The order form or other ordering document, including a registration webpage, which includes confirmation of Customer’s (defined below) subscription and fees for use of Ecuity Edge Online and any associated Ecuity Edge software products (“Order Form”) and these Terms of Service form a legally binding agreement between Customer and Ecuity Edge Software Corporation (“Ecuity Edge”) and governs Customer’s use of Ecuity Edge Online and any associated Ecuity Edge software. The Ecuity Edge Online service in combination with associated Ecuity Edge software products (including all updates, revisions, enhancements or releases thereof) are collectively referred to as “Ecuity Edge Products” herein.
The term “Agreement” means these Terms of Service and the Order Form, including any schedules, exhibits or appendices thereto, whether attached or incorporated by reference. The term “Customer” means the business or other legal entity named on the Order Form. This Agreement controls over any click-through agreement contained in any Ecuity Edge Product.
1.1 Use of Ecuity Edge Products is licensed, not sold. Subject to compliance with this Agreement, Ecuity Edge grants Customer, a nontransferable (except for assignment of this Agreement under Section 10), nonexclusive right to access and use those Ecuity Edge Products Ecuity Edge on the Order Form, solely for the duration of the Subscription Term (including any permitted renewals) and solely for Customer’s internal business purposes. Ecuity Edge Online may only be used online at the applicable URL (the “Web Site”) and Ecuity Edge Products may only be used within the scope of any usage parameters or limits Ecuity Edge in the Order Form and only by employees and agents of, and contractors of, Customer who are authorized by Customer to access and use the Ecuity Edge Products solely for the benefit of Customer (“Authorized Users”).
1.2 Each Authorized User must have a unique user ID and password combination (“User Account”) for using Ecuity Edge Online. Multiple individuals shall not share a User Account. New User Accounts may be set up for new Authorized Users in replacement of User Accounts that have been de-activated for individuals who have terminated employment with Customer or otherwise changed job status or function and no longer require use of Ecuity Edge Online. Customer shall be responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Customer.
1.3 Except for the limited licenses granted herein, Ecuity Edge and its third party licensors retain all right, title and interest in: i) all Ecuity Edge Products and all patent, copyright, trademark and other intellectual property rights embodied therein (including all software text, graphics, images, audio and visual information, online tutorials, documents, specifications, and materials made available to Customer); and ii) any improvements, updates, revisions, design contributions or derivative works thereto conceived or created by either party.
1.4 Customer shall not, and shall ensure that its Authorized Users do not: (a) license, sell, lease, rent, outsource, host, use as a service bureau (e.g. perform data migration or data integration work as a billable service) or otherwise make available any Ecuity Edge Product, or any part thereof, to third parties, other than Authorized Users (unless Customer has purchased a license specifically allowing the Ecuity Edge Product to be used for third parties); (b) remove or alter any copyright, trademark or other proprietary notices or legends contained in any Ecuity Edge Product; (c) disassemble, decompile, or reverse engineer any Ecuity Edge Product; (d) interfere with or disrupt, or disobey any requirements, procedures, policies or regulations associated with, Ecuity Edge Online or any systems used to host or provide Ecuity Edge Online; (e) circumvent the user authentication or security of Ecuity Edge Online or any host, network, or account related thereto; (f) make any use of any Ecuity Edge Product in violation of any law or regulation, including United States export control laws and associated regulations; (g) access or copy any Ecuity Edge Product in order to build a similar or competitive product or service; or (h) copy, sell, redistribute, or otherwise transfer any Ecuity Edge Product, Customer’s access thereto, or any materials provided to Customer in connection with Ecuity Edge Products. Customer shall promptly notify Ecuity Edge of any known or suspected breach of security or use of Ecuity Edge Product in breach of this Agreement or breach of security (including unauthorized use of User Accounts).
1.5 Additional Services: Any additional services that Ecuity Edge will provide in support of Customer’s use of the Ecuity Edge Products shall be outlined in a Schedule #1 to this Agreement.
