Last Updated: 2017
THESE TERMS OF SERVICE ARE ENTERED INTO BY AND BETWEEN CUSTOMER AND BLUE SUN VENTURES LTD., AN INDIANA CORPORATION. THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE COMPANY’S SERVICE. IF CUSTOMER REGISTERS FOR A TRIAL OF THE SERVICE, THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE, PERFORMING SOME OTHER FORM OF ASSENT, OR BY EXECUTING OR OTHERWISE AGREEING TO A SUBSCRIPTION THAT REFERENCES THIS AGREEMENT AND OF WHICH THIS AGREEMENT IS A PART, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THESE TERMS OF SERVICE. IF THE CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF THE CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
This Agreement was last updated in 2017, and is effective as of the date of Customer accepts this Agreement.
“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“Agreement” shall mean these Terms of Service.
“Company” shall mean Blue Sun Ventures Ltd., an Indiana corporation.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer” means the company or other legal entity accepting this Agreement, and Affiliates of that company or entity which has agreed to one or more Subscriptions for the Service.
“Customer Data” shall mean all electronic data or information submitted or provided by Customer or any of its Users to the Service.
“Malicious Code” shall mean any and all disabling devices including, but not limited to, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Service” shall mean the OrderNova™baking management software, platform, and affiliated websites, as selected by Customer pursuant to one or more Subscriptions.
“Start Date” shall mean the date on which Company shall make the Service available to Customer as set forth in an applicable Subscription.
“Subscription” shall mean the ordering webpage and associated documents (digital or otherwise) for Customer’s purchase or other receipt of the Service from the Company that are selected by Customer from time to time. Each Subscription is a part of this Agreement, and fully incorporated herein.
“Subscription Term” shall mean the subscription period set forth on an applicable Subscription.
“Taxes” shall mean any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes.
“Term” shall have the meaning set forth in Section 11(a).
“User” means an individual who is authorized by the Customer to use the Service, for whom the Customer has purchased a Subscription (or in the case of any Service provided by Company without charge, for whom a Service has been provisioned), and to whom the Customer (or, when applicable, Company at Customer’s request) has supplied a user identification and password (for Service utilizing authentication). Users may include, for example, the Customer’s directors, board of directors, employees, consultants, contractors and agents, and third parties with which the Customer transacts business.
a. If Customer registers for a trial Subscription on Company’s website, Company will make the Service available to the Customer on a trial basis until the earlier of (i) the end of the trial period for which Customer registered to use the Service (which trial period is determined by the Company in its sole discretion), or (ii) termination by Company in its sole discretion. Additional trial terms and conditions may appear on the trial registration webpage. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
b. ANY DATA CUSTOMER OR ITS USER(S) ENTERS INTO THE SERVICE DURING CUSTOMER’S TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. DURING THE TRIAL THE SERVICE IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY.
a. Provision of Purchased Service. Company will (i) make the Service available to Customer pursuant to this Agreement and the relevant Subscription during a Subscription Term, and (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned downtime (of which Company shall give advance notice as provided in the Service Level Agreement, attached hereto as Schedule A) or a force majeure event (see Section 11(h)). All rights not expressly granted to Customer hereunder are reserved by Company.
b. Customer Affiliates. Customer’s Affiliates may purchase and use Subscriptions to the Service subject to the terms of this Agreement by entering into a Subscription with Company hereunder.
c. Third Party Software. Customer hereby agrees and acknowledges that the Service might contain third party software that is subject to additional terms and conditions. If there are any conflicts between this Agreement and the additional terms or conditions governing third party software, those additional terms and conditions will control in connection with such third party software.
4. USE OF THE SERVICE.
a. Company Responsibilities. Company shall: (i) provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to ensure that the Service performs in material compliance with the applicable Subscription and any Company-published documentation related to the Service; and (iii) use commercially reasonable efforts to make the Service available pursuant to the Service Level Agreement attached hereto as Schedule A. If the Company provides support for the Service, then such support (if any) and the fees associated with such support, shall be listed on the relevant Subscription.
b. Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service.
c. Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party except as contemplated by this Agreement; (ii) send via or store within the Service any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iii) send via, upload to, or store within the Service any Malicious Code; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. In no event shall Customer decompile, disassemble, decode, reproduce, redesign, or reverse engineer the Service or the component parts thereof or otherwise decrypt encrypted information provided pursuant to the provision of Service.
d. Suspension or Termination of Services. The Company may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s and any User’s access to or use of all or any part of the Service without incurring any resulting obligation or liability, if: (i) the Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so, or (ii) the Company believes, in its sole discretion, that: (A) Customer or any User has failed to comply with any term of this Agreement, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Company regarding the use of the Service, (B) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Service, or (C) this Agreement expires or is terminated. This section does not limit any of the Company’s other rights or remedies, whether at law, in equity, or under this Agreement.
