KPI Monitoring: Terms and Conditions

CCH KPI Monitoring: Terms & Conditions (October 2020)

IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS AND CONDITIONS CAREFULLY. 
The following (the “Agreement”) describes the terms and conditions pursuant to which ECI Software Solutions, Inc. or its affiliates (“ECI” “us”, “we”, or “our”) agrees to provide the individual or entity (“You”) access to this software program (the “Software”) installed on a computer at Your physical site, accessible at ftp.knowledgesync.com or such other site specified by ECI (the “Site”), or otherwise hosted by You or ECI. BY CLICKING “I AGREE” OR BY ACCESSING THE SOFTWARE, THE SITE OR ANY CONTENT FOUND IN THE SOFTWARE OR ON THE SITE, YOU AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, INCLUDING ANY POLICIES AND GUIDELINES LINKED TO (BY WAY OF PROVIDED URLS) THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT CLICK “I AGREE” OR USE THE SITE OR THE SOFTWARE. ECI RESERVES THE RIGHT TO MODIFY THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION BY POSTING AN UPDATED VERSION OF THIS AGREEMENT ON THE SITE. YOUR CONTINUED USE OF THE SOFTWARE FOLLOWING SUCH POSTING CONSTITUTES ACCEPTANCE OF SUCH MODIFICATIONS.

Definitions

Data
Anonymous data compiled from You and/or other users of the Software (and the Services, if applicable), including without limitation transaction data derived from Your use of the Software (and the Services, if applicable), that does not specifically identify You or any of Your customers.

Confidential Information
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.

Content
Material used and/or displayed by You in connection with the Software (and the Services, if applicable), including without limitation, information, artwork, graphics, images, text, software and data.

Documentation: The print, electronic, or online user instructions, manuals or other materials regarding the use of the Service provided to You by ECI.

Export Control Laws
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 ExportControls 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. Export Control Laws also include all similar applicable laws, statutes and regulations in countries where You conduct
business.

Initial Term
With respect to subscription licenses or term licenses, the initial term shall be as set forth in the applicable Order Form (or if no initial term is set forth in the applicable Order Form, then the initial term is one (1) year from the date of applicable Order Form). With respect to any perpetual licenses, the initial term is
until termination of this Agreement in accordance with the provisions set forth herein.

Intellectual Property Rights
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.

Order Form
Any quotation, proposal, or transactional document issued by ECI or its Reseller, detailing Software and/or Services provided by ECI or its Reseller, and accepted by You in writing, which become part of this Agreement. For clarity, if You enter into an Order Form (including a quotation, proposal, or a master
services agreement, or any similar form of contract) directly with a Reseller, the terms and conditions thereof will be directly between You and the Reseller providing the agreement; provided, however, no Order Form issued by a Reseller may modify or supersede the terms applicable to Software and/or Services in this Agreement.

Reseller
An ECI-appointed reseller, distributor, or authorized system integrator that supplies Software and/or license keys to Customer and/or provides services and support directly to Customer in connection with the Software.

Software: The ECI KnowledgeSync software specified on the applicable Order Form or otherwise licensed to You by ECI under this Agreement.

Services: ECI’s hosting of the Software licensed to You by ECI hereunder.

Term: The Initial Term plus any renewals thereof in accordance with this Agreement.

Updates: Updates, modifications, bug fixes and other corrections, if any, that ECI makes generally available for the Software.

Upgrades: Major revisions to the Software that add new and different functions or capabilities to the Software and that may be released by ECI from time to time subject to applicable fees established by ECI in its sole discretion.

License Type
Any license that is not subject to recurring fees or otherwise designated as a subscription license or a term license in the applicable Order Form shall be a perpetual license, commencing on the delivery date.
Any license that is subject to recurring fees or otherwise designated as a subscription license in the applicable Order Form shall be for the term of the subscription period designated in such Order Form (or any renewal thereof).

Any license specifically designated in the applicable Order Form as a term license shall continue for so long as You maintain an active, fully paid maintenance and/or support contract for that license. For clarity, any failure to maintain an active, fully paid maintenance and/or support contract shall result in
termination of the term license.

Orders
ECI will furnish to You, and You will accept and pay for, the Software set forth in the applicable Order Forms. For any Software and/or services supplied by a Reseller or identified in an ECI-provided registration file, Your obligations to pay for such Software and/or services are established between You
and the Reseller. You may place orders for Software and/or services with ECI or the designated Reseller.

