IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS AND CONDITIONS CAREFULLY. The following (the “Agreement”) describes the terms and conditions pursuant to which ECI Solutions Pty Ltd (ACN 058 229 495) or its affiliates (“ECI” “us”, “we”, or “our”) agrees to provide the individual or entity (“You”) access to this software program (the “Software”). BY ACCESSING OR USING THE SOFTWARE, 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 ACCESS OR USE 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 ONLINE AND PROVIDING NOTICE TO YOU INCLUDING A URL LINK TO SUCH UPDATED VERSION. YOUR CONTINUED ACCESS OR USE OF THE SOFTWARE FOLLOWING SUCH NOTIFICATION CONSTITUTES ACCEPTANCE OF SUCH MODIFICATIONS.
Data specific to You that is related to Your business residing in the software hosted by ECI under the applicable licence agreement.
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.
Material used and/or displayed by You in connection with the Software and the Services, including without limitation, information, artwork, graphics, images, text, software and data.
The print, electronic, or online user instructions, manuals or other materials regarding the use of the Software or Services provided to You by ECI.
A new Tax System (Goods and Services Tax) Act 1999 (Cth).
The initial term is thirty (30) days from the date of applicable Order Form.
Intellectual Property Rights
Any intellectual or industrial property rights (whether registered or not and whether protected by statute or not) including, without limitation, all rights, wherever subsisting in the world, in relation to: (i) any patent, trade mark or service mark, copyright, design, business name, trade secret, system, program, invention, prototype, application, know-how, designs, process, logo or confidential information; and (ii) any licence or other right to use or to grant the use of any of them or to be the registered proprietor or user of any of them.
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.
Any information or an opinion, whether true or otherwise or in a material form, about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
Personnel of a party includes employees, officers, agents, consultants and contractors but: (i) ECI’s Personnel do not include You or Your Personnel; and (ii) Your Personnel do not include ECI or ECI’s Personnel.
Any privacy requirement of ECI published under the Privacy Act 1988 (Cth)(“Privacy Act”) and any applicable law covering privacy or Personal Information, including the Privacy Act and any regulations, codes of conduct, directives or order made or issued under such law.
An ECI-appointed reseller, distributor, or authorised system integrator that supplies Software and/or licence keys to You and/or provides services and support directly to You in connection with the Software.
The ECI KnowledgeSync software specified on the applicable Order Form or otherwise licensed to You by ECI under this Agreement.
ECI’s hosting of the Software licensed to You by ECI hereunder.
The Initial Term plus any renewals thereof in accordance with this Agreement.
Updates, modifications, bug fixes and other corrections, if any, that ECI makes generally available for the Software.
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.
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 will 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, will be effective to vary the terms of this Agreement.
ECI hereby grants You a nonexclusive, non-transferable (except as expressly provided herein), licence to access and use the Software solely for Your internal information management and internal data processing purposes during the Term, subject to any licence limitations specified in an Order Form.
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 licence(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.
You must use the Software solely for Your internal business purposes as contemplated by this Agreement and the applicable Order Form and must 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 breach of applicable laws; (iii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or breaches 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 unauthorised access to the Software or its related systems or networks.
You must 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 Your 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.
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, will 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 licence 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 licence 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).
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 Your 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 will 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 WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
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. You are responsible for safeguarding the password that You use to access the Software and the Services and for any activities or actions under Your password.
You must notify ECI promptly if You become aware of any unauthorised 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 authorised 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.
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 authorised 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) will survive expiration or termination of the Agreement for a period of three (3) years.
At any time during the Term of this Agreement, ECI may audit Your use of the Software and the Services in order to verify compliance with the terms of this Agreement, including without limitation electronic auditing means. If ECI elects to conduct a physical audit, such audit will occur no more frequently than once annually at ECI’s expense. All physical audits must be conducted during regular business hours at Your site and must not unreasonably interfere with Your business activities. ECI will schedule any such audits at least ten (10) business days in advance. If any audit by ECI yields any deficiency in the amounts paid to ECI, You must promptly remit payment to ECI of such amounts plus interest calculated at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic). In addition, if an audit by ECI yields a deficiency of 5% or more between the amounts actually paid to ECI versus the amounts that should have been paid for actual usage of the Software, You will promptly reimburse ECI for all reasonable costs incurred in connection with the audit.
THE SOFTWARE AND THE SERVICES (AND/OR FUTURE UPDATES OR UPGRADES THERETO) INCORPORATE LICENCE 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 APPLICABLE). YOU CONSENT TO SUCH LICENCE MANAGEMENT TOOLS AND TECHNOLOGY AND AUTHORISE 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 LICENCE 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.
You represent and warrant to ECI that (a) You are the lawful owner of any Content or You have the necessary licence rights from the applicable owner of the Content to use the Content in connection with Your use of the Software, and (b) any posting of Your Content through the Software and the Services does not breach 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 will 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) any Resellers are independent entities and are not agents of ECI; (b) ECI is not liable for, nor bound by, any acts or omissions of any 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.
TO THE GREATEST EXTENT ALLOWED BY LAW, 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.
For so long as You have a current subscription, 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 reasonable 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.
You must 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 legal 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 Your employees, agents or contractors or any other person for whom You are responsible; (iii) any breach of applicable law by You; or (iv) any claim that the Content or Data (or ECI or Your use thereof) breaches the rights of or has caused harm to a third party. ECI must (a) promptly give written notice of the claim to You; (b) give You sole control of the defence and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release the ECI Indemnitees from all liability); and (c) provide to You, at Your cost, all reasonable assistance.
