1. Applicability of Terms and Conditions; Additional Definitions.
These Terms and Conditions (“Terms and Conditions”) set forth the terms and conditions pursuant to which ECI Software Solutions, Inc. (“ECI”) will provide certain Digital Services to Customer, as set forth in the applicable Order Form. Capitalized terms used in these Terms and Conditions that are not otherwise defined in this have the meaning set forth in the Order Form to which they are attached.
(a) Services. The parties anticipate that Customer may engage ECI to perform certain services, including, by way of example, training, installation, configuration and/or customization of the Software(s) or Customer’s computers or related systems. Subject to these Terms and Conditions, ECI shall use commercially reasonable efforts to perform the services as set forth in Order Forms (as defined below) separately executed by Customer and accepted by ECI (the “Services”).
(b) Issuance of Order Forms. Customer may request that ECI perform services by delivering a written request describing the proposed Services. ECI shall prepare a draft work order or proposal (each, an “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. Customer shall promptly notify ECI of its acceptance of such Order Form by returning a signed copy thereof to ECI. ECI shall have no obligation to perform the proposed Services unless and until it has accepted a signed Order Form from Customer.
(c) Modifications. Customer may at any time request a modification to the Services to be performed pursuant to any particular Order Forms 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 Forms. If accepted in writing by Customer, such modifications in the Order Forms shall be performed under these Terms and Conditions. Modifications in any Order Forms shall become effective only when a written change request is executed by authorized representatives of both parties.
(d) Delivery and Acceptance. Where an Order Form calls for delivery of Deliverables, ECI shall notify Customer in writing and Customer shall have five (5) business days to either accept the 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 Deliverables, as the case may be, 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 Deliverable and shall use commercially reasonable efforts to correct and re-submit the Deliverable for acceptance in a timetable agreed to by the parties. 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 Forms constitutes final acceptance.
(a) Suitability. ECI shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Order Forms. ECI may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
(b) Customer Responsibilities. 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.
(c) Non-solicitation. Customer acknowledges and agrees that ECI’s employees who perform the Services are a valuable asset to ECI and are difficult to replace. Accordingly, Customer agrees that for a period of one (1) year following the date the Services were completed under the applicable Order Form, 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 who perform any of the Services under the applicable Order Forms. Customer agrees that if it violates the terms of this Section 3(c), 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.
4. Fees and Payments.
(a) In consideration of the Services, Customer shall pay ECI the fees set forth in the applicable Order Forms. All Digital Services Fees are monthly recurring fees unless otherwise expressly noted. If Services are performed at Customer’s site, ECI’s travel, lodging and meal expenses incurred will be billed to and paid by Customer, including without limitation air fare, ground transportation (including mileage to and from airports), meals and hotel accommodations. ECI will endeavor to book the lowest priced airfare, car and hotel available and, where possible, ECI will book 14 days in advance. Hotel accommodations will be determined based on price, clean, safe, and preferably close to Customer’s facility. If Customer has a corporate/discount rates with any hotels, ECI will use such rates where Customer has properly informed ECI in writing.
(b) All on-site support services will be billable according to ECI’s then-current hourly rates on a time and materials basis, plus reasonable travel and lodging expenses as approved by Customer. Where Order Forms include quotes of 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 you and ECI as it relates specifically to services described herein.
(c) Unless otherwise provided in the applicable Order Form, ECI will invoice Customer on a monthly basis for amounts due under the applicable Order Form, and Customer shall pay such invoices net ten (10) days following receipt of invoice unless a different period is set forth on the Order Form.
(d) For Digital Services and other ongoing subscription Services, ECI may increase the Fees for such services on an annual basis upon written notice to Customer, and Customer agrees to pay any such increases.
5. Intellectual Property Rights; Other Rights.
(a) Except as provided in Section 5(b) and 5(c) below, ownership of all Deliverables and any other work product, developments, inventions, technology or materials resulting from Services performed under any 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 as set forth in the applicable Order Form.
