Platform as a Service Agreement

These Platform as a Service Terms of Service, together with all Exhibits attached hereto and the applicable Order Form (collectively, the “Agreement”) is made and entered into as of the date of the later signature on the Order Form (“Effective Date”) by and between DS, Co., a Delaware corporation (“Dsco”), and the company specified on the applicable Dsco Order Form (“Customer”). In consideration of the mutual promises contained herein, the parties hereby agree to the following:

  1. Background. Dsco has developed an online platform that enables retailers and suppliers to exchange data and real-time analytics in connection with their supply chain activities (the “Platform,” as further defined below), which it provides as part of its Services (defined below).  Customer wishes to utilize the Services, and Dsco desires to make the Services available to Customer and its Trading Partners (defined below), 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.
    • 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), Customer’s designated Trading Partners (and their Authorized Users) to access the Services.
    • Account Services” means any upgraded support services purchased by Customer through an Order Form that Dsco provides to Customer. The upgraded support options available as of the Effective Date described at www.dsco.io/account-services
    • Additional Feature” means any feature or functionality not included in the Platform offering as of the Effective Date, but that Dsco makes commercially available through the Platform during the Term and for which Customer obtains the right to access and use through an accepted Order Form and the payment of additional fees.
    • 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’s Primary User or a Primary User of any of Customer’s Trading Partners, to access one or more Services pursuant to Customer’s rights under this Agreement.
    • Customer Data” means any content or data uploaded into the Platform by or on behalf of Customer. For the avoidance of doubt, Customer Data excludes any Trading Partner Data and any Usage and Performance Data.
    • Documentation” means the technical materials made available by Dsco to Customer in hard copy or electronic form describing the use and operation of the Platform, as may be updated from time to time.  Documentation can be found at http://support.dsco.io or such other URL as Dsco communicates in writing to Customer during the Term.
    • Fees and Payment” means the fees specified for the Services selected by Customer under an accepted Order Form, which, unless otherwise agreed by the parties, shall be based on the pricing and payment schedule set forth at dsco.io/fees-and-payment.
    • 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.
    • Order Form” means the form evidencing the initial subscription for access to and use of the Platform and any subsequent order form submitted online or in written form and specifying, among other things, the number of Trading Partners purchased and other Services contracted for, the applicable fees, and other charges as agreed to between the parties, each accepted form to be incorporated into and become a part of this Agreement.
    • Platform” means the software licensed by Customer through Order Forms executed under this Agreement, and any associated user interfaces and related technology (including any Additional Feature) that Dsco makes available to Customer pursuant to this Agreement. A description of the Platform, as it exists as of the Effective Date, is set forth at dsco.io/Platform-Services-and-Technical-Requirements).
    • 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 user accounts for other Authorized Users to access the Platform and otherwise administer the use of the Services by Customer or Trading Partner (as the case may be).
    • Services” means the provision of access to the Platform, Standard Support and, if applicable, Account Services ordered by Customer through an Order Form.
    • Standard Support” means the basic support services that Dsco provides to Customer and its Trading Partners in connection with use of the Platform on Customer’s behalf. Standard Support available as of the Effective Date is described at dsco.io/standard-support
    • Technical Requirements” means the minimum hardware, software, and connectivity requirements specified from time to time by Dsco as required for use of the Services. The Technical Requirements as of the Effective Date are described at www.dsco.io/platform-services-and-technical-requirements.
    • Trading Partner” means any business or entity (a) that Customer invites to do business with Customer through use of the Platform, (b) that agrees to be bound by the Trading Partner Terms of Service, and (c) for which Dsco grants access to the Platform. 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 Platform to assist in the carrying out of the Trading Party’s supply chain activities for the benefit of Customer.
    • Trading Partner Data” means any content or data uploaded into the Platform by or on behalf of a Trading Partner that is used in connection with Customer’s Platform account.
    • Trading Partner Terms of Service” means Dsco’s then-current standard terms of service and access requirements for Trading Partners, currently located at http://www.dsco.io/trading-partner-terms-of-service.
    • Usage and Performance Data” means any data derived from Customer Data, Trading Partner Data and/or the use of the 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 Platform, which is collected, generated and tracked by Dsco.  For the avoidance of doubt, Usage and Performance Data does not include any Customer Data or Trading Data from which it is derived.
  3. Provision of Services
