TradeCentric Master Services Agreement Terms and Conditions
These Terms and Conditions, together with all Exhibits attached to these Terms and Conditions and the applicable Order Form (collectively, the “Agreement”) is made and entered into as of the date of last signature on the above cover page (“Effective Date”) by and between TradeCentric and the Customer. In consideration of the mutual promises contained in these terms, the parties agree to the following.
1. Background. TradeCentric has developed, and hosts, operates and supports, an online platform that enables a company to deploy punchout catalog, purchase order exchange, invoice exchange, and other solutions, and use these solutions with its existing e-commerce, procurement and business applications, handling the translations and routing between buyer procurement and supplier e-commerce sites, which TradeCentric may provide as part of its SaaS Services. Customer wishes to utilize the SaaS Services (as defined below), and TradeCentric desires to make the SaaS Services available to Customer subject to the following terms and conditions.
2. Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
2.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer, any of Customer’s Authorized Users (including a Primary User), and Customer’s designated Trading Partners (and their Authorized Users) to access the SaaS Services.
2.2 “Additional Feature” means any feature or functionality not included in the Solutions offering as of the Effective Date, but that TradeCentric makes commercially available through the Solutions during the Subscription Term and for which Customer obtains the right to access and use through an accepted Order Form and the payment of additional fees.
2.3 “Authorized User” means any individual who is an employee of Customer or one of its Trading Partners, or such other person or entity as may be authorized by Customer or any of Customer’s Trading Partners, to access one or more SaaS Services pursuant to Customer’s rights under this Agreement.
2.4 “Customer Data” means any content or data uploaded into the Solutions by or on behalf of Customer. For the avoidance of doubt, Customer Data excludes any Trading Partner Data and any Usage and Performance Data.
2.5 “Data Custodian” means for the purposes of this agreement a party that is not the original data controller but is considered to have the authority to manage data on behalf and in the interests of the original data controller.
2.6 “Documentation” means the technical materials made available by TradeCentric to Customer in hard copy or electronic form describing the use and operation of the Solutions, as may be updated from time to time.
2.7 “Fees” means the fees specified for the SaaS Services selected by Customer under an accepted Order Form, which, unless otherwise agreed by the parties in the Order Form, shall be based on the pricing set forth in the Order Form is executed.
2.8 “Integration” shall mean the ability of the Solutions to connect to and communicate with key Customer and Trading Partner(s) business systems including e-commerce, e-procurement and ERP. For the sake of clarity, each Customer to Trading Partner connection requires a separate Integration subscription per Solution.
2.9 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
2.10 “Order Form” means the initial order form signed by the parties (including any attachments and exhibits thereto) referencing this Agreement, evidencing the initial subscription for Customer’s access to and use of the Solutions and Trading Partner Integrations, and any subsequent order form (including any attachments and exhibits thereto) submitted online or in written form and specifying, among other things, the number of additional Solutions and Trading Partner Integrations purchased and other SaaS Services contracted for, the applicable Fees, and other charges as agreed to between the parties, with each agreed form incorporated into and becoming a part of this Agreement.
2.11 “Primary User” means an Authorized User of Customer or a Trading Partner who is designated by Customer or the Trading Partner, as applicable, to approve other Authorized Users to access the Solutions and otherwise administer the use of the SaaS Services by Customer or Trading Partner (as the case may be).
2.12 “Professional Services” means consulting and/or Integration Services and Implementation Services.
2.13 “SaaS Services” means the provision of access to the Solutions, Integrations, and Support (as purchased by Customer through an Order Form).
2.14 “Scheduled Maintenance” means any maintenance related to the Solutions scheduled and undertaken by or on behalf of TradeCentric.
2.15 “Solutions” means a solution that is Customer licenses under one or more Order Forms executed under this Agreement, and any associated user interfaces and related technology that TradeCentric makes available to Customer pursuant to this Agreement.
2.16 “Support” means the support services described in Exhibit A.
2.17 “Subscription Term” means the period identified in an Order Form during which Customer’s Authorized Users are authorized to use or access the Solutions, pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 11.
