General Terms & Conditions
Last modified on March, 30th 2022.
CLIENT ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS. ERP SUCCESS SOFTWARE IS LICENSED TO CLIENT AND ERP SUCCESS SERVICES ARE PROVIDED TO CLIENT SOLELY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. BEFORE PURCHASING ANY ERP SUCCESS SOFTWARE OR SERVICES, CLIENT IS REQUESTED TO READ THE TERMS OF THIS AGREEMENT. BY SIGNING THE ORDER FORM, CLIENT IS CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND UNDERTAKING TO COMPLY THEREWITH.
1. Definitions
1.1 “Acceptance Documents” means the Order Form, SOW, and/or any other document signed by each party’s duly authorized representatives for the Items, all of which are incorporated by reference into this Agreement.
1.2 “Agreement” means these general terms and conditions for the purchasing of an ERP Success Software license and/or Services as accepted by both parties as evidenced by their signature on the relevant Acceptance Documents.
1.3 “Change Request” means any formal change to the project scope of an SOW after the applicable Acceptance Documents have been duly executed.
1.4 “Client” means the purchaser and/or licensee of Items.
1.5 “Client Data” means all electronic data or information submitted to and stored in connection with the provision of Services by ERP Success or the use of ERP Success Software by Client.
1.6 “Confidential Information” shall have the meaning ascribed hereto in Section 1.
1.7 “Deliverable(s)” shall mean all tangible, measurable or specific item to be delivered by ERP Success to Client under an applicable SOW.
1.8 “Disclosing Party” shall have the meaning ascribed hereto in Section 1.
1.9 “ERP Success” means ERP Success Partners Inc., and/or its affiliate, ERP Success Partner Limited, as applicable.
1.10 “ERP Success Software” refers to the proprietary technology and software, also referred to as SuiteApps, that ERP Success may from time to time make available to Client via ERP Success’s online application, which Software is licensed by ERP Success to Client under an Order Form and may include updates, upgrades, fixes, patches, revisions and modifications thereto. For greater certainty, ERP Success Software shall not include NetSuite licenses.
1.11 “Intellectual Property” means any inventions, works of authorship, reports, technological components, tools, source code, methods or other developments, together with any patents, trade secrets, copyrights, trademarks, or any other intellectual property rights in or to any of the foregoing.
1.12 “Item(s)” means any or all products or services listed on an Order Form, including but not limited to ERP Success Software and Services.
1.13 “Order Form” means an ERP Success estimate, a renewal notice or a purchase order form signed by Client from time to time and accepted by ERP Success which specifies the Items to be provided by ERP Success to Client as subject to the terms of this Agreement.
1.14 “Receiving Party” shall have the meaning ascribed hereto in Section 1.
1.15 “Representatives” shall have the meaning ascribed hereto Section 2.
1.16 “Services” means the general consulting, implementation, technical support and/or training services to be provided to Client pursuant to the terms hereof and a SOW and/or an Order Form.
1.17 “Software Commencement Date” means the date on which the ERP Success Software is delivered or made available for use by the Client.
1.18 “SOW” means a statement of work agreement between ERP Success and Client, including any schedules and Change Requests, that details the Services to be delivered by ERP Success.
2. Client Orders
2.1 Order Forms. The Items, whether ERP Success Software or Services or both, shall be ordered by Client pursuant to Order Forms. Each Order Form shall include at a minimum a listing of all Items being purchased, their descriptions, their associated fees and the currency.
3. Term and Termination
3.1 Term. This Agreement is effective from the date both parties sign the Acceptance Documents and shall remain in force until expiry or termination of all SOWs and Order Forms in accordance with this Agreement.
3.2 Termination for Convenience. Subject to Section 2, unless otherwise provided in the Acceptance Documents, Order Forms and SOWs may be terminated without cause at any time and for any reason (i) by mutual agreement between the parties, or (ii) by any party with thirty (30) days’ prior written notice.
