eComEngine, LLC

 Terms of Use and DCMA Notice

 

By accepting this Subscription agreement (the “Agreement”), such as by clicking a box indicating acceptance or otherwise manifesting acceptance, you (the “Subscriber”) agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company the term “Subscriber” shall refer to such entity, and you represent that you are authorized to bind such entity and its Corporate Affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.

Subscriber may not use or access the Services if it is a direct competitor of eComEngine, except with eComEngine’s prior written consent.

This Agreement was last updated in April 2016.  It is effective between Subscriber and eComEngine as of the date Subscriber accepts this Agreement.

  1. All defined terms apply to this Agreement except where expressly stated otherwise. For ease of reference, some terms are defined elsewhere in this Agreement.
    1. “Claims” or “Claim” means, collectively, lawsuits, actions, complaints, claims, assertions of liability (whether oral or written), losses, damages, liabilities, awards, costs and expenses.
    2. “Competitor of eComEngine” means any person or entity that offers products or services to third parties in the field of Amazon seller support and software tools.
    3. “Confidential Information” is defined in section 12.B of this Agreement.
    4. “Corporate Affiliate” is another corporate entity that is controlled by, under the control of, or under common control with, another corporate entity, with control being at least 51% ownership of voting stock or membership.
    5. “Days” means calendar days, not business days, unless expressly stated otherwise.
    6. “Intellectual Property” means all intellectual property rights and includes patentable inventions, copyrights, trade secrets, trademarks, service marks, certification marks, and domain name rights. Intellectual Property also includes all patents and patent applications, and the reissues, divisions, continuations, renewals, extensions, continuations-in-part, and improvements thereof.
    7. “Methodology” is defined in section 4 of this Agreement.
    8. “Named Users” means specific, named individuals who are authorized by Subscriber to use the Services, and who have been supplied user identifications and passwords for the Services. Named Users may be Subscriber’s employees or contractors, subject to the terms of this Agreement, including its confidentiality and trade secret provisions.
    9. “Party” means one of the parties to the Agreement. “Parties” means both parties to the Agreement: Subscriber and eComEngine.
    10. “Services” means the online usage of the Software features and capabilities selected by Subscriber. Subscription fees are determined based upon the Software features and capabilities selected by Subscriber.
    11. “Software” means eComEngine’s Amazon seller support and software tools.
    12. “Subscriber” means the person or corporate entity entering into this Agreement with eComEngine. If a person is entering into this Agreement for his or her sole use of the Services he or she is the Subscriber. If that person is entering into this Agreement on behalf of a company or other legal entity, that company or other legal entity is the Subscriber; in that case, the person entering into this Agreement represents that he or she has the authority to bind such entity and its Corporate Affiliates to this Agreement.
    13. “Subscriber Data” means all electronic data or information submitted by Subscriber as part of Subscriber’s use of the Services.
    14. “Subscription” means the license purchased by the Subscriber to use the Services.
    15. “Subscription Term” means the time-length of the term of the Subscription purchased by Subscriber. Unless expressly indicated otherwise by eComEngine in writing, a Subscription is for one month measured from the date of the purchase of the Subscription by Subscriber. A Subscription Term automatically renews for an additional month unless terminated before renewal.
  2. Services
    1. Provision of Services. eComEngine shall make the Services available to Subscriber pursuant to this Agreement for the duration of the Subscription Term. This Agreement is not contingent on including future functionality or features with the Services and is not entered into in reliance on any promise or representation by eComEngine or its agents concerning any future functionality or features of the Services.
    2. Adding to a Subscription. A Subscriber can subscribe for additional Services at any time via the user interface. When additional Services are added the system will automatically cause those Services to have the same Subscription renewal date as the initial Subscription.
