Echosec SaaS Agreement General Terms and Conditions
About this policy
Last updated: Feb 2020
These General Terms and Conditions (“General Terms”) are part of, subject to and governed by the terms and conditions of the Echosec Systems SaaS Agreement between Customer and Echosec Systems that references these General Terms. Capitalized terms used but not defined in these General Terms have the meanings set forth elsewhere in the Agreement.
As used in these General Terms, the following capitalized words have the meaning set out below:
- “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, transmits to or enters into the Solution, including but not limited to Personal Information.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Permitted User(s)” means those employees and independent contractors authorized by Customer to access and use the Solution on Customer’s behalf.
- “Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.
- “Solution” means: (i) services through which Echosec Systems makes available the solutions described in the Cover Pages; (ii) any component or Modification of the services referred to in (i); and (iii) the Support Services.
- “Website” means any websites used by Echosec Systems to provide Solution, including the websites located at https://www.echosec.net.
2. General; Acceptable Use.
- General. This Agreement sets forth the terms and conditions under which Echosec Systems makes available its Solution and provides related services. These General Terms do not, absent the execution of the Cover Page, create any business relationship or impose any obligation on Echosec Systems to provide any license, access, product, or service.
- Acceptable Use. Customer agrees that it will use the Solution only for the Acceptable Use (as defined in the Cover Page).
3. Echosec Systems Solution.
- Provisioning of the Solution. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Echosec Systems will make the Solution available to Customer on the terms and conditions set out in this Agreement during the Term.
- Prohibited Uses. Without limiting the obligations set out in Section 2, Customer will not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Solution or any Intellectual Property Rights therein, or otherwise make the Solution available to the parties other than Permitted Users;
- use the Solution to permit timesharing, service bureau use or commercially exploit the Solution;
- use or access the Solution: (a) in violation of any applicable law or Intellectual Property Right; (b) in a manner that threatens the security or functionality of the Solution; or (c) for any purpose or in any manner not expressly permitted in this Agreement;
- use the Solution to: (a) conduct inappropriate searches, including searches which are: (i) for a Permitted User’s personal use or gain; (ii) not within the intended scope of the Acceptable Use; or (iii) are “black list” search terms as communicated to Customer by Echosec Systems; (b) conduct illegal searches or searches for any illegal material (except to the extent that such searches are undertaken solely for lawful purposes, such as the investigation of a crime), including searches for: (i) substances of any kind that are prohibited or controlled in the country in which the Customer is located and/or the Permitted User resides; (ii) images of any kind that are prohibited in the country in which the Customer is located and/or the Permitted User resides or that to which the relevant search relates; (iii) counterfeit goods, or items intended for use in fraud; or (iv) any other items which are prohibited or controlled in the country in which the Customer is located and/or the Prohibited User resides; (c) profile or discriminate against a person based on gender, gender identity, sexual orientation, religion, ethnicity, race, age, national origin or disability; (d) violate or in any way assist third parties to violate basic human rights or civil liberties; (e) create databases of identifying information for any organization, governmental authority or any other group to abrogate any human rights, civil rights, or civil liberties of individuals on the basis of race, gender or gender identity, sexual orientation, religion or national origin; (f) bully, intimidate or harass any person; (g) disseminate content that is hate speech, threatening, pornographic, incites violence, contains nudity, or graphic or gratuitous violence; or (h) engage in any other activity reasonably deemed by Echosec Systems to be inappropriate or conflict with the Acceptable Use.
- use the Solution to create, collect, transmit, store, use or process any Customer Data: (a) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (b) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (c) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- Modify the Solution;
- attempt to reverse engineer, de-compile or disassemble the Solution;
- access or use the Solution for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the Solution.
- Monitoring; Certain Consequences for Unauthorized Use
- All searches made on the Solution may be subject to automated and manual monitoring and auditing by Echosec Systems or any of its service providers.
- Where Customer or any Permitted User uses the Solution in an unauthorized manner including in breach of Section 2, Echosec may, without limiting any of its other rights or remedies at law or in equity under this Agreement: (a) block searches; (b) delete searches, search history and search results; (c) notify Customer of any search deemed by Echosec Systems to be unauthorized; (d) report without notice Customer’s conduct to law enforcement authorities; or (e) restrict Customer’s access to the Solution and terminate this Agreement immediately upon written notice without any liability or penalty.