2.18 “Trading Partner” means any business or entity (other than Customer) connected by Customer to do business with Customer through the Solutions. As used herein, the term “Trading Partner” includes all of the Trading Partner’s Authorized Users, which, for the avoidance of doubt, may include third party contractors authorized by the Trading Partner to access the Solutions to assist in the carrying out of the trading party’s supply chain activities for the benefit of Customer and Trading Partner.
2.19 “Trading Partner Data” means any content or data uploaded into the Solutions by or on behalf of a Trading Partner that is used in connection with Customer’s account.
2.20 “Usage and Performance Data” means any data derived from Customer Data, Trading Partner Data and/or the use of the Solutions or SaaS Services by Customer and its Trading Partners. Such data includes, but is not limited to, performance and statistical information about the actual transactions facilitated between Customer and its Trading Partners through the Solutions, which is collected, generated and tracked by TradeCentric. For the avoidance of doubt, Usage and Performance Data does not include any Customer Data or Trading Partner Data from which it is derived.
3. PROVISION OF SERVICES
3.1 Provision of SaaS Services. TradeCentric, subject to the terms and conditions of this Agreement during the Subscription Term, will provision the Solutions and Integrations, and provide Customer with the SaaS Services set forth on the applicable Order Form for Solutions and Integrations ordered and paid for pursuant to the Order Form.
3.2 Access. TradeCentric during the Subscription Term will provide the SaaS Services via an online user interface in accordance with the terms of this Agreement and the applicable Order Form for Solutions and up to the number of Integrations ordered and paid for under the terms of this Agreement. On or as soon as reasonably practicable after the Effective Date, TradeCentric shall provide to Customer the Access Protocols to allow Customer and its Authorized Users to access the SaaS Services. Customer is responsible for keeping all Access Protocols issued to Customer and its Authorized Users confidential and secure and will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solutions. Customer will notify TradeCentric promptly of any such unauthorized use known to Customer.
3.3 Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Solutions or Documentation or use the SaaS Services, other than the Authorized Users and Trading Partners, as authorized under this Agreement; (b) modify, adapt, alter or translate the Solutions, Integrations or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Solutions, Integrations or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Solutions or Integrations; (e) use or copy the Solutions, Integrations or Documentation except as expressly allowed under this section; or (f) disclose or transmit any data contained in the Solutions to any individual other than an Authorized User or Trading Partner, except as expressly allowed herein. Except as expressly set forth herein, no license or right of any kind is granted to Customer regarding the SaaS Services, Solutions, Integrations, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Solutions or Integrations.
3.4 Professional Services. Where the parties have agreed to TradeCentric’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
3.5 Trading Partner Connections. Subject to Customer’s payment of the Fees as required by a particular Order Form, TradeCentric will activate all Trading Partner Integrations designated by Customer. Such Trading Partner Integrations will enable the exchange of information between Customer and its Trading Partners, as contemplated in the Documentation.
3.6 Support.
(i)Support. Subject to Customer’s payment of the Fees for the SaaS Services, TradeCentric will provide Customer with Support.
(ii) Exclusions. TradeCentric shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (i) Customer’s or its Authorized Users’ use of any version of the Solutions, Integrations or the SaaS Services other than the then-current unmodified version provided to Customer; (ii) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the SaaS Services, Integrations, Solutions, or Documentation; or (iii) modification, amendment, revision, or change to the Solutions, Integrations or the SaaS Services by any party other than TradeCentric or TradeCentric-authorized representatives.
3.7 Data Security. TradeCentric shall maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of Customer Data as required under applicable laws (“Data Safeguards”). During the Term, TradeCentric will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Data. TradeCentric will periodically maintain archives and back-ups of Customer Data in accordance with TradeCentric’s generally applicable disaster recovery and business continuity procedures and industry standards. Customer Data may be stored on media or hardware containing other TradeCentric customers’ data both during and after the Term, provided such media and hardware are subject to the Data Safeguards.
4. INTELLECTUAL PROPERTY
4.1 Ownership. The SaaS Services, Integrations, Solutions, Documentation, Usage and Performance Data, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of TradeCentric and its suppliers. All Customer Data, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer and its suppliers. All Trading Partner Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of the applicable Trading Partner. All rights not expressly granted to Customer under this Agreement are reserved by TradeCentric.
