THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF ECTO SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF ECTO SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Ecto’s direct competitors are prohibited from accessing the Services, except with Ecto’s prior written consent.
This Agreement was last updated on April 1, 2023. It is effective between Customer and Ecto as of the date of Customer’s accepting this Agreement (the “Effective Date”).
1.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) the Services are purchased as a subscription for a subscription term of one (1) year, (b) subscriptions for the Services may be added during a subscription term at the same pricing as the underlying subscription pricing, 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.
1.2 Services and Performance. Ecto will engage personnel with the proper skill, training and experience, and in sufficient numbers, to provide the Services. Ecto will perform the Services in a professional manner and in accordance with the prevailing standards of care and diligence consistent with industry practices. In order to be able to complete the Services within the agreed timeframe and budget and to fulfill its responsibilities on a timely basis, Ecto will rely on Customer’s timely cooperation, including Customer’s making available relevant data, information and personnel, performing any tasks or responsibilities assigned to Customer, and notifying Ecto of any issues or concerns Customer may have relating to the Services. During the course of the Services, priorities may shift or unexpected events may occur which may necessitate changes to the Services. In this event, the Parties will jointly discuss the anticipated impact on the Services and agree in writing on any appropriate adjustments, including to the scope of work, timeframe and budget. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Ecto regarding future functionality or features.
2.1 Payment. Ecto will invoice Customer for fees and expenses in connection with the Services as set forth in the applicable Order Form. All invoices are due and payable within 14 days after its receipt by Customer, unless stated otherwise in the invoice.
2.3 Overdue Payments. Should any invoice remain unpaid for more than 14 days after receipt, interest will accrue on the outstanding amount at the rate of 1% per month (or, if lesser, the maximum extent permitted by applicable law), calculated from the 31st day after reception until the date of payment.
The provisions in this Section 3 only apply if and to the extent an Order Form contemplates Customer receiving access to one or more Ecto software programs (each an “Application” and together “Applications”). If an Order Form does not specifically provide for Customer receiving access to any Application, the provisions of this Section 3 do not apply to that Order Form.
3.1 General.
(a) Access. Ecto will provide Customer with access to a hosted instance of one or more Applications in accordance with the terms and conditions of this Agreement (including the applicable Order Form). In order to access and use the Application, Customer and all its Users (as defined in Section 3.1(b) below) are responsible at their own expense for obtaining their own Internet access and any hardware and software required for such access.
(b) Grant of Rights. Subject to the terms and conditions of this Agreement and the applicable Order Form, Ecto hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 9.5 below) right for Customer’s Users to access and use the Application in accordance with the terms of this Agreement (including the applicable Order Form) solely for Customer’s internal business purposes and solely during the term of the applicable Order Form. A “User” shall mean an employee or contractor of Customer who has been authorized by Customer to access and use the Application. All rights not expressly granted to Customer are reserved by Ecto and its licensors or other providers. There are no implied rights.
(c) Limitations. Customer shall not (and shall not allow any third party to): (i) use the Application for the benefit of any third party or to develop or market any product, software, or service that is functionally similar to or derivative of the Application or for any other purpose not specifically permitted by this Agreement; (ii) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Application (or any data or other output or result of using the Application), directly or indirectly, to any third party (other than the Users); (iii) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code), or any other underlying data or technology, associated with the Application; or (iv) use any robot, spider, scraper, or other automated means to access the Application or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating, or indexing of the Application. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefor. Customer shall keep all passwords and other access methods safe and secure and shall be responsible for all use of the Application using passwords issued to Customer and Users. Customer shall notify Ecto immediately of any actual or suspected unauthorized use of its passwords for the Application. Without limiting any of its other rights or remedies, Ecto reserves the right to suspend any User’s right to access the Application if Ecto reasonably believes that such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).