3.3 Termination for Cause. Notwithstanding the foregoing, any party may terminate this Agreement at any time without prior notice for fraud, dishonesty, wilful neglect, misconduct, or any material breach of the terms hereof or the terms of any applicable Acceptance Document by the other party.
4. Professional Services
4.1 Statement of Work. ERP Success shall provide Client with the Services as described in one or more Order Forms or SOWs executed by the parties, subject to the terms and conditions set forth in this Agreement. Each Order Form or SOW, as applicable, shall describe the (i) Services to be provided in detail, as well as (ii) the term during which the Services will be provided and (iii) the fees to be paid by Client. Each SOW and Order Form will be considered a separate agreement which incorporates these general terms and conditions, and the Services to be provided thereunder will form part of the Services governed by this Agreement. Any reference to this Agreement shall include any SOW or Order Form which has not yet terminated.
4.2 Change Requests. Client may initiate a change to the scope of an SOW or Order Form by notifying ERP Success of a Change Request in writing. Should the Change Request require work that is outside of the scope of the SOW or Order Form, Client will be charged at an hourly rate as indicated in the applicable SOW or Order Form and subject to Section 3 below. In the event of a Change Request, ERP Success may, in its sole discretion, suspend the provision of Services until a definitive agreement between the parties has been reached with respect to such Change Request and the fees related thereto. The agreed upon changes, including fees, will be reflected in the Change Request, which will be signed by the authorized representatives of both parties and shall constitute an amendment to the applicable SOW or Order Form, as applicable.
4.3 Hourly Rates. The hourly rates applicable to Services are subject to change once per calendar year. ERP Success will notify Client at least thirty (30) days before any increase in the hourly rates applicable to the Services, after which the increased hourly fees shall apply to the Services without any further formality. If Client chooses not to consent to such an increase, Client may terminate the applicable Order Form or SOW in accordance with Section 2 above.
4.4 Other Expenses. Client shall reimburse ERP Success for actual, necessary and reasonable expenses incurred by ERP Success and pre-approved by Client in connection with providing Services. ERP Success shall submit reimbursement requests for such pre-approved expenses to Customer as part of ERP Success’s regular monthly invoice for Services, which shall be reimbursed according to Section 1.
4.5 Independent Contractor. ERP Success and any of its Representatives is and shall remain at all times an independent contractor and is not, and shall not represent himself to be an agent, joint venturer, partner, officer, director or employee of Client. Nothing contained in this Agreement or any applicable SOWs is intended to create nor shall be construed as creating an employment relationship between ERP Success or its representatives and Client.
4.6 Subcontractors. ERP Success, in providing Services to Client, shall be entitled to engage and use its employees, consultants and subcontractors and to delegate performance of any portion of the Services without the prior written consent of Client. ERP Success agrees to accept full and total responsibility for any acts or omissions by such employees, consultants and subcontractors in connection with obligations related to the provision of the Services and Deliverables under this Agreement.
4.7 Covenants by ERP Success. ERP Success covenants that: (i) it will perform the Services in a professional manner using qualified individuals, contractor and subcontractors, according to the terms of this Agreement and any applicable SOW; (ii) in performing the Services, ERP Success will not make any unauthorized use of confidential or proprietary information of a third party; and (iii) ERP Success will comply with all applicable laws, rules, and regulations regarding the provision of the Services.
5. License of ERP Success Software
5.1 Grant. With effect from the applicable Software Commencement Date, ERP Success hereby grants to Client a license to use ERP Success Software. The non-refundable license fee shall grant Client a limited, non-exclusive, revocable, non-sublicensable and non-transferable right to use the ERP Success Software subject to the limitations set out in Section 4. The license shall terminate upon completion of the term set forth in the Order Form and the license shall be subject to termination as otherwise provided herein.
5.2 Renewals. The initial term of any given ERP Success Software license procured by Client shall continue for the term specified in the applicable Order Form. Except as otherwise stated in the applicable Order Form, the subscription term for such ERP Success Software license shall be automatically renewed for a term of one (1) year upon expiry unless either party provides written notice of non-renewal to the other at least thirty (30) days before expiration of the applicable initial term or then-current renewal term. Each renewal term shall operate under the terms and conditions of the initial term or the then-current terms, except that ERP Success may notify Client forty-five (45) days prior to the expiry of the initial or then-current term of any changes to the terms, conditions, scope and fees applicable to the renewal term.
