Web Services Integration
Terms of Service
By signing a Product Order Form for Web Services Integration or completing an online registration or purchasing process with ServiceChannel.com, Inc., or an Affiliate of ServiceChannel.com, Inc. that is named in such Product Order Form or online flow (together with its Affiliates, “ServiceChannel”), or by accessing or using any Services, Customer (as specified in the applicable Order Document) agrees to be bound by the terms and conditions set forth in this Web Services Integration Terms of Service (“Agreement”).
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity for so long as such control continues to exist.
“Agreement” means these terms and conditions, along with any applicable Product Order Form(s) and any exhibit, amendment or addendum to any of the foregoing.
“Customer Content ” means all materials, data, interfaces and information provided by Customer to ServiceChannel for use in connection with the Services.
“Documentation” means ServiceChannel’s online user guides, documentation and help and training materials, as updated from time to time.
“ServiceChannel Content” 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.
“User” means an individual who is authorized by Customer to use a Service. Users may include, for example, Customer’s employees, consultants, contractors and agents and third parties with which Customer transacts business.
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 platform, as specified on a Product Order Form
2.2 Provision of Services. Subject to the terms and conditions of this Agreement, ServiceChannel will (a) maintain and operate the Services in accordance with industry standards, (b) make the Services and ServiceChannel Content available to Customer, (c) exercise reasonable efforts to ensure issues are responded to in accordance with the then-current ServiceChannel service levels located at https://servicechannel.com/servicechannel-contracts/, as may be amended from time to time, and excepting any unavailability caused by circumstances beyond ServiceChannel’s reasonable control, including, for example, an act of god, government or terror, flood, fire, earthquake, civil unrest, strike or other labor problem (other than one involving ServiceChannel’s employees), Internet service provider failure, delay or denial of service or attack,. 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.
2.3 Protection of Customer Content. ServiceChannel will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Content, as described in the Documentation and in ServiceChannel’s then-current Security and Disaster Recovery Addendum located at https://servicechannel.com/servicechannel-contracts/, as may be amended from time to time. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Content by ServiceChannel’s personnel, except (a) to provide Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.4 (Required Disclosure) below or (c) as Customer expressly permits in writing. To the extent applicable, ServiceChannel’s Data Protection Agreement (available at https://servicechannel.com/data-protection-agreement/) is incorporated by reference into this Agreement.
3. USE OF SERVICES AND SERVICECHANNEL CONTENT
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 Content.
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 Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and ServiceChannel Content and notify ServiceChannel promptly of any such unauthorized access or use and (d) use Services and ServiceChannel Content only in accordance with the Documentation and applicable laws and government regulations.
3.3 Usage Restrictions. Customer will not, directly or indirectly, (a) make any Service or ServiceChannel Content available to, or use any Service or ServiceChannel Content for the benefit of, anyone other than Customer and its Affiliates or User, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or ServiceChannel Content, or include any Service or ServiceChannel Content in a service bureau or outsourcing offering (c) use a Service to store or transmit infringing, libelous or otherwise unlawful or tortious material or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or ServiceChannel Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or ServiceChannel Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) access any Service or ServiceChannel Content in order to build a competitive product or service or (j) reverse engineer any Service or ServiceChannel Content (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 Form. Except as otherwise specified on a Product Order Form, (a) fees are based on Services purchased and not actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Invoicing and Payment. ServiceChannel will invoice Customer in accordance with the Product Order Form. All one-time fees are payable as set forth in ta Product Order Form. Unless otherwise stated on a 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 ACH or credit card information (if applicable), and notifying ServiceChannel of any changes to such information. If Customer provides ACH or 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 this Agreement.
4.3 Overdue Charges. 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, (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 and/or (c) ServiceChannel may charge Customer any attorneys’ fees and/or collection costs incurred by ServiceChannel in collecting such past due amounts from Customer.
4.4 Suspension of Service. If any amount owing by Customer under this or any other agreement for ServiceChannel Services is thirty (30) or more days overdue, ServiceChannel may, without limiting ServiceChannel’s other rights and remedies, suspend ServiceChannel’s services to Customer until such amounts are paid in full. ServiceChannel will give Customer at least ten (10) days’ prior notice that Customer’s account is overdue, in accordance with Section 10.2 (Notice), before suspending services to Customer.
4.5 Payment Disputes. ServiceChannel will not exercise its rights under Sections 4.3 (Overdue Charges) or 4.4 (Suspension of Service ) above only if Customer notifies ServiceChannel of a payment dispute within ten (10) days of receipt of the applicable invoice, is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If a dispute is not raised within such period, the invoice shall be deemed to have been accepted by Customer.