You will pay ECI (or the applicable Reseller) all fees for the Software and the Services, 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. Except as expressly provided in this Agreement or as required by law, payment obligations are non-cancellable, 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 rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic). Such charge will accrue from the payment due date until the date such payment is made in full. You will also pay all costs and expenses (including, but not limited to, ECI’s legal fees) incurred by ECI in connection with collection of unpaid amounts owed to ECI. Notwithstanding the foregoing, terms of payment for items supplied by Resellers, if any, will 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, Australian, state, or local law with respect to the licence of Software and the Services as contemplated by this Agreement.
If any amount payable by You is overdue (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. ECI (or the applicable Reseller) will provide You with a reasonable prior notice of any change in the fees. Your continued use of the Software and the Services after any change in the fees becomes effective constitutes Your agreement to pay the modified fees.
A word or expression defined in the GST Law has the meaning given to it in that law.
If a party makes a supply under or in connection with this Agreement in respect of which GST is payable, the consideration for the supply but for the application of this paragraph (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with the preceding paragraph.
Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.
A party need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the payment relates.
Nothing in this Agreement excludes or limits any term, guarantee, warranty or condition which is implied or expressly required to be included in this Agreement under the Competition and Consumer Act 2010 (Cth), any States’ Goods Acts or other applicable legislation and is prohibited by law from being excluded or modified (“Statutory Warranty”) to the extent it would be unlawful to do so.
To the maximum extent allowed by law, ECI’s liability for breach of a Statutory Warranty is limited, at the option of ECI, to: (i) re-supplying the Software or Services; or (ii) the cost of having the Software or Services re-supplied.
Despite anything else contained in this Agreement, but subject to the first sentence of this section, ECI will not be liable to You for any incidental loss or damage, consequential loss or damage, indirect loss or damage, special loss or damage, loss of revenue, loss of profits, loss of opportunity, loss of data, failure to realise expected profits or savings, punitive or incidental damages or other commercial or economic loss of any kind arising in connection with the Software or Services provided under this Agreement, even if ECI has been advised of the possibility of such damages, and all claims will be limited to direct out-of-pocket or actual costs only.
You are solely responsible for the use, operation, support and maintenance of all third party products and services, and ECI will have no liability or responsibility for any such matters. ECI is not responsible for any damage or losses resulting from use of third party products and services. The use of third party products and services is at Your sole risk.
Except where the second sentence of this section applies, ECI’s maximum cumulative liability for any and all damages, costs, losses, liabilities and expenses of any kind and nature arising out of or related to this Agreement will not exceed the total fees paid by You under this Agreement in the one (1) month period immediately preceding the date of the claim for damages.
This Agreement becomes effective upon Your acceptance of this Agreement and, unless earlier terminated as provided in this Agreement, will be for the Initial Term, subject to the termination rights provided in this Agreement. Thereafter, this Agreement and any Order Forms then in effect will automatically renew under the same conditions as the prior term unless otherwise terminated as provided herein.
Either party may terminate this Agreement and the applicable Order Forms for the Software and Services upon at least thirty (30) days’ prior written notice.
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 Licence 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 licence 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; provided, however, that subsection (vi) of this paragraph will not apply if You enter into voluntary administration, receivership or are subject to a scheme of arrangement, as contemplated by the Ipso Facto Law Reform. For purposes of this paragraph, “Ipso Facto Law Reform” means the law reform outlined in the Corporations Amendment (Stay on Enforcing Certain Rights) Regulations 2018 (Cth) that prevents a party from enforcing a provision to terminate or amend a contract because the counterparty enters into voluntary administration, receivership or a scheme of arrangement to avoid being wound up in insolvency. Notwithstanding the foregoing, subsection (vi) of this paragraph will only apply while the administration, receivership or scheme of arrangement is ongoing, and will cease in the event that the party is wound up.
Upon termination or expiration of this Agreement, You must immediately cease using the Software and the Services and, at the election of ECI, destroy or 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.
Upon expiration or termination due to Your breach, any fees then due plus those to become due over the remaining period of the then-current Term will immediately become due and payable.
Upon expiration or termination of this Agreement, ECI’s obligations under this Agreement will cease.
Upon request by You made within 30 days after the effective date of the termination of this Agreement, ECI will make available to You for download a standard SWL backup file of any Data. After such 30-day period, ECI will have no obligation to maintain or provide any Data and will have the right, unless legally prohibited, to delete all Data in its systems or otherwise in its possession or under its control.
In addition to any provision of this Agreement which by its nature is intended to survive termination or expiration, the following sections of this Agreement will survive any termination or expiration of this Agreement: Definitions; Restrictions; Intellectual Property and Data Rights; Confidentiality; Indemnification; Fees; LIMITATION OF LIABILITY; Survival; 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 will prevail.
You must 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 must 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 will 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 will be void. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Any notices required or permitted hereunder will 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.
This Agreement will be governed and construed in accordance with the laws of the State of Victoria and parties submit to the non-exclusive jurisdiction of the courts of that state.
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 labour 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 You 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 will 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 will be severable from this Agreement so that the remaining provisions are unaffected.
Unless you notify us otherwise in writing, You agree that ECI may include Your name and logo on ECI’s customer lists posted on its website and in other marketing materials.