5.3 Title. Client acknowledges and agrees that ERP Success Software is licensed, not sold, and that ERP Success shall retain at all times exclusive title and ownership of the ERP Success Software and any related patent, trademark, service mark, database right, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
5.4 Limitations of Use. The following limitations shall apply to the use of ERP Success Software:
(a) Internal Use. Client shall only use ERP Success Software for its own internal purposes and for business purposes only. Customer shall not permit any third party to use or have access to ERP Success Software without ERP Success’s prior written consent. Unless explicitly authorized in writing by ERP Success, resale and re-licensing of the ERP Success Software in any form whatsoever are strictly prohibited, and any such attempt shall be void and of no effect. Client shall not make ERP Success Software available on a service bureau or application service provider basis without the prior written consent of ERP Success.
(b) Unique Credentials. Client shall use ERP Success Software only with the unique credentials provided by ERP Success to Client.
(c) Copies. Client shall not copy, reproduce, modify, adapt, translate, prepare derivative works of, republish, upload, post, transmit, or distribute the ERP Success Software.
(d) Reverse Engineering. Client shall not decompile, disassemble or reverse engineer ERP Success Software or otherwise attempt to discover all or a portion of its source code or the structure, sequence or organization of such code, nor make any attempt to do so.
(e) Disruption. Client shall not use the ERP Success Software to upload, post, email, or otherwise transmit worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of the ERP Success Software, or any hardware or telecommunications equipment of ERP Success or any third party.
(f) Infrastructure. Client shall not take any action that imposes or may impose (as determined by ERP Success in its sole discretion) an unreasonable or disproportionately large load on ERP Success’ (or its third-party providers’) infrastructures.
(g) Crawlers. Client shall not use the ERP Success Software through any interfaces not provided by ERP Success, or by any automated means, including, but not limited to, scripts, robots, or web crawlers.
(h) Illegal Use. Client shall not use the ERP Success Software in any way which violates, or might reasonably be judged by ERP Success to violate, any local or foreign law or regulation.
5.5 Changes to Software. ERP Success reserves the right but is not obligated to improve, enhance or modify the ERP Success Software at any time and from time to time; however, ERP Success shall notify Client of any significant changes that may adversely affect Client’s use of the ERP Success Software.
5.6 Infringement. In the event Client becomes aware that ERP Success Software is being used in a manner not authorized by this Agreement, Client shall immediately take all reasonable steps to have such unauthorized use of the ERP Success Software immediately cease. Client shall notify ERP Success in writing of any unauthorized use. Client agrees that any violation of this Agreement with respect to confidentiality, non-disclosure, trademark or copyright infringement shall constitute a fundamental breach of the terms of use of ERP Success Software and is subject to termination by ERP Success per Section 3.3 of this Agreement. Furthermore, Client acknowledges that any such violation may be remedied by monetary damages, injunctive relief or both, at ERP Success’ option.
6. Payment And Taxes
6.1 Payment terms. All fees are due upon receipt of an invoice unless otherwise specified in the Acceptance Documents. Unless otherwise provided in the Acceptance Documents, in the absence of full payment of an invoice at the due date, default interest will be legally due from the due date mentioned on the invoice without any further notice and calculated on the basis of a rate equal to the lower of (i) four percent (4%) per month (48% per annum), and (ii) the maximum rate permitted by applicable laws.
6.2 No Refund. All fees payable by Client under this Agreement are non-refundable and cannot be withheld or offset, except as otherwise explicitly stated in the applicable Order Form or other Acceptance Document.