2.1 Ecuity Edge will use commercially reasonable efforts to provide Ecuity Edge Online in accordance with the service levels (“Service Level Agreement”). The provisions of this Section do not apply to any free version of any Ecuity Edge Product made available to Customer for test, evaluation, or other purposes (“Free Products”). Customer agrees that: (i) Ecuity Edge has no obligation to provide any particular service level or support services for Free Products; and (ii) Ecuity Edge may cease providing any on-line service portion of any Free Products at any time without notice. This Section supersedes any conflicting term of this Agreement.
2.2 Ecuity Edge may change or modify any Ecuity Edge Product at any time. Ecuity Edge will provide at least thirty (30) days advance notice if the change or modification: (i) is not within industrial standards and/or customary in the industry; and (ii) does not extend and/or enhance the functionalities or architecture of the applicable Ecuity Edge Product. In the event of any such change, Customer may terminate the Subscription Term by providing notice to Ecuity Edge within such thirty (30) day period and receive a refund of a prorated portion of the Subscription Fee paid to Ecuity Edge that is applicable to the portion of the Subscription Term following termination.
3.1 All data submitted for processing by any Ecuity Edge Product (“Customer Data”) is proprietary to Customer. Customer is responsible for all Customer Data submitted through its User Accounts and hereby represents and warrants to Ecuity Edge that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by Ecuity Edge or its subcontractors to provide the Ecuity Edge Products. Customer is responsible for back-up of all Customer Data.
3.3 Customer is responsible for acquiring and maintaining computer systems and telecommunication services necessary to use all Ecuity Edge Products. Ecuity Edge does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and Ecuity Edge does not warrant secure operation of Ecuity Edge Products or that such security technologies will be able to prevent third party disruptions of Ecuity Edge Products.
3.4 Ecuity Edge shall be entitled to monitor Customer’s compliance with the terms of this Agreement, including but not limited the number of Authorized Users accessing Ecuity Edge Products. Ecuity Edge may use Customer usage information to provide Customer with reports on its use of, and to improve, Ecuity Edge Products.
3.5 The parties expressly agree that, with respect to any Customer Data that contains “Personal Data” of EU citizens as defined by the General Data Protection Regulation (GDPR), the Customer and Ecuity Edge have mutual obligations regarding proper management of that data under the GDPR. Each party agrees to take appropriate technical and organizational measures against the unauthorized or unlawful processing, accidental loss, destruction or damage of any Personal Data obtained from the other party.
The parties expressly agree that, with respect to any Customer Data, that contains Personal Data, the Customer is a “Data Controller” and Ecuity Edge is a “Data Processor”.
Ecuity Edge does not examine the Customer Data it processes; therefore, it has no ability to identify whether the data that is processed is subject to the GDPR. Ecuity Edge, therefore, treats all Customer Data that it processes in a manner consistent with the responsibilities assigned to a “Data Processor” by the GDPR.
The Customer is solely responsible for determining if its Customer Data is subject to GDPR requirements, and if so the Customer is solely responsible for ensuring their compliance with the Regulation. Ecuity Edge Products contain features, functions and services that allow the Customer to view, transfer, store or otherwise handle Customer Data in a manner inconsistent with the GDPR. The Customer is solely responsible for ensuring that their use of Ecuity Edge Products is lawful and in compliance with all applicable data protection regulations.
Ecuity Edge is EU-U.S. and Swiss-U.S. Privacy Shield Framework certified, therefore Ecuity Edge may store or process the “Personal Data” of EU citizens on its U.S. based facilities in compliance with the GDPR.
The full text of the GDPR can be found here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG&toc=OJ:L:2016:119:TOC
Subscription fees for the initial Subscription Term Ecuity Edge in the Order Form are as set forth in the Order Form and will be invoiced as set forth therein. Subscription fees for any renewal period will be the Subscription fees Ecuity Edge in any new Order Form entered into between Ecuity Edge and Customer with respect to the renewal period or, if a new Order Form is not entered into, Ecuity Edge’s prevailing subscription fees for the Ecuity Edge Products. Ecuity Edge will provide a renewal notice approximately 45 days prior to the end of the Subscription Term which sets forth the Subscription fees for the renewal period. Unless either party provides the other written notice of non-renewal at least 30 days prior to the renewal date, the Subscription Term will automatically renew for the renewal period. Unless otherwise set forth on the applicable Order Form, all Subscription fees are invoiced annual in advance and payment is net due from receipt. All orders are non-cancelable and all Subscription Fees are nonrefundable, unless otherwise specified in this Agreement or applicable Order Form. All sales will be billed in U.S. dollars unless otherwise specified in the Order Form. Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for any reason. Undisputed past due amounts bear interest at 1.5% per month or the maximum permitted by law, whichever is less. All fees are exclusive of, and Customer will pay, all taxes, levies, or duties imposed by taxing authorities, excluding taxes based solely on Ecuity Edge’s income.
