1. SOFTWARE SERVICES
In consideration of Customer’s compliance with the terms of this Agreement, Ecotrak will use reasonable efforts to
(a) make the Software Services available to Customer pursuant to this Agreement and the applicable Order Forms,
(b) provide Support for the Software Services to Customer, in accordance with Exhibit B, and
(c) make the Software Services available in accordance with the service levels in Exhibit B. The initial Order Form is attached hereto.
2. PROFESSIONAL SERVICES
2.1 Performance. Ecotrak will perform the Professional Services described in the applicable Order Form(s) for the fees set forth in the applicable Order Form(s).
3. USE OF SOFTWARE SERVICES
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Software Services are purchased as subscriptions (i.e., for a period of time, as provided in the Order Form), (b) subscriptions added during a subscription term are prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Customer Responsibilities. Customer will: (a) be responsible for Users’ compliance with this Agreement and liable for any User’s breach thereof, (b) comply with all laws applicable to the operation of, content on and data privacy and security related to Customer’s systems, including all privacy statement requirements, (c) be responsible for the accuracy, quality and legality of Customer Materials and the means by which Customer acquired Customer Materials, (d) prevent unauthorized access to, use of or reproduction of Software Services, and notify Ecotrak promptly of any such unauthorized access, use or reproduction, (e) use Software Services only as permitted in this Agreement and in accordance with the Documentation and applicable laws, (f) advise its employees, agents and contractors who have access to the Software Services of the restrictions in this Agreement, and (g) comply with terms of service of Non-Ecotrak Applications with which Customer uses Software Services.
3.3 Usage Restrictions. Customer will not: (a) make any Software Service available to, or use any Software Service for the benefit of, anyone other than Customer; provided, however, Customer may make the Software Service available to its suppliers and service providers, but solely on the terms of this Agreement and solely to use the Software Service for the benefit of Customer, (b) sell, resell, loan, license, sublicense, assign, transfer, distribute, rent or lease any Software Service, or include any Software Service in a service bureau or outsourcing offering, or otherwise make the Software Service available to any third party; (c) use a Software Service to store, post or transmit infringing, libelous, or otherwise unlawful, tortious, harassing, abusive, threatening, harmful, vulgar, invasive, obscene or otherwise objectionable material, or material that is harmful to minors in any way, or to store, post or transmit material in violation of third-party privacy rights or other rights; (d) use a Software Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Software Service or third-party data contained therein, or any servers or networks connected thereto, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to any Software Service or its related systems or networks, or other accounts, or computer systems or networks connected to the Software Service , through password mining or any other means; (g) permit direct or indirect access to or use of any Software Service in a way that circumvents a contractual usage limit; (h) modify, translate, copy or create derivative works of a Software Service or any part, feature, function or user interface thereof; (i) copy any part of the Software Service except as may be permitted in this Agreement or in the applicable Order Form or the Documentation; (j) frame or mirror any part of any Software Service; (k) create any Internet hyperlink to the Software Service; (l) access or use any part of the Software Service in order to build a competitive product or service; (m) decompile, disassemble, reverse engineer or reduce to human-perceivable form any software included
in the Software Service (but only to the extent such restriction is not prohibited by law); (n) remove or modify, or attempt to remove or modify, any proprietary notices on the Software Service; (o) have any right to receive the source code for the Software Service or any deliverable; (p) use the Software Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative messages, whether commercial or otherwise; (q) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; or (r) harass or interfere with another user’s use and enjoyment of the Software Service.
4. NON-ECOTRAK PROVIDERS
4.1 Acquisition of Non-Ecotrak Products and Services.Ecotrak or third parties may make available third-party products or services, including, for example, Non-Ecotrak Applications and implementation and other consulting services. Any acquisition by Customer of such non-Ecotrak products or services, and any exchange of data between Customer and any non-Ecotrak provider, is solely between Customer and the applicable non-Ecotrak provider. Ecotrak does not warrant or support Non-Ecotrak Applications or other non-Ecotrak products or services, whether or not they are designated by Ecotrak as “certified” or otherwise, except as specified in the applicable Order Form (if at all).