For orders for Software and/or services placed directly with a Reseller, any quotations, proposals, or other Order Forms will be provided directly to You by the Reseller, and the terms and conditions set forth therein shall apply and govern exclusively between You and the Reseller. Notwithstanding the foregoing, except as expressly agreed in writing by ECI, no purchase order or other document submitted by You or any Reseller, whether in connection with an order, Order Form, a request for services or otherwise, shall be effective to vary the terms of this Agreement.

License Grant
ECI (or the applicable Reseller) hereby grants You a nonexclusive, nontransferable (except as expressly provided herein), license to access and use the Software solely for Your internal information management and internal data processing purposes, subject to any license limitations specified in an Order Form.

On Premise Installation
If the Software is not hosted as provided below, the license provided to You under this Agreement is solely for use on Your owned or controlled operating environment. You may not install more than one copy of the Software within Your operating environment. Notwithstanding the forgoing, You may make up to
three copies of the Software strictly for archival or backup purposes, which may be installed on a separate server or operating environment, provided You keep such copies in Your possession include the same copyright and/or proprietary rights notices that appear on or in the Software being copied. You are responsible for maintaining Your data independently. You agree to accept electronic delivery of the Software, together with any future Updates and/or Upgrades, or any other enhancements or modifications provided by ECI to You with respect to the Software. Notwithstanding the foregoing, nothing in this Agreement grants You an entitlement to any future Update or Upgrade.

Hosted by You
If You host the Software, then You may install the Software at a third-party data center for hosting purposes, in which case You shall (i) employ commercially reasonable best practices to ensure the security, confidentiality and integrity of the Software; (ii) employ appropriate, reasonable and up-to-date
technical and organizational security measures and policies designed to protect the security, confidentiality and integrity of the Software, including, but not limited to: (a) the use of firewall protection, (b) segmentation of networks, applications and data, (c) physical and logical access controls, (d) data encryption, and (e) secure coding practices; (iii) within ten (10) business days following Your receipt of ECI’s written request, provide evidence that You have established and maintains such technical and organizational security measures and policies; (iv) maintain physical security standards to prohibit unauthorized physical access to the Software; (v) limit physical access to the third-party data center where the Software is installed to You and authorized visitors with a need for such access in order to assist You in exercising Your rights and performing its obligations under this Agreement; and (vi) promptly terminate physical access to the third-party data center and the Software by any authorized user whose working relationship with You has been terminated.

Hosted by ECI
If ECI hosts the Software, then ECI may host the Software at locations as may be designated by ECI from time to time and allow You to access and use the Software according to the terms of this Agreement during the Term. You agree that Your purchase and use of the Services and the Software license(s) specified on the applicable Order Form are 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 Services and the Documentation are subject to change at any time with or without notice.

Restrictions
You shall use the Software solely for Your internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party or disclose your
password to any third party; (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 or the data contained therein; or (v) attempt to gain unauthorized access to the Software or its related systems or networks.

You 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 Your own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Software; (iv) take any action that may impose an
unreasonable or disproportionately large load on the Services or any ECI infrastructure or environment, as determined by ECI from time to time; (v) use the Software in any way that threatens the integrity, performance, or reliability of the Services or any ECI infrastructure or environment (vi) access the Software
in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Software; (vii) use the Software for any purposes except as expressly provided in this Agreement; (viii) allow any third party to access or use the Software for any reason; or (ix) relicense the Software or use or display the Software for third-party training, commercial time-sharing, rental, or service bureau use.

Intellectual Property Rights and Data Rights
All right, title and interest in and to the Software and the Services and any Confidential Information made available by ECI to You pursuant to this Agreement, including without limitation, all Intellectual Property Rights therein, shall remain exclusively with ECI and its licensors, as applicable. Any and all suggestions,
ideas, feature requests, feedback, recommendations or other information relating to the Software transmitted to ECI in any form or manner will be the exclusive property of ECI.

