STANDARD TERMS AND CONDITIONS
1. LICENSE AND RESTRICTIONS
1.1 Company Service License.
Subject to the terms and conditions of this Agreement, including Subscriber’s payment of all applicable Fees, Company hereby grants to Subscriber a limited, non-exclusive and non-transferable license, during the Term, for such number of Subscriber’s authorized stores and websites as set forth on the cover page of this Agreement or any change order made pursuant hereto, to use the Company Service for its internal business purposes. Subscriber shall have no right to sublicense any of these licenses to any third party.
Except as expressly provided in Section 1.1, Subscriber may not: (a) use the Company Service, or any portion thereof for any purpose, or (b) resell, sublicense, reproduce, distribute, transfer or otherwise grant access to or transmit the Company Service to any third party for any purpose, or (c) modify, adapt, alter, translate, or create derivative works from the Company Service, or (d) allow any third party to resell, sublicense, distribute, transfer or otherwise grant access to or transmit the Company Service, or (e) reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Company Service, including without limitation any such mechanism used to restrict or control the functionality of the Company Service or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Company Service; or (f) remove or obfuscate any product identification, copyright or other proprietary notice from any element of the Company Service or documentation. Subscriber shall not at any time: (x) knowingly make any false or misleading representation with regard to or in connection with its use of Company Service, or (y) use Company Service to engage in illegal or deceptive trade practices or make any other use of Company Service that could expose Company to any civil or criminal liability in any jurisdiction. Subscriber’s use of the Company Service will comply with all applicable laws and regulations.
1.3 Reserved Rights.
The Company Service and any copies of the Company Service software are only being licensed to Subscriber subject to the terms and conditions of this Agreement. Except for the limited rights expressly granted in this Section 1, Company reserves all right, title and interest in and to the Company Service, and all technology, information, know-how, documentation or any other intellectual property included in the Company Service or used in the performance of such Company Services, together with all intellectual property rights therein and any confidential information of Company.
2. PAYMENT DISPUTES
In case any Fees are not paid in full when due, in addition to any other remedy otherwise available to Company, Company may impose overdue charges on the past-due amounts at the rate of 1.5% per month (or, if less, the maximum amount permitted by law) until Subscriber is current on all payments. Subscriber shall reimburse Company for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past due amounts owed by Subscriber. Subscriber agrees that with respect to the amounts charged by Company to Subscriber’s credit card, as designated and authorized by Subscriber on the cover page of this Agreement, Subscriber shall not dispute any such charge with the bank or the credit card company, but shall instead, in the event of any payment dispute, notify Company of such dispute and cooperate with Company in resolving such dispute, whereupon, if any amounts are determined to be improperly charged, such amounts will be refunded by Company directly to Subscriber. Subscriber may only dispute the amounts payable hereunder in good faith, upon presentation of clear and convincing evidence to Company to support Subscriber’s position. Company reserves the right to terminate this Agreement and Subscriber’s right to use the Company Service if Subscriber is in violation of this Section 2.1. As used herein, “Fees” means the subscription fees payable by Subscriber to Company in accordance with the terms of this Agreement.
3. WARRANTIES, AND DISCLAIMER
Each party hereby represents and warrants to the other that (i) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between such party and any third party.
COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICE WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT THE USE OR OPERATION OF THE COMPANY SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON SUBSCRIBER’S USE OF THE COMPANY SERVICE. THE COMPANY SERVICE IS PROVIDED ON AN “AS IS” BASIS. COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE COMPANY SERVICE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
4.1 Confidential Information.
The parties agree that during the course of performance under this Agreement, each party may disclose to the other party certain Confidential Information (defined below) of such disclosing party. “Confidential Information” means any information which is designated in writing to be confidential or proprietary, or if given orally is confirmed promptly in writing as having been disclosed as confidential or proprietary. Without limiting the generality of the foregoing, anything to the contrary herein notwithstanding, the Confidential Information of Company shall include the Company Service and all technical and business information and documentation relating thereto. FOR CLARITY, CONFIDENTIAL INFORMATION OF COMPANY EXPRESSLY INCLUDES ALL TERMS AND CONDITIONS OF THIS AGREEMENT. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (iii) is independently developed by the receiving party without the use of any Confidential Information of the other party.