4.2 Trading Partner Data. Through its use of the Solutions, Customer shall have access to Trading Partner Data. Unless the Trading Partner is also another customer of TradeCentric, Customer will serve as a Data Custodian of Trading Partner Data. Customer and its Authorized Users may use the Trading Partner Data to which they have access solely as necessary to use the SaaS Services as contemplated herein and in accordance with the Documentation, or as otherwise may be agreed between Customer and its Trading Partner. Customer may not (a) modify or alter any Trading Partner Data; (b) distribute or sell, rent, lease, license or otherwise make any Trading Partner Data available to others; or (c) remove any copyright or other proprietary notices contained in any Trading Partner Data without authorization of the Trading Partner. TradeCentric reserves the right (but does not assume the obligation) to revoke the authorization to view, download and print Trading Partner Data at any time, and any such use shall be discontinued immediately upon notice from TradeCentric. FOR THE AVOIDANCE OF DOUBT, CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) TRADECENTRIC IS NOT RESPONSIBLE FOR AND DOES NOT CONTROL THE TRADING PARTNER DATA; AND (II) TRADECENTRIC HAS NO OBLIGATION TO REVIEW OR MONITOR, AND DOES NOT APPROVE, ENDORSE OR MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRADING PARTNER DATA.
4.3 Usage and Performance Data. As part of the SaaS Services, TradeCentric collects and tracks Usage and Performance Data to assist with the necessary operation and function of the SaaS Services, to provide reporting to Customer and its Trading Partners, and for internal purposes, including without limitation, to facilitate the provision of updates, support, and invoicing, by TradeCentric, its affiliated entities, and its agents, as well as research and development. Such Usage and Performance Data will be owned by TradeCentric and may be used for any lawful purpose, provided that TradeCentric may only disclose raw Usage and Performance Data to its subcontractors and any connected Trading Partners for the purpose of facilitating the SaaS Services. Any other disclosure of Usage and Performance Data to a third party by TradeCentric must be made in an anonymized and aggregated form and in a manner that does not permit the identification of Customer, any Trading Partner or any individual. Through its use of the Solutions, Customer shall have access to certain of the Usage and Performance Data, and Customer may use and copy the Usage and Performance Data for its internal business purposes only.
5. FEES AND EXPENSES; PAYMENTS
5.1 Fees. In consideration for the access rights granted to Customer and the SaaS Services performed by TradeCentric under this Agreement, Customer will pay to TradeCentric the Fees set forth in the particular Order Form(s). In the event that Customer wishes to obtain access to Additional Features during the Term, Customer shall be required to pay additional Fees associated with the Additional Features. Except as otherwise provided in an accepted Order Form, all Fees are due and payable to TradeCentric in advance upon receipt of invoice. Any amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum legal rate if less. TradeCentric shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. TradeCentric reserves the right to adjust the pricing set forth in this Agreement by
up to five percent (5%) on an annual basis, with any such adjustment to take effect on the anniversary of the Effective Date.
5.2 Taxes. As applicable, TradeCentric will use reasonable commercial efforts to include the applicable sales tax on the invoice(s) provided to Customer so that Customer may include such tax payment in its payment to TradeCentric. Otherwise, Customer remains responsible for such sales tax, as well as any other use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges (other than taxes based on TradeCentric’s revenue or income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the SaaS Services, or the license of the Solutions to Customer. Customer will provide TradeCentric with official receipts issued by the appropriate taxing authority, or such other evidence as TradeCentric may reasonably request, to establish that such taxes have been paid.
5.3 Expenses. Customer shall reimburse TradeCentric for all costs that are pre-approved by Customer, including TradeCentric’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder. All costs and expenses incurred by Customer in connection herewith are the sole responsibility of Customer.
