This Software as a Service Agreement, together with 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., dba Dsco, a Delaware corporation (“Dsco”), and the Customer (“Customer”). In consideration of the mutual promises contained herein, the parties hereby agree to the following:
1. BACKGROUND. Dsco has developed, and hosts, operates and supports an online platform that enables retailer customers and trading partners 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.
2.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer, any of Customer’s Authorized Users (including a Primary User), and Customer’s designated Trading Partners (and their Authorized Users) to access the Services.
2.2 “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 Subscription Term and for which Customer obtains the right to access and use through an accepted Order Form and the payment of additional fees.
2.3 “Affiliates” means, with respect to either party, an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such party, where “control” means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise, and/or (ii) ownership of at least fifty percent (50%) of the voting stock, shares or interests of any such entity.
2.4 “Authorized User” means any individual who is an employee of Customer or one of its Trading Partners, or such other person or entity as may be authorized by Customer or any of Customer’s Trading Partners, to access one or more Services pursuant to Customer’s rights under this Agreement.
2.5 “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.
2.6 “Customer 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.
2.7. “Fees” means the fees specified for the Services selected by Customer under an accepted Order Form, which, unless otherwise agreed by the parties in the Order Form, shall be based on the pricing set forth in the PSP in effect at the time Order Form is executed.
2.8 “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.
2.9 “Intellectual Property Rights” “Order Form” means the form (including any attachments and exhibits thereto) evidencing the initial subscription for Customer’s access to and use of the Platform and any subsequent order form (including any attachments and exhibits thereto) submitted online or in written form and specifying, among other things, the number of Trading Partner connections 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.
2.10 “Intellectual Property Rights” “Platform” means the software, as more fully described in the applicable PSP, that is licensed by Customer under one or more 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 in the version of the PSP attached to Order Form as Exhibit A.
2.11 “Intellectual Property Rights” “Primary User” means an Authorized User of Customer or a Trading Partner who is designated by Customer or the Trading Partner, as applicable, to approve other Authorized Users to access the Platform and otherwise administer the use of the Services by Customer or Trading Partner (as the case may be).
2.12 “PSP” means Dsco’s “Product, Services and Pricing” document, the current version of which is attached to Order Form as Exhibit A. Any Order Form executed under this Agreement subsequent to the initial Order Form shall attach and incorporate by reference the version of the PSP then-effect.
2.13 “Reporting and Other Platform Output” means any audio, visual, digital, or other output, displays, and content as may result from Customer’s access to or use of the Platform in accordance with the terms of this Agreement, which may include Customer Data, Usage and Performance Data, and/or Trading Partner Data.
2.14 “Scheduled Maintenance” means any maintenance related to the Platform scheduled and undertaken by or on behalf of Dsco.
2.13 “Services” means the provision of access to the Platform, Support and Account Services, and, if applicable, Implementation Services (as set forth in the PSP as then in effect) and any other services that may be purchased by Customer through an Order Form.
2.13 “Support and Account Services” means the technical support services, Platform service level commitments, and account services described in Exhibit B of the Order Form.
2.14 “Subscription Term” means the period identified in an Order Form during which Customer’s Authorized Users are authorized to use or access the Platform, pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 11.
2.15 “Trading Partner” means any business or entity (a) connected by Customer to do business with Customer through the Platform, (b) that agrees to be bound by the Trading Partner Terms of Service or such other legally binding agreement with Dsco pursuant to which it may use the Platform, 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 and Trading Partner.
2.16 “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.
2.17 “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.
2.18 “Usage and Performance Data” means any data derived from Customer Data, Trading Partner Data and/or the use of the Platform or 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 Partner Data from which it is derived.
3. PROVISION OF SERVICES
3.1 Access. Any Affiliate of Customer may access the Services under the terms of this Agreement, provided each such Affiliate is identified in the applicable Order Form as a recipient of the Services described therein. Customer shall remain fully responsible for any such Affiliate’s access and use of the Services and any failure by the Affiliate to comply with the obligations of Customer under this Agreement. For purposes of this Agreement, any Affiliate identified on an Order Form shall be deemed to be “Customer” for purposes of the specific Services ordered under the applicable Order Form. Subject to Customer’s payment of the Fees agreed to in an accepted Order Form, Dsco will provide the Services to Customer (including, for the avoidance of doubt, any of its Affiliates identified on the applicable Order Form) 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 Access Protocols to allow Customer and its Authorized Users (including the Primary User) to access the Services. 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 or another legally binding agreement with Dsco. 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.
3.2 Implementation Services. To the extent applicable, Dsco shall provide Implementation Services pursuant to and in accordance with the PSP then in effect and applicable Order Form.
3.3 Hosting. Dsco shall, at its own expense, 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 Trading Partner Terms of Service or another legally binding agreement with Dsco, the Trading Partner Data.