    3. eComEngine has the Services hosted by a third party (the “Services Hosting Provider”), which also hosts the Subscriber Data. eComEngine bears responsibility for the Services Hosting Provider as if eComEngine was hosting the Services, including the Subscriber Data. All references in this Agreement to eComEngine regarding the Services and Subscriber Data implicitly include its Services Hosting Provider in all permissions granted to eComEngine. For example, eComEngine’s use of a Services Hosting Provider shall not be a breach of any confidentiality obligation imposed on eComEngine. eComEngine may change the Services Hosting Provider at any time in eComEngine’s sole discretion, and it may take some or all of the functions of the Services Hosting Provider in-house at eComEngine at eComEngine’s sole discretion.
    4. Subscription License Grant. For as long as Subscriber does not breach any terms of this Agreement and fail to cure such breach pursuant to this Agreement, eComEngine grants to Subscriber a nontransferable (except as provided expressly herein) license, subject to all of the Terms of this Agreement, for the Subscription Term, to use the Services. Under no circumstances shall Subscriber be entitled to receive the object or source code to the Software, even if eComEngine breaches the Agreement. This license grant is limited to the express terms of this Agreement; no other uses of the Services or Software are impliedly licensed. This Agreement sometimes refers to the license to use the Services as the “Subscription.”
    5. Use of Subscription by Corporate Affiliates. Subscriber may name as Named Users individuals who are employed by Corporate Affiliates of the Subscriber. In that case, Subscriber agrees that all such Corporate Affiliates are bound by the terms of this Agreement.
    6. Limitations on License Grant.
      1. Subscriber may not sublicense or rent the Services to others.
      2. Subscriber may use the Services for its internal business purposes only.
      3. Subscriber may not timeshare the Services with another entity.
      4. Subscriber may not reverse engineer or decompile the Services.
      5. Subscriber may not modify the Services or make derivative works from the Services.
      6. Subscriber may not use the Services or the Methodology to create similar software or services.
      7. Subscriber shall not use the Methodology to create software or services that Subscriber directly or indirectly licenses to others or to perform consulting services for others.
      8. Subscriber shall treat the Services as Confidential Information.
      9. The Parties agree the Agreement constitutes a license, not a sale, of the Services. Any attempt by Subscriber to transfer the license to the Services, except as expressly permitted by the Agreement or permitted in writing by eComEngine, shall cause immediate termination of the Subscription.
    7. Exceeding the License Grant. Should Subscriber exceed the license grant for the Services (e.g., violate any prohibition contained in section 2.F of this Agreement) and not cure that violation (if this Agreement permits cure) within the time provided in this Agreement for cure of a contract breach, and should eComEngine undertake litigation against Subscriber to protect eComEngine’s interests, in such litigation the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs.
  3. Intellectual Property Ownership; Trade Secret Property. The Software and Services are and shall remain the exclusive Intellectual Property of eComEngine. Subscriber does not acquire any ownership stake in the Software or Services because of this Agreement. Subscriber acknowledges, shall not challenge, and shall not voluntarily aid any third party in challenging eComEngine’s Intellectual Property ownership of the Software and Services. eComEngine will own and have all rights to any suggestions, recommendations or improvements to the Software or Services described by Subscriber, unless otherwise agreed to in writing.
  4. Methodology. The Software and Services contain a methodology for creating Amazon seller support and software tools (“Methodology”). Like the Software and Services, the Methodology is and shall remain exclusively the Intellectual Property of eComEngine. Subscriber’s right to use the Methodology is limited to the express license to the Services granted herein. Subscriber shall not use the Methodology aside from using the Services as expressly licensed in the Agreement. Except where indicated otherwise, all references to the Software or Services in this Agreement include the Methodology.
  5. Services Use by Subscriber’s Contractors. Subscriber’s contractors may exercise on Subscriber’s behalf Subscriber’s entire license rights to the Services, provided that (i) the entire use of the Services by Subscriber’s employees and contractors remains within the parameters stated in the Agreement, (ii) those contractors agree to not further disclose, transfer or allow access to the Services to third parties, (iii) such contractor usage is solely for Subscriber’s internal business purposes, and (iv) the contractors abide by the limitations in section 12.B of this Agreement (“Confidentiality”). Subscriber shall be liable for any breach of this Agreement by its contractors.
