This Agreement is a legal agreement between you and ECONIX InfoTech Ltd (“ECONIX”) an incorporated company in Ontario, Canada. By accessing and using the Software you accept and agree to be bound by the terms and conditions of this Agreement (“Terms”).
These Terms may be varied by ECONIX, on the posting of modified terms on ECONIX’s website (www.econix.ca) or otherwise providing written notice to you. By continuing to access and use the Software from the date on which the Terms are updated, you agree to be bound by the updated Terms.
Subject to these Terms, ECONIX grants you a limited, personal, non-transferable and non-exclusive licence to use and display the Software and provide access to use the Software to your employees and contractors for your internal business uses for the Term.
You shall not make the Software available to nor permit any other person or entity to use the Software on a timesharing, sub-licenced or other basis.
Licence Fee – any fee payable for the Software (Fee) will be detailed on ECONIX’s website at www.econix.ca. The Fee will be invoiced to you and charged to your credit card. Payment of the Fee must be made in advance of your use of the Software.
ECONIX may suspend or terminate your access to the Software where you fail to make payment of any Fee payable to ECONIX under these Terms on the due date.
Access to the Software is subject to the following conditions:
Assistance: ECONIX will provide you with access to the ECONIX help link (internet based access) to log issues and faults with the Software. ECONIX will attend to logged issues on a prioritised basis during ECONIX’s normal business hours Monday to Friday (excluding public holidays).
ECONIX shall from time to time make available to you amended versions, releases, updates, bug fixes and error correction and other modifications to the Software which are generally made available by ECONIX for access by ECONIX’s customers (collectively, “Updates”). All Updates made accessible by ECONIX to you shall be deemed a part of the Software licenced to you under these Terms.
ECONIX will use reasonable endeavours to correct Software faults through Updates. Software faults shall be defined as a function of an item of the Software not operating in accordance with the warranties set out below.
ECONIX will use its reasonable endeavours to correct Software faults:
ECONIX warrants to you that the Software will perform in substantial conformance with the online help published for the Software.
ECONIX warrants to you that the Software does not and will not infringe any copyright or trade secret of any third party arising under law. ECONIX’s sole obligations in the event of breach of this warranty are those set out in this clause. ECONIX indemnifies you from costs, expenses, losses, damages, judgments arising out of any breach or alleged breach of the warranty in this clause to the limit of the liability established in clause 5; PROVIDED THAT you have notified ECONIX in writing as soon as practicable of any such infringement, suspected infringement or alleged infringement and you cooperate with ECONIX in the defence of such claim. ECONIX shall have the right to control the defence or settlement of any claim. If in ECONIX’s determination your use of the Software is or is likely to be enjoined by any action or proceeding, ECONIX shall have the right, at its expense, to:
Upon ECONIX making any such remedy available to you, such remedy shall be in lieu of ECONIX’s indemnity obligation set out in the third sentence of clause 4(b). Notwithstanding and without limiting the foregoing provisions of clause 4(b), ECONIX shall not be obligated to indemnify you to the extent such infringement, suspected or alleged infringement arises from:
Except for the express warranties made in these Terms, ECONIX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR SUPPORT AND ANY WARRANTIES OTHERWISE IMPLIED BY COMMON LAW OR STATUTE OR ARISING OUT OF CUSTOM OR COURSE OF DEALING ARE EXCLUDED FROM THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ECONIX DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS OF YOU, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.
You agree that ECONIX’s cumulative liability for damages under or in connection with these Terms, regardless of the form of action, is limited to the fees paid by you to ECONIX in the 12 months preceding the warranty/claim event. IN NO EVENT SHALL ECONIX BE LIABLE (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR RECORDS, LOST PROFITS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND/OR ANY OBLIGATION OF CONFIDENTIALITY, EVEN IF ECONIX HAD BEEN ADVISED OF THE POSSIBILITY OF, OR COULD HAVE FORESEEN, SUCH DAMAGES OR LOSSES. You acknowledge and agree that the amount of the fees payable under these Terms is related to the foregoing limitations on ECONIX’s liability and that the fees would be greater if ECONIX’s liability were not so limited.