    • Subject to Customer’s payment of the Fees agreed to in an accepted Order Form, Dsco will provide the Services via an online user interface in accordance with the terms of this Agreement and the applicable Order Form. On or as soon as reasonably practicable after the Effective Date, Dsco shall provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users (including the Primary User) to access the Services in accordance with the Access Protocols.  Customer’s designated Trading Partners will be granted access to the Services with separate Access Protocols under the terms of the Trading Partner Terms of Service.  Customer is not subject to the Trading Partner Terms of Service or any other click through or preprinted terms and conditions provided by Dsco or any of its suppliers unless Customer explicitly agrees to the same in writing.
    • Responsibility for Platform Hosting. Dsco shall, at its own expense, provide for the hosting of the Platform (including any Customer Data contained therein subject to Section 3.3, below), which is accessible as part of the Services, provided that nothing herein shall be construed to require Dsco to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
    • Hosting of Customer Data. Subject to Dsco’s standard practices and limits relating to the storage of Customer Data (e.g., maximum disk storage space made available to a Customer for Customer Data), which may change from time to time during the Term, Dsco will host Customer Data and, in accordance with the terms of the Trading Partner Terms of Service, the Trading Partner Data.  If the amount of disk storage required to host the Customer Data or related Trading Partner Data exceeds the limits established by Dsco communicated to Customer and the Trading Partner, Dsco will delete data from the Platform in accordance with its standard practices.
    • Trading Partner Connections. Subject to Customer’s payment of the Fees as required by a particular Order Form, Dsco will activate all Trading Partners designated by Customer. Such Trading Partner connections will enable the exchange of information between Customer and its Trading Partners, as contemplated in the Documentation.  For the avoidance of doubt, Customer acknowledges and agrees that (a) Dsco is not responsible for and does not control the Trading Partner’s business, decisions, or activities or Trading Partner Data; and (b) Dsco has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to the Trading Partners or any Trading Partner Data.
    • Standard Support and Account Services. Subject to Customer’s payment of the Fees for the Platform, Dsco will provide Customer with Standard Support.  Dsco shall have the right to make changes to the nature and scope of the Standard Support at any time during the Term, provided, however, it notifies Customer in writing two (2) weeks prior to the effective date of any material changes and, provided further that, if a change materially diminishes the level of support from the support described in Dsco’s Standard Support, Customer shall have the right to terminate its account upon written notice to Dsco and receive a pro rata refund of any prepaid amounts.  If Customer has paid for Account Services (Premium or Gold), Dsco will provide such Account Services in accordance with the election on the Order Form.
  4. Intellectual Property
    • License Grant. Subject to the terms and conditions of this Agreement, Dsco grants to Customer a non-exclusive, non-transferable license during the Term, solely for Customer’s internal business purposes and in accordance with the Technical Requirements, (a) to access, use, perform, and digitally display the Platform as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services.
    • Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Platform or Documentation or use the Services, other than the Authorized Users and Trading Partners, as authorized under this Agreement; (b) modify, adapt, alter or translate the Platform or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform 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 Platform; (e) use or copy the Platform or Documentation except as expressly allowed under this section; or (f) disclose or transmit any data contained in the Platform to any individual other than an Authorized User or Trading Partner, except as expressly allowed herein.  Notwithstanding the foregoing, decompiling the Platform is permitted to the extent the laws of Customer’s jurisdiction require Dsco to give Customer the right to do so to obtain information necessary to render the Platform interoperable with other software; provided, however, that Customer must first request such information from Dsco and Dsco may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Platform to ensure that Dsco’s and its suppliers’ proprietary rights in the source code for the Platform are protected.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Platform, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Platform.
    • The Services, Platform, Documentation, Usage and Performance Data, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Dsco and its suppliers.  All Customer Data, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer and its suppliers.  The Trading Partner Data hosted by Dsco as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of the Trading Partners.  Except as expressly set forth herein, all rights are reserved and no express or implied license or right of any kind is granted regarding the Services, the Platform, the Documentation, the Customer Data, the Trading Partner Data, or the Usage and Performance Data, or any part thereof, including any right to obtain possession of any source code, data or other technical material related thereto.
    • Open Source Platform. Certain items of software may be provided to Customer with the Platform and are subject to “open source” or “free software” licenses (“Open Source Platform”).  Some of the Open Source Platform is owned by third parties.  The Open Source Platform is not subject to the terms and conditions of the section titled Indemnification or the subsection titled License Grant.  Instead, each item of Open Source Platform is licensed under the terms of the end-user license that accompanies such Open Source Platform.  Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Platform. If required by any license for particular Open Source Platform, Dsco makes such Open Source Platform, and Dsco’s modifications to that Open Source Platform, available by written request at the notice address specified below.