  6. Subscriber Responsibilities.
    1. Subscriber’s Computer Environment. Subscriber is solely responsible for providing a proper environment and proper utilities for the computer system on which it will access the Services.
    2. Internet Browser Compatibility. eComEngine will endeavor to make the Services compatible with recent versions of the most popular Internet browsers, but eComEngine has no responsibility to make the Services compatible with all Internet browsers or older versions of popular Internet browsers.
    3. File Conversion. Except as agreed otherwise in writing, eComEngine is not responsible for converting Subscriber’s data files for use with the Services.
    4. Data Subscriber is solely responsible for the accuracy, completeness and integrity of all data that it submits to or derives from the Services. Subscriber shall indemnify and defend eComEngine against any Claim made against eComEngine by a third party asserting that the Services did not function properly or that it did not produce an accurate, complete or proper output. Sections 7 and 9 are the sole rights and sole remedies Subscriber has for any Claim by Subscriber concerning the function of the Services, even if Subscriber’s Claim is based upon a Claim made against Subscriber by a third party.
  7. eComEngine’s Warranties and Covenants, Remedies and Disclaimer.
    1. Uptime Warranty. During the Term, eComEngine warrants and covenants that the Services will remain available and functional online, with exceptions for commercially reasonable downtime in line with other commercial software services for non-critical business functions, including such commercially reasonable downtime for maintenance and for repairing occasional technical difficulties (this is the “Uptime Warranty”).
    2. Subscriber Data Security Warranty. eComEngine shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data.  eComEngine shall not (i) modify Subscriber Data, (ii) disclose Subscriber Data except as compelled by law in accordance with Section 12.B(8) (“Compelled Disclosure”) or as expressly permitted in writing by Subscriber or by this Agreement, or (iii) access Subscriber Data except to provide the Services or prevent or address service or technical problems, or at Subscriber’s request.  (This is the “Subscriber Data Security Warranty.”) Nevertheless, despite the foregoing, should there occur a breach in the security of Subscriber Data (a “Subscriber Data Security Breach”), such as but not limited to disclosure by eComEngine of Subscriber Data to an unauthorized third party or eComEngine permitting an unauthorized third party to have access to Subscriber Data, then eComEngine’s sole notice obligation shall be to give notice to Subscriber of that Data Security Breach. It shall be Subscriber’s sole responsibility (and not eComEngine’s responsibility) to give notice of the Subscriber Data Security Breach to any other person or party as required by applicable law or as may be prudent for legal or business reasons. eComEngine shall have no responsibility for or liability for a Subscriber Data Security Breach other than as stated expressly in this Agreement.
    3. Exclusive Remedy for Breach – Repair. Should eComEngine breach the Uptime Warranty or the Subscriber Data Security Warranty, Subscriber’s sole remedy shall be for eComEngine to repair the Services by restoring them to the standard of the applicable warranty.
    4. Exclusive Remedy for Breach – Refund. Should eComEngine be unable to repair or replace the Services within such 30 Days after Notice of failure to meet the Uptime Warranty or the Subscriber Data Security Warranty, or any longer time permitted by Subscriber, then Subscriber may elect to terminate its Subscription to the Services and, in that case, eComEngine shall pay to Subscriber a pro-rata refund from eComEngine for the Subscription fee it paid for the Services. That refund shall be prorated to cover the period of the Subscription Term from the date of delivery to eComEngine of the notice of termination to the end of the Subscription Term. eComEngine shall pay any refund within 30 Days of the effective date of termination. In the case of Subscription termination, Subscriber’s access to the Services will terminate immediately.