6. CUSTOMER DATA AND RESPONSIBILITIES
6.1 License. Customer grants TradeCentric a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Data as necessary for purposes of providing the SaaS Services, making it available to Customer’s Trading Partners in accordance with the terms of this Agreement, and for TradeCentric’s internal purposes, including without limitation, its research and development activities to improve its products and services; and (b) to use the Customer trademarks, service marks, and logos as required to provide the SaaS Services and in accordance with the terms of this Agreement. TradeCentric shall not disclose the Customer Data to any third party (other than its subcontractors and any connected Trading Partners for the purpose of facilitating the SaaS Services) without Customer’s express written consent, unless such disclosure is in an anonymized and aggregated form and in a manner that does not permit the identification of Customer, any Trading Partner or any individual.
6.2 Authorized Users’ Access to SaaS Services. Customer may permit any of its Authorized Users to access and use the features and functions of the SaaS Services as contemplated by this Agreement. Customer is responsible for all activity under its reasonable control that occurs in its Authorized Users accounts and for Authorized Users’ compliance with this Agreement. User IDs may not be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services, and notify TradeCentric promptly of any such unauthorized use known to Customer.
6.3 Customer Warranty. Customer represents and warrants that it has all necessary rights, approvals and consents to make the Customer Data available to TradeCentric for use hereunder and that TradeCentric’s use of the Customer Data in performing the SaaS Services strictly as contemplated herein will not be unlawful or otherwise violate the rights of a third party. Customer further represents and warrants that any Customer Data hosted by TradeCentric as part of the SaaS Services shall not contain any viruses, worms or other malicious computer programming codes intended to damage or disable any network, systems or data of TradeCentric or any other third party. Finally, Customer will comply with all laws applicable to its purchase and use of the Solutions, Documentation, and SaaS Services hereunder.
6.4 Customer Responsibility for Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and data Customer is Data Custodian of. Customer shall be responsible for delivery of all Customer Data to TradeCentric, and TradeCentric shall not be responsible for any liability or loss (including any loss of data) arising from Customer’s delivery of such Customer Data through unsecure channels. Customer and its Authorized Users also shall have access to the Customer Data once hosted in the Solutions and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required to access the SaaS Services. Customer shall have the ability to export Customer Data out of the SaaS Services and is encouraged to make its own back-ups of the Customer Data. For a period of at least one (1) year following the expiration or termination of this Agreement (other than a termination resulting from Customer’s uncured breach) or unless directed to otherwise remove or delete the data from our systems, TradeCentric will use commercially reasonable efforts to maintain an archive copy of the Customer Data in the Solutions as of the effective date of the termination or expiration, and will, upon the reasonable request of Customer and at Customer’s cost, provide Customer with a copy of such archived Customer Data.
6.5 Unexpectedly High Volume. Customer must notify TradeCentric at least three (3) business days before the beginning of any period during which Customer expects to experience unusually high levels of access to the Solutions or Integrations. Such notice will be made via email to [email protected].
6.6 No Pass-through of Fees. Customer shall not in any way characterize in any fashion, or otherwise suggest or imply, that any amounts Customer charges to any of its partners or customers are attributable to, result from, or are “passed through” on account of, any Fees charged by TradeCentric.
7. WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. TradeCentric warrants to Customer that the Solutions will substantially conform to, and otherwise operate in accordance with, the Documentation and the terms of this Agreement. Provided that Customer notifies TradeCentric in writing of any breach of the foregoing warranty during the Term, TradeCentric shall, as Customer’s sole and exclusive remedy, provide Support (and any other level of support purchased by Customer in the applicable Order Form) to correct the non-conformance so the Solutions operates in accordance with the foregoing performance warranty at no additional cost to Customer.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Solutions, Documentation, SERVICES, THE TRADING PARTNER DATA, and the usage and performance data ARE PROVIDED “AS IS.” TRADECENTRIC DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE Solutions, Documentation, SERVICES, THE TRADING PARTNER DATA, OR the usage and performance data (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY TRADECENTRIC. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRADECENTRIC DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SOLUTIONS AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER USES ALL TRADING PARTNER DATA AND INTERACTS WITH TRADING PARTNERS AT ITS OWN RISK AND TRADECENTRIC WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS A RESULT OF SUCH USE OR INTERACTIONS.
8. LIMITATION OF LIABILITY
8.1 Types of Damages. WITH THE EXCEPTION OF EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, BREACHES OF SECTION 9 (CONFIDENTIALITY) OR FOR GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, NEITHER PARTY NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE.
