PLEASE READ THESE PLATFORM TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY USING THE PLATFORM (AS DEFINED HEREIN) OR ANY APP OR WEBSITE OF DS CO. DBA DSCO (“DSCO”) IN ANY WAY, INCLUDING USING, TRANSMITTING, DOWNLOADING, OR UPLOADING ANY OF THE SERVICES, FUNCTIONALITY OR RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM (AS FURTHER DESCRIBED BELOW, THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DSCO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE, PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS CUSTOMER WHEN YOU REGISTERED, AND TO BIND THAT COMPANY TO THESE TERMS OF SERVICE. THE TERM “YOU” OR “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS CUSTOMER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE PLATFORM OR THE SERVICES. IF DSCO AND CUSTOMER HAVE ENTERED INTO A WRITTEN AND PENSIGNED AGREEMENT REGARDING THE SUBJECT MATTER HEREOF, THAT AGREEMENT WILL SUPERSEDE THESE TERMS TO THE EXTENT OF ANY CONFLICT.
Use of the Services may also be subject to other agreements, posted guidelines, rules, or terms of service with Dsco (“Additional Terms”). If there is any conflict between these Terms of Service and any Additional Terms, the Additional Terms take precedence solely with respect to the specific portions of the Services to which they relate. These Terms of Service, together with any applicable Additional Terms, are referred to herein as the “Terms.” From time to time, Dsco may change the Terms, at its sole discretion, provided that if Dsco makes any substantial changes to these Terms, we notify you of the changes either by sending an email to the last email address you provided to us and/or by posting notice of the change in the Platform (as defined herein). For any existing users of the Services, any material changes to these Terms will become effective upon the earlier of thirty (30) calendar days following the dispatch of our email notice to you or thirty (30) calendar days following our posting of the notice in the Platform. If you are a new user of the Services, any changes will be effective immediately when the updated Terms are posted to the Platform. Dsco may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. Otherwise, your continued use of the Platform or the Services constitutes your acceptance of the changes. Please regularly check the Platform to view the then-current Terms.
1. SERVICES. The Services include access to and use of a platform that enables retailers and suppliers to exchange data and real-time analytics and to generate Reporting and Other Platform Output (as defined herein) in connection with certain supply chain activities (the “Platform”). Customer wishes to utilize the Services to conduct supply chain activities with one or more Trading Partners (as defined herein) who also have agreed to use the Services for such purposes, and Dsco desires to make the Services available to Customer, subject to the Terms, including the following terms and conditions. 2 212401594 v8
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 and its Authorized Users to access the Services.
2.2 “Aggregated and Anonymous Data” means aggregated, anonymized or de-identified data or information of similar form that does not permit the identification of Customer, any Trading Partner or any individual, and that cannot be used to identify the volume of business being transacted by Customer on the Platform either in the aggregate or with respect to any particular Trading Partner.
2.3 “Authorized User” means any individual who is an employee of Customer, or such other person or entity as may be authorized by Customer, to access one or more Services hereunder.
2.4 “Customer Data” means any content or data uploaded into the Platform by or on behalf of the Customer. For the avoidance of doubt, Customer Data does not include any Trading Partner Data, Usage and Performance Data, or Aggregated and Anonymous Data.
2.5 “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.
2.6 “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.
2.7 “Primary User” means an Authorized User who is designated by Customer to approve other Authorized Users to access the Platform and otherwise administer the use of the Services on behalf of Customer.
2.8 “Reporting and Other Platform Output” means any visual representation or reports generated by Customer from the Platform that result from Customer’s access to or use of the Platform in accordance with these Terms.
2.9 “Scheduled Maintenance” means any maintenance related to the Platform scheduled and undertaken by or on behalf of Dsco.
2.10 “Services” means the provision of access to the Platform and Standard Support.
2.11 “Standard Support” has the meaning set forth in Section 3.4.
2.12 “Trading Partner” means any retailer or supplier (other than Customer) (a) that has connected to Customer through use of the Platform, and (b) to which Dsco grants access to the Platform. As used herein, the term “Trading Partner” includes all of that 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 Partner’s supply chain activities for the benefit of the Trading Partner.
2.13 “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 the Customer’s Platform account. For the avoidance of doubt, Trading Partner Data does not include any Customer Data, Usage and Performance Data, or Aggregated and Anonymous Data.