(d) Cooperation. Customer shall: (i) reasonably cooperate with Ecto in all matters relating to the Application; (ii) respond promptly to any Ecto request to provide information, approvals, authorizations, or decisions that are reasonably necessary for Ecto to provide access to the Application in accordance with this Agreement; and (iii) provide such Customer materials or information as Ecto may reasonably request to provide such access to the Application and ensure that such materials or information are complete and accurate in all material respects.
(e) Hosting Providers. Customer acknowledges that the Application is hosted by third party hosting providers (the “Hosting Providers”). Ecto may change its Hosting Providers at any time. Customer’s access to and use of the Application is subject to any applicable restrictions imposed by the Hosting Providers. Notwithstanding any other provision of this Agreement, Ecto shall not be liable for any problems, failures, defects, or errors with the Application to the extent caused by the Hosting Providers. Customer acknowledges that the fees payable for the Application reflect the fact that Ecto is not responsible for the acts and omissions of the Hosting Providers.
(f) Downtime. Ecto shall use commercially reasonable efforts to enable access to the Application twenty-four (24) hours a day, seven (7) days a week. Customer agrees that from time to time the Application may be inaccessible or inoperable for various reasons, including (i) Hosting Provider downtime; (ii) equipment malfunctions; (iii) periodic maintenance procedures or repairs which Ecto may undertake from time to time; or (iv) causes beyond the reasonable control of Ecto, including interruption or failure of telecommunication or digital transmission links, hostile network attacks, or network congestion or other failures (collectively “Downtime”). Ecto shall use commercially reasonable efforts to provide at least twenty-four (24) hours advance notice to Customer in the event of any Downtime scheduled by Ecto. Ecto shall use commercially reasonable efforts to minimize any disruption, inaccessibility, and/or inoperability of the Application in connection with Downtime, whether scheduled or not.
3.2 Customer Data. Customer is solely responsible for all data and information which Customer or any User inputs into an Application or provides to Ecto in connection with an Application (collectively, the “Customer Data”). Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Ecto shall operate the Application in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Ecto does not guarantee the accuracy, integrity, or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Ecto any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Ecto any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation, contract, agreement, or other obligation; (c) upload or otherwise make available to Ecto any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Ecto any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Application or servers or networks connected to the Application or on which the Application is hosted; (f) upload or otherwise make available to Ecto any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule, or standards issued thereunder or any Customer Data that relates to an identified or identifiable human being subject to any data protection or privacy laws, rules, or regulations; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data.
The following provisions relating to proprietary rights and intellectual property may be supplemented or changed for a specific Order Form to the extent specifically set forth in an Order Form, in which case those provisions in the Order Form shall govern that Order Form and only that Order Form.
4.1 Definitions. As used herein, (a) “Intellectual Property” means all rights, privileges, and priorities provided under applicable international, national, federal, state or local law, rule, regulation, statute, ordinance, order, judgment, decree, permit, franchise, license, or other government restriction or requirement of any kind relating to intellectual property, whether registered or unregistered, in any country, including without limitation: (i) all (A) patents and patent applications (including any patent that in the future may issue in connection therewith and all divisions, continuations, continuations-in-part, extensions, additions, registrations, confirmations, reexaminations, supplementary protection certificates, renewals or reissues thereto or thereof), (B) trade secrets, (C) copyrights and copyrightable works, including reports, software, databases and related items, and (D) trademarks, service marks, trade names, brand names, product names, corporate names, logos and trade dress, the goodwill of any business symbolized thereby, and all common-law rights relating thereto; and (ii) all registrations, applications, recordings, rights of enforcement, rights of recovery based on past infringement, and any and all claims of action related thereto, and licenses or other similar agreements related to the foregoing; (b) “Ecto Intellectual Property” means all Intellectual Property and embodiments thereof owned by or licensed to Ecto or developed by Ecto, including, without limitation, Ecto’s proprietary knowledge, experience, methods, processes, ideas, concepts, techniques, tools, models, analysis frameworks, Applications, software, hardware, algorithms, user interfaces, documentation, and know-how both existing as of and after the Effective Date (including as may be conceived, developed, or otherwise acquired by Ecto in the course of performing the Services); (c) “Customer Intellectual Property” means all Intellectual Property and embodiments thereof in the Customer Material owned by or licensed to Customer; and (d) “Customer Material” shall mean Customer’s information, Customer Data and other data, and other materials provided by Customer to Ecto to enable Ecto to perform the Services.