    • Trading Partner Data. Through its use of the Platform, Customer shall have access to certain of the Trading Partner Data. Customer and its Authorized Users may use the Trading Partner Data it has access to solely as necessary to use the Services as contemplated herein and in accordance with the Documentation.  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.  Dsco 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 Dsco.
    • Usage and Performance Data. As part of the Services, Dsco collects and tracks Usage and Performance Data to assist with the necessary operation and function of the Services, to provide reporting to Customer and its Trading Partners, and for internal purposes, including without limitation, to facilitate in the provision of updates, support, invoicing, marketing by Dsco, its affiliated entities, and its agents, as well as research and development.  Such Usage and Performance Data will be owned by Dsco and may be used for any lawful purpose, provided it is used only in an anonymized and aggregated form and in a manner that does not permit the identification of Customer or any individual.  Through its use of the Platform, Customer shall have access to certain of the Usage and Performance Data; Customer may use and copy the Usage and Performance Data for its internal business purposes only.  Customer may not (a) modify or alter the Usage and Performance Data; (b) distribute or sell, rent, lease, license or otherwise make any Usage and Performance Data available to any third parties, other than its Trading Partners; and (c) remove any copyright or other proprietary notices contained in any Usage and Performance Data.
  5. Fees and Expenses; payments
    • In consideration for the access rights granted to Customer and the Services performed by Dsco under this Agreement, Customer will pay to Dsco the Fees set forth in the particular Order Form(s).  Increases in the number of Trading Partners during the Term shall be made in accordance with Dsco’s Fees and Payment, describe at www.dsco.io/fees-and-payment. 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 for Services are due and payable to Dsco in advance.  Dsco shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
    • The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Dsco’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 Services, or the license of the Platform to Customer.  Customer will make all payments of Fees to Dsco free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Dsco will be Customer’s sole responsibility, and Customer will provide Dsco with official receipts issued by the appropriate taxing authority, or such other evidence as Dsco may reasonably request, to establish that such taxes have been paid.  Customer shall indemnify and defend Dsco in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
    • Customer shall reimburse Dsco for all costs, pre-approved by Customer, including Dsco’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.
    • Interest. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
    • Payment. Except as otherwise expressly set forth in Exhibit D or in an applicable Order Form, all amounts invoiced hereunder shall be due and payable within thirty (30) days following the date of receipt of the invoice.  For any amounts for which Customer agrees to pay by credit card, Customer shall provide Dsco its number and associated payment information for a valid credit card (Visa, MasterCard, or any other issuer accepted by Dsco) in accordance with Exhibit D.  By providing Dsco with Customer’s credit card number and associated payment information, Customer agrees that Dsco is authorized to immediately invoice Customer’s account for the applicable Fees and that no additional notice or consent is required.  Customer agrees to immediately notify Dsco of any change in its billing address or the credit card used for payment hereunder.
  6. Customer DATA and Responsibilities
    • License; Ownership. Customer grants Dsco a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Data as necessary for purposes of providing the Services, making it available to Customer’s Trading Partners in accordance with the terms of this Agreement, and for Dsco’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 Services. The Customer Data hosted by Dsco as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer.  All rights in and to the Customer Data not expressly granted to Dsco in this Agreement are reserved by Customer.
    • Authorized Users Access to Services. Customer may permit any of its Authorized Users to access and use the features and functions of the 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 cannot 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 Services, and notify Dsco promptly of any such unauthorized use known to Customer.
    • Customer Warranty. Customer represents and warrants that it has all necessary rights, approvals and consents to make the Customer Data available to Dsco for use hereunder and that Dsco’s use of the Customer Data in performing the Services strictly as contemplated herein will not be unlawful or otherwise violate the rights of a third party.
    • Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data 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 in order the access the Services.  Customer shall have the ability to export Customer Data out of the Services and is encouraged to make its own back-ups of the Customer Data.  Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
  7. WARRANTIES AND DISCLAIMERS
    • Limited Warranty. Dsco warrants to Customer that, subject to compliance with the Technical Requirements by Customer and its Trading Partners, the Platform will substantially conform to, and otherwise operate in accordance with, the Documentation and the terms of this Agreement.  Provided that Customer notifies Dsco in writing of any breach of the foregoing warranty during the Term, Dsco shall, as Customer’s sole and exclusive remedy, provide Standard Support in accordance with the terms of this Agreement.  This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.
