Supplemental Terms for Production Accounting
Last updated March 4, 2021.
1. USE OF SOFTWARE
1.1. Description. Smart Accounting, Global Vista and Vista 5 (each, an “Accounting Solution”) are production accounting solutions to help you maximize efficiencies and effectively manage your production budgets.
1.2. Subscription-Based Software License. We provide the Production Accounting Solution identified in the applicable Order Form (“Software”) to you as part of your subscription to the Services. We grant you a non-exclusive license to install and use the Software: (i) as long as your subscription is valid; (ii) as long as it does not exceed the total number of licenses purchased; and (iii) consistent with the Terms and related documentation. In addition, we provide certain additional hosting and support services as part of the Services, to the extent such additional services are identified in the Order Form applicable to your Accounting Solution subscription.
1.3. Activation and Validation. The Software may require you to take certain steps to activate the Software or validate your subscription. In addition to Section 1.9 of the General Terms, failure to do so may result in reduced functionality, inoperability of the Software, or a termination or suspension of the subscription.
1.4. Updates. The Software may automatically download and install updates from EP from time to time. These updates may take the form of bug fixes, new features, or new versions.
2.1. Mutual Warranties. Each party represents and warrants that (i) it has the full power to enter into the Terms; and (ii) the performance of its obligations and use of the Services will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties.
2.2. EP Warranties. EP warrants that (i) the Services will perform materially in accordance with the applicable Documentation, (ii) EP will not materially decrease the functionality of the Services during the term; and (iii) based on regular monitoring in accordance with applicable industry standards, the Services do not contain any Malicious Code. Your sole and exclusive remedy and EP’s entire liability for a breach of this warranty shall be for EP to use commercially reasonable efforts to modify the Services or to substantially achieve in all respects the functionality described in the Documentation; and if EP is unable to restore such functionality, you shall be entitled to terminate the applicable Order Form and receive a prorated refund of the Fees paid to EP any unused Services identified in the Order Form.
3. SUBSCRIPTION LENGTH
You will have access to the Services for the Term identified in the Order Form applicable to your Accounting Solution subscription.
4. PORTABILITY AND DELETION OF YOUR DATA
Upon your request during the Term identified in the applicable Order Form or made within 30 days after the effective date of termination or expiration of the applicable Order Form, EP will make the Customer Data available to you for export or download. After such 30-day period, EP will have no obligation to maintain or provide Your Data, and may thereafter delete or destroy all copies of Your Data in its systems or otherwise in its possession or control, unless legally prohibited.
5.1. Indemnification by EP. EP shall defend you and your affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party’s intellectual property right (a “Claim Against You”), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided, however, that EP’s obligations under this Section 5.1 shall not apply to the extent a Claim Against You arises from (a) Your Data; (b) your gross negligence, willful misconduct, or material breach of the Terms; (c) any modification, combination or development of the Services that is not performed by EP, including in the use of any application programming interface (API); or (d) the use of any version of the Software other than the most current release made available by EP.
5.2. Indemnification by You. You shall defend EP and its affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging your or your Users’ use of the Services, in breach of the Terms, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against EP”), and shall indemnify EP for any damages, attorney fees and costs finally awarded against EP as a result of, or for any amounts paid by EP under a court-approved settlement of, a Claim Against EP.
5.3. Indemnification Procedure. The indemnifying party will provide the indemnified party with prompt written notice of any claim, suit or demand, the right to assume the exclusive defense and control of any matter that is subject to indemnification, and cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter.
5.4. This Section 5 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.