You retain ownership to any of Your Content and Your data. You hereby grant ECI a non-exclusive, fully transferable, royalty-free worldwide right and license to: (i) collect Data during the Term solely in an anonymous format that would not permit any recipient of such Data to identify You or Your customer as the subjects of such Data, (ii) aggregate that Data with other data from other users of the Software (in a manner which does not permit identification or segregation of Data applicable to You), and (iii) use, disclose, market, sell and/or license Data (only when it remains anonymous and when aggregated with other data) to third parties during the Term and after any expiration or termination of this Agreement.
You hereby grant ECI a non-exclusive, fully transferable, royalty-free worldwide right and license during the term of this Agreement to (i) use and modify all data belonging to You in order to make such data accessible to You in the Software and (ii) monitor your data and use of the Software for purposes of
ensuring compliance with this Agreement.

ECI is free to create and use meta-data, statistics and such other information derived from any data it receives from You that cannot be identified as originating or deriving directly from such data, and cannot be reverse-engineered by a third party such that it can be so identified, for any purpose whatsoever
(whether during or after the Term of this Agreement).

Use of the Software
You acknowledge and agree that You may be required to install certain software components on Your own system and within Your network in order to properly use the Software. You agree to install such components on Your own system and within Your network and to allow ECI to remotely access such software within its network to the extent necessary to assist You in trouble shooting and resolving support related issues. To the extent You require an Internet connection for proper use of the Service, You shall be solely responsible for such Internet connection, including without limitation all hardware, software and other equipment necessary to access the Internet. THE 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.

You represent and warrant to ECI that You shall perform Your obligations under this Agreement in compliance with all applicable Export Control Laws. You agree 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”). You agree that You (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 You have any information or suspicion that there may be a violation of Export Control Laws.

When You create an account with us, You must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of this Agreement, which may result in immediate termination of Your access to the Software (and the Services, if applicable). You are responsible for safeguarding the password that You use to access the Software (and the Services, if applicable) and for any activities or actions under Your password.

You shall notify ECI immediately to the extent You become aware of any unauthorized use, or access to the Software or the Services or any other Confidential Information made available to You under this Agreement, by any person or entity not authorized by this Agreement to have such possession, use or access. You 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.

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 (Confidentiality) shall survive expiration or termination of the Agreement for a period of three (3) years.

Audit Rights and License Management
At any time during the Term of this Agreement, ECI (or the applicable Reseller) may audit Your use of the Software (and the Services, if applicable) in order to verify compliance with the terms of this Agreement, including without limitation electronic auditing means. If ECI (or the applicable Reseller) elects to conduct
a physical audit, such audit shall occur no more frequently than once annually at ECI’s (or the applicable Reseller’s) expense. All physical audits shall be conducted during regular business hours at Your site and shall not unreasonably interfere with Your business activities. ECI (or the applicable Reseller) shall
schedule any such audits at least ten (10) business days in advance. If any audit by ECI or the Reseller yields any deficiency in the amounts paid to ECI (or the applicable Reseller), You shall promptly remit payment to ECI (or the applicable Reseller) 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 between the amounts actually paid to ECI (or the applicable Reseller) versus the amounts that should have been paid for actual usage of the Software, You will promptly reimburse ECI (or the applicable Reseller) for all
reasonable costs incurred in connection with the audit.

THE SOFTWARE AND THE SERVICES (AND/OR FUTURE UPDATES OR UPGRADES THERETO) INCORPORATE LICENSE MANAGEMENT TOOLS AND TECHNOLOGY TO ENSURE YOU COMPLY WITH THIS AGREEMENT AND TO ALLOW ECI TO EXERCISE SELF-HELP REMEDIES IN THE EVENT THAT YOU BREACH THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION THE ABILITY OF ECI TO TEMPORARILY OR PERMANENTLY SUSPEND YOUR USE OF THE SOFTWARE (AND THE SERVICES, IF APPLCIABLE). YOU CONSENT TO SUCH LICENSE MANAGEMENT TOOLS AND TECHNOLOGY AND AUTHORIZE ECI TO EXERCISE ANY OR ALL OF THE CAPABILITIES THEREOF IN THE EVENT YOU BREACH ANY PROVISION OF THIS AGREEMENT. YOU CONSENT TO THE INCLUSION OF LICENSE MANAGEMENT TOOLS AND TECHNOLOGY IN FUTURE UPDATES AND VERSIONS OF THE SOFTWARE AND THE SERVICES THAT MAY BE SUPPLIED BY ECI TO YOU UNDER THIS AGREEMENT.

