Standard ECAL Software as a Service (SaaS) Terms

Last updated: January 2016

 

These Standard ECAL SaaS Terms form a binding legal agreement (Agreement) between E-Diary Pty Ltd (ABN 57 141 986 110) of 10 Queens Rd, Melbourne VIC 3004 AUSTRALIA (ECAL) and you (the Client), and explain your rights and obligations, as a Client, in relation to the Services offered by ECAL, including the ECAL™ calendar marketing software delivered as a service. “Client” or “you” means either (a) you as an individual or (b) your company, if you are using the Services in your capacity as an employee or agent of a company. You identify the specific “Client” during the registration process.

By checking the “I accept the Agreement terms” box, or by installing, subscribing for or using any Services (whether via online registration or otherwise), the Client agrees to be bound by this Agreement. If you do not agree to this Agreement, then do not install, subscribe for or use any of the Services.

From time to time, ECAL may modify this Agreement, whether by updating the terms of this Agreement on the Website, by notice to you by email, or by electronic alert via the Service (eg. admin notification).  Any modified version will take effect at the end of the then current billing period (usually by month). The latest version of this Agreement is available at www.ecal.com.

  1. Terminology

Aggregated Data means de-identified information about End-Users and End-User behavior that is collected and aggregated by ECAL for the purposes of improving the Services.

Authorized User means those persons authorized by the Client to use the Services on the Client’s behalf (for example, certain employees or agents of the Client).

Client Data means information supplied by the Client to ECAL via the Software for provision of the Services, including Event & Schedule information, logos and image assets.

Data means Client Data, End-User Data and Aggregated Data.

ECAL IP means the title, copyright, patent and other intellectual property rights in the Software and all copies, modifications and derivative works of the Software and Services, as well as the ECAL™, BEAT THE INBOX™ and RIGHT-TIME COMMUNICATIONS™ brands, the Dynamic-E logo, and anything else ECAL develops or delivers under this Agreement.

End User means any person or entity that benefits from the Services to receive digital calendar information in the form of an Event or Schedule directly into their PDC.

End User Data means Personal Information collected from or about End Users and information collected about how individual End Users have used the Software (such as which specific Schedules or Events have been synced, device-specific information, click-stream data, location, etc.), but excludes Aggregated Data.

Event means a single calendar entry in a PDC.

Monthly Fee means the fee payable by the Client to ECAL, in accordance with the pricing for the Service Plan relevant to the Client (and includes any payment for additional subscriptions under that Service Plan).

PDC means the personal digital calendar of an End User.

Permitted Subscriptions means the number of subscriptions the Client is entitled to in accordance with the relevant Service Plan and Monthly Fee paid by the Client.

Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information is true or not and whether the information is recorded in a material form or not, which ECAL collects or handles whilst performing the Services under this Agreement.

Privacy Policy means the privacy policy published from time to time on www.ecal.com.

Schedule means a series of linked Events in a PDC.

Services means the online calendar marketing services provided by ECAL (or via an ECAL partner) via the Website, as defined by the relevant Service Plan.

Service Plan means one of the plans set out on the Website which defines the particular scope of Services that a client may access from ECAL.

Software means the digital code and end products of the digital code used by ECAL to deliver the Services.

Website means www.ecal.com or any other site operated by ECAL.

  1. Right to Services

ECAL grants the Client a non-exclusive, non-assignable, royalty free, worldwide right to access the Services on a monthly basis provided the Client pays the relevant Monthly Fee. The Client may allow Authorized Users to access the Services but the Client remains at all times responsible for the compliance by all Authorized Users with this Agreement.

The Client acknowledges that ECAL has no delivery obligation and will not ship or deliver copies of the Software or any other software programs to the Client as part of the Services. Instead, ECAL will host the Software on its own servers and the Client will have access to the Software via the admin portal or an Application Program Interface (API).

ECAL reserve all rights not expressly granted to the Client in this Agreement. ECAL or its licensors own the ECAL IP and the Client does not acquire any ownership or intellectual property rights in ECAL IP.

  1. Service Period

The Services will be provided on a monthly basis, provided the Monthly Fee is properly paid at the start of each monthly period, unless otherwise agreed in writing with the Client. If the Client at any time ceases to pay the Monthly Fee, all rights to access or use the Services and Software shall cease.

For those Clients that order, register or subscribe offline (including those that pay in advance upon invoice), the service period begins on the date of first order, registration or subscription and continues for the period that the Client has elected to pre-pay (for example, 12 months).

  1. Services

ECAL reserves the right to change the Service Plans from time to time, including to add new features or to vary the delivery of existing features, but ECAL will consult with the Client before any key features are removed.

As part of the Services, ECAL will:

  • Host and maintain the Software and provide cloud-based access for the Client via the admin portal or an API (if API access is included in the relevant Service Plan) to enable remote administration of Schedules and Events from any location;
  • Continue to improve the ECAL platform including keeping up to date with calendar formats (including Google Calendar, Apple iCal, Outlook, iOS, Android and others) and adding or removing functionality or features; and
  • Maintain reasonable security measures to protect all Data held within the Software.