- Suspension of Access; Scheduled Downtime; Modifications. Echosec Systems may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:
- suspend Customer’s access to or use of the Solution if Customer breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured seven (7) days after Echosec Systems provides Customer with written notice of such breach; and
- make any Modifications to the Solution provided the Solution continues to materially conform to the description set forth in the Cover Page.
- Subcontracting. Echosec Systems may engage third parties to provide the Solution.
4. Customer Data; Reservation of Rights.
- Customer Data. Except as specifically set forth in this Agreement, nothing in this Agreement assigns or grants to Echosec Systems any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer grants to Echosec Systems a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Customer Data to: (a) provide the Services; and (b) improve and enhance the Services and its other offerings.
- Reservation of Rights. Echosec Systems or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) anything used, developed or delivered by or on behalf of Echosec Systems under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
6. Customer User Account; Responsibility for Permitted Users.
- Upon Customer’s request, Echosec Systems will issue one or more accounts (each, a “Customer User Account”) to Customer for use by one or more individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Solution (each, a “Permitted User”). Customer will ensure that each Permitted User only use the Solution through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person.
- Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Solution in compliance with this Agreement. Customer shall ensure that the Permitted Users use the Solution in accordance with the terms and conditions of this Agreement and the Customer shall be responsible for any Permitted User’s breach of the terms and conditions of this Agreement
- Customer will promptly notify Echosec Systems of any actual or suspected unauthorized use of the Solution or any unauthorized use of any of the Customer User Accounts, or passwords or if Customer suspects any of its Customer User Accounts or passwords have been compromised in any way. Echosec Systems reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
Echosec Systems will provide Customer with technical support for the SaaS Services (“Support Services”): (i) via telephone at 1 844-324-6732 from 9:00 AM to 4:00 PM Pacific Standard Time from Monday to Friday, (excluding statutory and civic holidays observed in Victoria, British Columbia); (ii) via email at [email protected]; and (iii) via Echosec Systems’ knowledge base and documentation available online at https://knowledgebase.echosec.net/.
- Fees. Customer agrees that the rights granted under this Agreement, including any license or access provided to Solution or Services, are conditioned on Customer’s payment of all required fees for such Solution or Services, whether upfront, one-time, recurring, or a combination of the foregoing or as specified in the Cover Page (“Fees”). In consideration for the rights granted to Customer and the performance of Echosec Systems’ obligations under this Agreement, Customer will pay Echosec Systems the Fees.
- Payment. Unless otherwise noted in the Cover Page, all Fees are identified in United States dollars. Customer must provide payment of Fees with a valid credit card, debit card, sufficient funds in a bank account to cover electronic debit of the payment due, or by another payment option acceptable to Echosec Systems. Such payment method will be charged upon subscription and provision of payment information. All Fees under this Agreement are due upon the earlier of the delivery of the applicable Solution or Service, or presentation of a Echosec Systems’ invoice, or as otherwise specified herein or in the Cover Page. Customer’s payment is not subject to any setoff claims or rights of offset of any kind, including inactive use, or where access to or use of the Solution or Services is prevented for any reason, or Customer has failed to install or use the Solution or to provide access for applicable Services. Echosec Systems reserves the right to take any and all appropriate action if Customer fails to pay as required in this Agreement, which may include: (a) prevention of use of the Solution by any party; (b) withholding of Services until Customer has paid in full amounts owed to Echosec Systems; and (c) charging a late fee of 1.5% per month (or less, as per the maximum amount allowed by applicable law) for all past due amounts. Customer agrees to pay and reimburse Echosec Systems for all such amounts and Fees.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement. Notwithstanding anything to the contrary in this Agreement, if any amounts (including any Taxes) are required to be withheld by Customer from any amount otherwise payable by Customer to or for the benefit of Echosec Systems under this Agreement, Customer will: (a) pay an additional amount such that the net amount actually received by Echosec Systems will, after all such withholdings (including any withholdings to be made in respect of any additional amount payable pursuant to this sentence), equal the full amount of the payment then due; (b) pay, or cause to be paid, to the relevant taxation authority the full amount of such withholdings (including the full amount of any withholdings in respect of any additional payment required to be paid pursuant to this sentence) in accordance with applicable law; and (c) furnish Echosec Systems as soon as practicable (and, in any event, within 30 days) with an official receipt (or a certified copy thereof) or such other documentation as is reasonably acceptable to Echosec Systems evidencing payment of such withholdings to the relevant taxation authority. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, upon written request by Echosec Systems, Customer will provide a certificate of exemption upon agreement to this Agreement and, at Echosec Systems’ sole discretion or after receipt of valid evidence of exemption, Echosec Systems will not charge Customer any Taxes from which Customer is exempt.
- Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser”, and “Confidential Information” means information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, a reasonable person should recognize as being confidential; provided that Discloser’s Confidential Information does not include: (a) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take reasonable precautions to safeguard the other party’s Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 2 of these General Terms, Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (c) in the case of Echosec Systems, to potential assignees, acquirers or successors of Echosec Systems if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Echosec Systems.
10. Representations and Warranties; Disclaimer.
- Mutual Representations and Warranties. Each party represents, warrants, and covenants that: (a) it has full power and all necessary rights to enter into this Agreement; and (b) it will carry out its obligations under this Agreement in compliance with applicable laws.
- Customer Warranty. Customer represents and warrants to, and covenants with Echosec Systems that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Echosec Systems to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Echosec Systems and to or from all applicable third parties.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ECHOSEC SYSTEMS DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SOLUTION (AND ANY PART THEREOF) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ECHOSEC SYSTEMS DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.. ECHOSEC SYSTEMS MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCT OR SERVICE EMBEDDED IN OR INCLUDED WITH THE SOLUTION OR FURNISHED TO CUSTOMER BY ECHOSEC SYSTEMS.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, ECHOSEC SYSTEMS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
- Customer’s Responsibilities. Unless otherwise agreed to in the Cover Page, Customer is solely responsible for: (a) purchasing and obtaining from third parties, and for maintaining during the Term, all applicable licenses and consents for third party technology needed to install, execute, and otherwise use the Solution (unless provided by Echosec Systems pursuant to this Agreement and paid for by Customer to Echosec Systems); (b) configuring all equipment, software, and systems used with the Solution; and (c) Permitted Users use of the Solution.
- Intellectual Property Indemnity.
- Subject to the terms and conditions of this Agreement, Echosec Systems will defend any suit brought by a third party against Customer to the extent based on a claim that any Solution infringes any patent, copyright, trade secret or trademark, and Echosec Systems will pay any final judgment rendered by a court of competent jurisdiction, or settlement agreed to in writing by Echosec Systems, with respect to such claim. These obligations are contingent upon Customer promptly notifying Echosec Systems in writing of any claims or threatened claims, Echosec Systems having sole control over the defense and all negotiations for settlement of any such claim, and Customer giving all reasonable assistance to Echosec Systems in the defense and settlement of the claim. These obligations are further subject to Customer being in full compliance with its payment obligations under this Agreement. Echosec Systems will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- If any Solution (excluding third party Systems) becomes, or in Echosec Systems’ opinion is likely to become, the subject of an infringement claim, Echosec Systems may, at its option and sole discretion: (a) obtain for Customer the right to continue to use the Solution as provided in this Agreement; (b) replace the Solution with another product that provides similar functionality; or (c) if Echosec Systems determines that neither of the foregoing options are reasonably available, Echosec Systems may require that Customer cease use of the Solution and, notwithstanding anything to the contrary in this Agreement, Echosec Systems will refund to Customer a pro-rated portion of the applicable Fees paid.