4.2 Ownership of Customer Intellectual Property. All Customer Intellectual Property, and all inventions, improvements, modifications, discoveries, methods, developments, computer programs, processes, and works of authorship of any kind, including without limitation compilations and derivative works, based on, relating to, or deriving from Customer Intellectual Property conceived, developed, reduced to practice, or otherwise made by or under the direction of Customer or Ecto alone, jointly, or with others, shall be the sole and exclusive property of Customer and shall only be used by Ecto to provide the Services to Customer and as otherwise may be expressly permitted by this Agreement or an Order Form.
4.3 Ownership of Ecto Intellectual Property. All Ecto Intellectual Property, and all inventions, improvements, modifications, discoveries, methods, developments, computer programs, processes, and works of authorship of any kind, including without limitation compilations and derivative works, based on, relating to, or deriving from Ecto Intellectual Property conceived, developed, reduced to practice, or otherwise made by or under the direction of Customer or Ecto alone, jointly, or with others, shall be the sole and exclusive property of Ecto. Customer acknowledges and agrees that Ecto may utilize the Ecto Intellectual Property (and proprietary methods, processes, and know-how of third parties) during the performance of Services hereunder and that the ownership of the Ecto Intellectual Property and any such third-party rights are and will remain solely with Ecto or such third parties, as applicable. Except as may be specifically set forth in this Agreement, no license is hereby granted to any Ecto Intellectual Property or to any other property of Ecto described in the first sentence of this Section 4.3 which may be discovered or occur, whether by Ecto, Customer, or jointly, during Ecto’s performance of the Services.
4.4 Feedback. Customer may provide to Ecto evaluations, suggestions, or other feedback relating to Ecto Intellectual Property, including potential improvements or changes thereto (collectively, “Feedback”). Customer agrees that Feedback shall remain the sole property of Ecto. Ecto shall be entitled to use and disclose Feedback in any manner in its sole discretion and shall be under no obligation to pay any fee or royalty to Customer related to the Feedback.
If Customer and Ecto have previously signed a non-disclosure or confidentiality agreement between them, the terms of that agreement shall control rather than the terms of this Section 5, and the term of that agreement shall be extended (to the extent necessary) to be co-terminous with this Agreement. If Customer and Ecto have not previously signed a non-disclosure or confidentiality agreement, the terms of this Section 5 do apply.
5.1 Confidential Information. Except as expressly permitted by this Agreement, each Party will keep confidential and only use as necessary for the performance of this Agreement and each Order Form all relevant information received from the other Party in connection with this Agreement and any Order Form, whether in oral, written, graphic, electronic, or other form, that is either designated as confidential or, by the nature of the circumstances surrounding disclosure, should reasonably be regarded as confidential, regardless of the novelty of such information (“Confidential Information”). Each Party retains ownership of their own Confidential Information. Without limiting the generality of the foregoing, all Customer Intellectual Property and Customer Material is Confidential Information of Customer and all Ecto Intellectual Property is Confidential Information of Ecto. As described above, Ecto will not disclose any Customer Confidential Information to third parties, including without limitation other customers of Ecto. Ecto can use aggregate, high-level information about the work performed under any Order Form in its marketing materials with potential investors and customers. To deliver value and services to Customer and its other customers, if any of the Services involve Ecto delivering or providing any benchmarking, industry, segment, trend, metrics, predictive data and analyses to Customer, Ecto may incorporate Customer Confidential Information into Ecto’s databases for use in providing anonymized, sanitized, summary, and/or aggregate benchmarking, industry, segment, trend, metrics, predictive data and analyses to Customer and to Ecto’s other customers and business partners (but only so long as no actual Customer Confidential Information is disclosed to third parties). Similarly, in order to provide the Services requested by Customer and customized to Customer, Ecto may use Customer Confidential Information for developing, improving, validating, and expanding Ecto’s software, Applications, analytical tools, products and services.
