Terms and Conditions for B2B Software
Introduction
These Terms and Conditions ("Agreement") constitute a legally binding agreement between your company ("Conduit Together, Inc." or "Provider") and the business entity ("Customer") accessing and using the software service ("Conduit" or the "Service").
BY ACCESSING OR USING THE SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF THE CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT.
Definitions
"Account" means the account created by or on behalf of Customer for accessing and using the Service.
"Authorized User" means Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement.
"Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Service.
"Documentation" means Provider's user manuals, handbooks, and guides relating to the Service provided by Provider to Customer either electronically or in hard copy form.
"Subscription Term" means the period specified in an Order Form during which Customer has agreed to subscribe to the Service.
Access and Use
Provision of Access
Subject to and conditioned on Customer's payment of Fees and compliance with the terms and conditions of this Agreement, Provider grants Customer a non-exclusive, non-transferable right to access and use the Service during the Subscription Term, solely for Customer's internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide to Customer the necessary passwords and access credentials to allow Customer to access the Service.
Use Restrictions
Customer shall not, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works based on the Service or any part, feature, function, or user interface thereof; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service to any third party; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (d) remove any proprietary notices from the Service; (e) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (f) attempt to bypass or breach any security mechanism or access any unauthorized area of the Service; (g) perform any penetration testing, vulnerability scanning, load testing, or similar procedures without Provider's prior written consent; (h) upload or input to the Service any information or material that contains viruses, Trojan horses, worms, or any other malicious code or programming routines that are intended to damage the Service.
Reservation of Rights
Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Service.
Customer Responsibilities
Account Setup and Security
Customer is responsible for: (a) ensuring the confidentiality of all access credentials and passwords for the Account; (b) restricting access to such access credentials and the Account to Authorized Users; (c) ensuring that all uses of the Account comply with this Agreement; (d) promptly notifying Provider of any actual or suspected unauthorized access to the Account; (e) ensuring that all Authorized Users comply with Customer's obligations under this Agreement.
Customer Systems
Customer is solely responsible for procuring, maintaining, and securing its connection to the Internet, and all equipment, software, and systems necessary to access and use the Service.
Customer Data
Customer shall ensure that its transfer and use of Customer Data in connection with this Agreement is compliant with all applicable laws and third-party rights. Customer represents and warrants that it has obtained all necessary rights, permissions, and consents to provide Customer Data to Provider as contemplated under this Agreement.
Service Levels and Support
Service Levels
Provider shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (with reasonable advance notice provided to Customer); (b) unavailability caused by circumstances beyond Provider's reasonable control.
Technical Support
Provider will provide Customer with technical support for the Service in accordance with Provider's standard support policies in effect from time to time.
Fees and Payment
Fees
Customer shall pay all fees specified in the Order Form ("Fees"). Except as otherwise specified in this Agreement or an Order Form: (a) Fees are based on Services purchased and not actual usage; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Subscription Term.
Invoicing and Payment
Provider shall invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due within thirty (30) days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information.
Late Payment
If any invoiced amount is not received by Provider by the due date, then those amounts may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
Taxes
Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
Proprietary Rights
Provider Intellectual Property
As between Customer and Provider, Provider owns and reserves all right, title, and interest in and to the Service and all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer Data
As between Customer and Provider, Customer owns all right, title, and interest in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Service to Customer, and a non-exclusive, perpetual, anonymized license to use Customer Data for Provider's internal business purposes, including to better understand how users interact with the Service, to improve the Service, and to develop new products and services.
Confidentiality
Definition of Confidential Information
"Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes Customer Data; Provider's Confidential Information includes the Service; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Protection of Confidential Information
The Receiving Party shall: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Representations and Warranties
Provider Warranties
Provider warrants that: (a) it has validly entered into this Agreement and has the legal power to do so; (b) the Service shall perform materially in accordance with the Documentation; and (c) Provider will not knowingly introduce viruses, Trojan horses, worms, or other code designed to harm, damage, or limit the functioning of Customer's systems.
Customer Warranties
Customer warrants that: (a) it has validly entered into this Agreement and has the legal power to do so; (b) the Customer Data and Customer's use of the Service does not violate any applicable law or infringe the rights of any third party; and (c) Customer has all necessary rights, consents, and permissions to provide the Customer Data to Provider as contemplated by this Agreement.
Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED "AS IS," AND PROVIDER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR- FREE BASIS.
Indemnification
Provider Indemnification
Provider shall defend, indemnify, and hold harmless Customer from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) to the extent arising from Provider's breach of Section 9.1 (Provider Warranties).
Customer Indemnification
Customer shall defend, indemnify, and hold harmless Provider from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) to the extent arising from: (a) Customer's breach of Section 9.2 (Customer Warranties); (b) any violation of law or third-party rights caused by Customer's use of the Service; or (c) Customer Data.
Indemnification Procedure
The party seeking indemnification shall promptly notify the indemnifying party in writing of any claim, suit, or proceeding for which indemnification is sought, provided that failure to provide such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent the indemnifying party is materially prejudiced thereby. The indemnifying party shall have control of the defense of any claim and all negotiations for settlement or compromise; provided that the indemnified party may appear, at its own expense, through counsel reasonably acceptable to the indemnifying party, and the indemnifying party may not settle any claim in a manner that materially affects the indemnified party's rights without the indemnified party's prior written consent.
Limitation of Liability
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
Exclusion of Damages
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Exceptions
The limitations in Sections 11.1 and 11.2 will not apply to liability arising from a party's: (a) breach of Section 8 (Confidentiality); (b) indemnification obligations under Section 10; or (c) Customer's payment obligations under Section 6.
Term and Termination
Term
This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated.
Termination for Cause
A party may terminate this Agreement for cause: (a) upon thirty (30) days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
Effect of Termination
Upon termination or expiration of this Agreement: (a) all rights granted to Customer under this Agreement will immediately terminate; (b) Customer will immediately cease all use of the Service; and (c) Customer will pay to Provider any unpaid fees covering the remainder of the Subscription Term.
Survival
The following provisions will survive the expiration or termination of this Agreement: Sections 6 (with respect to outstanding payment obligations), 7, 8, 10, 11, 12.3, 12.4, and 13.
General Provisions
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Pennsylvania, United States, without regard to its conflict of law principles.
Dispute Resolution
Any dispute arising out of or relating to this Agreement shall be settled by binding arbitration in Pittsburgh, Pennsylvania, United States in accordance with the [Applicable Arbitration Rules], and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the English language by a single arbitrator mutually agreed upon by the parties.
Notices
All notices under this Agreement shall be in writing and shall be deemed given upon: (a) personal delivery; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) when received by the addressee if sent by registered or certified mail, return receipt requested; or (d) when sent by email, provided confirmation of transmission is electronically generated and kept on file by the sending party. Notices to Provider shall be sent to the address listed on the Order Form, attention: Legal Department. Notices to Customer shall be sent to the address listed on the Order Form.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
Waiver
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Force Majeure
Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party's reasonable control and occurring without that party's fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Entire Agreement
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted.
Definitions and Interpretation
Order Form
"Order Form" means an ordering document or online order specifying the Service to be provided hereunder that is entered into between Customer and Provider, including any addenda and supplements thereto. By entering into an Order Form hereunder, a Customer agrees to be bound by the terms of this Agreement.
Effective Date
The "Effective Date" of this Agreement is the date on which Customer first accepts it or the date on which Customer first uses the Service, whichever is earlier.
Interpretation
The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." The word "or" shall be construed to have the same meaning as "and/or." The words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision. This Agreement has been negotiated by the parties and their respective counsel. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.