- Limitations of Indemnity. Echosec Systems’ obligations under Section 1 do not apply to any claims, damages or liabilities arising out of or relating to any of the following (“Excluded Claims”): (a) any product or component thereof that is not supplied by Echosec Systems to Customer under this Agreement; (b) the combination of any Solution with any other software, products, equipment, component, process or material in a manner not authorized in the documentation for such Solution; (c) any modification to the Solution (unless made by Echosec Systems) if the alleged infringement arises from such modification; (d) use of the Solution in a manner not permitted by or in breach of this Agreement; (e) failure to use replacement or modified Solution that provides substantially similar functionality as the original Solution if the replacement or modified Solution would have rendered the Solution non-infringing; and (f) Echosec Systems’ compliance with Customer’s instructions, specifications or requirements. No indemnification for any third party products supplied by Echosec Systems is provided under this Agreement unless and to the extent such indemnification is provided to Customer under the terms of Echosec Systems’ agreement with the licensor.
- Indemnification by Customer. Customer will indemnify, hold harmless, and, at Echosec Systems’ option, defend Echosec Systems from and against all Losses resulting from any claim by any third party arising from or in connection with: (a) Customer Data; (b) Excluded Claims; or (c) Customer’s unauthorized use of the Solution.
- Indemnification Process. The party seeking indemnification agrees to give the indemnifying party: (a) prompt written notice of such claim; (b) authority to control and direct the defense or settlement of such claim; and (c) such information and assistance as the indemnifying party may reasonably request, at indemnifying party’s expense, in connection with such defense or settlement. Notwithstanding the foregoing, the indemnifying party will not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified party provides its prior written consent to such settlement. In any action that the indemnifying party provides defense on behalf of indemnified party, the indemnified party may participate in such defense at its own expense by counsel of its choice.
12. .Limitation of Liability.
12.1. AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
12.2 TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
12.3 Exceptions. The exclusions and limitations in Sections 12.1 and 12.2 do not apply to: (a) either party’s obligations under Section 11; (b) Losses arising out of or relating to Customer’s breach of its obligations under Sections 3.2, 8, or 10; or (c) Losses arising out of or relating to a party’s gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
13. Term; Termination.
- This Agreement is effective as of the Effective Date and will remain in effect for the Initial Term and any Renewal Terms specified in the Cover Page (collectively, the “Term”), unless earlier terminated in accordance with this Agreement.
- Termination. Either party may terminate this Agreement by giving to the other party written notice of termination upon the occurrence of any of the following events: (a) the other party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 8) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (b) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution. In addition to the foregoing, either party may terminate this Agreement for its convenience at any time upon not less than thirty (30) days’ prior written notice to the other Party.
- Effect of Termination. Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement: (a) Customer must immediately cease any and all use of the Solution; (b) within ten (10) days of expiration or termination, Customer will destroy or deliver to Echosec Systems all copies of Echosec Systems’ Confidential Information; (c) Echosec Systems may retain Customer’s Confidential Information for its records, but the obligations of confidentiality with respect to such information set forth in Section 9 will survive for so long as such information is retained; (d) Echosec Systems will have no further obligation to provide the Solution or perform any Services of any kind to Customer; and (e) if Customer terminated the Agreement for its convenience, all amounts payable for the then current term (i.e., the Initial Term or the Renewal Term, as applicable), including amounts not otherwise due or billed as of the effective date of termination, will become immediately due and payable. Expiration or termination of this Agreement will not limit Echosec Systems from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve Customer’s obligation to pay all amounts and Fees that have accrued or are otherwise owed by Customer under this Agreement up to the effective date of termination.
- Survival. Upon any termination or expiration of this Agreement, provisions contained in this Agreement that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Agreement, including Sections 3, 5, 8, 9, 12, 13.4, and 14 through 21 will survive.
This Agreement is binding upon and is for the benefit of the parties, their permitted successors and permitted assigns. Customer may not transfer, sublicense or otherwise assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without Echosec Systems’ prior written consent, which consent will not be unreasonably withheld. Any attempted transfer, sublicense or assignment by Customer in violation of this Section will be null and void. Echosec Systems may assign, transfer, or delegate this Agreement and any or all of its rights and obligations under this Agreement without Customer’s consent.
Customer agrees not to directly or indirectly export, re-export or import any of the Solution without first obtaining all required licenses, permits and permissions. Echosec Systems makes no representation or warranty that the Solution may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
16. Force Majeure.
Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the other party using the contact information as set forth in the Cover Page. Either party may change its contact information by giving notice thereof to the other party. In addition, Echosec Systems may change its contact information by posting the new contact information on the Website.