8.2 Amount of Damages. WITH THE EXCEPTION OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS, OR FOR GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OR FOR DEATH OR PERSONAL INJURY, THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO TRADECENTRIC DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. CONFIDENTIALITY
9.1 Confidential Information. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain non-public information regarding the Disclosing Party’s business, technology, products, or services that is marked or designated by the Disclosing Party as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure (collectively, “Confidential Information”). Without limiting the generality of the foregoing, the Solutions, Documentation, and the Usage and Performance Data, and all enhancements and improvements thereto will be considered the Confidential Information of TradeCentric; the Customer Data will be considered the Confidential Information of Customer; provided that TradeCentric does have the right to disclose raw Customer Data to its subcontractors and any connected Trading Partners as noted in this Agreement.
9.2 Protection of Confidential Information. The Receiving Party will not use or disclose to any third party any Confidential Information of the Disclosing Party, except to provide or use the SaaS Services hereunder and as otherwise expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or Customer’s selected Trading Partners (in accordance with Customer’s selected Trading Partner integration levels and/or Customer’s contractual relationship with such Trading Partners) and to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase or expunge in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10. INDEMNIFICATION
10.1 Indemnification.
(i) By TradeCentric. TradeCentric will defend at its expense any suit brought against Customer by a third party, and will pay any settlement TradeCentric makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Solutions or the SaaS Services misappropriate or infringe any trade secret, trademark, copyright, patent or other intellectual or proprietary rights of a third party. If any portion of the Solutions or the SaaS Services becomes, or in TradeCentric’s opinion is likely to become, the subject of a claim of infringement, TradeCentric may, at TradeCentric’s option: (i) procure for Customer the right to continue using the Solutions or the SaaS Services; (ii) replace the Solutions or the SaaS Services with non-infringing software or services which do not materially impair the functionality of the Solutions or the SaaS Services; (iii) modify the Solutions or the SaaS Services so that it/they become non-infringing; or (iv) if none of the alternatives described by subsection (i), (ii) and (iii) is commercially practicable, terminate this Agreement with respect to the infringing Solution and refund any Fees actually paid by Customer to TradeCentric for the infringing Solution for the remainder of the Subscription Term then in effect, and upon such termination, Customer will immediately cease all use of the infringing Solution and related Documentation and SaaS Services. Notwithstanding the foregoing, TradeCentric shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Solutions or the SaaS Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Solutions or the SaaS Services in combination with other products, equipment, software or data not supplied by TradeCentric; or (z) any modification of the Solutions or the SaaS Services by any person or entity other than TradeCentric or its authorized agents. This subsection states the sole and exclusive remedy of Customer and the entire liability of TradeCentric for such infringement claims and actions.
(ii) By Customer. Customer will defend at its expense any suit brought against TradeCentric by a third party, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer’s use of the Solutions, Integrations, SaaS Services, Documentation, Trading Partner Data or Usage and Performance Data other than as provided in this Agreement or specified in the Documentation, or due to any claim that the Customer Data infringes or misappropriates the intellectual or proprietary rights of any such third party. This subsection states the sole and exclusive remedy of TradeCentric and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
(iii) Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (ii) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. An indemnifying party will not settle any such action without the written consent of the indemnified party (which consent will not be unreasonably withheld or delayed).
10.2 Insurance. Each party shall maintain, at its own cost, general liability and other appropriate insurance in an amount appropriate to the nature and scope of its services, products and business, which is reasonable and customary in their respective industries for companies of comparable size and activities. Each party shall, upon the written request of the other party, provide the other party with a certificate of insurance (COI) confirming coverage.
11. TERM AND TERMINATION
11.1 Term. This Agreement commences on the Effective Date and remains in effect until all Subscription Terms have expired or been terminated (the “Term”). For the sake of clarity, each time Customer adds additional Authorized Users, such new Subscription Term is co-termed with the existing Subscription Term and the Fees for such additional Authorized Users are initially pro-rated for the applicable partial Subscription Term.