    5. Warranty Disclaimer. eComEngine provides only the covenants and warranties stated expressly in this Agreement. ECOMENGINE MAKES NO OTHER COVENANTS OR WARRANTIES AS TO THE SERVICES, AND IT DISCLAIMS EACH OF THE FOLLOWING WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED BY LAW: (i) IMPLIED WARRANTY OF MERCHANTIBILITY; (ii) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, EVEN IF ECOMENGINE HAS BEEN ADVISED OF SUCH PURPOSE; (iii) IMPLIED WARRANTY OF NON-INFRINGEMENT, NON-MISAPPROPRIATION, AND NON-INTERFERENCE; (iv) IMPLIED WARRANTY OF ACCURACY OF THE WORK PRODUCT; AND (v) IMPLIED WARRANTY OF SYSTEM INTEGRATION. Subscriber agrees that no representations, warranties or covenants have been made to it regarding the Services other than those stated in the Agreement.
  8. Audit eComEngine may audit the business records and computer systems of Subscriber to ascertain whether Subscriber’s use of the Services has been and is within the scope of the Subscription granted to Subscriber, including but not limited to (i) the limitation of usage to specific Named Users and (ii) the confidentiality, trade secret, and non-circumvention obligations. eComEngine shall provide Subscriber at least 30 Days’ notice prior to the audit. eComEngine may use contracted professionals to assist in the audit or to conduct it on behalf of eComEngine, such as accountants and computer technicians. eComEngine shall be responsible to Subscriber for ensuring that any such contracted professionals maintain the confidentiality of Subscriber’s Confidential Information. Subscriber shall cooperate in any such audit by making relevant business records and computer systems available to eComEngine and organized for review. Subscriber shall not destroy evidence of the extent of its use of the Services between the time of receipt of notice of an audit and the completion of the conduct of the audit; doing so shall create a presumption that Subscriber was willfully using the Services in excess of its license rights. eComEngine may not audit more than once per calendar year unless a past audit by eComEngine has demonstrated that the Subscriber was using the Services in excess of its license rights. If eComEngine’s audit does not uncover any exceeding of license rights, each Party shall bear all of its costs associated with the audit. If eComEngine’s audit reveals usage of the Services in excess of Subscriber’s license rights, the Subscriber shall pay to eComEngine its out-of-pocket costs associated with the audit plus eComEngine’s then-current list price for the unlicensed usage of the Services – the price eComEngine charges to a Subscriber who does not presently have a Subscription to the Services and who is not entitled to any discounts. Subscriber shall pay such sums within 30 Days of written notice of the audit results from eComEngine, and Subscriber shall pay interest at a rate of 1.5% per month on any sum not paid within such 30 Days. Should eComEngine deem it necessary to utilize legal services to collect the sum due from Subscriber, eComEngine shall be entitled to collect its reasonable attorneys’ fees and costs from Subscriber – both legal fees spent before and after the filing of suit. eComEngine’s rights and remedies stated in this section do not limit the other causes of action and remedies eComEngine may have under the Agreement or applicable law.
  9. Limitation on Liability.
    1. FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR THE PAYMENT OF ANY CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST BUSINESS, LOST PROFITS, INTERRUPTED OPERATIONS, OR LOST OR DAMAGED DATA, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECOMENGINE’S ENTIRE LIABILITY TO SUBSCRIBER FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO ECOMENGINE UNDER THIS AGREEMENT.
    2. Exception to Liability Limitations. The forgoing limitations of liability do not limit any of the obligations expressly stated in this Agreement for a Party to defend the other Party or to indemnify the other Party.
    3. THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, EXCLUSIVITY OF REMEDIES, AND OTHER LIMITATIONS IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES (WITHOUT WHICH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD NOT OCCUR) AND WILL APPLY EVEN IF A REMEDY, WARRANTY, OR COVENANT FAILS IN ITS ESSENTIAL PURPOSE.
