Terms & Conditions: Provider

v.20160617

1. DEFINITIONS

“Customer Materials” means all materials, data, interfaces and information provided by Customer to ServiceChannel for use in connection with the Services. “ServiceChannel Materials” means materials, data, interfaces and information, including but not limited to any computer software (in object code and source code form), methodologies, or processes developed or provided by ServiceChannel. “Services” means the web integration products and services that are ordered by Customer and specified on a Product Order Form.

2. SERVICECHANNEL RESPONSIBILITIES

2.1 Overview. ServiceChannel will provide the Services, including enabling Customer to use the Web Service Integration, which allows Customer’s system to automatically send and/or receive updates from approved clients on ServiceChannel websites, as specified on the Product Order Form.

2.2 Provision of Services. Subject to the terms and conditions of this Agreement and pursuant to the applicable Product Order Form(s), ServiceChannel will (a) maintain and operate the Services in accordance with industry standards, (b) make the Services and ServiceChannel Materials available to Customer, (c) exercise reasonable efforts to ensure issues are responded to within two (2) to four (4) hours, and, (d) if specified on a Product Order Form, schedule monthly maintenance, upgrades and required repairs in a manner and at a time that will reasonably minimize disruption to Customer’s use of the Services. Notwithstanding anything to the contrary herein, ServiceChannel reserves the right to modify or discontinue maintenance or support of an integration on at least thirty (30) days prior notice to Customer

3. USE OF SERVICES AND MATERIALS

3.1 Access and Use. Subject to the terms and conditions of this Agreement, ServiceChannel hereby grants to Customer a non-exclusive, nontransferable (except as otherwise set forth herein) license to access and use the Services, including to post, access, display, print and download Customer Materials.

3.2 Customer Responsibilities. Customer will (a) be responsible for users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Materials, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and ServiceChannel Materials and (d) use Services and ServiceChannel Materials only in accordance with the documentation and applicable laws and government regulations.

3.3 Usage Restrictions. Customer will not, directly or indirectly, (a) sell, resell, license, sublicense, distribute, rent or lease any Service or ServiceChannel Materials, (b) knowingly use a Service to store or transmit malicious code, (c) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (d) attempt to gain unauthorized access to any Service or ServiceChannel Materials or its related systems or networks, (e) permit direct or indirect access to or use of any Service or ServiceChannel Materials in a way that circumvents a contractual usage limit, (f) copy a Service or any part, feature, function or user interface thereof, (g) access any Service or ServiceChannel Materials in order to build a competitive product or service or (h) reverse engineer any Service or ServiceChannel Materials (if such restriction is permitted by law).

4. FEES AND PAYMENT FOR SERVICES

4.1 Fees. Customer will pay all fees specified in Product Order Forms. Except as otherwise specified herein or in a Product Order Form, fees are based on Services purchased and not actual usage, and payment obligations are non-cancelable and fees paid are non-refundable. ServiceChannel’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.

4.2 Invoicing and Payment. Unless otherwise stated in an applicable Product Order Form, ServiceChannel will provide Customer with an invoice reflecting the fees due for Services rendered in the upcoming month. All one-time fees are payable as set forth in the Product Order Form. Unless otherwise stated in the Product Order Form, invoiced charges are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to ServiceChannel, including valid credit card information (if applicable), and notifying ServiceChannel of any changes to such information. If Customer provides credit card information to ServiceChannel, Customer authorizes ServiceChannel to charge such credit card for all Services for the applicable initial subscription term(s) and any renewals thereof, in accordance with the Product Order Form(s) and this Agreement. If any invoiced amount is not received by ServiceChannel by the due date, then without limiting ServiceChannel’s rights or remedies, (a) those charges may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) ServiceChannel may, without limiting ServiceChannel’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements through the remaining term(s) thereof so that all such obligations become immediately due and payable.

5. PROPRIETARY RIGHTS AND LICENSES

5.1 Reservation of Rights. ServiceChannel and its licensors reserve all respective right, title and interest in and to the Services and ServiceChannel Materials, including all respective intellectual property rights therein or related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2 License to Customer Materials. Customer hereby grants to ServiceChannel a worldwide, non-exclusive, royalty-free license to host, use, copy, modify, transmit any Customer Materials as necessary for ServiceChannel to provide the Services. Customer reserves all respective right, title and interest in and to the Customer Materials, including all respective intellectual property rights therein or related thereto.

6. CONFIDENTIAL INFORMATION

Each party agrees that the business, technical and financial information, including without limitation all software, source code, inventions, algorithms, know-how and ideas, that is designated in writing as confidential, or is disclosed in a manner from which a reasonable person would understand the confidential nature thereof, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation or (d) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, independent contractors and clients. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and the receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.

7. DISCLAIMERS

NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL SERVICECHANNEL HAVE ANY LIABILITY TO CUSTOMER FOR ANY (A) LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, (B) AGGREGATE AMOUNTS IN EXCESS OF THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE PREVIOUS THREE (3) MONTHS, OR (C) ANY OTHER MATTER BEYOND ITS REASONABLE CONTROL, REGARDLESS OF WHETHER AN ACTION IS IN CONTRACT OR TORT AND THE THEORY OF LIABILITY.

9. TERM AND TERMINATION

This Agreement commences on the Effective Date and continues until all Product Order Forms hereunder have expired or have been terminated. The Subscription Term commences on the Contract Start Date. Except as otherwise specified in a Product Order Form, subscriptions to Services will automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any automatic renewal term will automatically increase to an amount equal to pricing during the immediately prior term plus an additional ten percent (10%), effective upon renewal and thereafter. Sections 1, 3.3, 5-10 and any accrued rights to payment shall survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Notices under this Agreement shall be sufficient only if in writing and personally delivered, delivered by a major commercial rapid delivery courier service or mailed by certified or registered mail, return receipt requested to a party at the address first set forth herein or as amended by notice pursuant to this subsection. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by Customer without the prior written consent of ServiceChannel. Any assignment in violation of this provision is void and without effect. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto. This Agreement shall be governed by and construed under the laws of Delaware and the United States without regard to conflicts of laws provisions thereof. Any action, suit or proceeding instituted hereunder or related hereto shall be maintained in the courts of the State of Delaware for the County of New Castle, which courts shall have exclusive jurisdiction for such purposes. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and attorneys’ fees. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. This Agreement together with the exhibits hereto and any Product Order Form(s), constitute the entire agreement between the parties relating to the subject matter hereof and supersede all proposals, letters of intent, memoranda of understanding, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry custom. No provision of, right or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing duly executed by both parties. This Agreement may only be modified by a Product Order Form or an instrument in writing duly executed by both parties, making specific reference to this Agreement and the clause to be modified. This Agreement may be executed in one or more counterparts, all of which shall constitute the same instrument. Execution and delivery of this Agreement may be evidenced by electronic signature, or delivery of an executed and scanned PDF copy via electronic mail.