4.2 Non-Ecotrak Applications and Customer Data. If Customer installs or enables a Non-Ecotrak Application for use with a Software Service, Customer grants Ecotrak permission to allow the provider of that Non-Ecotrak Application to access Customer Data as required for the interoperation of that Non-Ecotrak Application with the Software Service. Ecotrak is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-Ecotrak Application.
4.3 Integration with Non-Ecotrak Applications. The Software Services may contain features designed to interoperate with Non-Ecotrak Applications. To use such features, Customer may be required to obtain access to Non-Ecotrak Applications from their provider(s), and may be required to grant Ecotrak access to Customer’s account(s) on the Non-Ecotrak Applications. If the provider of a Non-Ecotrak Application ceases to make the Non-Ecotrak Application available for interoperation with the corresponding Software Service features on reasonable terms, Ecotrak may cease providing those Software Service features without entitling Customer to any refund, credit, or other compensation.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified in the applicable Order Forms. Except as otherwise specified in the applicable Order Form, (a) fees are based on Software Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, (c) quantities purchased can be decreased during the relevant subscription monthly term due to store closure although monthly prepaid fees will not be adjusted for that month, (d) Professional Services fees do not include Ecotrak’s reasonable travel and other expenses, which Ecotrak will bill to Customer and Customer will reimburse, and for which Ecotrak will provide receipts, and (e) prices are quoted and payable in U.S. dollars.
5.2 Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the applicable Order Form. Unless otherwise stated in the applicable Order Form, fees and expenses are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Ecotrak and notifying Ecotrak of any changes to such information. Except as otherwise specified in the applicable Order Form, Customer will pay all fees in U.S. dollars.
5.3 Overdue Charges. If any invoiced amount is overdue, then without limiting Ecotrak’s other rights or remedies, Ecotrak may assess late payment interest on those charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Customer will reimburse all of Ecotrak’s costs and expenses (including attorneys’ and experts’ fees) incurred in any attempt to collect or the collection of overdue amounts.
5.4 Suspension of Service. If any charge owing by Customer is 10 days or more overdue, Ecotrak may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full.
5.5 Taxes. Ecotrak's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Ecotrak has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5, Ecotrak will invoice Customer and Customer will pay that amount unless Customer provides Ecotrak with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Ecotrak is solely responsible for taxes assessable against it based on its income, property and employees.
5.6 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Ecotrak regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Ecotrak and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer other than as expressly set forth in this Agreement.
6.2 License by Ecotrak to Use Software Services. Subject to Customer’s compliance with the terms of this Agreement, Ecotrak grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Software Services ordered by Customer pursuant to applicable Order Forms, subject to those Order Forms, this Agreement and the Documentation, solely during the subscription term for Customer’s internal business purposes (i.e., only the management of Customer’s assets for those concepts and those locations specified in the Order Form).
6.3 Customer Materials. Customer will retain ownership of the Customer Materials. Customer grants Ecotrak and its Affiliates a worldwide, non-exclusive, royalty-free, transferable, sub-licensable license to use, host, copy, transmit and display Customer Materials as necessary for Ecotrak to provide the Services in accordance with this Agreement.
6.4 Work Product. Anything resulting from or arising in the course of performance of the Professional Services will be deemed “Work Product.” As between the parties, Ecotrak will own all right, title and interest in and to the Work Product, including all derivative works, enhancements and modifications of the Software Services. For all Deliverables for which Customer has paid the applicable fees, Ecotrak provides to Customer under this Agreement, Ecotrak grants and agrees to grant Customer a worldwide, non-exclusive right to use all Work Product in the Deliverable solely in Customer’s use of the Deliverable (but not separately from the Deliverable) for its internal business purposes for the term of the applicable Order Form. Customer will take any further acts necessary to effect the intent of this provision.