2.14 “Usage and Performance Data” means any analytics or similar data collected or processed by Dsco in connection with Customer’s and its Authorized Users’ access to and use of the Platform or the Services. Such data includes, but is not limited to, performance and statistical information about the actual transactions facilitated between Customer and any Trading Partner 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 Partner Data.
3. PROVISION OF SERVICES
3.1 Access. Subject to Customer’s compliance with these Terms, Dsco shall provide to Customer the Access Protocols to allow Customer and its Authorized Users to access and use the Services for the purposes described herein. Any Trading Partner with which the Customer will interact through the Platform will be granted access to the Services under a separate agreement between the Trading Partner and Dsco.
3.2 Hosting. Dsco will provide for the hosting of the Platform 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. Dsco also will host Customer Data and, in accordance with the terms of the Dsco’s agreements with Trading Partners, the Trading Partner Data. Customer acknowledges that Customer Data may be stored and processed by Dsco in the United States or in other countries in which Dsco or its subcontractors maintain facilities.
3.3 Trading Partner Connections. Upon request from the Customer or a Trading Partner, Dsco will activate a connection between the Customer’s account and such Trading Partner’s account to enable the exchange of information between the Customer and such Trading Partner, as contemplated in the Documentation.
3.4 Standard Support. During the Term, Dsco will provide Customer with the following “standard” support services (collectively, “Standard Support”): (a) Dsco will use commercially reasonable efforts to (i) maintain the availability of the Platform twenty-four (24) hours a day and seven (7) days a week, except during Scheduled Maintenance; and (ii) notify Customer via email in advance of any Scheduled Maintenance. Dsco reserves the right to conduct unscheduled maintenance on an “as needed” basis. (b) Dsco will provide email support for Authorized Users during Dsco’s normal business hours (6 am to 6 pm, Mountain Time, Monday through Friday excluding holidays observed by Dsco). The customer will provide all assistance reasonably requested by Dsco in its efforts to identify the source of and take corrective action with any errors or problems with the Platform. (c) At its discretion, Dsco will provide updates, upgrades, enhancements, and any other improvements that Dsco may make generally available, as part of “standard” support, to other retailers and suppliers that use the Platform. Notwithstanding the foregoing, Dsco 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 Platform or the 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 Services, Platform, or Documentation; or (iii) modification, amendment, revision, or change to the Platform or the Services by any party other than Dsco or Dsco-authorized representatives.
3.5 Security. Dsco will implement and maintain commercially reasonable administrative, technical and physical safeguards designed to prevent the unauthorized access, use, alteration, or disclosure of Customer Data, provided that Dsco shall have no responsibility or liability for errors in transmission, unauthorized access by third parties, or other causes beyond Dsco’s control.
4. INTELLECTUAL PROPERTY
4.1 License Grant. Subject to Customer’s compliance with these Terms, Dsco grants to Customer a non-exclusive, non-transferable right and license during the Term, solely for Customer’s internal business purposes: (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.
4.2 Limitations. Customer agrees that it will not, and will not permit any Authorized User or another 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 these Terms; (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 (other than Customer 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 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.
4.3 Ownership. The Services, Platform, Documentation, Usage and Performance Data, Aggregated and Anonymous Data, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Dsco and its suppliers. As between the parties, all Customer Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer, and all Trading Partner Data, and all worldwide Intellectual Property Rights therein, is the exclusive property of the applicable Trading Partner. All rights not expressly granted to Customer under these Terms are reserved by Dsco and its suppliers.
4.4 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”) provided that no component will be provided to Customer that would create or cause any ‘copyleft’ restrictions to apply to any Customer application. Some of the Open Source Platform is owned by third parties and 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 an Open Source Platform. Nothing in these Terms 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 a 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.
4.5 Trading Partner Data. Through its use of the Platform, Customer may receive, obtain, or have access to certain Trading Partner Data. Unless otherwise permitted under a separate agreement between Customer and the relevant Trading Partner governing Customer’s retention, use, and disclosure of Trading Partner Data, Customer and its Authorized Users shall retain, use and disclose Trading Partner Data solely as necessary to use the Services as contemplated herein and in accordance with the Documentation and Customer may not (a) modify or alter any Trading Partner Data; (b) sell, rent, lease, or license any Trading Partner Data to others; (c) distribute or otherwise make available to third parties any Trading Partner Data other than Customer’s subcontractors or suppliers or (d) 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. FOR THE AVOIDANCE OF DOUBT, CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) DSCO IS NOT RESPONSIBLE FOR AND DOES NOT CONTROL THE TRADING PARTNER DATA; AND (II) DSCO 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.