(b) ECI does not claim ownership rights in any images or content provided by Customer for its ecommerce or branded websites. Customer shall be solely responsible for acquiring any and all ownership and/or license rights necessary for its use of such images or content on its ecommerce and corporate websites and shall indemnify, defend and hold ECI and its affiliates harmless from and against any and all third party claims relating to such images or content or use thereof by Customer, ECI or its affiliates.
(c) Notwithstanding the foregoing, for so long as any Digital Services Order Form is in effect, Customer hereby grants ECI and its affiliates a worldwide, non-transferable, non-sublicenseable right and license to display and demonstrate its ecommerce and corporate websites, including the images and contents thereof, for marketing and promotional purposes.
(d) To the extent the Digital Services consist in whole or in part of the creation by ECI of a website(s) for Customer, ECI reserves the exclusive right to control (and/or allow third parties to control) all or any part of such websites, including without limitation merchandising, searching capabilities, banner ads, home page, category pages, and branded landing pages. ECI retains exclusive merchandising rights related to any such websites, including but not limited to the right to receive revenue from third parties in connection with selling the right to direct products by a general inquiry, utilizing space on the website for advertising, promotions using website connections, promotions relating to items made available through such websites, utilizing space on the website to promote programs, cross referencing, and/or the marketing tools of others.
6. Disclaimer of Warranties; Limitation of Liability.
(a) ECI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SERVICES OR DELIVERABLES PROVIDED TO CUSTOMER UNDER THESE TERMS AND CONDITIONS OR ANY THIRD PARTY PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SERVICES OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF OR ACCESS THERETO WILL BE ERROR FREE. 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.
(b) 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 SERVICES OR DELIVERABLES PROVIDED UNDER THESE TERMS AND CONDITIONS, 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 THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THE ORDER FORM GIVING RISE TO THE CLAIM FOR DAMAGES.
(a) Term. These Terms and Conditions, as amended, shall remain in effect for so long as there are Order Forms in effect for Services between ECI and Customer.
(b) Termination for Breach. ECI may, at its option, terminate an Order Form in the event of a breach by Customer, including without limitation failure to pay fees due and owing under an Order Form. Such termination shall be effected through a written notice to the Customer, specifically identifying the breach or breaches on which such notice of termination is based. Customer will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and such Order Forms shall terminate in the event that such cure is not made within such thirty (30) day period. Without limiting the foregoing, ECI may immediately terminate any Order Forms upon written notice in the event that Customer becomes insolvent or enters bankruptcy during the term of the applicable Order Form or fails to pay any fees due and owing under any Order Forms following ten (10) days written notice.
(c) Effect of Termination. . In the event of termination or early cancellation of any Order Form, all Fees set forth in the applicable Order Form due and to become due over the remaining period of the then-current term of such Order Form shall immediately become due and payable by Customer. In addition, Customer’s website will revert to its original form and content immediately prior to the applicable Services being performed by ECI under the applicable Order Form and ECI shall own the website design.
(a) These Terms and Conditions and the Order Form contain the entire agreement of the parties with respect to the subject matter herein and supersedes all prior, collateral or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
(b) These Terms and Conditions and the Order Form will be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that exclusive jurisdiction for any dispute arising under or related to these Terms and Conditions and any Order Form shall be the appropriate state or federal court in Wilmington, Delaware, 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 THESE TERMS AND CONDITIONS.
(c) If any term, condition, or provision in these Terms and Conditions is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms and Conditions. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
(d) ECI may amend these Terms and Conditions at any time in its sole discretion, effective upon posting the amended Terms at the domain or subdomains of http://op.ecisolutions.com/abo... where the prior version of the Terms and Conditions was posted, or by communicating these changes through any written contact method ECI has established with Customer. If Customer does not want to accept such amendments, Customer must notify ECI in writing, which notice must be received by ECI within five (5) business days of ECI having notified Customer of such amendments.
(e) Neither these Terms and Conditions or any Order Form nor any rights or obligations herein or therein may be assigned, delegated, or otherwise transferred by Customer, in whole or in part, without the prior written consent of ECI, which consent shall not be unreasonably withheld, and any purported assignment without such consent shall be void ab initio. Subject to the foregoing, these Terms and Conditions and the Order Form will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.