6.5 License by Customer to Use Feedback. Customer grants to Ecotrak and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Services or other offerings any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Customer or Users relating to the Services. Ecotrak will not be obligated to credit Customer or any User for any such Feedback or hold any Feedback in confidence.
6.6 Usage Data. Notwithstanding anything to the contrary, Ecotrak may use (itself or through third parties) Customer Data and data regarding Customer’s use of the Software Services to prevent or fix technical problems, improve its offerings, or develop other offerings.
6.7 Federal Government End Use Provisions. Ecotrak provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Ecotrak to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.1 Definition of Confidential Information. “Confidential Information” means 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. Confidential Information of Customer includes Customer Data; Confidential Information of Ecotrak includes the Services, Work Product, and other Ecotrak intellectual property; and Confidential Information of each party includes the terms and conditions of this Agreement and all applicable 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. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights in this Agreement. Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will 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 containing protections comparable to those herein. Neither party will disclose the terms of this Agreement or any applicable 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 Section 7.
7.3 Compelled Disclosure. 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 Receiving 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.
8. PROTECTION OF CUSTOMER DATA
8.1 Generally. Ecotrak will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards include measures designed for preventing access, use, modification or disclosure of Customer Data by Ecotrak personnel except (a) to provide the Software Services, prevent or fix technical problems, or improve the Software Service, (b) as compelled by law in accordance with Section 7.3, or (c) as expressly permitted in this Agreement or otherwise writing by Customer.
8.2 IT Systems Security. Ecotrak’s will maintain various controls, processes and standards for safeguarding Ecotrak’s information technology systems, which may include: controls for prevention, detection and removal of Malicious Code; processes for identifying technical vulnerabilities; minimum security requirements in network services agreements; standards for audit trails; processes for monitoring key systems for unusual or suspicious activity; processes for timely reporting of information security events or suspected security weaknesses; system access controls that include user authentication, use of unique identifiers and two-factor authentication for remote users; and procedures to control the installation of software on operational systems.
8.3 Prohibited Data. Notwithstanding any other provision of this Agreement, Customer acknowledges that the Software Services are designed for the processing of Customer’s asset data. The Software Services are not designed for the following types of data: (a) individual medical or health information, including any information comprising “Protected Health Information” under the Health Insurance Portability and Accountability Act; (b) security codes, passwords, credit or debit card numbers; (c) personal data (as defined by applicable law), particularly regarding residents of jurisdictions outside of the United States of America or individuals under thirteen years of age; or (d) information concerning a natural person’s (i) sex life or sexual orientation, (ii) racial or ethnic origin, (iii) genetic or biometric data, (iv) political opinions, (v) religious or philosophical beliefs, or (vi) trade union membership, (each of the foregoing, "Prohibited Data"). Customer shall not enter (or permit the entry of) any Prohibited Data into the Software Service or have Ecotrak enter Prohibited Data into the Service on Customer’s behalf, and shall ensure that no Customer Data constitutes or contains Prohibited Data.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Representations. Each party represents that it has validly entered into this Agreement and any applicable Order Form and has the legal power to do so.
9.2 Ecotrak Warranties for Software Services. Ecotrak warrants that the Software Service will conform in all material respects to the then-current Documentation for the applicable Software Service. Customer’s sole and exclusive remedy, and Ecotrak’s entire liability, for breach of this limited warranty will be correction of the warranty nonconformity in the Software Service or, if Ecotrak fails to do so after using reasonable commercial efforts, Customer may terminate the nonconforming Software Service and receive a pro rata refund of the subscription fees paid for such Software Service for the remainder of the subscription term. This limited warranty will not be valid to the extent the warranty nonconformity was caused by Customer’s abuse, misuse or modification of the Software Service. Customer must notify Ecotrak in writing of any nonconformity of the Software Service within 30 days of discovery of such nonconformity in order to receive the above warranty remedies.