    • 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 Platform, Documentation, SERVICES, THE TRADING PARTNER DATA, and the usage and performance data ARE PROVIDED “AS IS,” AND DSCO MAKES NO (AND HEREBY 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, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE Platform, 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 DSCO.  DSCO DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE OPERATION OF THE PLATFORM 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 DSCO WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS A RESULT OF SUCH USE OR INTERACTIONS.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
  8. Limitation of Liability
    • Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, 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, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY’s PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE Platform, Documentation, SERVICES, THE TRADING PARTNER DATA, THE CUSTOMER DATA, the usage and performance data, OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF DSCO HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
    • Amount of Damages. WITH THE EXCEPTION OF EACH PARTY’S INDEMNICATION OBLIGATIONS, 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 DSCO DURING THE Six (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.  NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SUCH PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO THE PARTIES.
    • 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
    • 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 Platform, Documentation, and the Usage and Performance Data, and all enhancements and improvements thereto will be considered the Confidential Information of Dsco.
    • Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except to provide or use the 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 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 or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase 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 the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
    • 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 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
    • By Dsco. Dsco will defend at its expense any suit brought against Customer, and will pay any settlement Dsco 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 Platform or the 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 Platform or the Services becomes, or in Dsco’s opinion is likely to become, the subject of a claim of infringement, Dsco may, at Dsco’s option: (i) procure for Customer the right to continue using the Platform or the Services; (ii) replace the Platform or the Services with non-infringing software or services which do not materially impair the functionality of the Platform or the Services; (iii) modify the Platform or the Services so that it/they become non-infringing; or (iv) terminate this Agreement and refund any fees actually paid by Customer to Dsco for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Platform, Documentation, and Services.  Notwithstanding the foregoing, Dsco shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Platform or the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Platform or the Services in combination with other products, equipment, software or data not supplied by Dsco; or (z) any modification of the Platform or the Services by any person other than Dsco or its authorized agents.  This subsection states the sole and exclusive remedy of Customer and the entire liability of Dsco, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    • By Customer. Customer will defend at its expense any suit brought against Dsco, 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 breach of Customer Warranty or use of the Platform, Services, Documentation, Trading Partner Data or Usage and Performance Data other than as provided in this Agreement or specified in the Documentation.  This subsection states the sole and exclusive remedy of Dsco 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.
    • 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 be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed).
    • 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 confirming coverage and naming such other party as an additional insured.
  11. TERM AND TERMINATION
    • This Agreement commences on the Effective Date and remains in effect for a period of one year (the “Initial Term”) unless earlier terminated as set forth below.  This Agreement shall be automatically renewed for consecutive one (1) year terms (each, a “Renewal Term”) unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.  The Initial Term, together with any Renewal Term, shall be referred to herein as the Term.
    • Either party may terminate this Agreement immediately upon thirty (30) days’ notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
    • Termination For Convenience. Within the first ninety (90) days after the Effective Date, either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days’ prior written of such termination.
    • Effect of Termination. Upon termination or expiration of this Agreement for any reason:
      • Customer’s right to access or use the Services immediately ceases;
      • Except as expressly set forth in this Section 11.4(b) all rights and licenses shall terminate. Upon termination or expiration of this Agreement for any reason, Dsco shall continue to have the right to use the Customer Data for analytic, research and development purposes provided such Customer Data is used only in an anonymized and aggregated form and in a manner that does not permit the identification of Customer or any individual, and Customer shall continue to have the right to use any Usage and Performance Data that Customer made available to it during the Term provided that such use complies with the restrictions set forth in Section 4.6;
      • Within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and
      • If this Agreement is terminated for any reason other than a material breach by Dsco, any unpaid amounts allocated to the terminated portion of the Term shall be accelerated and immediately become due and payable.

