Terms & Conditions RISE
R I S E Terms & Conditions US
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS AND CONDITIONS CAREFULLY. The following (the “Agreement”) describes the terms and conditions pursuant to which ECI Software Solutions, Inc. or its affiliates (“ECI” “us”, “we”, or “our”) agrees to provide the individual or entity (“You”) the services set forth on the applicable Order Form (the “Services”). BY USING THE SERVICES, YOU AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, INCLUDING ANY POLICIES AND GUIDELINES LINKED TO (BY WAY OF PROVIDED URLS) THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES. ECI RESERVES THE RIGHT TO MODIFY THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION BY POSTING AN UPDATED VERSION OF THIS AGREEMENT ONLINE. YOUR CONTINUED USE OF THE SERVICES FOLLOWING SUCH POSTING CONSTITUTES ACCEPTANCE OF SUCH MODIFICATIONS.
DEFINITIONS
Confidential Information
All information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. ECI’s Confidential Information includes without limitation the Services and the Materials; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Intellectual Property Rights
Any U.S., international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.
R I S E Terms & Conditions (US) (March 2021)
Materials
The proprietary materials, information and know-how, made available to You by ECI in connection with provision of the Services, including by way of illustration but not limitation, training manuals, guidebooks, information, processes, methodologies, procedures, and other materials.
Order Form
Any quotation, proposal, or transactional document issued by ECI and accepted by You regarding the Services, which shall be deemed incorporated into this Agreement.
Term
The Initial Term plus any renewals thereof in accordance with this Agreement.
Users
Individuals who are authorized by You to use the Services, for whom subscriptions or access to the Services have been purchased, and, if applicable, who have been supplied user identifications and passwords by You (or by ECI at Your request).
LICENSE GRANT
ECI hereby grants You a personal, non-exclusive, non-transferable right and license for Users to (a) access and print and/or download onto computers, tablets or other electronic devices the Materials and (b) use the Materials in compliance with all the terms and conditions of this Agreement for personal educational use and reference only. The Materials MAY NOT BE USED, COPIED, DISTRIBUTED, RESOLD, TRANSLATED, MODIFIED, DISPLAYED OR TRANSFERED, IN WHOLE OR IN PART, EXCEPT AS PROVIDED IN THIS AGREEMENT, except that Users may copy a reasonable number of the ECI Materials for their own limited personal reference. So long as You do not violate any terms of this Agreement and the individual User is not in violation of the terms of the aforementioned license, then the individual User’s license shall survive the expiration, cancellation or termination of this Agreement.
YOUR OBLIGATIONS
For all virtual coaching sessions, You shall have ten calendar (10) days to complete and submit the provided enrollment form to ECI. Upon ECI’s receipt of the completed enrollment form, You shall have twenty (20) calendar days to complete the first virtual coaching session. You shall contact the coach assigned to You by ECI at scheduled times mutually agreed upon by ECI and You by calling the telephone number provided to You by ECI.
For all on-site coaching sessions, You shall provide, at no charge to ECI, office space, services and equipment as ECI reasonably requires to perform such on-site coaching sessions, and You shall be responsible for preparation of Your facilities and all reasonable costs thereof as required for the delivery of such on-site coaching sessions.
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ECI reserves the right to assign any coach for any session. If You miss any scheduled coaching session for any reason without giving at least twenty-four (24) hours prior written notice to ECI, then such coaching session will be deemed a completed coaching session and will not be rescheduled or replaced. If You are late to any scheduled coaching session for any reason, then such coaching session will end at its regularly scheduled time and will be deemed a completed session and will not be rescheduled or replaced. You will be responsible for payment of all associated fees for all such coaching sessions. All coaching sessions may be monitored or recorded for ECI’s quality purposes, and you hereby grant ECI a non-exclusive, fully transferable, royalty-free worldwide right and license to use any such recorded coaching sessions in connection with its delivery of services.
INTELLECTUAL PROPERTY RIGHTS
All right, title and interest in and to the Materials and any Confidential Information made available by ECI to You pursuant to this Agreement, including without limitation, all Intellectual Property Rights therein, shall remain exclusively with ECI and its licensors, as applicable. Any and all suggestions, ideas, feature requests, feedback, recommendations or other information relating to the Services and/or the Materials transmitted to ECI in any form or manner will be the exclusive property of ECI.
CONFIDENTIALITY
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, ECI may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Each
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party’s obligations under this Section (Confidentiality) shall survive expiration or termination of the Agreement for a period of three (3) years.