9.3 Ecotrak Warranties for Professional Services. Ecotrak warrants that it will perform all Professional Services in a professional, workman-like manner, and all Deliverables will conform in all material respects with the specifications in the applicable Order Form. Customer’s sole and exclusive remedy, and Ecotrak’s entire liability, for breach of this limited warranty will be for Ecotrak to correct or re-perform the deficient Professional Services or Deliverables or, if Ecotrak fails to do so after commercially reasonable efforts, Customer will have the right to a refund for such deficient Professional Services or Deliverables. Customer must notify Ecotrak in writing of any deficiency of the Professional Services or Deliverables within 30 days of Ecotrak discovery of such deficiency in order to receive the above warranty remedies.
9.4 Customer Warranties. Customer warrants that (a) it has the right to provide the Customer Materials to Ecotrak and allow Ecotrak to use the Customer Materials to provide the Services, and (b) it will comply with all applicable laws in its use of the Software Services and Deliverables.
9.5 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ECOTRAK DOES NOT WARRANT THAT THE SOFTWARE SERVICE WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SERVICES OR DELIVERABLES WILL BE CORRECTED. ECOTRAK WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-ECOTRAK APPLICATIONS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1 Indemnification by Ecotrak. Ecotrak will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Software Service or Deliverable in accordance with this Agreement and the applicable Order Form infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid or payable by Customer under a Ecotrak and court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives Ecotrak written notice of the Claim Against Customer, (b) gives Ecotrak sole control of the defense and settlement of the Claim Against Customer (except that Ecotrak may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability for past infringements), and (c) gives Ecotrak all reasonable assistance. If Ecotrak receives information about an infringement or misappropriation claim related to a Software Service or Deliverable, Ecotrak may in its discretion and at no cost to Customer (i) modify the Software Service or Deliverable so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of that Software Service or Deliverable in accordance with this Agreement, or (iii) terminate Customer’s subscription for that Software Service or right to use the Deliverable upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscription for the Software Services or the fees paid for the Deliverable, depreciated over three years on a straight-line basis. Ecotrak will not have any obligations under this Section 10 or any liability to the extent (A) a Claim Against Customer arises from Customer Materials, a Non-Ecotrak Application or Customer’s breach of this Agreement or the applicable Order Form, or (B) the Claim Against Customer would not have arisen but for (I) Customer’s combination or use of the Software Service or Deliverable with non-Ecotrak software, services or data, (II) modification of the Software Service or Deliverable by anyone other than Ecotrak, (III) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Ecotrak’s customization of the Software Service or Deliverable to meet Customer’s particular specifications or instructions, or (V) Customer’s use of the Software Service or Deliverable in a manner not strictly in accordance with this Agreement and the applicable Order Form.
10.2 Indemnification by Customer. Customer will defend Ecotrak against any claim, demand, suit or proceeding made or brought against Ecotrak by a third party alleging (a) that the Customer Materials (or Ecotrak’s use thereof), or Customer’s use of any Service or Deliverable in breach of this Agreement or an Order Form, violates, infringes or misappropriates such third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of this Agreement or an Order Form by Customer or acts or omissions by Customer described in Section 10.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Customer’s use of or decision based on a Service or a Deliverable, except to the extent constituting grounds for a Claim Against Customer (collectively, a “Claim Against Ecotrak”), and will indemnify Ecotrak from any damages, attorney fees and costs finally awarded against Ecotrak as a result of, or for any amounts paid or payable by Ecotrak under a court-approved settlement of, a Claim Against Ecotrak, provided Ecotrak (i) promptly gives Customer written notice of the Claim Against Ecotrak, (ii) gives Customer sole control of the defense and settlement of the Claim Against Ecotrak (except that Customer may not settle any Claim Against Ecotrak unless it unconditionally releases Ecotrak of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 10.1.