5.2 Limitations. The receiving Party shall not be obligated to treat information as Confidential Information of the disclosing Party if the receiving Party can show by competent written evidence that such information: (a) was already known to the receiving Party without any obligations of confidentiality prior to receipt from the disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party; or (c) is independently developed by the receiving Party without use of any Confidential Information of the disclosing Party.
5.3 Duration of Confidentiality. The obligations of confidentiality set forth in Section 5.1 shall expire after five (5) years, provided however that any Confidential Information that is a trade secret shall remain protected by the terms of this Section 5 for so long as it continues to qualify as a “trade secret” under applicable law.
5.4. Deliverables. The Services may include Deliverables (as that term is defined below) if and to the extent specifically set forth in the applicable Order Form. Because of the special nature of the Services, the Deliverables are not intended or suited for any purpose other than to assist Customer in connection with the matters described in the applicable Order Form, and Customer agrees that the Deliverables will only be used for such purpose. As used herein, “Deliverables” shall mean the materials created by Ecto specifically for Customer under an Order Form and specifically described in that Order Form as a deliverable required to be delivered by Ecto to Customer, specifically excluding, however, all third party works and products whether or not included or embedded in the Deliverables.
6.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
6.2 Term of Purchased Subscriptions and Other Services. Except as otherwise specified in an Order Form, subscriptions and/or each additional purchased service (e.g., professional services) will automatically renew for additional one (1) year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Ecto’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
6.3 Termination. The commercial relationship may be terminated at any time upon the occurrence of any of the following events:
(a) Termination for Breach. Either Party may terminate all Order Forms that are still being performed upon the material breach (which shall include any breach of payment terms) of any provision of this Agreement by the other Party if such breach is capable of being cured and is not cured by the breaching Party within 30 days (or such additional time reasonably necessary to cure such breach, provided, the breaching Party has commenced a cure within the 30-day period and is diligently pursuing completion of such cure) after receipt by the breaching Party of written notice of such breach and termination. If such breach is not capable of being cured, then the termination shall be effective upon receipt of notice of such breach and termination.
(b) Liquidation, Insolvency, Receivership or Bankruptcy. Order Forms that are still being performed may be terminated immediately by either Party by giving the other Party written notice thereof if that other Party enters into liquidation, becomes insolvent, or enters into receivership or bankruptcy.
6.4 Effect of Termination. In the event of any termination of any Order Form, (i) the Parties will cooperate to effect an orderly, efficient and expeditious termination of all Services affected by the termination; (ii) Ecto shall not, without Customer’s prior approval, perform any additional Services pursuant to any Order Form affected by the termination; and (iii) Ecto shall, at Customer’s written request and to the extent applicable, promptly make any remaining inventory of Customer Material available for collection by Customer upon payment in full of all amounts due to Ecto.
6.5 Survival. Termination or expiration of any Order Form for any reason shall be without prejudice to any accrued obligations or the rights and remedies of either Party.
7.1 Representations and Warranties. Ecto hereby represents and warrants to Customer that Ecto is duly organized, validly existing, and in good standing under the laws of the place of its incorporation.