For those Service Plans that include a service level feature, ECAL will maintain the service levels set out in the relevant SLA including providing online support. Phone support may also be offered depending on your Service Plan.

  1. Privacy

ECAL will collect, use, disclose and store End-User Data strictly in accordance with applicable data protection and privacy laws. All End Users must agree to our Privacy Policy prior to using the Services.

If a particular End User no longer wishes to receive ECAL-related Events or Schedules in their PDC, the End-User may contact ECAL and ECAL will direct them to delete their ECAL subscription from within the settings in their PDC.  ECAL will also delete the relevant End-User Data from its database.

It is a condition of this Agreement that the Client also agrees to comply with, and not do anything inconsistent with, our Privacy Policy.  The Client must also comply with the Client’s own privacy policies and all domestic, foreign and international laws and regulations, including those relating to data privacy, international communications, and the exportation of technical or personal data.

  1. Fees & Payment

The Monthly Fee for the Services is set out in the Service Plan.  If, during any month of service, the Client exceeds its Permitted Subscriptions, the Client’s Monthly Fee will be automatically increased for the following month to ensure End-Users are able to continue subscribing to the Events and Schedules of the Client.

The Client will pay all Monthly Fees automatically at the start of each month of service via ECAL’s online billing software or otherwise within 15 days of ECAL’s invoice. Late payments are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses.

If the Service Plan includes sponsorship rights then the Client will be entitled to sell media and promotional space made available via the Services to sponsors in return for a media fee of 15% payable to ECAL (Media Fee), provided that ECAL must approve any such sponsor in writing prior to implementation, such approval not to be unreasonably withheld.  ECAL may also propose certain sponsors to the Client and the Client may accept or not accept such proposed sponsor at its sole discretion.

In the event of any termination, the Client will pay the unpaid balance due for the then current billing period, calculated in accordance with this Agreement. ECAL may charge such unpaid fees and charges to the Client’s credit card or otherwise invoice the Client for such unpaid Fees and charges.

Monthly Fees and Media Fees exclude any taxes (including GST) or duties payable in respect of the Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ECAL, the Client must pay to ECAL the amount of such taxes or duties in addition to any fees owed under this Agreement.

  1. Client obligations and restrictions

The Client is responsible for its own Internet connection and must use software, systems and equipment compatible with the Services, as ECAL specifies in its published policies. Any Client web browsers and other software must support the Secure Socket Layer (SSL) protocol or other protocols accepted by ECAL. ECAL is not responsible for any Client Data lost, altered, intercepted or stored across networks not owned or operated by ECAL.

To enable ECAL to properly communicate with the Client, the Client will provide accurate, current and complete information when registering with ECAL and ordering Services, and will update its information if it changes. The Client will ensure all its Authorized Users’ passwords and usernames are kept confidential and will not share them with third parties. The Client is responsible for all actions taken through its accounts.

The Client must not:

  • deviate from the ECAL brand guidelines (as published and varied from time to time) when using ECAL branding, logos, designs (including icons, buttons, etc.), or trade marks;
  • use the Services other than in accordance with ECAL’s documentation and policies;
  • make the Software or any other ECAL software or materials available to any third party (unless such access is expressly permitted for the specific Service Plan you have subscribed for);
  • modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access the Services in order to build or support, and/or assist a third party in building or supporting, products, software or services competitive to ECAL; or
  • license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services (including the Software and all ECAL products and materials) available, to any third party other than, as expressly permitted under the terms of this Agreement.
  1. Contact Standards

Both ECAL and the Client agree to comply with the following Contact Standards:

  • Each party will only ever send Event or Schedule-related information directly to an End-Users PDC if it is deemed, in ECAL’s sole opinion, ‘specific and relevant’ to the End User (based on their known profile) or one of the Client’s Schedules or Events.
  • Neither party will use, or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may:
  • menace or harass any person or cause damage or injury to any person or property;
  • involve the publication of any material that is false, defamatory, harassing or obscene;
  • violate privacy rights or promote bigotry, racism, hatred or harm;
  • constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters;
  • constitute an infringement of intellectual property or other proprietary rights; or
  • otherwise violate applicable laws, ordinances or regulations.

ECAL reserves the right to remove or disable access to any material that violates the above Contact Standards. ECAL shall have no liability to the Client in the event that ECAL takes such action. Each party agrees to defend and indemnify the other against any claim arising out of a violation of its obligations under this section 8.

  1. Data

The Client retains ownership of all Client Data and is solely responsible for the accuracy, content and legality of all Client Data. The Client will not submit any Client Data:

  • that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, encourages conduct that would be considered a criminal offense or gives rise to any civil liability, or that is in conflict with the terms of this Agreement;
  • that includes any virus, bot, worm, scripting exploit or other harmful code that is likely to harm or corrupt any part or all of the Software, Services or any computer systems or data;
  • which infringes the rights of any third party; or
  • that otherwise breaches the Contact Standards.