4.2 Non-Disclosure and Non-Use of Confidential Information.
Each of the parties agrees not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except as necessary in the performance of its obligations under this Agreement. Neither party will disclose the Confidential Information of the other to third parties or to the first party’s employees except employees who are required to have the information in order to carry out such parties obligations hereunder and who are bound by a non-disclosure agreement no less protective of the Confidential Information of the other party than this Agreement. Each party agrees that it will take use the same standard of care that it uses in protecting its own confidential information to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party and to prevent it from falling into the public domain or the possession of unauthorized persons, but in no case less than reasonable care. In the event of any expiration or termination of this Agreement, the receiving party shall return to the disclosing party all copies of such disclosing party’s Confidential Information in such receiving party’s possession or control.
4.3 Use of Subscriber’s Name.
Subscriber acknowledges that Company may desire to use Subscriber’s name in press releases, product brochures, Company’s website and financial reports indicating that Subscriber is a customer of Company, and Subscriber agrees that Company may use its name and logo in such manner. Upon Company’s request, Subscriber shall provide Company with a quote from a Subscriber executive regarding the Company Service, which Company may reasonably include in printed and electronic promotional materials and publications.
5.1 Subscriber Indemnity.
Subscriber shall indemnify and hold Company, its affiliates, directors, officers, shareholders, and employees harmless from and against any damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) arising from any claims, suits, demands or other proceeding by any third party (collectively, the “Claims”) arising out of Subscriber’s (i) improper use of the Company Service, (ii) violation of any laws or regulations applicable to the Company Service or the use thereof, (iii) providing any products or services to third parties, or (iv) any negligence or willful misconduct in connection with, or breach of this Agreement by Subscriber. Subscriber shall, at its own expense, defend Company against any Claim provided that Company shall promptly notify Subscriber of any Claim and reasonably cooperate with Subscriber to facilitate settlement or defense thereof. This paragraph shall survive the expiration or termination of this Agreement.
5.2 Company Indemnity.
Company, at its expense, will defend or settle any action brought against Subscriber by a third party to the extent based on a claim that the Company Service, as supplied by Company and when used as provided for by this Agreement, infringes any copyright, trade secret, or United States patent. Company will pay any award against Subscriber, or settlement entered into on Subscriber’s behalf, based on such infringement only if Subscriber notified Company promptly in writing of the claim, provided reasonable assistance in connection with the defense and/or settlement thereof, and permitted Company to control the defense and/or settlement thereof. Company shall have no liability for indemnification where the Company Service alone would not have given rise to the infringement claim, including without limitation in instances where the alleged infringement is caused by any modification of the Company Service or combination of the Company Service with any equipment, programs or data not provided by Company. In the event of an infringement action against Subscriber with respect to the Company Service or documentation, or in the event Company believes such a claim is likely, Company shall be entitled, at its option but without obligation, to (i) appropriately modify the Company Service licensed or made available hereunder, or substitute other Company Services which, in Company’s good faith opinion, does not infringe any third party intellectual property rights; or (ii) obtain a license with respect to the applicable third party intellectual property rights. If neither (i) nor (ii) is commercially practicable, Company may terminate this Agreement and Subscriber’s licenses hereunder. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, THE FOREGOING STATES COMPANY’S ENTIRE LIABILITY AND SUBSCRIBER’S SOLE REMEDY FOR ACTUAL OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO COMPANY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT WILL COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY SUBSCRIBER FOR THE COMPANY SERVICES GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE PARTIES AGREE THAT THE PRECEDING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK
7. EFFECT OF TERMINATION
Termination of this Agreement shall not relieve the parties of any obligation accruing prior to such termination. Upon any termination of this Agreement, all licenses granted hereunder shall terminate. The provisions regarding data and intellectual property ownership, records and audits, disclaimer of warranties, confidentiality, indemnification, limitations of liability, termination, and any payment obligations shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement.
This agreement is made in accordance with and will be governed and construed under the laws of the state of New Jersey, without reference to such state’s conflicts of laws principles. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in the State of New Jersey and the parties consent to the personal and exclusive jurisdiction of these courts. This Agreement is the entire agreement between Subscriber and Company with respect to the subject matter hereof. Subscriber may not assign this Agreement, by operation or law or otherwise, without Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Company’s failure to enforce Subscriber’s strict performance of any provision of this Agreement will not constitute a waiver of Company’s right to subsequently enforce that provision, or any other provisions of this Agreement. No waiver of any provision hereof will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Subscriber and Company are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency or employment relationship. Any notice required or permitted to be given under this Agreement shall be in writing and addressed to such other party at its address indicated on the cover page of this Agreement, or to such other address as the addressee shall have last furnished in writing to the addressor, and shall be effective (i) when received by electronic mail at the proper address followed by a reasonable indication of receipt by the recipient; or (ii) upon receipt when sent by reputable private international courier with established tracking capability, postage pre-paid.