4.6 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 the Trading Partners to which the Customer is connected, and for internal purposes, including without limitation, to facilitate in the provision of updates, support, and invoicing 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 Dsco will only disclose Usage and Performance Data to third parties, including its subcontractors and any Trading Partners connected to the Customer, for the purposes of facilitating the Services, for internal purposes as described in these Terms, to perform its other obligations and exercise its rights under these Terms and as otherwise required by law. Through its use of the Platform, Customer shall have access to certain Usage and Performance Data; the 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) sell, rent, lease, or license any Usage and Performance Data to any third parties, other than the Trading Partners to which it is connected via the Platform; (c) distribute or otherwise make available to any third parties (other than the Trading Partners to which it is connected via the Platform) any Usage and Performance Data other than as part of Reporting and Other Platform Output and as necessary for Customer’s internal business purposes; and (d) remove any copyright or other proprietary notices contained in any Usage and Performance Data.
4.7 Reporting. In addition, subject to these Terms, including, without limitation, the restrictions and limitations set forth in Section 4.5 (Trading Partner Data) and Section 4.6 (Usage and Performance Data), Dsco hereby grants to Customer a non-exclusive, non-transferable license, solely for Customer’s internal business purposes, the right to generate from the Platform during the Term, and to print, copy, upload, download, store, share with third parties, and otherwise use all Reporting and Other Platform Output during and after the Term.
4.8 Aggregated and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Dsco may obtain and use Customer Data and technical and other data about Customer’s use of the Platform and the Service to create Aggregated and Anonymous Data. Customer further agrees that Dsco may retain, use, and disclose the Aggregated and Anonymous Data for any lawful business purpose.
5. CUSTOMER DATA AND RESPONSIBILITIES
5.1 License. Customer grants Dsco a non-exclusive, worldwide, royalty-free, and fully-paid license (a) to retain, use and disclose the Customer Data as necessary for purposes of (i) providing the Services, including by making it available to third parties, including subcontractors, Trading Partners with which Customer connects in accordance with these Terms, exercising any rights and performing any obligations relating to the Services, maintaining records relating the Services, and complying with any legal or self-regulatory obligations relating to the Services, and (ii) creating Aggregated and Anonymous Data; and (b) to use Customer’s trademarks, service marks, and logos as required to provide the Services and to reference Customer as a user of the Platform in accordance with Section 12.13.
5.2 Authorized Users Access to Services. Customers may permit any of its Authorized Users to access and use the features and functions of the Services as contemplated under these Terms. The Customer is responsible for all activity that occurs by its Authorized Users in connection with the Platform and for Authorized Users’ compliance with these Terms. User IDs cannot be shared or used by more than one Authorized User at a time. The 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.
5.4 Customer Responsibility for Customer Data and Security. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer shall be responsible for delivery of all Customer Data to Dsco, and Dsco shall not be responsible for any liability or loss (including any loss of data) arising from Customer’s delivery of Customer Data through unsecured channels. The Customer and its Authorized Users also shall have access to the Customer Data once it is hosted in the Platform 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 Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, the Services, Trading Partner Data and Usage and Performance Data, and notify Dsco promptly and without undue delay of any such unauthorized access or use. The 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. For a period of one (1) year following the expiration or termination of these Terms (other than a termination resulting from Customer’s uncured breach), Dsco will use commercially reasonable efforts to maintain an archive copy of the Customer Data in the Platform 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.
5.5 Restriction on Sensitive Personal Data. Customer shall not use the Platform to collect, store, transmit or otherwise process any (a) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standard (“PCI-DSS”), (b) health, medical, patient or other protected health information regulated under the Health Insurance Portability and Accountability Act (“HIPAA”) or similar state or federal healthcare laws, (c) any information deemed to be “special categories of data” of an EU resident (as defined under the European Union General Data Protection Regulation (EU 2016/679) (“GDPR”)), (d) any information defined as “personal information” or similar under U.S. state breach notification laws, except as necessary to use the Services as contemplated herein and in accordance with the Documentation, and (e) any other personal or sensitive information subject to regulation or protection under the Gramm-LeachBliley Act, the Children’s Online Privacy Protection Act or other laws (collectively, “Sensitive Personal Data”). Dsco shall have no liability under these Terms for Sensitive Personal Data, notwithstanding anything to the contrary herein.
