By executing a Sales Order (either online or in hard copy) with ECI Software Solutions Limited (“ECI”) or its Authorised Partner (as applicable) Customer hereby agrees to the terms and conditions set out in this Platform Licence Agreement (“PLA”) as of Order Date (as set out in the Sales Order), which governs Customer’s access to and use of ECI Services, together with the terms and conditions of the Sales Order applicable to ECI Services.
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- Definitions
The defined terms used in this PLA have the meaning given in clause 14 below. In the event of any conflict between this PLA and any terms set out in the Sales Order, the Sales Order will prevail.
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- ECI Services and License
- In consideration of the Subscription Fees payable by Customer as set out in the applicable Sales Order, ECI shall provide ECI Services during the Subscription Term in accordance with the Agreement.
- ECI grants Customer a non-exclusive, non-transferable license to use ECI Services and Documentation for its internal business purposes only in accordance with the Agreement, for the Subscription Term in accordance with the Scope as set out in the Sales Order.
- In relation to Authorised Users, the Customer’s access to ECI Services shall be limited to the authorised Customer employees or contractors as confirmed in the Sales Order and any additional employees or contractors from time to time as authorised in writing by the Customer.
- Except as may be allowed by any applicable law which is incapable of exclusion by agreement of the parties, Customer shall not:
- except to the extent expressly permitted under the Agreement, attempt to copy, modify, duplicate, create derivative works from, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
- access all or any part of ECI Services and Documentation in order to build a product or service which competes with ECI Services and/or the Documentation;
- use ECI Services and/or Documentation to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make ECI Services and/or Documentation available to any third party; or
- attempt to obtain, or assist third parties in obtaining, access to ECI Services and/or Documentation, other than as provided under this clause; or
- make any alterations to or other use of ECI name and logo except as otherwise authorised under the Agreement.
- ECI Services Availability, Support Services and Other Services
- ECI shall use commercially reasonable endeavours to provide ECI Services in accordance with the Service Levels set out in ECI’ then current Support Services Policy. ECI may at any time use its Associated Companies and/or Authorised Partners to deliver in whole or part, any of Support Services or other services purchased by Customer
- Subject to Customer’s payment of the Subscription Fees, during the Term Customer will be provided with ECI’ standard Support Services (including the delivery of Maintenance Releases) during Support Hours in accordance with ECI’ then current Support Services Policy for standard Support Services. ECI may amend the Support Services Policy in its sole and absolute discretion from time to time.
- Any additional support services required by Customer in addition to the standard Support Services, may be subject to additional fees.
- ECI undertakes that the Services will be performed in accordance with the Sales Order and be compliant with all applicable laws and regulations and be supported by appropriately experienced staff.
- The undertaking at clause 3.4 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to ECI’ instructions or modification or alteration of the Software by any party other than ECI or ECI’ duly authorised contractors or agents. If the Software does not conform to the foregoing undertaking, ECI will, at its expense, use reasonable endeavours to correct any non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance.
- This Agreement shall not prevent ECI from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services, which are similar to those provided by ECI under this Agreement.