Warranties and Disclaimers
You represent and warrant to ECI that (a) You are the lawful owner of any Content or You have the necessary license rights from the applicable owner of the Content to use the Content in connection with its use of the Software, and (b) any posting of Your Content through the Software (and the Services, if
applicable) does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You further represent and warrant to ECI that: (i) before entering into this Agreement, You have had the opportunity to conduct a thorough review and analysis of the Software and
its features and functionality; (ii) You have determined, without reliance on any representation, warranty, promise or commitment on the part of ECI, that the Software and Services meet Your own particular needs and requirements; and (iii) ECI has not and does not make any representation, warranty, promise or
commitment that the Software or Services will meet Your particular needs or requirements.

The Software and Services may contain links to third-party web sites or services that are not owned or controlled by ECI. ECI has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites, products or services. You acknowledge and agree that ECI shall
not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with (a) use of the Software or Services in connection with any third-party web sites, products or services, or (b) reliance on any content, goods or services available on or through any such
third-party web sites, products or services. We strongly advise You to read the terms and conditions and privacy policies of any third-party web sites, products or services that You use.

You acknowledge and agree that (a) all Resellers are independent entities and are not agents of ECI; (b) ECI is not liable for, nor bound by, any acts or omissions of such Resellers, including but not limited to any services provided by such entities to You in connection with any Software or services provided hereunder; and (c) no Reseller has authority to modify this Agreement in any fashion.

ECI PROVIDES THE SOFTWARE AND THE SERVICES “AS IS” AND “AS AVAILABLE”. 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 YOUR REQUIREMENTS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE OPERATION THEREOF OR ACCESS THERETO WILL BE UNINTERRUPTED OR 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.
 

Support
For so long as You have a current subscription or separate maintenance and/or support agreement with ECI, support for the Software will be provided to You as set forth in this section. If You purchased the Software from a Reseller that offers support services, support for the Software will be provided directly
by such Reseller. If you purchased the Software directly from ECI, or from a non-support providing Reseller, support will be provided by contacting ECI’s customer support services by calling ECI’s toll free number during the applicable program hours defined in ECI’s Support Handbook.

Unless expressly stated otherwise on the applicable Order Form, maintenance and/or support does not cover support or maintenance for: (i) any third-party products or services (regardless of whether obtained from ECI or another source), including without limitation Your hardware, operating systems software,
networks or installation of networks; (ii) data correction/recovery or re-installation of the Software due to hardware failure, power drops, surges or other circumstances beyond the control of ECI; (iii) customizations or modifications of the Software; or (iv) transferring or migrating data from one system to
another. Support for such excluded matters may be available from ECI on a time and materials basis at ECI’s then-current rates, as may be separately agreed.
Indemnification

You 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 You or Your employees, agents or contractors; (ii) any wrongful act or omission by You or any person for whom You are responsible; (iii) any violation of applicable law by You; or (iv) any claim that the Data (or ECI or Your use thereof) violates the rights of or has caused harm to a third party. ECI shall (a) promptly give written notice of the claim to You; (b) give You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release the ECI Indemnitees of all liability); and (c) provide to You, at Your cost, all reasonable assistance.

Fees
You will pay ECI (or the applicable Reseller) all fees for the Software (and the Services, if applicable), including any fees set forth in any Order Forms accompanying this Agreement.

All such fees are due and payable by You within thirty (30) days from date of invoice and will be invoiced by ECI or the applicable Reseller upon purchase and thereafter on a monthly basis. Any payment obligations are non-cancelable, and any fees paid are non-refundable. ECI or the applicable Reseller may
impose, and if imposed You will pay, a late payment charge on the unpaid balance of overdue payments hereunder equal to the lesser of (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or (b) the maximum rate allowed by law. Such charge shall accrue from the payment due date until the date such payment is made in full. Notwithstanding the foregoing, terms of payment for items supplied by Resellers, if any, shall be governed by any applicable agreement between You and the Reseller.

You will pay and be responsible for any excise, privilege, sales, use, customs, value added, and any other tax (except taxes imposed with respect to ECI’s net income) imposed by or under the authority of any foreign, United States, state, or local law with respect to the license of Software (and the Services, if
applicable) as contemplated by this Agreement.

If Your account is past due (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, ECI reserves the right to suspend the right to access and use the Software and Services, without liability to You, until such amounts are paid in full.