6. FEES. When Customer connects to any Trading Partner through the Platform under these Terms, Customer’s access to the Services and Standard Support is provided at no charge to the Customer. (If Customer has a separate agreement with Dsco for the right to access or use features and functionality beyond the Services and Standard Support described herein, Customer would be subject to the fees and terms specified in that separate agreement.) Dsco reserves the right to modify its fee structure and related charges under these Terms and to introduce new charges at any time, upon at least thirty (30) days prior notice to Customer, which notice may be provided by email.
7. CONFIDENTIALITY. 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, the “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; the Customer Data will be 8 212401594 v8 considered the Confidential Information of Customer; provided that notwithstanding anything to the contrary contained in this Section 7, Dsco shall have the right to retain, use and disclose Customer Data as set forth in Section 5.1.
8. LIMITED WARRANTY AND DISCLAIMER.
8.1 Limited Warranty. Dsco warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will materially conform to Dsco’s then-current Documentation for the Services under normal use and circumstances. Provided that Customer notifies Dsco in writing of any breach of the foregoing warranty during the Term, Dsco shall, as its sole obligation and Customer’s sole and exclusive remedy, provide Standard Support in accordance with these Terms.
8.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THESE TERMS IS MADE FOR CUSTOMER’S BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND DSCO MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES (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 OPERATION OF THE 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, INCLUDING FOR ANY SALES TAX LIABILITY IN CONNECTION THEREWITH.
8.3 Internet Delays. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DSCO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9. LIMITATION OF LIABILITY.
9.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL DSCO, OR ITS SUPPLIERS, BE LIABLE TO CUSTOMER 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 DSCO’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE PLATFORM, DOCUMENTATION, SERVICES, TRADING PARTNER 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.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF DSCO ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS SHALL NOT EXCEED ONE THOUSAND U.S. DOLLARS ($1,000.00). IN NO EVENT SHALL DSCO’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE DSCO’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF DSCO OR ITS EMPLOYEES OR AGENTS OR DEATH OR PERSONAL INJURY.
9.3 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 an exclusive remedy. The parties acknowledge these Terms are entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.4 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply to Customer.
10.1 By Dsco. Dsco will defend at its expense any suit brought against the 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 Services misappropriate any trade secret recognized under the Uniform Trade Secrets Act or infringe any United States copyright. If any portion of 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: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing, or (d) terminate the Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Dsco shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Services not in accordance with these Terms or the Documentation; (x) Dsco’s conformance to Customer’s specifications; (y) any use of the Services in combination with other products, equipment, software or content not supplied by Dsco; or (z) any modification of the Services by any person other than Dsco or its authorized agents. This subsection states the Customer’s sole and exclusive remedy for third-party infringement claims and actions.
10.2 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 by any third party based upon, resulting from, or related to any (a) improper or unauthorized use of the Services, Trading Partner Data or Usage and Performance Data by Customer or its Authorized Users; or (b) a breach or alleged breach by Customer of Section 5.3 (Customer Warranty) or Section 5.5 (Restriction on Sensitive Personal Data). This section states Dsco’s sole and exclusive remedy for such third party claims and actions.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit, and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11.1 Term. These Terms will continue to apply until terminated by either Customer or Dsco as set forth below (the “Term”).
11.2 Termination by Customer. If Customer wants to terminate its agreement with Dsco, Customer may do so by (a) notifying Dsco at any time in writing at the address set forth below; and (b) closing Customer’s account(s) for the Services, where Dsco has made this option available.
11.3 Termination by Dsco. Dsco may at any time terminate Customer’s access to the Services if Customer (a) has breached any provision of these Terms (or has acted in a manner that clearly shows it does not intend to or is unable to, comply with these Terms); (b) Dsco is required to do so by law (for example, where the provision of the Platform or Services to Customer is, or becomes, unlawful); (c) the provision of the Services by Dsco is, in Dsco’s opinion, no longer commercially viable; or (d) Dsco has elected to discontinue the Platform or the Services (or any part thereof).