As between the parties, all copyrights and all other intellectual property rights in or related to the Software and the services provided by or on behalf of ECONIX shall remain at all times the property of ECONIX and/or its licensors and you shall acquire no rights in any of the foregoing except as expressly provided in these Terms. You agree that it will not, and will not permit others to, use, copy, reproduce, display, deploy, perform, distribute, transmit, make available, create derivative works of the Software or Documentation or, except only to the extent expressly permitted at law, to decompile or reverse engineer any of the Software provided by or on behalf of ECONIX.
Title to, and all intellectual property rights in, the data stored by the Software remains with you (“Data”). However access to the Data is contingent on you having a current licence and any applicable Fees being paid in full and on time.
For the purpose of this clause “data controller”, “data processor”, “data subject”, “personal data”, “personal data breach”, “processing”, “sub-processor”, “supervisory authority” and “appropriate technical and organisational measures” shall have the meanings ascribed to them in the Data Protection Legislation. “Data Protection Legislation” means applicable legislation protecting the personal data of natural persons, including the EU Data Protection Directive 95/46/EC and Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”), together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities.
The parties acknowledge and agree that you are the data controller in respect of any personal data that ECONIX may process in the course of providing the Software (other than business contact data processed by ECONIX to allow it to manage your account). The parties acknowledge that Canada is a country which the European Commission has recognised as ensuring an adequate level of protection for the rights of individuals in connection with the transfer of their personal data outside the European Economic Area.
ECONIX agrees that it shall:
You authorise ECONIX to appoint third party sub-processors to assist in the management of the Software and the Services.
You warrant that you:
own or have obtained all necessary rights, title and interest in the personal data and all intellectual property rights and other rights contained therein, as well as the consent of any data subjects, necessary for the parties to perform their respective obligations under these Terms;
Term: These Terms shall become effective on the date that the Software is first accessed by you.
Termination: ECONIX, in addition to all other rights and remedies it may have, shall have the right to terminate these Terms and all licence rights granted to you by notice in writing to you if:
The parties shall use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with these Terms. This provides for a form of alternative dispute resolution and is not a reference to arbitration.
A party will, as soon as reasonably practicable, give the other party notice of any dispute in connection with these Terms.
Any dispute will be referred initially to a designated representative of ECONIX and your designated representative, who will endeavour to resolve the dispute within 10 days of the giving of the notice; and if the dispute is not resolved within the 10 days, to your Chief Executive and the Chief Executive of ECONIX who will endeavour to resolve the dispute within a further 10 days.
If, following the dispute resolution procedures set out in (a) to (c) above, the parties fail to resolve the dispute then the parties will try to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other. The mediator shall be agreed by the parties but if the parties cannot agree on one within 5 days after the mediation has been initiated, then the mediator shall be selected by the President of LEADR Inc. (Lawyers Engaged in Alternative Dispute Resolution) or its successor.
No formal proceedings for the judicial resolution of any dispute between the parties may be commenced until a dispute has proceeded through the dispute resolution processes set out in (a) to (d) above; PROVIDED THAT, with respect to any claim by ECONIX of actual or alleged infringement of any confidentiality or intellectual property right of, or licenced to, ECONIX, ECONIX, in its sole discretion, may at any time seek judicial resolution with or without resorting to the dispute resolution and mediation processes set out in (a) to (d) above; and
All dispute resolution procedures shall be held in Ontario, Canada, unless otherwise agreed in writing.
No waiver of any breach of any provisions of these Terms shall constitute a waiver of a prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing.
ECONIX intends that the Software will be available to the fullest extent possible. There will be occasions that the Software may be unavailable to allow for maintenance or development activities to take place. ECONIX will endeavor to publish in advance to you when such activity will take place when ECONIX considers that the non-availability will be longer than normally expected.
These Terms contain the entire agreement between ECONIX and you with respect to the Software and the provision of it to you by ECONIX, including, but not limited to, the licencing of the Software and provision of the support specified in clause 5.
These Terms shall be governed by Ontario, Canada law and the parties submit to the non-exclusive jurisdiction of the courts of Ontario, Canada in respect of any dispute or proceeding arising out of this Agreement.
You must not assign, transfer or grant a security interest in its rights under these Terms except if approved in writing by ECONIX.