- Customer Obligations
- Customer undertakes to:
- provide all necessary co-operation and information as may be reasonably required by ECI and/or its Authorised Partner as applicable in order to provide ECI Services. In the event of any delays in Customer’s provision of such assistance and/or information, any agreed timetable or delivery schedule may be adjusted by ECI and/or its Authorised Partner as reasonably necessary;
- procure that its Authorised Users (i) use the Services and Documentation in accordance with the Agreement; (ii) comply with all applicable laws and regulations with respect to its activities under the Agreement; (iii) only use the Services for lawful purposes. Customer shall be liable for any Authorised User’s breach of the Agreement;
- be solely responsible for procuring and maintaining its network connections and telecommunications links and all problems, conditions, delays and delivery failures arising from or relating to Customer’s network connections or telecommunications links;
- use all reasonable efforts to prevent any unauthorised access to, or use of, ECI Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify ECI or its Authorised Partner, as applicable;
- be solely responsible for the accuracy, completeness, design, appropriateness, creation, maintenance, and updating thereof of all Customer Content in the use of the Services. ECI shall not be liable for any errors or inaccuracies in (i) any information provided by Customer; (ii) any Customer Content, or (iii) any changes or modifications to any Customer Content by ECI or its Authorised Partner upon Customer’s written instructions beyond its responsibility to accurately reproduce such Customer Content on Customer’s instruction;
- comply with all applicable laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act and the Bribery Act 2010, and as they may be amended from time to time, with respect to its activities under the Agreement;
- in the event it is agreed that ECI and/or its Authorised Partner, as applicable, will upload any Customer Content, provide to ECI in a timely manner all such Customer Content, in final format and translated and edit and maintain such Customer Content as required for ECI or its Authorised Partner, as applicable, to provide ECI Services in accordance with the Agreement;
- be responsible for obtaining all necessary licenses and consents required to use Customer Content as per clause 5.1 (if any, and including without limitation those from the owners or licensees of any third party content) as part of the Services and Customer warrants and represents that such licenses and consents have been obtained.
- ensure that any 3rd party engaged in relation to integrations is able to provide support to an agreed SLA. Failure to provide this may result in a reduction of service within the functionality of the Software.
- Customer shall permit ECI and/or its Authorised Partner, as applicable, to audit Customer’s use of ECI Services and such audit may be conducted no more than once per year, at ECI’ expense, during Customer’s normal business hours, and this right shall be exercised with reasonable prior notice, in such a manner as not substantially to interfere with Customer’s normal conduct of business.
- Customer shall not upload, input, access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Content during the course of its use of the Services that:
- is Inappropriate Content;
- is unlawful (including breach of Intellectual Property Rights of any other party), harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity; or is otherwise illegal or causes damage or injury to any person or property; and ECI and/or its Authorised Partner as applicable reserves the right, without liability or prejudice to its other rights to Customer, to (i) disable Customer’s access to any material that breaches the provisions of this clause and to (ii) remove any such content where, in ECI’ sole and reasonable discretion, ECI suspects such content to be Inappropriate Content.
- Any breach of this clause 4 by Customer shall be deemed to be a material breach of the Agreement and shall entitle ECI to terminate the PLA pursuant to clause 12, subject to the notice and remedy provisions of such clause. ECI may suspend the Services on ten (10) Business Days’ notice if, in ECI’ reasonable opinion, Customer is in breach of this clause 4 and/or clause 2.3 or 2.4 and ECI may refuse to restore ECI Services until Customer gives ECI reasonably acceptable assurance that there will be no further contravention.
- Customer undertakes to:
- Customer Content
- Customer shall own, or in accordance with clause 4.1(h) shall have obtained a licence to, all Intellectual Property Rights in Customer Content which shall at all times remain the exclusive property of Customer or its licensor. Customer hereby grants ECI a non-exclusive, worldwide, perpetual licence to use the Customer Content and any other materials provided to ECI by Customer (including but not limited to any trade-marks or logos) to enable ECI to provide ECI Services and carry out ECI’ obligations under the Agreement, including but not limited using the Product Data as described in clause 9.2.
- Customer acknowledges that responsibility for all Customer Content is the sole and exclusive responsibility of Customer and that ECI will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement of any Intellectual Property Rights or any other rights any person or entity, arising or relating to Customer Content. Customer agrees to indemnify and hold harmless ECI from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Content, to the extent not caused by ECI’ wilful misconduct.
- Warranty
- ECI warrants that ECI Services will perform substantially in accordance with the Documentation for the Subscription Term when used in accordance with the Documentation.
- The warranty provided in clause 6.1 shall not apply to the extent of any non-conformance which is caused by (i) use of the Services contrary to ECI’ instructions or the Documentation, or (ii) modification or alteration of ECI Services by any party other than ECI or its authorised contractors or agents. If ECI Services do not reasonably conform with the warranty provided in clause 6.1, ECI will, at its expense, use commercially reasonable efforts to Correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy, and ECI’ sole and exclusive liability for any breach of the warranty set out in clause 6.1.