WARRANTIES AND DISCLAIMERS
You represent and warrant to ECI that (a) before entering into this Agreement, You have had the opportunity to conduct a thorough review and analysis of the Services; (b) You have determined, without reliance on any representation, warranty, promise or commitment on the part of ECI, that the Services meet Your own particular needs and requirements; and (c) ECI has not and does not make any representation, warranty, promise or commitment that the Services will meet Your particular needs or requirements.
ECI PROVIDES THE SERVICES “AS IS” AND “AS AVAILABLE”. ECI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SERVICES. TO THE GREATEST EXTENT ALLOWED BY LAW, ECI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. The Services are educational in nature only, and in no way constitute psychological counseling, relationship counseling, financial advising, estate planning or any other type of counseling, advice or therapy. You should seek the assistance of a licensed professional before making any investment or other decisions.
FEES
Unless otherwise provided on the applicable Order Form, all Services are billed on a monthly subscription basis. Unless ECI elects to change its invoicing policy (which it may do from time to time during the Term in its sole discretion), You will be billed on a recurring and periodic basis in advance of the month in which the fees are due. You will pay ECI all fees for the Services. Payment obligations are non-cancelable, fees paid are non-refundable. You will pay and be responsible for any excise, privilege, sales, use, customs, value added, and any other tax. If Your account is past due (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, ECI reserves the right to suspend the Services, without liability to You, until such amounts are paid in full. A valid payment method, including credit card or PayPal, is required to process the payment for Your subscription to the Services. You shall provide ECI with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, You automatically authorize ECI to charge all fees incurred through Your account to any such payment instruments. Should automatic billing fail to occur for any reason, ECI may issue an electronic invoice indicating that You must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
ECI reserves the right to bill You for any costs for airfare/rail, rental car, mileage to and from Your office and ECI’s then-current standard per diem (covering meals, hotels, parking and mileage for to and from airport, if flying) and other incidental out-of-pocket travel expenses for each person providing such
R I S E Terms & Conditions (US) (March 2021)
Services, and You agree to pay ECI any such fees. Where Order Forms include quotes of a certain number of hours, You acknowledge and agree that such quotes are an ESTIMATE ONLY, and that this amount, plus or minus any adjustment based on final labor performed by ECI, will be billed to and paid by You.
LIMITATION OF LIABILITY AND INDEMNIFICATION
ECI SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT, EVEN IF ECI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You shall indemnify, defend and hold ECI, its affiliates and each of their respective officers, directors, employees, contractors and agents harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) incurred by any of them in connection with claims made or brought against any of them involving: (a) breach of this Agreement by You or Your employees, agents or contractors, or (b) Your decision to participate in any coaching sessions or implement any advice derived therefrom.
TERM AND TERMINATION
This Agreement becomes effective upon your acceptance of this Agreement (the “Effective Date”), and unless earlier terminated as provided herein, the initial term of this Agreement shall be for a period of twelve (12) months (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional one (1) month periods unless either party provides the other party with written notice of its intent not to renew this Agreement at least ninety (90) days prior to the end of the then-current term, in each case subject to Your payment of the then-current fees.
ECI shall have the right to terminate this Agreement in any of the following cases: (a) immediately if You fail to complete the enrollment form and/or the first virtual coaching session within thirty (30) days following the Effective Date; (b) immediately if You fail to attend any virtual coaching session for at least sixty (60) consecutive days; or (c) upon thirty (30) days prior written notice if You breach this Agreement and fail to cure such breach within such thirty (30) day notice period. If ECI terminates this Agreement for any of the foregoing reasons, then all unpaid fees due and owing for the Term shall immediately become due and payable, and You automatically authorize ECI to charge all such fees incurred through Your account provided pursuant to this Agreement.
SURVIVAL
The following sections of this Agreement shall survive any termination or expiration of this Agreement: Definitions; Intellectual Property Rights; Confidentiality; LIMITATION OF LIABILITY AND INDEMNIFICATION; Fees; Survival; Other Terms.
OTHER TERMS
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This Agreement, including the applicable Order Form(s), constitutes the entire agreement between the parties, superseding all prior oral or written representations, agreements or understandings with respect to the subject matter hereof and thereof. There are no representations, warranties, conditions, guarantees or agreements relating to such subject matter except those expressly stated in this Agreement. To the extent there is any conflict between the terms of this Agreement and the applicable Order Form(s) or any Addendum, the terms of this Agreement shall prevail.