6.3 Taxes. ERP Success agrees to clearly reference the applicable tax registration number on all invoices to Client, if any. If ERP Success has the legal obligation to pay or collect taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client unless Client provides ERP Success with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Intellectual Property
7.1 Intellectual Property Rights. Each party will retain all right, title and interest in and to its Intellectual Property. Except as provided in this Agreement, the rights granted to Client do not convey any rights in the Items, express or implied, or ownership in the Items or any intellectual property rights thereto. Any rights in the Items or ERP Success’s Intellectual Property not expressly granted herein by ERP Success are reserved by ERP Success.
7.2 Feedback. Client grants ERP Success a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Items (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Client related to the operation or functionality of the Items.
8. Client Data
8.1 Ownership of Client Data. All title and intellectual property rights in and to the Client Data is owned exclusively by Client. Client acknowledges and agrees that in connection with the provision of the Services, ERP Success may store and maintain Client Data for a period of time consistent with ERP Success standard business processes for the Services. Client grants ERP Success the right to host, use, process, display and transmit Client Data to render the Services pursuant to and in accordance with this Agreement and the applicable SOWs and Order Forms. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Client Data, and for obtaining all rights related to Client Data required by ERP Success to perform the Services.
8.2 Transmission of Data. Client understands that the technical processing and transmission of Client Data is fundamentally necessary to the rendering of Services. Client expressly consents to ERP Success’s use of Client Data as needed to provide Services hereunder and as described in any applicable SOW or Order Form, and Client acknowledges and understands that Client Data will involve transmission over the internet, and over various networks, which may be owned and/or operated by third party providers. Client further acknowledges and understands that Client Data may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone or other electronic means. Without limiting ERP Success applicable obligations under Section 9 of this Agreement, ERP Success is not responsible for any Client Data which is delayed, lost, altered, intercepted or stored during the transmission or migration of any data whatsoever across networks not owned and/or operated by ERP Success, including, but not limited to, the internet and Client’s local network.
9. Confidentiality
9.1 Confidential Information. The term “Confidential Information” means any business, technical or other information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either designated as confidential or proprietary at the time of disclosure or which should be reasonably understood to be proprietary or confidential based on the nature of the information disclosed or circumstances of disclosure, and for the avoidance of doubt shall include (i) any and all trade secrets, including, without limitation, any information relating to the operations or business of the Disclosing Party that are not generally known by the public; (ii) any information relating to the Intellectual Property of the Disclosing Party; and (iii) any unannounced products or services of the Disclosing Party. Confidential Information shall not include information that (i) is or becomes publicly available other than through any act or omission of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party not known by the Receiving Party to be prohibited from disclosing the information by a contractual, legal or fiduciary obligation; (iii) is developed by the Receiving Party independently and without use of the Disclosing Party’s Confidential Information; or (iv) is approved for disclosure by written authorization of the Disclosing Party. Notwithstanding anything to the contrary herein, the mere passage of time or termination of this Agreement shall not affect the proprietary status or confidentiality of Confidential Information. The Receiving Party shall exercise the same degree of care (but no less than reasonable care) to avoid the publication or dissemination of the Confidential Information of the Disclosing Party as it affords to its own Confidential Information of a similar nature which it desires not to be published or disseminated.
9.2 Disclosure Restrictions. The Receiving Party agrees to hold the Confidential Information in strict confidence, to use the Confidential Information only as is required to perform its obligations under this Agreement, and to disclose the Confidential Information only to those of its employees, agents, individual independent consultants or subcontractors (“Representatives”) who require such disclosure in order to perform hereunder, and provided that such Representatives are under an obligation of confidentiality to Receiving Party at least as restrictive as the obligations contained herein.
9.3 Compulsory Disclosure. If the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by a government agency, the Receiving Party shall, to the extent legally permissible: (i) promptly notify the Disclosing Party of the existence, terms, and circumstances surrounding such a request; (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow that request; (iii) if disclosure of that Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised by its counsel is legally required to be disclosed; and (iv) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed. A disclosure pursuant to law or government authority order that meets the requirements of this paragraph will be deemed an authorized disclosure.