  10. Intellectual Property.
    1. Markings Subscriber shall not remove, obscure or alter any Intellectual Property marking, confidentiality marking or legal notice displayed on any display or print-out of the Services. Subscriber shall not permit others to do so.
    2. Intellectual Property Infringement by eComEngine. eComEngine shall defend and indemnify Subscriber against any third-party Claim based upon an allegation that the Services as provided to Subscriber by eComEngine infringe upon or misappropriate any third party’s U.S. copyright or trade secret or infringe a third party’s U.S. patent. The foregoing obligations do not cover any patent claim based upon a combination of the Software or Services (as applicable) with any other good, software or service. If an infringement or misappropriation Claim is asserted, or if eComEngine believes one is likely, eComEngine shall have the right, but not the obligation, (i) to procure a license from the person claiming or likely to claim infringement or misappropriation, and (ii) to modify or replace the Services to avoid the Claim of infringement or misappropriation. Modification or replacement of the Services for this purpose will not materially impair the Services operation or materially reduce its functionality or performance. THE FOREGOING STATES ECOMENGINE’S ENTIRE LIABILITY AND SUBSCRIBER’S SOLE REMEDY IN CONNECTION WITH ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIM ARISING OUT OF OR RELATED TO THE SERVICES.
  11. Term and Termination; Renewal. The Agreement will remain in effect for the Subscription Term unless terminated earlier by a Party for a reason stated below.
    1. Term. Unless expressly indicated otherwise by eComEngine in writing, the Subscription Term is for one month measured from the date of the purchase of the Subscription by Subscriber.
    2. Automatic Subscription Renewal. The Subscription shall automatically renew after each Subscription Term for an additional month unless the Subscriber notifies eComEngine before the end of the Subscription Term that it chooses not to have the Subscription renew. A renewal starts a new, one-month Subscription Term. eComEngine may charge the Subscriber’s credit card on file with eComEngine for the monthly license fee for the Subscription renewal at eComEngine’s then-current Subscription rate. If this credit card charge fails, eComEngine may immediately terminate the Services and notify Subscriber of such termination. Upon receipt of such notification, Subscriber may reinitiate the Services by providing a valid and working credit card sufficient to pay the renewal charge within 10 Days of such termination notice; such interruption in the Services shall not reset the date for renewal of the Subscription.
    3. This Agreement may be terminated as follows:
      1. by either Party, upon Notice, if the other Party is in material breach of any of its obligations and the breach is not capable of being cured;
      2. by Subscriber providing notice of non-renewal prior to the end of any Subscription Term;
      3. by eComEngine providing notice of non-renewal at least 10 days prior to the end of any Subscription Term; and
      4. regardless of subsections 11.A-11.C, if Subscriber breaches section 2.F of this Agreement (“Limitations on License Grant”), then eComEngine may terminate this Agreement immediately, by giving Notice to Subscriber, without any opportunity for cure by Subscriber.
    4. Services Termination. eComEngine may and will terminate usage of the Services immediately upon the effective date of termination.
    5. Return of Subscriber Data. Upon written request by Subscriber made before termination of the Services or within 30 Days after the effective date of termination of the Services, eComEngine shall provide to Subscriber for download a file of the Subscriber Data in comma separated value (.csv) format along with attachments in their native format. After such 30-Day period, eComEngine shall have no obligation to maintain or provide any of the Subscriber Data. After such 30-Day period, unless prohibited by law, eComEngine may permanently delete the Subscriber Data.
    6. Termination of this Agreement shall not bar either Party from pursuing any cause of action or remedy it may have available against the other Party for breach of the Agreement.
  12. General Terms.
    1. Assignment. Either Party may assign the Agreement to a Corporate Affiliate, successor to its business or purchaser of substantially all of its assets. Nevertheless, Subscriber may not assign this Agreement to any Competitor of eComEngine; this prohibition includes assignment to Corporate Affiliates of Subscriber. Subscriber will not be relieved from liability under this Agreement by virtue of a permitted assignment unless eComEngine approves the assignment and transfer of liability in writing. eComEngine will not withhold such approval unreasonably. For Subscriber, any assignment shall not expand the license rights specified in this Agreement.