11. LIMITATION OF LIABILITY
11.1 Limitation of Damages. ECOTRAK’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR AN ORDER FORM WILL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM (OR THE FIRST INCIDENT IN A SERIES OF SIMILAR OR RELATED CLAIMS) THE MAXIMUM AMOUNT DESCRIBED IN THE FOREGOING SENTENCE OR (B) ITS PER INCIDENT OR PER OCCURRENCE INSURANCE COVERAGE FOR A SINGLE INCIDENT OR OCCURRENCE OR ITS AGGREGATE INSURANCE COVERAGE FOR MULTIPLE INCIDENTS OR OCCURRENCES COVERED BY THE SAME INSURANCE POLICY, AS THE CASE MAY BE. THE ABOVE LIMITATIONS WILL APPLY REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL ECOTRAK HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, REVENUES OR DATA, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY ON WHICH THEY ARE BASED, AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.3 Limitation on Time to File Claims. A PARTY MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM WITHIN ONE YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.
11.4 Force Majeure Events. ECOTRAK WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY DUE TO A FORCE MAJEURE EVENT.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
12.2 Term of Subscriptions. The term of each subscription will be as specified in the applicable Order Form. Except as otherwise specified in the applicable Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term.
12.3 Termination. A party may terminate the applicable Order Form or this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Payment upon Termination. In no event will termination or expiration relieve Customer of its obligation to pay any fees payable to Ecotrak for the period prior to the effective date of termination.
12.5 Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of the applicable Order Form, Ecotrak will make the Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Ecotrak will have no obligation to maintain or provide any Customer Data.
12.6 Effects of Termination; Surviving Provisions. Termination of this Agreement will terminate all outstanding Order Forms. Customer’s right to use the Software Services will terminate immediately and automatically upon the expiration or termination of the applicable Order Form. The following Sections will survive any termination or expiration of this Agreement: 4, 5, 6, 7, 8.3, 9.4, 9.5, 10, 11, 12.4-12.6, (only with regard to the extension of coverage) and 14.
13.1 Coverage. Ecotrak will maintain in effect at all times during the rendering of Services under this Agreement the following insurance:
(a) Commercial General Liability Insurance with limits of at least $1,000,000 - Combined Bodily Injury and Property Damage, $1,000,000 - Single Limit Bodily Injury and Property Damage. Such insurance will be written on an occurrence basis.
(b) Owned, Non-Owned and Hired Automobile Liability Insurance with at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage limits.
(c) Excess/Umbrella Liability Insurance with a minimum limit of $5,000,000 per occurrence (this policy should provide excess limits for the general liability, employers liability and automobile liability and be follow form or at least as broad in coverage).
(d) Full statutory coverage for Workers’ Compensation and Employers Liability with limits of at least $1,000,000 and Disability Insurance for all its employees if and as required by law. These policies will contain waivers of the insurer’s subrogation rights against Customer where permitted by law.
(e) Errors and Omissions Liability Insurance, with a minimum limit of $2,000,000 per occurrence, $2,000,000 annual aggregate; and
(f) Cyber Liability Insurance with minimum limits of $2,000,000 per occurrence and $2,000,000 annual aggregate.
13.2 Additional Terms. Certificates of insurance evidencing these coverages will be provided to Customer upon Customer’s written request.
14. GENERAL PROVISIONS
14.1 Export Compliance. The Software Services and Deliverables, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Ecotrak and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Software Service or Deliverable in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Ecotrak does not represent or warrant that the use of the Software Service or Deliverable is lawful or available in any country outside of the United States.
14.2 Entire Agreement and Order of Precedence. This Agreement (including the applicable Order Form) contains the entire agreement between Ecotrak and Customer regarding Ecotrak’s provision of, and Customer’s receipt and use of, Services and Deliverables, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding applicable Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.
14.3 Affiliates. An Affiliate of either party may enter into an Order Form. In such case, for purposes of that Order Form only, the Order Form and this Agreement will be between the Affiliate and other party named in the Order Form. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
14.4 Publicity. Ecotrak may publicize that Customer is an Ecotrak customer and display Customer’s name and logo on Ecotrak’s website and marketing materials with customer’s written consent.