The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.

  1. Miscellaneous
    • Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Utah, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Dsco’s principal place of business is located for any lawsuit filed there against Customer by Dsco arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from Utah law.  Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Platform, Documentation, or Services hereunder.
    • Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Dsco, or any products utilizing such data, in violation of the United States export laws or regulations.
    • 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.
    • 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.
    • 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 Services, Platform, and Documentation contain valuable trade secrets and proprietary information of Dsco, 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 Dsco will constitute immediate, irreparable harm to Dsco for which monetary damages would be an inadequate remedy.  In such case, Dsco will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that the Platform, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials.
    • No Assignment. Neither party shall assign, subcontract, 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, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party; 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.
    • 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, 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.
    • Dsco reserves the right to reference the Customer as a user of the Platform 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.  Consent shall not be unreasonably withheld or delayed.  The parties shall agree upon the content and timing of an initial public announcement. If the parties agree to issue a press release(s), no Confidential Information will be released as part of such press release.
    • Independent Contractors. Customer’s relationship to Dsco 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 Dsco.
    • Each party must deliver all notices or other 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.
    • Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. 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 an authorized signatory of Customer and Dsco. 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 Account services

  1. ACCOUNT SERVICES. Subject to Customer’s payment of the fees for the associated Account Services, Dsco shall provide to Customer the following services:
Description Standard Gold Premium
Price Included $12,000 $24,000
Dsco will respond to all inquiries and requests from Customer within a number of hours from receipt. 24 hours 8 hours 4 hours
Dsco will respond to all inquiries and requests from Customer’s Trading Partners within a number of hours from receipt. 24 hours 16 hours 8 hours
Dsco will facilitate an account coordination call to discuss Trading Partner onboarding, product feedback, and any other account needs. Bi-Annually Monthly Weekly
Dsco will provide the Gandalf Connection Wizard to help with seamless Trading Partner integrations. X X X
Dsco will provide an online knowledge base that contains self-help information about the Dsco platform. X X X
Dsco will provide collateral to support onboarding and migration initiatives. Standard Co-Branded
Dsco will facilitate meetings to discuss strategic product roadmap and future partnership planning. Bi-Annual Phone Calls Bi-Annual Visits
Dsco will escalate issues to telephone support, as needed and at Dsco Support’s discretion. X
Dsco will provide online training to Customer as needed. X
Dsco will participate in Customer’s onboarding webinars to Trading Partners, if needed, but no more than once a week. X
  1. WHITE GLOVE ON BOARDING SERVICES. White Glove Onboarding is proactive support processes and services during their integration and onboarding to the Dsco platform. Dsco will provide the following services to your selected Trading Partners:
  • 15 min connection kickoff call to discuss connection method type, timeline, and milestones with Trading Partner and any of their relevant 3rd party service providers. (No other phone support will be offered, just this initial call.)
  • Daily check-ins and project management to facilitate progress.
  • Access to prioritized queue for any of their support tickets that automatically gives them highest priority in our workflows and access to their dedicated onboarding specialist.
  • Verification of platform configuration and connection by onboarding specialist.
  • Coordination of cutover for migrating Trading Partners.
  • Real-time reporting and visibility to White Glove Onboarding progress.

Exhibit B

Platform Services AND TECHNICAL REQUIREMENTS

PLATFORM SERVICES Subject to the terms and conditions of the Agreement, Dsco will provide to Customer the following Platform Services:

  1. DESCRIPTION OF PLATFORM.

The Dsco Platform enables retailers and suppliers to exchange data and analytics in connection with their supply chain activities. Retailers and suppliers can invite, connect to, discover, and receive recommendations for trading partners. The core data exchange facilitates a standard schema, data set, and business workflows for items and inventory, orders and shipments, and invoices. All data is normalized into platform standardized data sets. Certain data is standardized to facilitate comparison between various systems and nomenclatures. Data processes can be scheduled and maintained, and the platform facilitates data logging, history, and change management. Data formats and structure supported are EDI, various delimited flat files, XLS files, and JSON; and data can be transformed and mapped into and out of the platform. Data can be imported to and exported from the platform via its web portal, FTP/SFTP, AS2, and API. Dashboards and both in-app and external notification functionality provides operational snapshots and error/warning alerts for processes, records, workflows, and performance. Reports can be generated and data analysis can be performed for inventory, order, and invoice data. Performance metrics are tracked for all platform accounts. The platform can calculate derivative data for use in performance and best practices analysis and recommendations.

Core Features

  • Trading Partners: Invite, Connect, Connecting Wizard
  • Inventory: Inventory Object & Workflow, Inventory Visibility, Assortments, Auto Decrement
  • Order: Order Object & Workflow, Standardized Order Lifecycle, Packing Slips, Shipping Normalization
  • Invoice: Invoice Object & Workflow, Standardize Invoice Lifecycle
  • Reports: Reports (Inventory, Order, Invoice) by Date Range, by Trading Partner, and by Status
  • Data Exchange: Standard Data Schemas/Formats/Templates, Automation Scheduling, History, Data Mapper
  • Platform Notifications: Errors & Warnings by Data Process, by Data Record, and by Standard Platform Logic/Rules
  • Analytics: Fulfillment Timing, Shipment Method Analysis
  • Portal Integration Method: Easy Manual Workflows, Upload/Download (CSV, TAB, XLS) Files
  • Advanced Integration Method: Files (EDI, CSV, TAB, XLS) via FTP/SFTP or AS2, JSON via API
  • Web Application: Operations Dashboard, Unlimited Users, Integrated Help Desk, Fulfillment Reports
  • Platform Support: Knowledgebase, Help Desk, Email Support
  1. Access.