    2. Confidentiality.
      1. “Confidential Information” means, collectively: (a) the trade secrets of a Discloser; (b) information that Discloser has kept confidential; (c) information that Discloser is obligated to keep confidential to some extent by law; and (d) information that a third party has provided to Discloser under an obligation of confidentiality.
      2. Confidential Information of Subscriber. The Subscriber Data is the Confidential Information of Subscriber.
      3. “Recipient” means the Party receiving Confidential Information.
      4. “Discloser” means the Party that discloses, transmits or allows access to Confidential Information to Recipient.
      5. Marking The Methodology and the Subscriber Data are Confidential Information and do not need to be marked as such to have such status. For any other information to have Confidential Information status, Discloser must mark it conspicuously as “Confidential Information” or with other words that convey the same meaning, unless federal, state or local law makes that type of information confidential (e.g., “protected health information” under HIPAA).
      6. Exclusions from Confidential Information. Confidential Information shall not include information that (a) constitutes general skills and experience gained under this Agreement; (b) is already known by Recipient at the time of disclosure as established through written evidence pre-dating this agreement; (c) is publicly available at the time of disclosure or subsequently becomes publicly available through no fault of Recipient; (d) is required to be disclosed by governmental or judicial order; (e) is rightfully acquired by Recipient from a third party who is not in breach of an agreement to keep such information confidential; or (f) is developed by personnel of Recipient independently of, and without access or exposure to, the Confidential Information.
      7. Confidentiality Obligation. Except as otherwise provided herein, Recipient shall not disclose Confidential Information, allow access to it or transfer it to third parties, or use it for any reasons other than performing this Agreement or exercising the license rights granted to it under this Agreement. Recipient shall take reasonable efforts to protect the confidentiality of Confidential Information, and shall protect it at least as carefully as it protects its sensitive confidential information. If a Recipient believes that there has been an unauthorized disclosure, access, transfer or use of Confidential Information, it shall notify Discloser as soon as possible.
      8. Compelled Disclosure. The Recipient may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Recipient gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure.  If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a legal proceeding (except for litigation initiated by one Party against the other Party), the Discloser shall reimburse the Recipient for its attorneys’ fees and costs incurred in relation to this order and for Recipient’s reasonable cost of compiling and providing secure access to such Confidential Information.
      9. Contractors. Recipient may disclose Confidential Information to its contractors provided that such contractors adhere to rules stated in this section 12.B, and such contractors use the Confidential Information solely to perform Recipient’s obligations under this Agreement. A Recipient who discloses Confidential Information to a contractor shall be liable for the contractor’s handling of the Confidential Information as if the contractor was an employee of Recipient. Under no circumstances may Recipient disclose Confidential Information to a competitor of Discloser.
      10. Term of Confidentiality. The confidentiality obligations under this Agreement shall survive with respect to Confidential Information until such information is excluded from the definition of Confidential Information pursuant to Section 12.B.6.
    3. Taxes. Subscriber shall be solely liable for and pay the taxes resulting from this Agreement or any activities hereunder (exclusive of U.S. taxes (federal, state and/or local) on eComEngine’s gross and/or net income), even if eComEngine does not collect the tax from the Subscriber. Any taxes for which Subscriber is liable shall not reduce the amount due to eComEngine under this Agreement. If either Party determines that a tax will be imposed for which Subscriber is responsible under this Agreement, eComEngine may require Subscriber to prepay the tax to eComEngine or the taxing authority, as appropriate, before eComEngine continues with performing this Agreement. If Subscriber claims exemption from any taxes, at eComEngine’s request, Subscriber shall provide eComEngine with documentation sufficient to support tax exemption. Subscriber shall indemnify, hold harmless and defend eComEngine from any Claim asserted by a taxing authority arising from or related to taxes owed (exclusive of taxes on eComEngine’s gross and/or net income) or purported tax exemptions, including all penalties and interest.