ECI (or the applicable Reseller), in its sole discretion and at any time, may modify the fees for the Software and/or the Services. Any change in the fees will become effective at the end of the then-current Billing Cycle. ECI will provide You with a reasonable prior notice of any change in the fees. Your continued use
of the Software (and the Services, if applicable) after any change in the fees becomes effective constitutes your agreement to pay the modified fees.

A valid payment method, including credit card or PayPal, is required to process the payment for any subscription to the Software (and the Services, if applicable). You shall provide ECI with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid
payment method information. By submitting such payment information, You automatically authorize ECI to charge all fees incurred through Your account to any such payment instruments.

Should automatic billing fail to occur for any reason, ECI may issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

IP Infringement
ECI shall, at its sole cost and expense, defend and settle any claim brought by a third party against You 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 it is non-infringing (providing the repaired or replacement software has the same or substantially similar functionality as the Software); or (ii) acquire a license for
You to continue to use the Software. If neither (i) nor (ii) are reasonably possible to ECI, then ECI (and/or the applicable Reseller) may terminate this Agreement upon written notice. This Section states Your 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 You modify (or has modified on Your behalf) the Software or combine the Software with other software, hardware or other technology not provided by ECI.
 

LIMITATION OF LIABILITY

NEITHER ECI NOR ITS RESELLERS SHALL BE LIABLE TO YOU 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 ANY SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF ECI AND ITS RESLLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECI’S AND ITS RESELLERS’ 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 YOU UNDER THIS AGREEMENT IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. RESELLERS ARE AN INTENDED BENEFICIARY OF THIS SECTION.
 

Term and Termination
This Agreement becomes effective upon Your acceptance of this Agreement and, unless earlier terminated as provided in this Agreement, shall be for the Initial Term, subject to the termination rights provided in this Agreement. Thereafter, this Agreement and any Order Forms then in effect shall automatically renew under the same conditions as the prior term unless either party provides the other party with written notice of its intent not to renew this Agreement at least twelve (12) weeks prior to the end of the then-current term.

ECI may terminate this Agreement in any of the following cases: (i) immediately upon written notice if You breach any of the terms of the License Grant or Restrictions sections of this Agreement or in the event you purport to transfer or assign this Agreement or any of Your rights hereunder without ECI’s prior
written consent; (ii) immediately upon termination or expiration of any existing license or hosted service agreement then in effect between You and ECI; (iii) upon thirty (30) days prior written notice if You fail to pay the applicable fees due for maintenance and/or support under Your maintenance and/or support
agreement currently in effect with ECI and fail to cure such breach within such thirty (30) day notice period; (iv) upon thirty (30) days prior written notice if You breach this Agreement and fail to cure such breach within such thirty (30) day notice period; (v) immediately if You permanently cease to operate Your business; or (vi) immediately upon an assignment for the benefit of creditors; a petition of bankruptcy filed by or against You; a receiver, trustee in bankruptcy, or similar officer is appointed to take control of all or part of Your business; or You are adjudicated bankrupt.

Upon termination or expiration of this Agreement, You shall immediately cease using the Software (and the Services, if applicable) and return all of the copies of Confidential Information to ECI, and upon request by ECI, also certify to ECI that You have retained no copies thereof and acknowledge that You may no
longer use the Software or the Services. In the event of any termination, 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.

Survival
The following sections of this Agreement shall survive any termination or expiration of this Agreement: Definitions; Restrictions; Intellectual Property and Data Rights; Confidentiality; Indemnification; Fees; LIMITATION OF LIABILITY; Survival; Other Terms.

Other Terms
This Agreement, including the applicable Order Form(s), constitutes the entire agreement between the parties, superseding all prior or contemporaneous 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.

You shall not sell, transfer, assign or otherwise convey this Agreement, or any of Your rights or obligations hereunder without the prior written consent of ECI (which consent shall not be unreasonably withheld, conditioned or delayed), 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.

The purported transferee shall first be required to agree in writing with ECI to assume and perform all of your 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.

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 in the most recent Order Form (or to
such other address as may be notified from one party to the other following the same notice procedures), or delivered via email with acknowledgement of receipt. You must 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.

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.

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, pandemics, disruption in transmission, or disruption in telecommunications services.

You agree 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.

No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing.

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.