5. FEES & PAYMENT.
a. Service Fees. Customer shall pay all fees specified in all Subscriptions. Except as otherwise specified in the relevant Subscription, fees are based on the Service purchased and not actual usage; payment obligations are non-cancelable; fees paid are non-refundable; and the Service purchased cannot be decreased during the relevant Subscription Term. The Company may increase the fees for the Service by providing written notice (email notice shall suffice) to Customer at least thirty (30) days prior to the date that the increase will become effective.
b. Invoicing and Payment. If Customer provides credit card information to Company, Customer authorizes Company to charge such credit card for the purchased Service listed in each Subscription for the Subscription Term as set forth in Section 11(b). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Subscription. If the Subscription specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance and otherwise in accordance with the relevant Subscription. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
c. Overdue Payments. Customer’s failure to pay as set forth herein shall constitute a material breach of this Agreement. If Customer’s account is fifteen (15) days or more overdue, Company may, in addition to any of its other rights or remedies, suspend Customer’s access to the Service, without liability to Customer, until such amounts are paid in full. If such failure to pay has not been cured within fifteen (15) days of the due date, then upon written notice Company may terminate this Agreement and any or all outstanding Subscriptions. Any payments received by Company more than fifteen (15) days after a due date may be subject to a service charge on the unpaid amount of one and one-half percent (1.5%) per month, which service charge shall be immediately due and payable. Company shall be entitled to all costs and expenses, including reasonable attorney’s fees, incurred in connection with the collection of any overdue amounts owed by Customer under this Agreement.
d. Taxes. Unless otherwise stated, Company’s fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Company’s net income or property. If Company 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 Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
6. PROPRIETARY RIGHTS.
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
b. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service; (ii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Service; or (iv) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service.
c. Customer Data. As between Company and Customer, Customer owns all right, title and interest in and to all Customer Data. Customer grants Company a non-exclusive, transferable, sub-licensable, royalty-free, irrevocable, worldwide, perpetual license to (i) use, copy, perform, display, and distribute Customer Data and to create derivative works of Customer Data for the purpose of providing the Service; and (ii) use, copy, display and to create derivative works of anonymized Customer Data, by itself or in combination with any other data for (A) the purposes of improving Service; and (B) the Company’s business purposes. Notwithstanding anything to the contrary, Company shall have the right to collect (including the right to have third parties collect on Company’s behalf) and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term hereof) to (y) use such information and data to improve and enhance the Service and for other development, diagnostic, corrective, and for deriving insights in connection with the Service and other Company offerings (including the right to share and distribute information and data to third parties for the purposes identified herein), and (z) use such data solely in aggregate or other de-identified form in connection with its business.
d. Improvements. Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Service or any new programs, upgrades, modifications or enhancements developed by Company or Customer in connection with rendering the Service to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to Company all rights, title, and interest which Customer or its Affiliates may have in to such refinements and improvements. Customer shall take any and all actions reasonably requested by Company in order to effectively transfer and assign such ownership to Company or to confirm such ownership to a third party.
e. Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during the Term, either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. Except as set forth herein, neither party may use the trademarks and trade names of the other party without the prior written consent of the other party.
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (i) if disclosed orally is designated as confidential at the time of disclosure, (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (iii) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Subscriptions hereunder), the Customer Data, provision of the Service, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (D) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Service and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
d. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
e. Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of two (2) years after such expiration or termination.
8. WARRANTIES & DISCLAIMERS.
a. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
b. Disclaimer. THE SERVICE IS PROVIDED “AS IS”. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR ACCOMPANYING DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.
a. By Company. Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that Customer’s use of the Service within the scope of this Agreement infringes the intellectual property rights of such third party; provided, however, that Company shall have no such indemnification obligation to the extent such infringement: (i) relates to use of the Service in combination with other software, data products, processes, or materials not provided by Company and the infringement would not have occurred but for the combination; (ii) arises from or relates to modifications to the Service not made or authorized by Company; (iii) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Company; or (iv) arises from Company’s use of Customer Data in accordance with the terms of this Agreement.
b. By Customer. Customer shall defend, indemnify, and hold Company harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with: (i) any Claim resulting from Customer’s use of the Service other than in compliance with the terms of this Agreement; (ii) any Claim that Customer Data provided to Company infringes the intellectual property rights of a third party; or (iii) arises from Customer’s negligence or willful misconduct.
c. Procedure. As an express condition to the indemnifying party’s obligation under this Section 9, the party seeking indemnification must: (i) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (ii) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
a. Limitation of Liability. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
b. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE 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 DAMAGES.
c. Time to File Claim. NO CLAIM MAY BE BROUGHT BY CUSTOMER UNDER THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CLAIM.