The Services and Documentation will be made available to Customer within one business day after the Effective Date via http://support.dsco.io (for support and Documentation materials) and https://app.dsco.io (access to Platform), or such other URL(s) as Dsco may provide to Customer during the Term.

  1. TECHNICAL REQUIREMENTS. In order to use the Services, Customer will ensure that its networks, systems, and each device used to Access the Platform comply with the following technical requirements (the “Technical Requirements”):
  2. Customer will ensure that none of its personal computers (PCs), servers, or other devices that communicate(s) with the Platform are affected by any form of malicious software including, but not limited to, key loggers, rootkits, network scanners, packet sniffers, viruses, or spyware (“Malicious Software”).
  3. Customer will ensure that all Customer PCs, servers, and other devices are routinely checked for Malicious Software using every reasonable measure, including but not limited to automated scanning software.
  4. Customer will ensure that all access to the Platform by any Authorized User will be performed without any malicious intent.
  5. Customer will ensure that all switches and routers used in any Customer system(s) used to access the Platform allow communication with the Platform via secure sockets layer (TCP/IP Port 443).
  6. Customer will ensure that all root certificates are kept up to date on all PCs, servers, and other devices attached to Customer’s system(s) that communicate with the Platform.
  7. Customer shall, upon request, adjust the LAN IP Scheme(s) of Customer and its Authorized Users to avoid possible IP address conflicts with Dsco’s customer networks.
  8. Customer shall maintain a local subnet that uses network address translation (“NAT”) for facilitating all IP-based communication to and from any locations of Customer that connect with the Platform.

Changes. Customer acknowledges that changes in third-party technology and other events, such as changes in Dsco technology, may require that these Technical Requirements be modified to ensure proper operation of the Platform and continued compatibility between the Platform and Customer’s networks, systems, and devices. As reasonably required to adapt to evolving technology and technical standards, Dsco may change these Technical requirements at any time upon notice to Customer, and this Section 3 of this Exhibit B (Platform Services and Technical Requirements) shall be deemed to incorporate such updated Technical Requirements. Dsco will try to provide advance notice of such modifications but may not be able to provide advance notice for correction of Severity 1 or Severity 2 Errors (as those terms are used for Standard Support.

  1. Customer Responsibilities. It shall be Customer’s sole responsibility to perform those specific services that are necessary to establish Customer’s or Authorized Users’ use of the Platform, Documentation, and Services.
  2. Other Services. Dsco’s services outside the scope of this Agreement, if any, shall be provided pursuant to Dsco’s then-current applicable services policies and procedures, including, at a minimum, execution of Dsco’s then-current professional services agreement and payment of Dsco’s then-current fees for such services, plus Dsco’s reasonable costs and expenses incurred in providing such services.

Exhibit C STANDARD Support As part of the Platform access fees, Dsco will provide Customer and its Trading Partners with the following basic support (“Standard Support”):

  1. General. Email support with initial response time of twenty-four (24) hours for Authorized Users of both Customer and its Trading Partners during Dsco’s normal business hours (6 am to 6 pm, Mountain Time, Monday through Friday excluding holidays observed by Dsco (“Regular Hours”), unless Customer has upgraded to Tier One or Two Account Support, in which case initial response time will be as stated in the description of those services in Exhibit A.
  1. Error Correction. Dsco will use commercially reasonable efforts to correct all Errors in the Platform reported by Customer in writing to Dsco in accordance with this Section 2.  Dsco will utilize remote diagnostic procedures whenever possible for Error diagnosis and Error Correction. Dsco may not issue Error Corrections for all Errors.
  1. Definitions.  For purposes of Standard Support, the following definitions shall apply:

(i)  “Error” reproducible failure of the Platform to substantially conform to the Documentation. (ii)  “Error Corrections” means Fixes or Workarounds intended to correct Errors in the Platform. (iii) “Fix” means the repair or replacement of object or executable code to remedy an Error. (iv)  “Severity 1 Error” means an Error that is a critical outage that prevents the Platform from receiving time-sensitive, mission-critical data from Customer or one of the Customer’s partners. (v)  “Severity 2 Error” means an Error that causes in an interruption in the flow of data or requests from the Platform to Customer or to one of the Customer’s partners. (vi)  “Severity 3 Error” means an Error in which an important function is experiencing an intermittent problem or a common non-essential operation is failing consistently. (vii)  “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Platform. Other capitalized terms used but not defined in this Exhibit shall have the definitions ascribed to such terms in the Agreement.