You shall not sell, transfer, assign or otherwise convey this Agreement, or any of Your rights or obligations hereunder without the prior written consent of ECI (which consent shall not be unreasonably withheld, conditioned or delayed), including without limitation by operation of law to a successor in interest in connection with a merger, consolidation, sale of shares or assets or other change of control transaction. The purported transferee shall first be required to agree in writing with ECI to assume and perform all of Your obligations under this Agreement. Any attempt to assign this Agreement without ECI’s prior written consent shall be void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Any notices required or permitted hereunder shall be deemed to have been given if in writing and delivered personally, sent by overnight delivery or by first class, registered, or certified mail, postage prepaid and addressed to the receiving party at its address set forth in the most recent Order Form (or to such other address as may be notified from one party to the other following the same notice procedures), or delivered via email with acknowledgement of receipt. You must send a copy of all such notices to the following: ECI Software Solutions, Inc., Attn: General Counsel, 4400 Alliance Gateway Fwy., #154, Fort Worth, Texas 76177.
This Agreement shall be governed and construed in accordance with the laws of the State of Iowa, without regard to its conflict of laws provisions. The parties agree that exclusive jurisdiction for any dispute arising under or related to this Agreement shall be with the appropriate state or federal court in Iowa and each party consents to the jurisdiction of such court in any action or proceeding and waives any objection to such venue. TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT.
ECI will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, pandemics, disruption in transmission, or disruption in telecommunications services.
You agree that certain breaches of this Agreement by it may result in irreparable harm to ECI, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for such breach. Accordingly, ECI shall be entitled to seek any and all remedies available at law or in equity, including without limitation injunctive relief or specific performance.
No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing.
If any provision of this Agreement is ruled invalid or unenforceable, the provision shall be severable from this Agreement so that the remaining provisions are unaffected.
R I S E Terms & Conditions (US) (March 2021)
R I S E Terms & Conditions Canada
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS AND CONDITIONS CAREFULLY. The following (the “Agreement”) describes the terms and conditions pursuant to which ECI Software Solutions Canada Inc. or its affiliates (“ECI” “us”, “we”, or “our”) agrees to provide the individual or entity (“You”) the services set forth on the applicable Order Form (the “Services”). BY USING THE SERVICES, YOU AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, INCLUDING ANY POLICIES AND GUIDELINES LINKED TO (BY WAY OF PROVIDED URLS) THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES. ECI RESERVES THE RIGHT TO MODIFY THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION BY POSTING AN UPDATED VERSION OF THIS AGREEMENT ONLINE. YOUR CONTINUED USE OF THE SERVICES FOLLOWING SUCH POSTING CONSTITUTES ACCEPTANCE OF SUCH MODIFICATIONS.
DEFINITIONS
Confidential Information
All information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. ECI’s Confidential Information includes without limitation the Services and the Materials; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Intellectual Property Rights
Any Canadian, international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in Canada or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.
R I S E Terms & Conditions (Canada) (March 2021)
Materials
The proprietary materials, information and know-how, made available to You by ECI in connection with provision of the Services, including by way of illustration but not limitation, training manuals, guidebooks, information, processes, methodologies, procedures, and other materials.
Order Form
Any quotation, proposal, or transactional document issued by ECI and accepted by You regarding the Services, which shall be deemed incorporated into this Agreement.
Term
The Initial Term plus any renewals thereof in accordance with this Agreement.
Users
Individuals who are authorized by You to use the Services, for whom subscriptions or access to the Services have been purchased, and, if applicable, who have been supplied user identifications and passwords by You (or by ECI at Your request).
LICENSE GRANT
ECI hereby grants You a personal, non-exclusive, non-transferable right and license for Users to (a) access and print and/or download onto computers, tablets or other electronic devices the Materials and (b) use the Materials in compliance with all the terms and conditions of this Agreement for personal educational use and reference only. The Materials MAY NOT BE USED, COPIED, DISTRIBUTED, RESOLD, TRANSLATED, MODIFIED, DISPLAYED OR TRANSFERED, IN WHOLE OR IN PART, EXCEPT AS PROVIDED IN THIS AGREEMENT, except that Users may copy a reasonable number of the ECI Materials for their own limited personal reference. So long as You do not violate any terms of this Agreement and the individual User is not in violation of the terms of the aforementioned license, then the individual User’s license shall survive the expiration, cancellation or termination of this Agreement.