- Notwithstanding the foregoing, ECI:
- does not warrant that Customer’s use of ECI Services will be uninterrupted or Error-free; nor that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements or comply with all applicable laws;
- does not warrant the use of ECI Services and/or Software on or through any third party products and/or services;
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
- is not responsible for any Virus which was not detected by ECI using reasonable current commercial methods of detection;
- nor its suppliers or third-party service providers or software vendors, shall have any liability whatsoever for the accuracy, completeness, or timeliness of the Customer Content or Customer Data or for any decision made or action taken by Customer, Users, or any third party in reliance upon any Customer Content or Customer Data;
- is not responsible for any breach of the warranty in clause 6.1 as a result of a Force Majeure Event;
- Except as expressly provided for in this clause 6, ECI (and its Associated Companies, Authorised Partners and its suppliers) disclaim all other warranties, express, implied or statutory, including warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use and satisfactory quality, and non-infringement.
- Data & Data Protection
- The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Except as expressly stated in this Agreement, this Agreement does not grant ECI any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Customer Data.
- ECI shall:
- in addition to the requirements of clause 7.6 (b) below, take reasonable precautions to preserve the integrity of any Customer Data or other data, which it processes, and to prevent any corruption or loss of such data;
- make a backup copy of Customer Data on a regular basis and record the copy on media from which the Customer Data can be reloaded if there is any corruption or loss of the Customer Data;
- if attributable to any default by ECI, promptly restore the Customer Data at its own expense;
- at the advance written request of the Customer, retain a copy of the Customer Data up to 3 months after termination or expiry of this Agreement subject to the Customer paying ECI’ costs in doing so; and
- at the written request of the Customer at any time up to the termination or expiry of this Agreement howsoever arising, return to the Customer, charging reasonable time and materials to do so, a standard export of all Customer Data residing on the Software.
- ECI acknowledges that the Customer is acting as a data controller in respect of any Customer Data. ECI has access to Customer Data and acts in part as processor and in part as an independent controller of Customer Data in the provision of ECI Services as further described in Schedule 1 and the Privacy Policy. ECI shall use reasonable endeavours to comply with its obligations under the Data Protection Laws.
- For the purposes of this clause the terms “controller” and “processor“ shall have the meaning set out in the Data Protection Laws .
- ‘Instruction’ and ‘direction’ is interpreted to include processing taking place at the inception of the Agreement in accordance with ECI’s Privacy Policy.
- ECI shall, in relation to any Customer Data processed on the Customer’s behalf as processor in connection with the performance of its obligations under this Agreement.
- process that Customer Data only on the written instructions of the Customer unless ECI is required by any laws or regulations applicable to ECI to process Personal Data (“Applicable Laws”). Where ECI is relying on Applicable Laws as the basis for processing Customer Data, ECI shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ECI from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of, or damage to, Customer Data, appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Customer Data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Data, ensuring confidentiality, integrity, availability of and access to Customer Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- not transfer any Customer Data outside of the European Economic Area unless the following conditions are fulfilled;
- the Customer or ECI has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies; and
- ECI complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Customer Data that is transferred.
- assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data, as further described in clause 7.2(e) above;
- maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and at Customer’s cost, provide such records to Customer’s independent auditor on reasonable written notice, no more than once during each calendar year of the Subscription Term;
- ECI engages third parties to carry out processing in connection with the ECI Services (“Sub-Processor”) as further described in Schedule 1. Customer consents to the appointment of such Sub-Processors. If a names Sub-Processors changes, ECI shall notify Customer in advance. ECI shall enter into a written agreement with the Sub-Processor under which Sub-Processor is obliged to materially comply with the terms of this Clause 7. ECI remains fully liable to Customer for any acts or omissions of any Sub-Processors.
- Keep the Customer Data confidential in accordance with clause 10 and procure that any third parties who access the data comply in all material respects with clause 10.
- Payments and Invoicing
- ECI shall invoice and Customer shall pay the Subscription Fees and any additional applicable fees related to ECI Services as set out in the Sales Order.