9.4 Return of Confidential Information. At the request of the Disclosing Party, and except for such copies as the Receiving Party is required to retain pursuant to applicable law or regulation or internal record retention policy, the Receiving Party shall: (i) return to the Disclosing Party any and all of the Disclosing Party’s Confidential Information, including all tangible copies of such information or materials; (ii) destroy any and all other copies, information or materials in whatever form or media pertaining to such Confidential Information and/or its use or application; and (iii) provide to the Disclosing Party a signed written statement that all such Confidential Information and other information, copies and materials pertaining thereto have been returned to the Disclosing Party or destroyed in accordance with the terms of this paragraph. The obligations of this Section 4 to return or destroy Confidential Information and copies thereof received, stored or disseminated in an electronic form shall not apply to any electronic copies stored for back-up or archiving purposes that are not readily accessible by the Receiving Party, provided that Receiving Party and its Representatives do not restore any such back-up or archived copies for the purpose of accessing the Confidential Information.
9.5 Equitable Relief. The Receiving Party acknowledges that any disclosure or threatened disclosure of Confidential Information in violation of this Agreement would be detrimental to the Disclosing Party’s business and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to equitable relief, including injunctions, without posting bond or proving damages.
10. Disclaimer of Warranty
WITH THE EXCEPTION OF EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT AND ANY ACCEPTANCE DOCUMENTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) ALL ITEMS, INCLUDING SERVICES, ERP SUCCESS SOFTWARE, CONFIDENTIAL INFORMATION OF ERP SUCCESS, AND IN EACH CASE ANY AND ALL COMPONENTS THEREOF, AND ANY AND ALL INTELLECTUAL PROPERTY RIGHTS THEREIN OR THEREUNDER ARE FURNISHED “AS IS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED; (II) ERP SUCCESS DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY COLLATERAL WARRANTIES, ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (III) ERP SUCCESS DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT ERP SUCCESS WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; AND (IV) ERP SUCCESS MAKES NO REPRESENTATION OR WARRANTY THAT THE ERP SUCCESS SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR BE SECURE, COMPLETE, ACCURATE, OR FREE FROM ERROR OR DEFECT. ERP SUCCESS IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES OR ERP SUCCESS SOFTWARE THAT ARISE FROM CLIENT DATA, THIRD-PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
11. Limitation of Liability
IN NO EVENT WILL ETIHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, COST OF PROCURING SUBSTITUTE SERVICES, BUSINESS INTERRUPTION, LOST BUSINESS OR LOST DATA, OR ANY OTHER ECONOMIC LOSS, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGE, LOSS OR EXPENSES, EVEN IF THE PARTY HAS BEEN ADVISED OF OR COULD REASONABLY FORESEE THE POSSIBILITY OF ANY SUCH DAMAGE OCCURRING.
IN NO EVENT WILL ERP SUCCESS BE LIABLE FOR ANY DAMAGES OF ANY KIND OR NATURE CAUSED BY A THIRD-PARTY LICENSOR, SERVICE PROVIDER OR SUPPLIER OF CLIENT.
IN NO EVENT WILL ERP SUCCESS’S TOTAL LIABILITY TO CLIENT FOR ANY DAMAGES OF ANY KIND OR NATURE, HOWSOEVER ARISING, EXCEED THE FEES PAID BY CLIENT TO THE CONTRACTOR DURING THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM, IF ANY. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACTUAL, EXTRA-CONTRACTUAL OR ANY OTHER LIABILITY THEORY. FOR GREATER CERTAINTY, THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
12. Indemnification
12.1 Indemnity by ERP Success. ERP Success agrees to indemnify, defend and hold Client harmless against any claims, suits, actions or judgments against Client in connection with any third-party claim arising from any alleged intellectual property infringement by ERP Success in the provision of the Services. Notwithstanding the foregoing, if a third party claim relates to a claim that the Services infringe or misappropriate the intellectual property, proprietary or other rights of third parties, ERP Success shall have no liability towards Client under this Section 1 to the extent such claim is caused by (i) Client’s use of Deliverables other than in accordance with the documentation or written instructions provided to Client by ERP Success; (ii) Client’s use of the Deliverables other than in the ordinary course of its business; (iii) Client’s alteration, modification or use of a revised version of Deliverables that were not mutually agreed for use, in writing, between Client and ERP Success; or (iv) from Client’s combination of using Deliverables with material that was not provided by ERP Success, except for any material mutually agreed for use, in writing, between Client and ERP Success or belonging to Client or a third party that was contemplated by this Agreement or in the applicable SOW. Client agrees to notify ERP Success promptly in writing of any such claim or suit, and permit ERP Success to assume control of the defense and/or settlement thereof, including any and all appeals, and all negotiations to effect settlement. ERP Success agrees that it shall not enter into any settlement agreement requiring any action or admission by Client without Client’s prior written consent, which consent shall not be unreasonably withheld. Client shall have the right to hire its own counsel solely for the purpose of monitoring any such action or settlement discussions, at Client’s own expense. ERP Success shall not be liable for any costs or expenses incurred by Client without ERP Success’s prior written authorization.