5.1 The term of this Agreement begins on the Effective Date set forth in the Order Form and shall continue for the duration of the Subscription Term, including all renewals thereof. Notwithstanding the foregoing, either party may terminate this Agreement in the event of a breach of any provision of the Agreement which is not cured by the other party within thirty (30) days of notification by the non-breaching party. Except for termination by reason of the breach hereof by Ecuity Edge, termination will not relieve Customer from the obligation to pay fees that remain unpaid.
5.2 Ecuity Edge may terminate the Subscription Term, or suspend Customer’s subscriptions to Ecuity Edge Products: i) if applicable Subscription Fees have not been paid; or ii) Customer is in material breach of this Agreement. Ecuity Edge will promptly notify Customer of any suspension and will work with Customer in good faith to resolve the issue(s) which prompted suspension. In no event will any such termination or suspension give rise to any liability of Ecuity Edge to the Customer for a refund or damages. Ecuity Edge reserves the right to assess a reconnection fee in the event the suspension results from Customer’s failure to pay the applicable Subscription Fees or Customer’s intentional violation of this Agreement. Termination and/or suspension is without prejudice to other remedies available to Ecuity Edge for any violation of this Agreement by Customer. Upon termination of the Subscription Term, Customer will immediately discontinue use of all Ecuity Edge Products and delete or destroy all copies of any Ecuity Edge Products and documentation in Customer’s possession. Upon Ecuity Edge’s request, Customer will provide written certification that all Ecuity Edge Products and documentation have been destroyed.
6.1 Ecuity Edge warrants that Ecuity Edge Products will perform substantially in conformance with Ecuity Edge’s version controlled electronic documentation made available to Customer under this Agreement (“Documentation”). The foregoing warranty shall not apply to Free Products, including trial licenses to Ecuity Edge Online. Free Products are provided as-is with no warranty. Ecuity Edge will use reasonable efforts to ensure, but does not warrant, that Ecuity Edge Product will be secure and free of viruses or other harmful components, operate uninterrupted and error-free, and achieve any results expected by Customer.
6.2 Customer shall report any failure of any Ecuity Edge Product to conform to the foregoing warranties, including a detailed description of the non-conformity, to Ecuity Edge in writing without undue delay.
6.3 Customer’s sole and exclusive remedies for any breach of any warranty contained in this Section shall be, at Ecuity Edge’s option: (i) to correct the non-conformity; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the applicable Ecuity Edge Product during the period of time for which the non-conformity impacted Customer’s use of the Ecuity Edge Product.
6.4 EXCEPT FOR THE EXPRESSED WARRANTIES ECUTIY EDGE IN THIS SECTION, ECUTIY EDGE DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF Ecuity Edge PRODUCTS, OR ANY INFORMATION TECHNOLOGY SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE UNINTERRUPTED OR ERROR FREE.
7.1 “Confidential Information” means any information of a party in any form marked or noted as confidential, or information or materials which a reasonable person should conclude is confidential, of the disclosing party. In the case of Ecuity Edge, such information would include without limitation: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Ecuity Edge Products; (ii) Documentation, benchmark results, program listings, data structures, logic diagrams, functional specifications, file formats; (iii) system infrastructure, security/architecture design and/or operations processes (iv) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Ecuity Edge Products; and (iv) product offerings, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies. In the case of Customer, such information would include without limitation Customer Data.