- Any time after one (1) year following the Effective Date, and not more frequently than once annually thereafter, ECI may increase the Fees for the Software and ECI Services upon thirty (30) days written notice to Customer, and Customer agrees to pay any such increases.
- Intellectual Property
- ECI owns or licenses and retains all title, Intellectual Property Rights and other proprietary rights in ECI Services, Software and Documentation and all modifications thereto. Except as expressly stated herein, the Agreement does not grant Customer any assignment or ownership of Intellectual Property Rights or any other rights or licences in respect of ECI Services, Software or the Documentation.
- The Customer acknowledges that ECI does not own any of the Intellectual Property Rights in product data for individual products stored within the Software, including but not limited to product descriptions, pricing, images, metadata and reference numbers (the “Product Data”). In accordance with clause 5.1, the Customer where applicable, must obtain a licence from the owner of the Product Data which permits: (i) Customer’s use of Product Data in the Software; (ii) Customer to sub-licence the Product Data to ECI to allow ECI to: provide the ECI Services; and include the Product Data in ECI’ Product Information Management system (“PIM”) which is accessible by any ECI customer.
- Customer acknowledges that it is Customer’s responsibility to check the accuracy and completeness of the Product Data, whatever the source of that Product Data. ECI does not and cannot check any Product Data prior to publication on the MTP or inclusion in the PIM. Should Customer have a concern that the Product Data is inaccurate, incomplete or misleading, Customer must check this with the applicable product manufacturer prior to using the Product Data. Any use or amendment of the Product Data, whether included in the PIM or not, shall be at the Customer’s sole risk and liability.
- Confidentiality
- Each party (the “Receiving Party“) undertakes to keep and maintain all Confidential Information supplied directly or indirectly by the other party (the “Disclosing Party“) in the strictest confidence and, subject to the other provisions of this clause, not to disclose such information to any third party without the prior written consent of the Disclosing Party.
- The Receiving Party may disclose the Disclosing Party’s Confidential Information without consent only to its employees, officers, agents, consultants or sub-contractors (“Representatives“) on a need to know basis for the purposes of the Agreement or if and to the extent required to do so by law, court proceedings relating to the subject matter of the Agreement or any authority, judicial or regulatory body of competent jurisdiction. In the case of such disclosure required by law, court proceedings or by any authority of competent jurisdiction, the Receiving Party shall limit disclosure to the extent strictly necessary and shall give the Disclosing Party as much notice of the requirement as practicable.
- The Receiving Party undertakes to ensure that the Representatives are made aware, prior to the disclosure of any part of the Confidential Information that the same is confidential and that they have a duty of confidence to the Disclosing Party. The Disclosing Party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause.
- The provisions of this clause 10 shall not prevent the Receiving Party from disclosing any information which:
- was properly in the possession of the Receiving Party (with full right to disclose) prior to receiving it from the Disclosing Party; or
- is or subsequently comes into the public domain other than by breach of the Agreement; or
- was independently developed by the Receiving Party; or
- was received from a third party which was free to divulge it.
- The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute ECI’ Confidential Information.
- The provisions of this clause 10 shall survive termination of the Agreement for a period of five (5) years from the date of termination.
- Limitation of Liability
- Except with respect to amounts owed by Customer to ECI hereunder and subject to clauses 11.2 and 11.3, the aggregate liability of each party for or in respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with ECI Services in any Claim Period shall be limited to the total amount of Subscriptions Fees paid by Customer during such Claim Period.
- To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of or inaccuracy of data (including corruption of data), or costs of procurement of substitute goods or services arising under the Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages. The parties acknowledge that the amounts payable hereunder are based in part on these limitations and further agree that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- The exclusions in this clause 11 shall apply to the fullest extent permissible at law, but neither party limits its liability for (i) death or personal injury resulting from its own negligence or that of its employees or agents where acting in the course of their employment under the Agreement;(ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be excluded by law.