12.2 Indemnity by Client. In the case where Client provides access to ERP Success to materials, including Client Data, for the purposes of allowing ERP Success to fulfill its obligations under this Agreement, Client shall defend, indemnify and hold harmless ERP Success from and against any loss, cost, liability or damage, including attorneys’ fees, for which ERP Success becomes liable arising from such materials for which (i) no copyright permission or previous release was requested, or (ii) for uses which exceed the uses allowed pursuant to a permission or release, including but not limited to any claim brought by a third party alleging that such materials or derivatives thereof, or ERP Success’s use, migration, transformation or other modification of such materials at the request of Client and/or pursuant to and as required by this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. ERP Success agrees to notify Client promptly in writing of any such claim or suit and shall give Client control of the defense and/or settlement of any such action. Client agrees that it shall not enter into any settlement agreement requiring any action or admission by ERP Success without ERP Success’s prior written consent, which consent shall not be unreasonably withheld. ERP Success shall have the right to hire its own counsel solely for the purpose of monitoring any such action, at ERP Success’s own expense. Client shall not be liable for any costs or expenses incurred by ERP Success without Client’s prior written authorization.
13. Agreement
13.1 Entire Agreement. This Agreement incorporates by reference all Acceptance Documents, including but not limited to all Order Forms executed by the parties from time to time, any applicable SOWs and its schedules, and these General Terms and Conditions. This Agreement shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, writing, agreements and all other communications between the parties. The obligations of both parties under this Agreement shall continue with any successor or permitted assigns.
13.2 Changes to Agreement. ERP Success may amend these terms of use at any time. Any additional or different terms shall be valid, binding and effective upon being posted on ERP Success’s website or any successor’s website. If there are any significant changes to this Agreement that materially affect Client’s rights, Client will be notified via email of such changes. The parties specifically acknowledge that Client’s continued retention of ERP Success and continued use and receipt of Items following the posting of variations to these terms of use shall be sufficient and ample consideration supporting Client’s irrevocable acceptance of those additional or different terms. Changes to any applicable SOW must be made through the change request process, as provided in the applicable SOW. If Client chooses not to consent to such changes, Client may terminate the applicable Order Form or SOW in accordance with Section 2 above.
13.3 Conflicting Terms. In the event of a conflict between any of the Acceptance Documents or instrument entered into by the parties, the order of precedence shall be as follows: a) any Order Form; b) any SOW; c) these General Terms and Conditions; and d) any other agreement entered into in connection with this Agreement.
14. General Provisions
14.1 Severability. In the event that any covenant, provision or restriction contained in this Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it shall not affect or impair the validity of any other covenant, provisions or restrictions contained herein, nor shall it affect the validity or enforceability of such covenants, provisions or restrictions in any other jurisdiction or in regard to other circumstances. Any covenants, provisions or restrictions found to be void or unenforceable are declared to be separate and distinct, and the remaining covenants, provisions and restrictions shall remain in full force and effect.