11.2 Termination. Either party may terminate this Agreement immediately upon thirty (30) days’ written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than thirty (30) days after receipt of written notice of such breach.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason:
(i) Customer’s right to access or use the SaaS Services immediately ceases;
(ii) Except as expressly set forth in this Section 11.3, all rights and licenses shall terminate;
(iii) TradeCentric shall continue to have the right to use the Customer Data for analytic, research and development purposes as detailed herein.
(iv) Each party shall continue to have the right to use any Usage and Performance Data made available to it during the Term provided that such use complies with the restrictions set forth herein;and
(v) If this Agreement is terminated for any reason other than a material breach by TradeCentric, any unpaid amounts allocated to the terminated portion of the then applicable Subscription Term shall be accelerated and immediately become due and payable by Customer.
The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous, all provisions related to intellectual property ownership (including ownership of data), and all provisions that by their terms should survive termination, will survive expiration or termination of this Agreement for any reason.
12. MISCELLANEOUS
12.1 Governing Law. This Agreement and any action related thereto will be governed by and interpreted under the laws of the State of Delaware, without giving effect to any conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from TradeCentric, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
12.4 Non-Solicitation of Employees. During the term of the Agreement, and for a period of one (1) year immediately thereafter, each party agrees not to solicit the employees of the other party or induce any such employee to terminate or breach an employment, contractual or other relationship with the other party. The foregoing is not meant to restrict either party from hiring personnel who respond without invitation or prompting to a general solicitation or advertisement for employment.
12.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.6 Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the SaaS Services, Solutions, and Documentation contain valuable trade secrets and proprietary information of TradeCentric, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of TradeCentric will constitute immediate, irreparable harm to TradeCentric for which monetary damages would be an inadequate remedy. In such case, TradeCentric will be entitled to seek immediate injunctive relief without the requirement of posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
12.7 No Assignment. Neither party shall assign, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in its entirety, and not in part, to a successor-in-interest by merger or reorganization, the purchaser of substantially all of the assigning party’s outstanding equity, or the purchaser of substantially all of the assigning party’s assets to which this Agreement relates; provided that the assignee agrees in writing to be bound by the terms of this Agreement. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or other health crisis, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.9 Publicity. TradeCentric reserves the right to reference the Customer as a user of the Solutions in its customer lists. Neither party shall make a formal announcement or press release of this Agreement or the relationship between the parties without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. The parties shall agree upon the content and timing of an initial public announcement.
12.10 Independent Contractors. Customer’s relationship to TradeCentric is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of TradeCentric.
12.11 Notices. Customer is responsible for providing TradeCentric with Customer’s most current e-mail address and associating it with the Primary User of Customer’s account. For administrative or operational notices, TradeCentric may provide notice via email to the email address associated with the Primary User. Each party must deliver all legal notices or communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
12.12 Entire Agreement. This Agreement, inclusive of any Order Form(s), Exhibits, amendments and change orders, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by authorized signatories of Customer and TradeCentric. To the extent of any conflict among the terms of this Agreement and the terms in an Order Form, the terms of this Agreement shall govern and control.
EXHIBIT A
SUPPORT
This Exhibit A describes the Support that TradeCentric offers generally to its commercial customers at no additional fee beyond the Solutions access Fees.
1. Definitions. For purposes of Support, the following definitions shall apply:
a. “Downtime” means the total number of minutes in a given calendar month that the Solutions is unavailable, inoperable or severely impaired (i.e., the Solutions is unable to receive and process Customer Data or Trading Partner Data as described in the Documentation), other than unavailability caused by Scheduled Maintenance.
b. “Error” means a reproducible failure of the Solutions to substantially conform to the Documentation, which results in (i) the inability of the Solutions to receive and process Customer Data or Trading Partner Data, including any interruption in the flow of Customer Data, Trading Partner Data or requests from the Solutions to Customer or to one of the Customer’s Trading Partners; or (ii) any other impairment that causes material inconvenience to Customer or any of its Trading Partners.
c. “Error Corrections” means Fixes or Workarounds intended to correct Errors.
d. “Fix” means the repair or replacement of object or executable code to remedy an Error.
e. “Scheduled Maintenance” means any planned, defined, and scheduled period of time during which TradeCentric performs routine maintenance on the Solutions.
f. “Workaround” means a temporary fix or change that resolves the Error in all material respects or otherwise avoids the Error without substantially impairing use of the Solutions.