- To fullest extent permitted by applicable law, ECI shall not be liable for any claim arising due to:
- Customer repairing, modifying or enhancing the Software or using it with any other program otherwise than in accordance with the terms of the Agreement;
- any breakdown resulting from use other than in accordance with the Documentation and the purpose for which ECI Services and/or Software was supplied to Customer or any use of ECI Services and/or Software in breach of the Agreement;
- where any failure to provide ECI Services or use of ECI Services is caused by a network or service fault or failure or any hardware or software fault in equipment which is not under the control of ECI;
- the failure by Customer to implement as soon as reasonably possible recommendations in respect of, or solutions to, faults previously advised by ECI;
- any errors or inaccuracies in any Customer Content beyond its responsibility to accurately reproduce Customer Content on Customer’s instruction;
- for any other third party products or services accessed and/or used by Customer through ECI Services;
- any act or omission of Customer; or
- any unauthorised access to the Services, including a malicious security breach.
- ECI nor its Authorised Partners shall have any liability whatsoever for the accuracy, completeness, or timeliness of the Customer Content or for any decision made or action taken by Customer, Users, or any third party in reliance upon any Customer Content.
- Furthermore, ECI does not and cannot control the flow of data to or from the network where the Software resides and other portions of the Internet including denial of service attacks (an attack which send a flood of incoming messages to the target system forcing the system to shut down, thereby denying service to legitimate users). Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). ECI cannot guarantee that such events will not occur. Accordingly, ECI, its suppliers and subcontractors, if any, disclaim any and all liability resulting from or related to such events and Customer shall have no claim in respect thereof.
- Term and Termination
- This PLA shall, unless otherwise terminated in accordance with this clause 12 or the Sales Order Terms, commences on the Effective Date and shall continue until the expiration of the Subscription Term. The termination of the Sales Order shall automatically terminate this PLA.
- The subscription for ECI Services purchased by Customer as set out in the Sales Order shall commence on the Activation Date and continue for Initial Subscription Term. Thereafter the subscription will automatically renew and be extended for successive periods of twelve months (each a “Renewal Period”) unless either party provides at least six (6) months’ written termination notice to the other party prior to the end of the Initial Subscription Term or the relevant Renewal Period in which case this Agreement shall terminate upon the expiry of the applicable Subscription Term or Renewal Period.
- The Initial Subscription Term, together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
- Either party may terminate the Agreement by giving written notice to the other if:
- the other party commits a breach of the Agreement (which in the case of a breach capable of remedy is not remedied within thirty (30) days of being requested by the first party to do so); or
- the other party: (i) is deemed unable to pay its debts as and when they fall due (but without any requirement on the part of the party entitled to terminate to prove any matter to the satisfaction of the court) or becomes unable or admits in writing its inability to pay its debts as they fall due or suspends or threatens to suspend making payments with respect to all or any class of its debts; or (ii) shall have a receiver or administrative receiver appointed over it or any of its assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect; or (iii) shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors; or (iv) shall cease or threaten to cease to carry on business; or (v) is subject to any analogous event or proceeding in any applicable jurisdiction.
- The other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having intention or ability to give effect to the terms of this agreement;
- Any termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under the Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
- On termination of the Agreement for any reason:
- Customer’s rights of use granted under the Agreement shall immediately terminate and Customer shall immediately cease the use of ECI Services
- Customer shall promptly pay all Subscription Fees due or to become due under the Agreement through the effective date of termination;
- each party shall return and make no further use of any equipment, property, ECI Services Materials and other items (and all copies of them) belonging to the other party, except that ECI may continue to use Product Data in the PIM, in accordance with clause 9.2;
- subject to its obligations under the Data Protection Laws and any other legal or regulatory requirement, ECI may destroy or otherwise dispose of any data of Customer in its possession unless ECI receives, no later than the effective date of the termination of the Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer data.
- ECI will cooperate fully with the Customer to ensure an orderly and prompt migration of the Services to the Customer, or at the Customer’s request, a new service provider, charging reasonable time and materials. Such migration shall be carried out in a manner that ensures, so far as is reasonably practicable, that there will be:
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- minimal disruption to the Customer or any client, Customer or ECI of the Customer’s ability to access Customer Data;
- no degradation, material or immaterial, to the quality of the Services being so transferred; and
- continued support and use of the Services by the Customer in accordance with the terms of this agreement
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- General
- Entire Agreement. This PLA together with its Schedules (including any Sales Order and Sales Order Terms) sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing this Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Customer in connection with this PLA shall not be binding on ECI. In entering into the Agreement each party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in the Agreement. Any such representations are excluded.