11. TERM & TERMINATION.
a. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms hereunder have expired or have been terminated (the “Term”).
b. Term of Subscriptions. Subscriptions to the Service commence on the Start Date and continue for the Subscription Term specified in the applicable Subscription. Unless otherwise set forth in a Subscription, subscriptions shall be for an initial period of thirty (30) days from the Start Date of the relevant Subscription and shall automatically renew for additional, subsequent thirty (30) day periods until the relevant Subscription or the Agreement is terminated pursuant to the terms herein.
c. Termination without Cause. Company or Customer shall have the right to terminate any Subscription or this Agreement, for any reason or for no reason, by providing the other party thirty (30) days’ notice of such party’s intent to so terminate. Termination by either party pursuant to this section shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.
d. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately 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 and is not dismissed within sixty (60) days. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Term. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon any termination for cause by Company, Customer shall remain obligated to pay all fees owed for the remainder of the Term, all of which fees shall become immediately due and payable in full.
e. Customer Data. Following the expiration or termination of this Agreement, Company shall (i) convert Customer’s account to an inactive status, and (ii) have no obligation to save Customer Data.
f. Surviving Provisions. Section 1 and Sections 6 through 11 shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS.
a. Relationship of the Parties. Company shall be an independent contractor of Customer. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
b. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
c. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second (2nd) business day after mailing; (iii) the second (2nd) business day after sending by confirmed facsimile; or (iv) the second (2nd) business day after sending by email. Notices to Company shall be addressed to the attention of the contact in the most recent Subscription. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
d. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
e. Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
f. 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, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Subscriptions), without consent of the other party, 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.
g. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. The state and federal courts located in Marion County (Indianapolis), Indiana shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
h. Force Majeure. If either party is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement, that party shall give to the other party prompt notice of the force majeure with reasonably full particulars concerning it. Thereupon the obligations of the party giving notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected party shall use all reasonable diligence to remove the force majeure as quickly as possible. The term “force majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of internet collocation facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the party claiming suspension.
i. Entire Agreement. This Agreement, including all Subscriptions, 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 signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Subscription, the terms of this Agreement shall prevail unless expressly stated otherwise in the applicable Subscription. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Subscriptions) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
Schedule A – Service Level Agreement
Capitalized terms used but not otherwise defined in this Service Level Agreement (“SLA”) shall have the meaning ascribed to them in Agreement.
1. Availability and Maintenance.
a. End User Functions. The Service will be available for use pursuant to the Agreement 99.5% of the time over the course of each calendar month, subject to the exceptions noted in Section 1(b) of this SLA.
b. Exceptions to Availability. The Service may not be available for use under the following circumstances: (i) Planned Maintenance and Emergency Maintenance as described in Sections 1(c) and 1(d) below; (ii) the negligent or willful acts or omissions of Customer, its employees, contractors or agents, or Affiliates (iii) the failure or malfunction of equipment, applications or systems not controlled by Company; (iv) any third party or public network or systems unavailability; (v) circumstances or causes beyond the control of Company, including instances of force majeure; or (vi) breach of the Agreement by Customer.
c. Planned Maintenance. Planned Maintenance means performing preventive maintenance or hardware and software upgrades to the components of the Service to add features or repair errors that are not immediately affecting Customer’s use of the Service. Company shall make commercially reasonable efforts to conduct Planned Maintenance between the hours of 5PM Friday through 6PM Sunday EST.
d. Emergency Maintenance. Emergency Maintenance means performing maintenance on the software or hardware components of the Service to repair errors that are immediately affecting Customers’ use of the Service. During Emergency Maintenance the Service may be unavailable. Company may undertake Emergency Maintenance at any time deemed necessary. The Service may be down for Emergency Maintenance a total of two (2) hours per month.
e. Notification. Company will take commercially reasonable efforts to provide a minimum of forty-eight (48) hours prior notice for Planned Maintenance and two (2) hours prior notice for any required Emergency Maintenance by posting a notification on Company’s website.
2. Downtime and Credits.
Company will grant a credit allowance to Customer if Customer experiences Unavailability (as defined below) of the applicable Service in any calendar month, pursuant to the terms of this Section. Such credit allowance shall be equal to the pro-rated charges of one day of fees owed Company under an affected Subscription for each twelve-hour period of Unavailability (as defined below) or fraction thereof. For purposes of this SLA, the term “Unavailability” shall mean the number of minutes that the Service is unavailable to Customer during a given calendar month in excess of Section 1(a) above, but shall not include any downtime which is the result of any of the exceptions noted in Section 1(b) above. Upon Customer’s written request to Company, Company shall provide Customer with a written report detailing all instances of Unavailability during the previous month, including, without limitation, the start time and duration of each outage. Any credit allowances accrued by Customer may be offset against any and all payments owed to Company pursuant to the Agreement, provided that a maximum of one (1) month of credit may be accrued per month.
3. Periodic Modification.
The parties recognize that over time, technology and market conditions may affect the service levels that are feasible and that become necessary in order to maintain the Service on a competitive level in the marketplace. As a result, this SLA may be amended from time to time by Company during the Term of the Agreement to incorporate all improvements included in this SLA offered to new customers of Company. Such amendments shall be delivered by e-mail to the primary representative of Customer and shall become effective upon receipt by Customer.