Other capitalized terms used but not defined in this Exhibit shall have the definitions ascribed to such terms in the Agreement.
2. Solutions Availability. TradeCentric will use commercially reasonable efforts to maintain the availability of the Solutions twenty-four (24) hours a day and seven (7) days a week, except during Scheduled Maintenance. TradeCentric will use commercially reasonable efforts to notify Customer via email or the Solutions user interface at least forty-eight (48) hours in advance of any Scheduled Maintenance. TradeCentric is permitted to conduct emergency maintenance on an “as needed” basis.
3. Improvements. At its discretion, TradeCentric will provide updates, upgrades, enhancements, and any other improvements that TradeCentric may make generally available to other retailers and suppliers that use the Solutions.
4. Customer Support. TradeCentric will provide customer service support, via email, for Authorized Users of both Customer and its Trading Partners during TradeCentric’s normal business hours (i.e., 3 a.m. to 6 p.m., Eastern Time, Monday through Friday, excluding holidays observed by TradeCentric). TradeCentric will make every effort to respond to customer service inquiries within twelve (12) hours of receipt (unless such inquiry is received outside of business hours, in which case, we will make every effort to respond by 6 p.m., Eastern Time, the following business day).
5. Error Corrections.
a. TradeCentric will use commercially reasonable efforts to correct all Errors in the Solutions reported by Customer in writing to TradeCentric in accordance with this Section 5. TradeCentric will utilize remote diagnostic procedures whenever possible for Error diagnosis and Error Correction. TradeCentric may not issue Error Corrections for all Errors.
b. Promptly upon being notified by Customer of an Error, TradeCentric will commence documenting, recreating, and will make every effort to provide a Fix or Workaround for the Error within two (2) business hours of TradeCentric’s confirmation of the Error. If TradeCentric fails to provide a Fix for the Error within such initial two (2) business hours, TradeCentric will assign a TradeCentric representative to oversee and report on all Error Correction activities. The representative will initially notify Customer of Error Correction status and will report on the status every four (4) hours thereafter, until a Fix is provided.
6. Customer Responsibilities.Customer will provide all reasonable assistance requested by TradeCentric in its efforts to identify the source of and take corrective action with any errors or problems with the Solutions.
7. Service Level Credits and Exclusions.
a. Service Level Credits. In the event Downtime in any given calendar month exceeds two (2) hours in duration for any individual instance, or four (4) hours in the aggregate during such calendar month, subject to Section 7(b), below, Customer will be entitled to a service level credit in the amount of one (1) full day of Fees, calculated as follows:
A ÷ 365 = Service Level Credit
A = Fees paid by Customer (i.e., those Fees reflected in an accepted Order Form) that are allocable to the contract year of the Subscription Term in which the Downtime occurs.
Any such service level credits will be applied against the next invoice to Customer or, at Customer’s request during the Subscription Term and upon the termination or expiration of any Subscription Term, TradeCentric shall reimburse Customer for the amount of service level credits accrued but not yet paid or applied.
b. Exclusions. TradeCentric shall have no responsibility or liability for service level credits with respect to any of the following: (i) Downtime during periods when Customer’s account is not in good financial standing or Customer is in violation of the Agreement; (ii) Downtime due to circumstances beyond TradeCentric’s reasonable control, including acts of any governmental body, war, sabotage, embargo, fire, flood, pandemic or other health crisis, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party Internet service providers, third-party software, hardware failures, the failure or degradation of third-party connectivity services, or downtime or access degradation caused by Customer’s networks or devices or the Internet; (iii) Downtime caused by Customer’s failure to provide reasonable assistance under Section 6, above; (iv) Downtime due to Customer’s or any of its Authorized Users’ misuse, abuse, negligence, or improper or unauthorized use of the Solutions; (v) Downtime or Errors caused by the acts or omissions of any of Customer’s Trading Partners; (vi) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment; or (vii) modification, amendment, revision, or change to the Solutions or the SaaS Services by any party other than TradeCentric or TradeCentric-authorized representatives.