  1. Severity 1 Errors. Dsco will promptly commence the following procedures upon notification of the Error during Regular Hours and upon confirmation by Dsco that the Error is a Severity 1 Error: Within the first four (4) business hours, Dsco will commence documenting, recreating, and will make every effort to resolve the Error within the four (4) business hour time frame. If a resolution has not been determined after the initial four (4) business hours, Dsco will mobilize a dedicated technical team to troubleshoot the problem and define solution options. Dsco will assign a Dsco representative to oversee and report on all corrective action activities. The representative will initially notify Customer of problem resolution status and will report on the status every four (4) hours thereafter, until resolved.
  2. Severity 2 Errors. Dsco will promptly commence the following procedures upon notification of the Error during Regular Hours and upon confirmation by Dsco that the Error is a Severity 2 Error:

Within the first eight (8) business hours, Dsco will commence documenting, recreating, and will make every effort to resolve the Error within the eight (8) business hour time frame. If a resolution has not been determined after the initial eight (8) business hours, Dsco will mobilize a dedicated technical team to troubleshoot the problem and define solution options. Dsco will assign a Dsco representative to oversee and report on all corrective action activities. The representative will initially notify Customer of problem resolution status and will report on the status every eight (8) hours thereafter, until resolved.

  1. Severity 3 Errors. Dsco will exercise reasonable efforts to include the Fix for the Error in a future release of the Platform.
  2. Customer Obligations.  Customer is responsible for providing prompt and sufficient information and data to allow Dsco to readily reproduce all reported Errors. If Dsco believes that a problem reported by Customer may not be due to an Error in the Platform, Dsco will so notify Customer.
  3. Exclusions. Dsco shall have no obligation to provide Error Correction or support with respect to: (i) access problems caused by Customer’s systems, devices, negligence, abuse, misapplication of the Services, or any other use of Platform other than as specified in Dsco’s Documentation; (ii) questions or problems associated with accessing Customer’s systems or devices; or (iii) any other circumstances beyond Dsco’s reasonable control, including acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party ISPs, third-party software, hardware failures, the degradation or failure of third-party connectivity services, or downtime or access degradation caused by Customer’s networks or devices or the Internet.
  4. Platform Availability Commitments. Dsco will use commercially reasonable efforts to maintain the availability of the Platform twenty-four (24) hours a day and seven (7) days a week, except during Scheduled Maintenance.  “Scheduled Maintenance” means any maintenance scheduled and undertaken by Dsco. Dsco will notify Customer via email at least forty-eight (48) hours in advance of any Scheduled Maintenance. Dsco agrees to make reasonable efforts to perform Scheduled Maintenance during historically low use hours based on average use by Customer. Dsco is permitted to conduct emergency maintenance (“Emergency Maintenance”) on an “as needed” basis, and such Emergency Maintenance shall not be considered Downtime.
  5. Downtime. Except for the exclusions described herein, if Dsco discovers (either from its own efforts or after being notified by Customer) that Customer has experienced a platform-wide Severity 1 error for more than four (4) consecutive hours or a platform-wide Severity 2 error for more than (8) consecutive hours, then such outage will be deemed downtime (“Downtime”), and Dsco will all take actions that are reasonably necessary to determine the source of the Downtime.
  6. Efforts to End Downtime. If the source of the Downtime is solely Dsco’s control, Dsco will use commercially reasonable efforts to remedy the Downtime caused by a platform-wide Severity 1 issue within four (4) hours of determining the source of the Downtime or if caused by a platform-wide Severity 2 issue within eight (8) hours of determining the source of the Downtime. If the Downtime is caused from outside of the Platform, Dsco will notify Customer and will use commercially reasonable efforts to notify the person(s) responsible for the source of the Downtime and cooperate with it/them to resolve the problem as soon as reasonably possible.
  7. Failure to Determine the Source of or Resolve Downtime. If Dsco is unable to determine the source of and remedy the Downtime within the time period specified above, where Dsco was solely in control of the source of the Downtime, Dsco will provide Customer a credit against fees payable to Dsco according to the following schedule: (i) For Severity 1 issues, one (1) day of credit for each four (4) hours of Downtime; (ii) For Severity 2 issues, one (1) day of credit for each eight (8) hours of Downtime, upon Customer’s written request within 30 days of said downtime.
  8. Customer Obligations. Customer will provide all assistance reasonably requested by Dsco in its efforts to identify the source of and take corrective action with respect to Downtime.
  9. Exceptions. Dsco shall have no responsibility with respect to any of the following: (i) Downtime due to Scheduled Maintenance or Emergency Maintenance; (ii) Downtime during periods when Customer’s account is not in good financial standing or Customer is in violation of the Agreement; (iii) Downtime due to circumstances beyond Dsco’s reasonable control, including acts of any governmental body, war, sabotage, embargo, fire, flood, 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; (iv) Downtime caused by Customer’s failure to provide reasonable assistance; or (v) Downtime due to Customer misuse of Services.
  10. Expected Unusual Volume. Customer agrees to inform Dsco within three (3) business days in advance of when Customer expects there to be unusually high levels of access to the Platform. Such notice will be made via email to support@dsco.io. Customer’s failure to give such notice will result in a waiver of any credit remedy resulting from any Downtime during such period.
  11. Customer Data Backup. Dsco will make commercially reasonable efforts to create and protect back-up copies of Customer Data on Dsco’s servers. However, Dsco shall have no liability or duty of indemnification related to lost or corrupt Customer Data. Without limiting the generality of the foregoing sentence, this limitation of liability eliminates any duty or liability on the part of Dsco relating to lost or corrupt Customer Data resulting in whole or in part from third-party software or networking goods or services or from actions or events outside of Dsco’s reasonable control. Customer has the ability to save certain of its Customer Data for additional backup security, and Customer agrees to do so on a regular basis.
  12. Improvements. During the term of this Agreement, Dsco may provide Customer with updates, upgrades, enhancements, and any other improvements that Dsco then generally offers to other subscribers to the Services.
  13. Disclaimers. Dsco shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or Authorized Users’ use of any version of the Platform or the Services other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Dsco; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services, Platform, or Documentation; (e) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment; or (f) modification, amendment, revision, or change to the Platform or the Services by any party other than Dsco or Dsco-authorized representatives.  Any use of or reliance on data or data output contained in the Platform or the Services is Customer’s or Authorized User’s sole responsibility.