7.2 Warranty Disclaimer. Except for the warranties contained in Sections 1.2 and 7.1 of these General Terms and Conditions, (a) Ecto makes no representations or warranties to Customer whatsoever, including without limitation that the performance of any Services will achieve any specific result or outcome, and (b) ECTO HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
8.1 Limitation of Liability. The Services shall not be deemed investment, legal, tax, accounting, or other regulated advice. Ecto does not supplant Customer’s management or other decision-making bodies and does not guarantee results. Customer remains solely responsible for its decisions, actions, use of the Deliverables, and compliance with applicable laws, rules and regulations. The total liability of Ecto for any and all claims, demands, actions, suits, or other damages of any sort arising under or in connection with any Order Form shall not exceed the total amounts actually paid to Ecto under such Order Form over the twelve (12) months preceding the date such matter was first presented to Ecto by Customer. NEITHER ECTO NOR ANY OF ITS AFFILIATES NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES WILL BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION AMOUNTS FOR LOSS OF INCOME OR PROFITS, INCREASED COSTS, LOSS OF CONTRACTS OR OPPORTUNITIES, COST OF CAPITAL OR COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS ON WHICH DAMAGES ARE CLAIMED (I.E., WHETHER IN CONTRACT OR TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY)), EVEN IF ECTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.1 Force Majeure. Failure of Ecto to perform shall not subject Ecto to any liability if such failure is caused by any cause beyond its reasonable control, including without limitation acts of God, acts of terrorism, fire, explosion, flood, hurricane, lightning, drought, civil insurrection, war, riot, sabotage, embargo, strikes or other labor trouble, compliance with any new order or regulation of any government entity that could not reasonably be anticipated, provided, that written notice of such cause is promptly given to Customer and that Ecto uses all commercially reasonable efforts to resume performance hereunder as soon as possible.
9.2 Notices. Any notice relating to this Agreement and any Order Form must be made in writing to Ecto.
9.3 Use of Contractors. Ecto may retain third parties (“Contractors”) to furnish services to it in connection with the performance of its obligations hereunder and, notwithstanding any provisions to the contrary in this Agreement or any separate confidentiality or non-disclosure agreement, permit such Contractors to have access to Confidential Information of Customer and other information provided by or on behalf of Customer, but only to the extent and insofar as reasonably required in connection with the performance of Ecto’s obligations under this Agreement. Any such Contractors shall be bound by the same non-disclosure obligations as Ecto. Regardless of any use of Contractors, Ecto shall remain ultimately responsible for the performance of its obligations set forth in this Agreement.
9.4 Marketing. Customer authorizes Ecto to display Customer’s trademark name and logo within Ecto’s website and other Ecto public marketing materials, included but not limited to trade shows, customer events, and media publications. Customer will work with Ecto to publish quotes concerning the relationship with Ecto from a CxO-level, Vice President-level, or Executive Management-level. Customer agrees to allow Ecto to publish press releases announcing the official relationship with Ecto. Customer agrees to jointly create a White Paper and video testimonial after the Customer’s successful implementation and production rollout of any Ecto product or Service. Customer approves use of White Paper and video testimonial consistent with this Section 9.4.
9.5 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, United States, without regard to its conflict of laws rules. Prior to initiating any court, administrative or other action on a claim, dispute, demand or assertion, the claimant shall give notice to the other Party, detailing the nature of the issue and the facts relevant thereto and the Parties shall in good faith attempt to resolve such issue. No court, administrative or other action shall be initiated until the Parties have exhausted good faith settlement attempts.
9.6 General. This Agreement, together with the Order Forms, constitutes the entire agreement between the Parties and supersedes any and all prior and contemporaneous oral or written representations, understandings, or agreements relating to the subject matter hereof. The following Sections shall survive the completion or any termination of the Services: 3.1(c) (Limitations), 4 (Proprietary Rights), 5 (Confidentiality), 7.2 (Warranty Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous) and any other provision which by law or by its nature should survive. Neither Party may assign its rights or delegate its obligations under this Agreement or any Order Form to any person or entity without the written consent of the other Party; provided, however, that either Party may assign its rights and delegate its obligations under this Agreement and each Order Form to its affiliates and to any successor in interest (by means of merger, consolidation, asset purchase or otherwise) upon written notice to the other Party. Ecto is an independent contractor and not Customer’s agent or fiduciary. Notwithstanding any course of dealings of the Parties at any time or any statement to the contrary contained therein, no purchase order, invoice, or other similar document issued by a Party shall be construed to modify the terms of this Agreement. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
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