- Waiver. A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
- Invalid provisions. If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Governing Law and Jurisdiction. The Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of England and Wales (without regard to the conflicts of law provisions thereof). Both parties submit to the exclusive jurisdiction of the courts of England.
- Third Party Rights. A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (the “Act“) to enforce, or to enjoy the benefit of, any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Act or that is expressly provided for under the Agreement.
- Independent Contractor. The parties to the Agreement are independent contractors. Customer bears all risk and cost of operating its own business, including risk of loss. Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind or employment relationship between the parties, nor constitute any party an employee or agent of another party for any purpose. No party shall have authority to act as employee or agent for, or to bind, the other party in any way.
- Sub-contracting and Assignment. Neither ECI nor Customer may assign or otherwise transfer the Agreement or any of its rights or obligations or purport to do any such acts under it to any third party without prior written consent from the other party, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary, ECI shall have the right, upon written notice to Customer, to assign the Agreement to any of its Associated Companies, Authorised Partner(s) or to an entity resulting from a merger, acquisition or other business reorganization of ECI. In addition, ECI shall have the right to sub-contract any of its obligations hereunder to its Associated Companies and/or Authorised Partner(s), provided that ECI shall continue to remain responsible for the performance of its obligations hereunder. Any attempted assignment, sub-contracting or other transfer in violation of this provision shall be null and void.
- No partnership or agency. Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Force Majeure. ECI shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement due to a Force Majeure Event. ECI shall provide Customer with notice of a Force Majeure Event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this agreement by giving 30 days written notice to the other party.
- Notices. All notices to be given under the Agreement shall be given in English in writing. Customer will give all notices under or in connection with the Agreement to the address stated at the end of the Agreement, or otherwise provided to Customer on ECI’ website or notified by ECI to Customer in writing. Customer agrees and consent to receiving all notices and communications from us under or in connection with the Agreement electronically. ECI will provide any such notices and communications by posting them on ECI website or emailing them to Customer via the email contract address provided Customer in the registration process. Customer may withdraw its consent upon written notice to ECI and request paper copies at any time provided that Customer agrees that ECI may charge Customer fees for such paper copies.
- Variations. Save as otherwise expressly stated in the Agreement, the Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.
- Amendment. We may amend this PLA at any time by posting the relevant amended and restated conditions on our website. By continuing to use the ECI Services, you agree that the amended conditions shall apply to you.
- Survival. In addition to those provisions which by their nature are intended to survive any termination of the Agreement, clauses 5, 6, 7, 9, 10, 11, 12 and13 of this PLA shall survive such termination or expiration of the Agreement.
- Export. Customer shall (i) not license, export, or otherwise dispose of any of the Software Materials without the prior written consent of ECI; and (ii) comply with all applicable export control laws and regulations, including without limitation the export control laws of the United Kingdom and the United States and the country where Customer is registered or any foreign countries with respect to the use of the Services and Documentation or other ECI materials by Customer and its Users.