11.4 Effects of Termination. Upon expiration or termination of these Terms for any reason: (a) Customer’s right to access or use the Services shall immediately cease; (b) except as expressly set forth in this Section 11, all rights and licenses shall terminate; and (c) Customer shall continue to have the right to use any Usage and Performance Data that Dsco made available to it during the Term provided that such use complies with the license restrictions set forth herein. The sections titled Definitions, Confidentiality, Limited Warranty and Disclaimer, Limitation of Liability, Indemnification, Termination and Miscellaneous of these Terms, all provisions related to intellectual property ownership (including ownership of data), and all provisions that by their terms survive termination will survive any termination of the Terms.
11.5 Disposition of Data. Dsco shall, within sixty (60) days following expiration or termination of these Terms for any reason, delete all Customer Data from Dsco’s systems, provided that (a) Dsco may retain, use and disclose Customer Data to the extent necessary to continue to provide the Services to active Trading Partners that were connected to Customer and received Customer Data during the Term and to ensure the integrity of any such Trading Partner’s Trading Partner Data, for Dsco’s accounting, tax, billing, audit and compliance purposes, to investigate fraud or unlawful use of the Services and to comply applicable law, and (b) Dsco shall retain any archived copies of Customer Data in accordance with Section 5.4. All such Customer Data retained by Dsco shall remain subject to the requirements of these Terms and the protections under Section 7 and Section 3.5.
12.1 Electronic Communications. The communications between Customer and Dsco use electronic means, whether the Customer accesses the Services or Platform, or sends Dsco emails, or whether Dsco posts notices in the Platform or on the Services or communicates with the Customer via e-mail. For contractual purposes, Customer (a) consents to receive communications from Dsco in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Dsco provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect the Customer’s statutory rights.
12.2 Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The laws of the jurisdiction where the Customer is located may be different from Delaware 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 Services hereunder.
12.3 Dispute Resolution. Any dispute arising out of or relating to these Terms or any act which would violate any provision in these Terms shall be submitted to arbitration in Utah County, Utah, before a sole arbitrator (the “Arbitrator”) selected from the list of arbitrators provided by JAMS pursuant to JAMS’ Streamlined Arbitration Rules & Procedures, and shall be conducted in accordance with the JAMS’ Streamlined Arbitration Rules & Procedures as the exclusive method of resolving such dispute; provided, however, that provisional injunctive relief may, but need not, be sought in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the Arbitrator. The final resolution of any dispute through arbitration may include any remedy or relief which the Arbitrator deems just and equitable and within the scope of these Terms, including permanent injunctive relief or specific performance or both, and the Arbitrator is hereby empowered to award such relief. Any award or relief granted by the Arbitrator hereunder shall be final and binding on the parties hereto and may be enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover from the other party all costs, expenses, and reasonable attorneys’ fees incurred in any arbitration arising out of or relating to these Terms, and in any legal action or administrative proceeding to enforce any arbitration award or relief. All arbitration proceedings shall be conducted in confidence.
12.4 Export. Customer agrees not to export, importer-export, or transfer, directly or indirectly, any U.S. technical data acquired from Dsco, or any products utilizing such data in violation of the export control laws and regulations of the United States.
12.5 Local Laws. Dsco and its suppliers make no representation that the Services are appropriate or available for use in locations other than the United States. If the Customer uses the Services from outside the United States, the Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
12.6 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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, the Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the section titled Limited Warranty and Disclaimer.
12.7 Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion.
12.8 Remedies. The parties acknowledge that any actual or threatened breach of the section titled License Grant or Restrictions will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, 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.
12.9 No Assignment; Subcontracting. These Terms, and Customer’s rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without Dsco’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Dsco may use one or more subcontractors in fulfilling its obligations hereunder. Dsco’s use of such subcontractors shall in no way relieve Dsco of any of its duties or obligations hereunder.
12.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms 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.
12.11 Independent Contractors. The 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.
12.12 Notices. The customer is responsible for providing Dsco with the Customer’s most current e-mail address and associating it with the Primary User of the Customer’s account. In the event that the last e-mail address Customer provided to Dsco is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by these Terms, Dsco’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. the Customer may give notice to Dsco at the following address: 3900 N Traverse Mountain Boulevard, Suite 300 Lehi, Utah 84043. Such notice shall be deemed given when received by Dsco by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.13 Publicity. Dsco reserves the right to reference Customer as a user of the Platform in its customer lists.
12.14 Entire Agreement. These Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters.
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3900 N Traverse Mountain Blvd., Ste. 300 Lehi, UT 84043