YOUR OBLIGATIONS
For all virtual coaching sessions, You shall have ten calendar (10) days to complete and submit the provided enrollment form to ECI. Upon ECI’s receipt of the completed enrollment form, You shall have twenty (20) calendar days to complete the first virtual coaching session. You shall contact the coach assigned to You by ECI at scheduled times mutually agreed upon by ECI and You by calling the telephone number provided to You by ECI.
For all on-site coaching sessions, You shall provide, at no charge to ECI, office space, services and equipment as ECI reasonably requires to perform such on-site coaching sessions, and You shall be responsible for preparation of Your facilities and all reasonable costs thereof as required for the delivery of such on-site coaching sessions.
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ECI reserves the right to assign any coach for any session. If You miss any scheduled coaching session for any reason without giving at least twenty-four (24) hours prior written notice to ECI, then such coaching session will be deemed a completed coaching session and will not be rescheduled or replaced. If You are late to any scheduled coaching session for any reason, then such coaching session will end at its regularly scheduled time and will be deemed a completed session and will not be rescheduled or replaced. You will be responsible for payment of all associated fees for all such coaching sessions. All coaching sessions may be monitored or recorded for ECI’s quality purposes, and you hereby grant ECI a non-exclusive, fully transferable, royalty-free worldwide right and license to use any such recorded coaching sessions in connection with its delivery of services.
INTELLECTUAL PROPERTY RIGHTS
All right, title and interest in and to the Materials and any Confidential Information made available by ECI to You pursuant to this Agreement, including without limitation, all Intellectual Property Rights therein, shall remain exclusively with ECI and its licensors, as applicable. Any and all suggestions, ideas, feature requests, feedback, recommendations or other information relating to the Services and/or the Materials transmitted to ECI in any form or manner will be the exclusive property of ECI.
CONFIDENTIALITY
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, ECI may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Each
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party’s obligations under this Section (Confidentiality) shall survive expiration or termination of the Agreement for a period of three (3) years.
WARRANTIES AND DISCLAIMERS
You represent and warrant to ECI that (a) before entering into this Agreement, You have had the opportunity to conduct a thorough review and analysis of the Services; (b) You have determined, without reliance on any representation, warranty, promise or commitment on the part of ECI, that the Services meet Your own particular needs and requirements; and (c) ECI has not and does not make any representation, warranty, promise or commitment that the Services will meet Your particular needs or requirements.
ECI PROVIDES THE SERVICES “AS IS” AND “AS AVAILABLE”. ECI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SERVICES. TO THE GREATEST EXTENT ALLOWED BY LAW, ECI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. The Services are educational in nature only, and in no way constitute psychological counseling, relationship counseling, financial advising, estate planning or any other type of counseling, advice or therapy. You should seek the assistance of a licensed professional before making any investment or other decisions.
FEES
Unless otherwise provided on the applicable Order Form, all Services are billed on a monthly subscription basis. Unless ECI elects to change its invoicing policy (which it may do from time to time during the Term in its sole discretion), You will be billed on a recurring and periodic basis in advance of the month in which the fees are due. You will pay ECI all fees for the Services. Payment obligations are non-cancelable, fees paid are non-refundable. You will pay and be responsible for any excise, privilege, sales, use, customs, value added, and any other tax. If Your account is past due (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, ECI reserves the right to suspend the Services, without liability to You, until such amounts are paid in full. A valid payment method, including credit card or PayPal, is required to process the payment for Your subscription to the Services. You shall provide ECI with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, You automatically authorize ECI to charge all fees incurred through Your account to any such payment instruments. Should automatic billing fail to occur for any reason, ECI may issue an electronic invoice indicating that You must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
ECI reserves the right to bill You for any costs for airfare/rail, rental car, mileage to and from Your office and ECI’s then-current standard per diem (covering meals, hotels, parking and mileage for to and from airport, if flying) and other incidental out-of-pocket travel expenses for each person providing such
R I S E Terms & Conditions (Canada) (March 2021)
Services, and You agree to pay ECI any such fees. Where Order Forms include quotes of a certain number of hours, You acknowledge and agree that such quotes are an ESTIMATE ONLY, and that this amount, plus or minus any adjustment based on final labor performed by ECI, will be billed to and paid by You.