3.4 Trading Partner Connections. Subject to Customer’s payment of the Fees as required by a particular Order Form, Dsco will activate all Trading Partner connections designated by Customer. Such Trading Partner connections will enable the exchange of information between Customer and its Trading Partners, as contemplated in the Documentation. Customer acknowledges and agrees that Dsco offers each Trading Partner different options for integrating with the Platform. In no event shall Customer require any Trading Partner to integrate with Dsco using a particular method, schema or file format.
Support Services. Included in the Platform access fees are Dsco’s Support and Account Services. Subject to Customer’s payment of the Fees for the Platform, Dsco will provide Customer with Support and Account Services in accordance with the terms herein.
3.5 Information Security. In providing the Services and handling Customer Data, Dsco shall adhere to the Information Protection, Security and Privacy Guidelines attached hereto as Exhibit C (“Security Guidelines”).
4. INTELLECTUAL PROPERTY
4.1 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: (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. In addition, subject to the terms and conditions of this Agreement, including, without limitation, the restrictions on Customer’s use and disclosure of Usage and Performance Data and Trading Partner Data set forth in Sections 4.5 and 4.6, 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.
4.2 Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the 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 (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, Reporting and Other Platform Output (other than any Customer Data or Trading Partner Data contained therein), 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. All Trading Partner Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of the applicable Trading Partner and its suppliers. All rights not expressly granted to Customer under this Agreement are reserved by Dsco and its suppliers.
4.4 Open Source Platform. Certain items of software may be provided to Customer with or in 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 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.
4.5 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) 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 as part of Reporting and Other Platform Output and as necessary for Customer’s internal business purposes; 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 its Trading Partners, 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 that Dsco may only disclose raw Usage and Performance Data to its subcontractors and any connected Trading Partners for the purpose of facilitating the Services or as otherwise required by law. Any other disclosure of Usage and Performance Data to a third party by Dsco must be made in an anonymized and aggregated form and in a manner that does not permit the identification of Customer, any Trading Partner or any individual. Through its use of the Platform, Customer shall have access to certain of the Usage and Performance Data; Customer may use and copy the Usage and Performance Data (as incorporated in any Reporting and Other Platform Output or on a standalone basis) 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 its Trading Partners; (c) distribute or otherwise make available to third parties (other than Trading Partners) 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.
5. FEES AND EXPENSES; PAYMENTS
5.1 Fees. 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). In the event that Customer wishes to obtain access to Additional Features during the Term, Customer shall be required to pay additional fees associated with the Additional Features. Except as otherwise provided in an accepted Order Form, all Fees are due and payable to Dsco in advance. Dsco shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
5.2 Taxes. 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 arising from Customer’s failure to pay the taxes for which it sis responsible hereunder.
5.3 Expenses. Customer shall reimburse Dsco for all costs that are pre-approved by Customer in writing, 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 may bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
5.4 Payment. Except as otherwise expressly set forth 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 the PSP in effect when the applicable Order Form was executed. 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.
5.5 Sales Tax Nexus. Customer acknowledges and agrees that it may be responsible for sales or other taxes as a result of its transactions with suppliers, retailers, and/or customers, which are facilitated through the Platform. Dsco encourages its retailers and suppliers to consult a trusted advisor with regard to potential tax liability under applicable laws.
6. CUSTOMER DATA AND RESPONSIBILITIES
6.1 License. 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 and in accordance with Section 12.8. Dsco may only disclose raw Customer Data to its subcontractors and any connected Trading Partners for the purpose of facilitating the Services; any other disclosure of Customer Data, which may be made only for Dsco’s internal business purposes, must be made in an anonymized and aggregated form and in a manner that does not permit the identification of Customer, any Trading Partner or any individual.
6.2 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.
6.3 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 further represents and warrants that any Customer Data hosted by Dsco as part of the Services shall not contain any viruses, worms or other malicious computer programming codes intended to damage or disable any network, systems or data of Dsco or any other third party.
6.4 Customer Responsibility for 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 such Customer Data through unsecure channels. Customer and its Authorized Users also shall have access to the Customer Data once 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 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 this Agreement (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.
6.5 Unexpectedly High 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 [email protected]
6.6 No Pass-through of Fees. Customer shall not in any way characterize in any fashion, or otherwise suggest or imply, that any amounts charged by it to any of its partners or customers are attributable to, result from, or are “passed through” on account of, any Fees charged by Dsco.
7. WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. Dsco warrants to Customer that 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 the Support and Account Services to correct the non-conformance so the Platform operates in accordance with the foregoing performance warranty at no additional cost to Customer. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. 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 its Authorized Users’ use of any version of the Platform or the Services other than the then-current unmodified version provided to Customer; (b) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services, Platform, or Documentation; or (c) modification, amendment, revision, or change to the Platform or the Services by any party other than Dsco or Dsco-authorized representatives.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE 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. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 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, INCLUDING FOR ANY SALES TAX LIABILITY IN CONNECTION THEREWITH. 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
8.1 Types of Damages. WITH THE EXCEPTION OF EITHER PARTY’S INDEMNICATION OBLIGATIONS AND BREACHES OF SECTION 9 (CONFIDENTIALITY), TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR 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.
8.2 Amount of Damages. WITH THE EXCEPTION OF EACH PARTY’S INDEMNICATION OBLIGATIONS AND BREACHES OF SECTION 9 (CONFIDENTIALITY), 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 THAT ARE ALLOCABLE TO THE YEAR OF THE SUBSCRIPTION TERM IN WHICH THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. 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.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.1 Confidential Information. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain non-public information regarding the Disclosing Party’s business, technology, products, or services that is marked or designated by the Disclosing Party as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure (collectively, “Confidential Information”). Without limiting the generality of the foregoing, the 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 considered the Confidential Information of Customer; provided that notwithstanding anything to the contrary contained in this Section 9, Dsco shall have the right to disclose raw Customer Data to its subcontractors and any connected Trading Partners for the purpose of facilitating the Services, and to the extent such Customer Data is in an anonymized and aggregated form and shared in a manner that does not permit the identification of Customer, any Trading Partner or any individual, to any third party as permitted hereunder.
9.2 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 and subcontractors 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.
9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose 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.
(a) 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 Subscription 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.
(b) 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.
(c) Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (ii) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. An indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will an indemnifying party settle any such action without the written consent of the indemnified party (which consent will not be unreasonably withheld or delayed).
10.2 Insurance. Each party shall maintain, at its own cost, general liability and other appropriate insurance in an amount appropriate to the nature and scope of its services, products and business, which is reasonable and customary in their respective industries for companies of comparable size and activities. Each party shall, upon the written request of the other party, provide the other party with a certificate of insurance confirming coverage and naming such other party as an additional insured.
11. TERM AND TERMINATION
11.1 Term. This Agreement commences on the Effective Date and remains in effect until all Subscription Terms have expired or been terminated (the “Term”).
11.2 Subscription Terms. Subscriptions for access to the Services commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein.
11.3 Termination. Either party may terminate this Agreement immediately upon thirty (30) days’ written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
11.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason:
(a) Customer’s right to access or use the Services immediately ceases;
(b) Except as expressly set forth in this Section 11.5 all rights and licenses shall terminate;
(c) Dsco shall continue to have the right to use the Customer Data for analytic, research and development purposes; provided, however, Dsco may only disclose raw Customer Data to its subcontractors and any connected Trading Partners for the purpose of facilitating the Services. Any other disclosure of Customer Data to a third party by Dsco must be made in an anonymized and aggregated form and in a manner that does not permit the identification of Customer, any Trading Partner or any individual;
(d) 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 restrictions set forth in Section 4.6; and
(e) 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 then applicable Subscription 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, all provisions related to intellectual property ownership (including ownership of data), and all provisions that by their terms survive termination, will survive expiration or termination of this Agreement for any reason.
11.5 Termination Assistance. Provided that this Agreement has not been terminated by Dsco due to Customer’s failure to pay any undisputed amount due hereunder, Dsco will provide to Customer, at Customer’s cost and expense, assistance reasonably requested by Customer in order to effect the orderly transition of the Services to Customer or to a successor service provider (such assistance shall be known as the “Termination Assistance Services”) during the ninety (90) calendar day period prior to expiration or termination, and the one-hundred eighty (180) calendar day period following expiration or termination (such period shall be known as the “Termination Assistance Period”). Such Termination Assistance Services shall be subject to Customer’s payment of fees for continued access to the Platform and Services during the Termination Assistance Period, as well as the Termination Assistance Services themselves, all at the rates in effect as of the expiration or termination of the Agreement.
12.1 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 Delaware, without giving effect to any conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where 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 Platform, Documentation, or Services hereunder.
12.2 Export. 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.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the 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. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
12.6 No Assignment. Neither party shall assign, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in 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.
12.7 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.
12.8 Publicity. 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.
12.9 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.
12.10 Notices. Customer is responsible for providing Dsco with Customer’s most current e-mail address and associating it with the Primary User of Customer’s account. For administrative or operational notices, Dsco may provide notice via email to the email address associated with the Primary User. Each party must deliver all legal notices or communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party in accordance with this section.
12.11 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 authorized signatories 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.
12.12 Subcontractors. 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, and Dsco shall remain fully responsible for the performance of its subcontractors’ obligations under this Agreement to the same extent as if Dsco had performed such obligations.
READY TO DSCOVER THE DIFFERENCE?