., #154, Fort Worth, Texas 76177.

(e) 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. 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.

(f) 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.

(g) 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.

(h) If any provision of this Agreement, or the application of any provision to any party or circumstance, is held invalid, the remainder of this Agreement, and the application of the provision other than to the extent it is held invalid, will not be invalidated or affected.

(i) The failure of either party to enforce any provision or condition contained herein at any time will not be construed as a waiver of that provision or condition nor will it operate as a forfeiture of any right or future enforcement of the provision or condition.

(j) This Agreement may be executed in any number of counterparts (including without limitation facsimile or PDF), each of which will be deemed an original, but all of which together are one and the same instrument. A fax signature or signature delivered as an imaged attachment to an e-mail message shall be deemed equivalent to an original ink signature.

(k) 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 attorney fees, costs and expenses incurred in connection therewith and any appeal related thereto.