7.2 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. Each party shall take all reasonable steps (defined below) to keep all Confidential Information of the other party strictly confidential, provided each party may disclose Confidential Information to its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “reasonable steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
7.3 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
8.1 Ecuity Edge will defend or settle, at its own expense, any action brought against Customer alleging any Ecuity Edge Product, or use thereof, infringes any patent, copyright or other proprietary right enforceable in the United States (a “Claim”), provided Customer; (a) gives prompt notice to Ecuity Edge in writing of the Claim and permits Ecuity Edge to control and defend or settle such Claim at Ecuity Edge’s expense and with Ecuity Edge’s choice of counsel; (b) does not perform any action prejudicial to Ecuity Edge’s ability to defend the claim; and (c) Customer cooperates with Ecuity Edge, at Ecuity Edge’s expense, in defending or settling such Claim. Customer may join in the defense with counsel of Customer choice at Customer own expense. Ecuity Edge shall pay any settlement made by it of such Ecuity Edge Infringement Claim and shall pay and indemnify Customer against any damages awarded against Customer as the result of a judgment rendered in such Ecuity Edge Infringement Claim defended by Ecuity Edge. Ecuity Edge has no liability for any claim based on use of Ecuity Edge Product: i) in violation of this Agreement; or ii) in combination with other software or hardware not provided by, or specified by, Ecuity Edge. If use of any Ecuity Edge Product is enjoined despite Ecuity Edge’s commercially reasonable efforts to procure rights to continue operating the Ecuity Edge Product or modify the Ecuity Edge Product to make it non-infringing, Ecuity Edge may terminate the Subscription Term and issue a refund of a prorated portion of the Subscription Fee paid that is applicable to the portion of the Subscription Term following termination. This Section states Ecuity Edge’s entire liability for any claim of infringement of any intellectual property rights of any kind. THIS SECTION STATES Ecuity Edge’S ENTIRE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM RELATING TO Ecuity Edge PRODUCTS.
8.2 Customer shall indemnify and hold Ecuity Edge harmless from third party claims arising from or related to (i) any use of Ecuity Edge Products (a) in breach of this Agreement, (b) in contravention of any policies of Ecuity Edge applicable to Ecuity Edge Products and made known to Customer and (c) in violation of any applicable law or regulation or in violation of the legal rights of others or (ii) the Customer Data. The foregoing is, however, conditional upon Ecuity Edge (i) notifying Customer thereof in writing and in detail without undue delay, (ii) authorizing Customer to conduct any judicial and extrajudicial proceedings with such third party on its own, and (iii) providing Customer at the expense of Customer with any reasonable assistance so that Customer can defend against the claim.
Ecuity Edge will only be liable for actual direct damages incurred by Customer as a direct result of Ecuity Edge’s gross negligence, willful misconduct, or failure to exercise reasonable care in providing Ecuity Edge Products. Ecuity Edge has no liability for any indirect, consequential, or punitive loss, damage or expense, including any loss of data, revenue, profits or use, even if advised of the possibility of such loss or damage. Except for Ecuity Edge’s liability pursuant to Section 8 (Indemnification), in no event will Ecuity Edge’s aggregate liability exceed the amount of fees paid to it for Ecuity Edge Products in the twelve (12) month period preceding the date on which the claim of action first arose.
10.1 This Agreement may not be assigned by Customer without the prior written consent of Ecuity Edge, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void.
10.2 If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
10.3 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
10.4 This Agreement shall be governed by and construed under the laws of the State of New Hampshire, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action arising out of or in connection with this Agreement will be heard in the state or local courts in Manchester, New Hampshire or the federal courts in the District of New Hampshire, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute related to this Agreement will be settled by binding arbitration under the Rules of the American Arbitration Association by three arbitrators appointed in accordance with the Rules. The arbitration is initiated by Customer, it will be held in Manchester, New Hampshire. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration.
10.5 Ecuity Edge may provide notices to Customer by emailing it to the email address or by mailing it to Customer’s postal address, in each case as recorded in Ecuity Edge’s account information. Notices to Ecuity Edge must be sent by mail or courier to Ecuity Edge Software Corporation, 150 Dow Street, Suite 543A, Manchester NH 03101, Attention: Finance Department. Notices sent by email will be effective 24 hours after emailing unless Ecuity Edge receives notice that the email was not delivered. Other Notices are effective upon receipt.
10.6 Excluding payment obligations, any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
10.7 This Agreement constitutes the complete and exclusive statement of the agreement between Ecuity Edge and Customer, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to Ecuity Edge.
10.8 The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the Order Form; and (ii) and these Terms and Conditions.