Exhibit D FEES & PAYMENT

  1. Fees. Below are the published fees Dsco charges to its enterprise retail customers.
Description Inventory, Order Inventory, Order, Invoice
Mandatory Onboarding Fee (one-time) $1,000 $3,000
Annual Trading Partner Connection Fee $1,000 $1,300
Core Business Workflows    
Inventory Workflow: Inventory Visibility, Assortments, Price Tiers X X
Order Workflow: Standardized Order Lifecycle, Shipping Normalization X X
Invoice Workflow: Invoice Data & Lifecycle, Normalized Terms X
Optional Account Services Upgrades
Standard Account Services Included
Gold Account Services $12,000
Premium Account Services $24,000
White Glove On Boarding – (one-time per supplier) $1,000

* Customer must purchase Premium or Gold Account Services to purchase White Glove Onboarding

  1. Order Forms. An Order Form for the Initial Term must to be signed by Customer prior to the start of the Initial Term.  In the event the parties elect to renew the Term of this Agreement for one or more Renewal Terms, they will also execute one or more additional Order Forms, each for the provision of Services for up to one (1) year.
  2. Payment Terms. The following payment terms apply:
    1. On Boarding Fees. Payment for On Boarding Fees shall be due within thirty (30) days after the parties’ execution of the applicable Order Form for such Fees.
    2. Account Services Fees. Payment for Account Services Fees (if any) shall be due within thirty (30) days after the parties’ execution of the applicable Order Form for such Fees.
    3. Annual Trading Partner Fees. Payment for The Annual Trading Partner Fees shall be due within thirty (30) days after the parties’ execution of the applicable Order Form for such Fees. The Annual Trading Partner Fees for year one (1) of the Agreement will be calculated by multiplying the estimated number of monthly Trading Partner Connections needed by Customer during the Term by 1/12th of the Annual Trading Partner Fee. For subsequent Renewal Terms, The Annual Trading Partner Fees will be calculated by multiplying the number of Trading Partner Connections Customer has in the 12th month of the prior Term by the Trading Partner Fee, plus any estimated monthly Trading Partner Connections needed by Customer to work with additional Trading Partners for the Term.
    4. Additional Trading Partner connections. If any Annual Trading Partner Fees are insufficient to cover the Fees for active Trading Partner Connections used during the then-current Term, Dsco shall invoice Customer for amounts allocable to such additional Trading Partner Connections, based on an annual pro-rated amount for that Term.
    5. Trading Partner Fee Allocation. Fees paid for Trading Partner connections on an annual or monthly basis are not specific to particular Trading Partners. Trading Partner fees are deposited into Customer’s Trading Partner Fee account and Dsco will charge against such amounts only for those active Trading Partner connections in any given month. Unused amounts are rolled over for use in the following month or into any subsequent Renewal Terms.