14.5 Relationship of the Parties. The parties are independent contractors. Neither this Agreement nor any Order Form creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement, other than each party’s Affiliates as provided in Section 14.3
14.7 Notices. Except as otherwise specified in this Agreement or in the applicable Order Form, all notices related to this Agreement or the applicable Order Form will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which must be sent by physical mail, the day of sending by email. Notices to Ecotrak will be addressed to the attention of “CEO,” at the address in the preamble of this Agreement. All other notices to Customer will be addressed to the relevant contacts designated by Customer in an Order Form.
14.8 Waiver. No failure or delay by either party in exercising any right under this Agreement or the applicable Order Form will constitute a waiver of that right.
14.9 Severability. If any provision of this Agreement or the applicable Order Form is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed null and void if this is impermissible), and the remaining provisions of this Agreement and the applicable Order Form will remain in effect.
14.10 Construction. Neither this Agreement nor the applicable Order Form will be construed against the drafter. Lists following “include”, “includes” or “include” are illustrative and not exhaustive. Terms not defined in the body of this Agreement are defined as stated in Exhibit A. For clarity, a “supplier” includes a potential supplier.
14.11 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement and all applicable Order Forms in their entirety (including all applicable Order Forms), without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Ecotrak may also subcontract its performance of the Services under this Agreement.
14.12 Governing Law. This Agreement and all applicable Order Forms, and any disputes arising out of or related thereto, will be governed exclusively by the internal laws of the State of California, without regard to any principle that would cause the application of the law of any other state.
14.13 Venue. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements (i.e., Section 14.14) may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Ecotrak may obtain injunctive or other equitable relief in such courts in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.
14.14 Arbitration. The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section 14.14. A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.
14.15 Class-Action Waiver. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between You and Ecotrak may be consolidated with any other arbitration proceeding involving Ecotrak and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of Customer and Ecotrak, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section 14.15.
Counterparts. This Agreement and any Order Form may be executed in counterparts and delivered by email, which will be as valid as physical delivery. An e-signature will be as valid as a physical signature on this Agreement or the applicable Order Form.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Ecotrak Software Subscription and Services Agreement and any Order Forms, exhibits, schedules and addenda hereto.
“Customer Data” means electronic data or information submitted by or for Customer to the Software Services or collected and processed by or for Customer using the Software Services. “Customer Data” does not include data transmitted to or stored in Non-Ecotrak Applications.
“Customer Materials” means the Customer Data and all other materials provided by Customer to Ecotrak.
“Deliverable” means any deliverable Ecotrak provides to Customer in the course of providing the Professional Services. “Deliverable” does not include Customer Materials.
“Documentation” means Ecotrak’s specifications, user guides and similar documentation available through its website, and any custom documentation Ecotrak creates for Customer, all as updated from time to time.
“Force Majeure Event” means circumstances beyond Ecotrak’s control, including modifications of the Software Service by any person other than Ecotrak or a person acting at Ecotrak’s direction, war, natural disaster, or other “acts of God”, general Internet outages, failure of Customer’s infrastructure or connectivity (including direct connectivity and virtual private network (VPN) connectivity to the Software Service), computer and telecommunications failures and delays not within Ecotrak’s control, and network intrusions or denial-of-service or other attacks.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, cancel bots and Trojan horses.
“Non-Ecotrak Application” means a web-based or offline software application that is provided by Customer or a third party and interoperates with a Software Service, including, for example, an application that is developed by or for Customer.
“Professional Services” means the Ecotrak implementation, training, consulting and other professional services ordered by Customer. “Professional Services” do not include Software Services.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer or any of its Affiliates and Ecotrak or any of its Affiliates, including any addenda and supplements thereto.
“Services” means the Software Services and Professional Services.
“Software Services” means the Ecotrak software services ordered by Customer. “Software Services” excludes Non-Ecotrak Applications.