18. No Third Party Beneficiaries.
Except for those third parties that have licensed software or other intellectual property to Echosec Systems that is included as part of the Solution, no person or entity will be a third party beneficiary of this Agreement or have any right or cause of action hereunder.
19. Governing Law.
This Agreement is governed by and construed in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable therein, not including its conflict of law principles. The parties disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
20. Dispute Resolution.
- Collection Disputes. Any Fee collection disputes arising out of the failure to pay by Customer will be commenced in and determined by a court of competent jurisdiction in the Province of British Columbia or, at Echosec Systems’ discretion, in the jurisdiction of incorporation of the Customer. Each of the parties to this Agreement: (a) irrevocably and unconditionally consents and submits to the jurisdiction of such courts in any such action; (b) consents to service of process in accordance with the rules governing proceedings in any such court; and (c) irrevocably waives and covenants not to assert any objection to the laying of venue in any such court in any such action.
- Arbitration. Subject to Section 1, the parties agree to use the process in this Section to resolve any controversy, dispute, or claim arising out of or relating to this Agreement, including its negotiation, validity, existence, breach, termination, construction, or application or the rights, duties, or obligations of any party to this Agreement (a “Dispute”). However, nothing will restrict or prohibit either party from delivering a notice of arbitration at any time in order to protect its rights in relation to a Dispute. The arbitration provisions of this Agreement apply to claims by and against all parties and their affiliates, owners, guarantors, managers, directors, officers, employees, and representatives.
- If a Dispute occurs between the parties so that one party is considering legal action against the other party, the party considering the legal action will provide the other party with a written request of a meeting between the parties to attempt to resolve the Dispute in good faith. The parties will attend and participate in a conciliation meeting within 30 days of the written request. Except where the parties are seeking injunctive relief, no legal action will be taken by either party until this meeting occurs or until after the 30 day period, whichever is earlier.
- If the Dispute is not resolved at the above conciliation meeting, the Dispute will be referred to and determined by arbitration in accordance with the National Arbitration Rules of the ADR Institute of Canada, Inc. (the “NADR Rules”). Either party may commence the arbitration in accordance with the NADR Rules. The site of the arbitration will be Vancouver, British Columbia, Canada.
- The language of the arbitration will be English and the arbitral tribunal will be comprised of one arbitrator. If the parties do not agree on the identity of the arbitrator within 15 days of the referral to arbitration, then the arbitral tribunal will be appointed by the ADR Institute of Canada. The arbitral tribunal will render its final award and the reasons for the award within 45 days of the conclusion of the hearing, unless such time is reduced or extended by the tribunal after giving the parties an opportunity to be heard. Any award or judgment on an award and any award for interim relief may be entered in any court having jurisdiction and will be final and binding on the parties and will not be subject to appeal.
- No party is prohibited from seeking interim, interlocutory, or expedited remedies (including the use of arbitration rules providing for emergency measures of protection), in any forum having jurisdiction, including remedies to preserve or protect trademarks, Confidential Information, copyrights, or trade secrets or for extraordinary relief such as an injunction or eviction.
- In addition to any other restriction on the tribunal in this Agreement, in no event will the arbitral tribunal award, or have any jurisdiction to award, punitive or exemplary damages against any party. No arbitration award will have an effect of preclusion or collateral estoppel in any other adjudication or arbitration.
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Wavier. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
- Independent Contractors. Echosec Systems’ relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written. If there is a conflict or inconsistency between any of the terms of this Agreement, including the Cover Page, the General Terms and any addendum, then the conflict or inconsistency will be resolved by giving those terms the following order of descending precedence: (a) the addendum; (b) the Cover Page; and (c) the General Terms.
- Amendments. Echosec Systems reserves the right to change these General Terms and the Addenda at any time by replacing them with a new version. It is Customer’s obligation to monitor the Website for any such new versions. Customer’s continued access to or use of the Solution after any changes to these General Terms or any addenda indicates Customer’s acceptance of such changes.
- English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
- Counterparts. The Cover Page may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.