14.2 Survival. Any sections of this Agreement which, by their nature, should reasonably survive termination of this Agreement, including without limitation, Sections 6, 7, 9, 10, 11, 12 and 14 shall survive termination.
14.3 Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and assigns, including without limitation, ERP Success’s heirs, executors, administrators and personal representatives.
14.4 Assignment. ERP Success may, without the consent of Client, assign its rights, duties and obligations under this Agreement to an affiliate or to a purchaser of all, or substantially all of its assets. ERP Success may delegate or subcontract any obligation under the Agreement without the prior consent of Client. Client may not assign, sub-license, extend or otherwise transfer, in whole or in part, this Agreement or any license granted hereunder, without the prior written consent of ERP Success. If Client, without ERP Success’s prior written consent, assigns, sub-licenses, extends or otherwise transfers, in whole or in part, this Agreement or any license granted hereunder, or if there is change in the effective control of Client without ERP Success’s prior written consent, then the unauthorized assignment, sub-license, transfer or extension, or the unauthorized change in effective control of Client shall be void and this Agreement shall be maintained or, at the option of ERP Success, the Agreement may be terminated.
14.5 Notices. Any notice, request or demand shall be in writing and sent by either registered or certified mail, postage prepaid, by email or by facsimile transmission with answerback to the appropriate address, email or facsimile number specified. Each party may change its address, email address or facsimile number by written notice to the other party.
14.6 No Waiver. A failure to act or delay in acting by a party with respect to non-performance, or the non-exercise of a right, under the Agreement will not operate as a waiver of that performance or of that right. The waiver of a right under the Agreement by a party will not be effective unless it is given in a signed writing, in which case it will be effective in the specific instance and for the specific purpose given. The debtor of an obligation under the Agreement will be in default of that obligation by the mere lapse of time for performing it.
14.7 Publicity. Customer permits ERP Success to refer to Customer as its customer and to use Customer’s name and/or logo for advertising or publicity purposes.
14.8 Governing Law. This Agreement shall be governed by and construed exclusively in accordance with the laws of France applicable therein. For litigation arising from this Agreement, the Parties submit to the exclusive jurisdiction of the courts of Paris. Neither Party shall seek to enforce an order that has its origin in any court other than the courts of Paris.
14.9 Force Majeure. ERP Success shall not be liable for loss, delay, non-performance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute, or shortage of materials, provided that ERP Success uses reasonable efforts, under the circumstances, to notify Client of the circumstances causing the delay and to resume performance as soon as possible and the period of performance or delivery date shall be extended to such extent as may be necessary to enable ERP Success to perform this Agreement after the cause of delay has ended.
14.10 Further Assurances. Each Party will promptly do, sign, deliver or cause to be done, signed and delivered all further acts, documents and things that the other may reasonably require for the purpose of giving effect to the Agreement.
14.11 Counterparts. The Agreement may be executed in any number of counterparts, and may be delivered originally, by facsimile, or by Portable Document Format (PDF) and each such original, facsimile copy, or PDF copy, when so executed and delivered will be deemed to be an original, all of which taken together will constitute one and the same instrument.
14.12 Language. The Parties declare that they have requested and do hereby confirm their request that this Agreement, and related documents, be in English. Les parties déclarent qu’elles ont exigé et par les présentes confirment leur demande que le présent contrat ainsi que les documents qui s’y rattachent soient rédigés en anglais.
For inquiries: info@erpsuccesspartners.com
For written notices required to be sent by this Agreement to ERP Success, please send such notice to one of the following ERP Success entities, as indicated on Client’s latest Order Form:
ERP Success Partners Inc.
3055 Boul. St-Martin O. Suite T500, Laval (Quebec) H7T 0J3, Canada
ERP Success Partners Corporation.
80 Broad Street, 5th Floor, New York City, NY10004, United States
418 North Main 1st & 2nd Floors, Royal Oak, Michigan 48067, United States
ERP Success Partners.
14 Rue de Dunkerque, 75010 Paris, France
ERP Success Partners Limited.
4th Floor, Ebene Heights, 34 Cybercity, Ebene, Mauritius