    4. Agreement Modification or Replacement. The Parties may agree to amend or replace this Agreement at any time in the future, including at any renewal (including automatic renewal as provided in section 12.B) of Subscriber’s Subscription to the Services. Any such agreement must be in writing and assented to by an affirmative act by the party receiving the proposal for amendment or replacement. This Agreement shall not be supplemented or modified by Subscriber’s boilerplate contracting documents, including purchase orders, work orders, order acknowledgments and shipping documents. The boilerplate terms in such documents shall have no contractual effect unless eComEngine agrees to them expressly and in writing.
    5. Disputes.
      1. Resolving Disputes. This Agreement and the Parties’ relationship shall be governed by and construed under the laws of the Commonwealth of Virginia and applicable federal law, and Virginia’s choice of law rules shall not change this governing law. Any litigation between the Parties shall occur only in the state courts for the County of Henrico, Virginia, or the federal courts in the U.S. District Court for the Eastern District of Virginia (Richmond Division). IN ANY LITIGATION, EACH PARTY WAIVES TRIAL BY JURY. Subscriber consents to such personal jurisdiction and irrevocably stipulates that, by entering into this Agreement, such courts have personal jurisdiction over the Subscriber for all Claims arising from or related to this Agreement or its subject matter. In any state court litigation, depositions and interrogatory responses may be used in support or defense of motions for summary judgment. If Subscriber institutes litigation in any court other than those expressly permitted by this subsection, Subscriber shall pay all of eComEngine’s attorneys’ fees, costs and expenses incurred in its attempting to enforce this subsection’s mandatory personal jurisdiction provision.
    6. Limitation on Time to Assert a Claim. Each Party shall assert each Claim against the other Party arising from or related to the Services within two years of the later of the accrual of the Claim. A counterclaim is not barred if the Claim filed by the other Party is timely under this section. Otherwise, all Claims not made within the time provided by this section are waived and barred.
    7. Notices. Any Notice to Subscriber shall be provided at the address given in the online form created to initiate or renew the Subscription. Any notice to eComEngine shall be directed to this contact and address:eComEngine, LLC
      9702 Gayton Rd., Ste 230
      Henrico, VA 23238(800) 757-6840Email: [email protected] Party may change its address by the means provided herein for giving Notice. Any Notices sent pursuant to this Agreement shall be in writing (including email), and become effective when the email is received, delivered by hand, or by FedEx or similar commercial carrier.
    8. Force Majeure. eComEngine shall not be liable for any failure or delay caused by events beyond eComEngine’s reasonable control, including, without limitation, Subscriber’s failure to perform its obligations in a timely fashion. Should eComEngine be delayed from performing its obligations because of an event beyond its reasonable control, eComEngine may and shall resume performance when the obstacle to performance is removed.
    9. Severability. If any term or provision of this Agreement shall be found to be illegal or unenforceable, the remainder of the Agreement will remain in effect.
    10. Headings. The headings in this Agreement are only finding aids; they shall not be considered in interpreting this Agreement.
    11. Waiver. No waiver, by either Party, of any breach by the other Party of any of the terms of this Agreement shall be a waiver of any other breach of the same or other provisions; no such waiver shall be effective unless in a writing signed by the waiving Party.
    12. Drafter. This Agreement shall not be interpreted based upon any rule of construction against the drafter.
    13. Authorized Signer. Each person signing this Agreement represents and covenants that he or she has authority to do so on behalf of any entity on whose behalf that person purports to be acting.
    14. Survival of Terms. Any terms of this Agreement that by their nature extend beyond the termination of this Agreement remain in effect post-termination. These surviving provisions include sections 1, 2.G, 2.G, 3-4, 6.D, 7.C-7.E, 8-10, and 12.