- Definitions
- ECI Services and License
Capitalised terms not otherwise defined in the Agreement shall have the meaning set out below:
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- Activation Date: the date set out in the Sales Order when the hosted ECI Service is live and available for access and use by Customer;
- Agreement: This PLA together with its Schedules, any Sales Order and Sales Order Terms, and the Support Services Policy;
- Applicable Law: is defined in clause 7.6.a
- Associated Company: an entity that controls, is controlled by, or is under common control with, a party to these Terms. For the purposes of the foregoing, “control” means the ownership of (i) greater than fifty per cent of the voting power to elect directors of the entity, or (ii) greater than fifty per cent of the ownership interest in the entity;
- Authorised Partner: an authorised reseller or other partner of ECI, authorised by ECI to resell ECI Services to Customers and perform other services associated with ECI Services and Software;
- Authorised User: is defined in the Sales Order;
- Claim Period: each consecutive period of twelve (12) months during the Subscription Term starting from the Effective Date;
- Confidential Information: all confidential or sensitive information or data of a party, whether obtained before or after the date of the Agreement in respect of software, products, developments, trade secrets, customers and suppliers of either party or any other information (whether commercial, financial, technical or otherwise) which may reasonably be regarded as the confidential information of that party and for ECI includes ECI Services, Software and Documentation;
- Configuration Content: data field organisation;
- Correct or Correction: the performance of a procedure, routine, modification, or addition to the software that eliminates the adverse effect of an Error without materially adversely affecting the functionality of the Software;
- Customer: the customer entity entering into the Agreement and purchasing the subscription to ECI Services as set out in the applicable Sales Order;
- Customer Account Team: the individuals appointed by ECI from time to time who shall serve as the Customer’s primary contacts for the Customer’s activities under this Agreement.
- Customer Content: (i) all Configuration Content (ii) Customer Data and (iii) any information entered by Customer or its Users in its use of ECI Services, including without limitation Product Data;
- Customer Data: any personal data of Customer as provided by Customer to ECI under the Agreement, where “personal data” has the meaning set out in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation).;
- “Data Protection Laws” means: the General Data Protection Regulation (EU 2016/679) (“GDPR”) and any legislation which amends, re-enacts or replaces it in England and Wales;
- Disclosing Party: has the meaning given in clause 10.1;
- Documentation: printable electronic information which includes a generic user guide and, where required, notes for the use of the Software by Customer and its Users;
- ECI: means ECI Software Systems Limited or ECI Associated Company entering into the Agreement.
- ECI Services: access to and use of (i) the Merchant Turnkey Platform (MTP) (ii) the Software as a service in accordance with the Agreement; (iii) the Documentation; and (iv) Support Services related to the Software, as further described in the Documentation;
- Effective Date: the effective date of this PLA which is the Order Date as set out in the Sales Order;
- Error: any failure of the Software to conform in a significant material respect to the Documentation provided that an Error excludes any such failure of the Software to conform resulting from (i) the refusal by Customer to restore files or follow other reasonable written recommendation by ECI; and/or (ii) any software program, package or file not specifically identified in the Agreement;
- “Force Majeure Event” means: Such delay or failure resulting from the events, circumstances or causes beyond reasonable control, including strikes, lockouts or other industrial disputes (whether involving the workforce of ECI or any other party), failure of a utility service for transport or telecommunications network or the Internet, failure by any third parties appointed by the Customer in performing their obligations, act of God, war, civil commotion and, Malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, flood or storm.
- Go Live Date: Go-Live Date is the date the Customer’s Merchant Turnkey Platform processes its first external sales order.
- Hosting Services: the services that ECI provides directly or via 3rd parties to allow Authorised Users to access and use the Software, including hosting setup and on-going services.
- Inappropriate Content: content which (a) is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property;
- Initial Subscription Term: unless otherwise agreed in the applicable Sales Order means the period of three (3) years from the Activation Date;
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, compilation rights, moral rights, trademarks and service marks, trade names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, registered designs, design rights, rights in computer software, semiconductor topography rights, database rights, rights in confidential information (including know-how and trade secrets) and other forms of intellectual property in each case, whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any parts of the world;
- Maintenance Release: any update to Software identified by a release number, including any modification or addition which changes or improves Software’s utility, efficiency or capability and/or any Correction delivered by ECI during a Subscription Term as part of the Support Services;
- Merchant Turnkey Platform (MTP): ECI Merchant Turnkey Platform (MTP) cloud-hosted solution that powers ECI’ broad range of merchant service, software applications and interactive services through which ECI Services and Customer Content are hosted;
- Personal Data: has the meaning set out in the Data Protection Legislation.