4.6 Taxes and Duties. ServiceChannel’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature,(including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use or value-added, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or , assessment related thereto) imposed by any governmental authority on Customer or its employees or subcontractors in any way connected with this Agreement (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. All payments due and payable to ServiceChannel by Customer under this Agreement shall be made without deduction or withholding for Taxes, except that is Customer shall be required by law to deduct or withhold any Taxes from or in respect to any amount payable by it to ServiceChannel hereunder, the amount payable by Customer shall be increased by such amount as may be necessary so that after making all required deductions or withholdings (including deductions or withholdings with respect to any additional amounts payable pursuant to this Section 4.6), ServiceChannel receives an amount equal to that which ServiceChannel would have received if no such deduction or withholding had been made. If ServiceChannel has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, ServiceChannel will invoice Customer for the Taxes and Customer will reimburse ServiceChannel that amount unless Customer provides ServiceChannel with a valid tax exemption certificate authorized by the appropriate taxing authority. If and to the extent applicable, all rights to drawback of customs duties paid by ServiceChannel to the customs authorities of the country of manufacture of any products shall belong to ServiceChannel, Customer agrees to cooperate with ServiceChannel to obtain a drawback. For clarity, ServiceChannel is solely responsible for and pay directly all corporate and individual taxes assessable against ServiceChannel measured on ServiceChannel’s net income or profit, property and employees, and not for any other Taxes, including without limitation any sales taxes in connection with services or materials provided to Customer by third parties, including Service Contractors, or any fees or other amounts payable to or requested by any third parties in connection therewith.
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 Content, 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 Content. Customer hereby grants to ServiceChannel and its Affiliates a worldwide, non-exclusive, royalty-free license to host, use, copy, modify, transmit any Customer Content as necessary for ServiceChannel to provide the Services. Customer reserves all respective right, title and interest in and to the Customer Content including all respective intellectual property rights therein or related thereto. Notwithstanding the foregoing, ServiceChannel and its Affiliates shall have the right to compile, use, distribute, copy, incorporate, report on, create derivatives of and otherwise benefit from Deidentified Data for ServiceChannel’s business purposes, including but not limited to assessing the operation and organizational effectiveness of the ServiceChannel website or Services (including benchmarking, performance and usage), for use in ServiceChannel’s or its Affiliates’ existing or future products or services and marketing, internal or external reporting and/or management purposes, and any other rights to use or otherwise benefit from Customer Content as agreed to by Customer through the Services. “Deidentified Data” means data submitted to or collected or generated by ServiceChannel or its Affiliates in connection with Customer’s use of the Service, but only in a deidentified or anonymized form that is not linked specifically to Customer.
5.3 Feedback. Customer hereby assigns and agrees to assign to ServiceChannel all right, title and interest in and to any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services.
6. CONFIDENTIAL INFORMATION
6.1 Definition. 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.
6.2 Confidentiality. 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.
6.3 Return of Confidential Information. 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.
6.4 Required Disclosure. 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. REPRESENTATIONS AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 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
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues for the Subscription Term set forth on a Product Order Form unless earlier terminated as set forth below. The Subscription Term commences on the Subscription Term Start Date. This Agreement 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 fifteen percent (15%), effective upon renewal and thereafter.
9.2 Termination. Either 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 a 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.
9.3 Surviving Provisions. Sections 1, 3.3, 5-10 and any accrued rights to payment shall survive any termination or expiration of this Agreement.
10. GENERAL PROVISIONS
10.1 Relationship of Parties. 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.
10.2 Notice. 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.
10.3 Export Control. Customer shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, and any other applicable U.S. and foreign agency or authority.
10.4. Headings. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.
10.5 Assignment. 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.
10.6 Governing Law. 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.
10.7 Attorneys’ Fees. 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.
10.8 Severability. 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.
10.9 Entire Agreement. This Agreement together with the exhibits hereto, 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.
10.10 Waiver. 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.
10.11 Modification. SERVICECHANNEL MAY UPDATE THE TERMS OF THIS AGREEMENT OR POST AN UPDATED AGREEMENT ON THE SERVICECHANNEL WEBSITE AT ANY TIME, AND, TO THE EXTENT PERMITTED BY LAW, SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AND (IF LEGALLY PERMITTED), SHALL APPLY RETROACTIVELY. CUSTOMER AGREES TO THE MODIFIED AGREEMENT BY CONTINUING TO USE THE SERVICES.
Date Last Updated: October 6, 2023