LIMITATION OF LIABILITY AND INDEMNIFICATION
ECI SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT, EVEN IF ECI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You shall indemnify, defend and hold ECI, its affiliates and each of their respective officers, directors, employees, contractors and agents harmless from and against any and all losses, damages, costs and expenses (including reasonable legal fees) incurred by any of them in connection with claims made or brought against any of them involving: (a) breach of this Agreement by You or Your employees, agents or contractors, or (b) Your decision to participate in any coaching sessions or implement any advice derived therefrom.
TERM AND TERMINATION
This Agreement becomes effective upon your acceptance of this Agreement (the “Effective Date”), and unless earlier terminated as provided herein, the initial term of this Agreement shall be for a period of twelve (12) months (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional one (1) month periods unless either party provides the other party with written notice of its intent not to renew this Agreement at least ninety (90) days prior to the end of the then-current term, in each case subject to Your payment of the then-current fees.
ECI shall have the right to terminate this Agreement in any of the following cases: (a) immediately if You fail to complete the enrollment form and/or the first virtual coaching session within thirty (30) days following the Effective Date; (b) immediately if You fail to attend any virtual coaching session for at least sixty (60) consecutive days; or (c) upon thirty (30) days prior written notice if You breach this Agreement and fail to cure such breach within such thirty (30) day notice period. If ECI terminates this Agreement for any of the foregoing reasons, then all unpaid fees due and owing for the Term shall immediately become due and payable, and You automatically authorize ECI to charge all such fees incurred through Your account provided pursuant to this Agreement.
SURVIVAL
The following sections of this Agreement shall survive any termination or expiration of this Agreement: Definitions; Intellectual Property Rights; Confidentiality; LIMITATION OF LIABILITY AND INDEMNIFICATION; Fees; Survival; Other Terms.
OTHER TERMS
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This Agreement, including the applicable Order Form(s), constitutes the entire agreement between the parties, superseding all prior oral or written representations, agreements or understandings with respect to the subject matter hereof and thereof. There are no representations, warranties, conditions, guarantees or agreements relating to such subject matter except those expressly stated in this Agreement. To the extent there is any conflict between the terms of this Agreement and the applicable Order Form(s) or any Addendum, the terms of this Agreement shall prevail.
You shall not sell, transfer, assign or otherwise convey this Agreement, or any of Your rights or obligations hereunder without the prior written consent of ECI (which consent shall not be unreasonably withheld, conditioned or delayed), including without limitation by operation of law to a successor in interest in connection with a merger, consolidation, sale of shares or assets or other change of control transaction. The purported transferee shall first be required to agree in writing with ECI to assume and perform all of Your obligations under this Agreement. Any attempt to assign this Agreement without ECI’s prior written consent shall be void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Any notices required or permitted hereunder shall be deemed to have been given if in writing and delivered personally, sent by overnight delivery or by first class, registered, or certified mail, postage prepaid and addressed to the receiving party at its address set forth in the most recent Order Form (or to such other address as may be notified from one party to the other following the same notice procedures), or delivered via email with acknowledgement of receipt. You must send a copy of all such notices to the following: ECI Software Solutions Canada Inc., Attn: General Counsel, 1000 Gardiners Road, Suite 202, Kingston, Ontario K7p 3C4.
This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario, without regard to conflict of laws provisions. The parties agree that exclusive jurisdiction for any dispute arising under or related to this Agreement shall be with the courts of the Province of Ontario and each party consents to the jurisdiction of such court in any action or proceeding and waives any objection to such venue. This Agreement shall not be governed by the UnitedNationsConventiononContractsfortheSaleofInternationalGoods. Thepartieshaveexpressly required that this Agreement, any communication and all other contracts, documents, and notices relating to this Agreement be drafted in the English language. Les parties ont expressément exigé que la présente convention, la communication et tous les autres contrats, documents et avis qui y sont afférents soient rédigés dans la langue anglaise. TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT.
ECI will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, pandemics, disruption in transmission, or disruption in telecommunications services.
You agree that certain breaches of this Agreement by it may result in irreparable harm to ECI, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an
R I S E Terms & Conditions (Canada) (March 2021)
adequate remedy for such breach. Accordingly, ECI shall be entitled to seek any and all remedies available at law or in equity, including without limitation injunctive relief or specific performance.
No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing. If any provision of this Agreement is ruled invalid or unenforceable, the provision shall be severable from this Agreement so that the remaining provisions are unaffected. R I S E Terms & Conditions (Canada) (March 2021)</div>