- PIM: is defined in clause 9.2
- PLA: this end user licence agreement entered into by Customer and ECI as of the Effective Date;
- Product Information System: the electronic database on which ECI holds and organises Product Data, and provides the ability to present product related images and text;
- Privacy Policy: ECI’s Privacy Policy as published at https://ecommonsense.com/privacy-policy/;
- Product Data: is defined in clause 9.2
- Receiving Party: has the meaning given in clause 10.1;
- Renewal Period: has the meaning given in clause 12.2;
- Representatives: has the meaning given in clause 10.2;
- Sales Order: the Sales Order(s) entered into between Customer and ECI or Authorised Partner (as applicable) which details ECI Services being subscribed to, the applicable Scope, Initial Subscription Term and the applicable Subscription Fees payable along with any other services ordered by Customer;
- Scope: means the limitations of Customer’s and Users’ use of ECI Services as set out in the applicable Sales Order which may include for example, limitations on the number of Sites and/or permitted Users;
- Service Levels: as defined in the Support Services Policy;
- Site: a single location where Customer is trading, has traded or intends to trade and to where the Software and Documentation are delivered as set out in the Sales Order;
- SLA: Service level agreement that agrees the provision of maintenance and technical support in the use of 3rd party integrations;
- Software: the computer program applications and/or platform solution(s) of ECI provided as part of ECI Services and as listed in the Sales Order, and including any Maintenance Release for such Software which are provided as part of the Support Services that Customer subscribes to during the Subscription Term;
- Subscription Fees: the annual (or such other period as may be agreed by the parties in the applicable Sales Order) subscription fees payable by Customer for ECI Services as set out in the Sales Order;
- Subscription Term: has the meaning given in clause 12.2;
- Support Hours: the hours that standard Support Services are provided as set out in the Support Services Policy;
- Support Services: the provision of (i) Maintenance Releases; and (ii) technical support detailed in the Support Services Policy by ECI to Customer, as of the Activation Date, in order to enable the use of ECI Services in accordance with the Documentation;
- Support Services Policy: means ECI support policy detailing the Support Services provided by ECI to Customer for ECI Services and the service levels applicable to ECI Services, and as such policy may be updated from time to time
- User: an end user of the Merchant Turnkey Platform that is a customer or visitor of Customer;
- Virus: anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Schedule One
Customer Data
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- Data subjects
The Customer Data transferred concern the following categories of data subjects:
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- Customer’s staff workers and contracts
- Customer’s customers
- Website visitors
- Customer’s suppliers
- Categories of data
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The Customer Data transferred concern the following categories of personal data (please specify):
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- Name
- Occupation
- Email address
- Postal address
- Telephone numbers
- User ID’s
- Customer and Customer’s customer’s order, invoice and payment histories
- Quotation information
- Messaging and correspondence (chatbot; email; support service desk)
- Vehicle data
- Loyalty rewards data
- Payment card information
- Account login and passwords
- Type of browser and device
- Search terms used
- Cookie data showing Users use and navigate across the MTP website
- Special categories of data (if appropriate)
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The personal data transferred concern the following special categories of data:
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- Not applicable
- Operations as data processor:
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The personal data transferred will be subject to the following basic processing activities (please specify):
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- Providing the ECI Services and ;
- Hosting the MTP for the Subscription Term in accordance with the Agreement
- Operations as data controller:
- ECI may process Customer’s MTP usage, financial, sales and performance data, which may include anonymised and/ or pseudonymised Customer Data.
- Such processing is in ECI’s legitimate business interests and is undertaken in order to constantly monitor and improve the ECI Services and Customer’s performance.
- ECI may also share aggregated, anonymised Customer Data to other ECI customers to allow for performance benchmarking, and to suppliers to allow for product management / inventory optimisation.
- Further details are set out in the Privacy Policy.
- ECI’s Sub – Processors
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The following organisations provide services to ECI in relation to the MTP:
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- Amazon Web Services (hosting): https://aws.amazon.com/privacy/?nc1=f_pr
- commerce Inc., dba Magento, Inc. (software): https://magento.com/sites/default/files/Magento-Privacy-Policy-CCPA-Updates.pdf
- Contractors engaged to provide professional services by ECU Software Solutions Limited.
- Authorised Partners
- Not applicable at this time.
- Associated Companies
- Not applicable at this time.
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Last Revised January 2022
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