ECAL may delete or remove any Client Data at any time, with or without notice, if in ECAL’s reasonable opinion, such Client Data does not comply with the above restrictions.  ECAL may also edit any Event and Schedule information in order to keep such information up to date.

The Client acknowledges that ECAL may add a tracking code to one or more links (eg. ticket purchase links) within the Client’s Events in order to track purchases that an End-User may make as a result of clicking on that link.  The Client further acknowledges that ECAL may receive an affiliate fee from a third party as a result of such end-purchases made by End-Users.

The Client grants ECAL a non-exclusive, royalty-free, worldwide license to copy, distribute, perform, display, store, modify, and otherwise use Client Data in connection with providing the Services (including the distribution of the Client’s Schedules and Events via ECAL’s network).

All rights in the End-User Data are owned and retained by the Client. The Client grants ECAL a non-exclusive, royalty-free, worldwide licence to use the End-User Data during the Agreement to:

  • provide the Services, including storing the End-User Data on ECAL’s servers;
  • provide service and product support to End-Users, and
  • conduct surveys of End-Users.

The Client also grants ECAL the right to create Aggregated Data to measure general Service usage patterns and characteristics of its user base and otherwise to improve its products and services, and may include such Aggregated Data about its audience in promotional materials or reports to third parties. Aggregated Data will be owned and retained by ECAL after termination of the Agreement, and ECAL may exploit such Aggregated Data at its sole discretion either during or after the expiry of this Agreement.

  1. Limited warranties

Each party represents and warrants that:

  • it has the full power and authority to enter into and perform its obligation under this Agreement and, if the Client is not an individual, this Agreement and each order is entered into by an employee or agent with authority to bind the Client to this Agreement or order; and
  • it has not entered into any other agreement, arrangement or understanding which would restrict or prevent it from performing its obligations under this Agreement.

ECAL does not guarantee that the Services will be performed error-free or uninterrupted, or that ECAL will correct all Services errors.  The Client acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of communication networks such as the internet, and ECAL will not be liable for any delays, delivery failures or other damage resulting from such problems.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND ECAL DOES NOT PROVIDE ANY OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING FOR HARDWARE, SOFTWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

  1. Termination

If either party breaches a term of this Agreement and fails to correct the breach within 30 days of written notice, the other party may terminate the Agreement immediately by written notice. Upon termination, the party in breach will not be entitled to credits or refunds for any unused or prepaid portion of this Agreement, including but not limited to unused maintenance and support.

On expiry or termination of this Agreement for any reason, the Client must immediately:

  • pay all accrued and unpaid Fees;
  • cease using and promoting (and require all Authorized Users, and anyone else, to cease using and promoting) the Services, including the Software, and all ECAL IP; and
  • remove all access to the Services from the Client’s systems.

The Client may terminate this Agreement at any time by contacting ECAL directly and requesting the services to cease and that their credit card is no longer debited the Monthly Fees.  Upon receiving such request, ECAL will use its reasonable endeavours to ensure the Agreement and the Services are terminated as soon as possible.

Unless this Agreement was terminated due to Client breach, the Client may request, and ECAL will use reasonable efforts to, make the Client Data and End-User Data available for download within 7 days of the request. ECAL may then delete the Client Data and End-User Data.  Termination of this Agreement does not affect any accrued rights or remedies of either party.

  1. Confidentiality

Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (Receiving Party) from the disclosing party (Disclosing Party) constitutes the confidential property of the Disclosing Party (Confidential Information). Any ECAL IP, Data, and the terms and conditions of this Agreement shall be deemed Confidential Information. Except as expressly authorized herein, the Receiving Party will not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can show: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

  1. Limitation of liability

NEITHER PARTY IS TO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. ECAL’S MAXIMUM LIABILITY FOR ANY DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE LESSER OF $10,000 OR THE TOTAL AMOUNTS ACTUALLY PAID TO ECAL BY THE CLIENT FOR THE PARTICULAR SERVICE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

  1. Indemnification

The Client will indemnify and defend ECAL from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by the Client (including any Authorized Users) of this Agreement, or (b) any representations or warranties made by the Client (including any Authorized User) regarding the Services (including ECAL) to third parties. This indemnification obligation is subject to the Client receiving (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided that ECAL may participate in the claim at its own expense and the Client may not settle any claim without ECAL’s prior written consent; and (iii) all reasonable necessary cooperation of ECAL at the Client’s expense.

  1. General

Any term of this Agreement that is either wholly or partly unenforceable will be severed to the extent necessary to make the remaining terms of this Agreement enforceable.

The Client may not assign part or all of this Agreement or give or transfer the Services or an interest in them to another individual or entity.

This Agreement is governed by the substantive and procedural laws of Victoria, Australia and ECAL and the Client agree to submit to the exclusive jurisdiction of the courts in Victoria, Australia in any dispute arising out of or relating to this Agreement.

Should you have any questions concerning this Agreement, or if you desire to contact ECAL for any reason, please contact us via email at sales@ecal.com

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