“User” means an individual who accesses the Software Services through Customer’s account or Customer’s website. “Users” include, for example, employees, contractors and agents of Customer or its suppliers or service providers, if an as permitted by an Order Form.
SUPPORT AND SERVICE LEVELS
Capitalized terms not defined in this Exhibit B will have the meaning set forth in the Agreement.
1.1 Support Obligations. During the subscription term, Ecotrak will use reasonable efforts to resolve Defects in the Software Service (“Support”). Support does not include implementation services, configuration services, integration services, training services, assistance with administrative functions or other professional services unless requested and agreed to by both parties.
A “Defect” means a problem causing the Software Service not to conform to the Documentation in any material respect. Customer may request Support for a Defect in accordance with Ecotrak’s Support Procedures located on Ecotrak’s website, which may be updated from time to time.
1.2 Response Times. Ecotrak will respond to Customer requests for Support based on the severity of the problem. Ecotrak will use commercially reasonable efforts to respond initially to the Support request as follows (all times are within Standard Support Hours (defined in the Support Procedures):
Severity 1 – Critical Problem
The Software Service is completely unavailable for use, resulting in a critical impact on Customer’s operations. Examples: all Customer Data is unavailable.
Target Initial Response Time: <30 minutes
Severity 2 – Serious Problem
The Software Service is degraded, partially unavailable or its unavailability does not result in a critical impact on Customer’s operations. Examples: some Customer Data is unavailable, pages load slowly or partially, or images or links are broken.
Target Initial Response Time: <2 hours
Severity 3 – Minor Problem
Any non-Critical and non-Serious problem.
Target Initial Response Time: < 2 business days
2.1 Generally. “Upgrades” are Ecotrak’s releases of the Software Services for repairs, enhancements or new features applied by Ecotrak to Customer’s instances of the Software Service at no additional fee. Ecotrak has the discretion to provide new functionality either: (i) as an Upgrade, or (ii) as different software or a service for a separate fee. Ecotrak determines whether and when to develop, release and apply any Upgrade to Customer’s instances of the Software Service.
2.2 Notice of Upgrades; Maintenance Downtime. Ecotrak will use reasonable efforts to give Customer three days’ notice of any Upgrade to the Ecotrak Software Services or infrastructure underlying the Software Services. Ecotrak will use commercially reasonable efforts to limit the period of time during which the Software Service is unavailable due to the application of Upgrades (“Maintenance Downtime”). Notwithstanding the foregoing, Ecotrak may provide Customer with a shorter or no notice period of an Upgrade if necessary, in the reasonable judgment of Ecotrak, to maintain the availability, security or performance of the Software Service.
3. AVAILABILITY SERVICE LEVEL
3.1 Availability. If Customer’s instances of the Software Service are not Available ninety-nine and one-half percent (99.5%) of the time or more in any calendar month (the “Availability Target”), then Customer’s sole and exclusive remedy, and Ecotrak’s sole and exclusive liability, for failure of the Software Service to meet the Availability Target is for Customer either: (1) to request that the affected subscription term be extended for the number of minutes the Software Service was not Available in the month in excess of the Availability Target; or (2) to request that Ecotrak issue a service credit to Customer for the dollar value of the number of minutes the Software Service was not Available in the month in excess of the Availability Target (determined at the deemed per minute rate charged to Customer for Customer’s use of the affected Software Service), which Customer may request that Ecotrak apply to the next invoice for subscription fees.
3.2 “Available” means that the Software Service can be accessed by Users, but excludes: (i) Maintenance Downtime and (ii) downtime caused by a Force Majeure Event.
3.3 Requesting Credits. Customer must request all service credits or service extensions in writing to Ecotrak within 30 days of the end of the month in which the Availability Target was not met, identifying the Support requests relating to the instance in which the Software Service was not Available. All credit requests must be reviewed and approved by Ecotrak before they are issued. Customer will not be eligible for all credits and extensions not requested within that time period. The total amount of service extension or credits for any month may not exceed the subscription fee for the affected Software Service for the month. Credits have no cash value.