This End User License Agreement sets forth the terms and conditions agreed to by the Company as a condition to receiving a license to use and access Tradeshift’s proprietary web-based ‘Software-as-a-Service’ technology platform (“the Software and Services”) for processing business transactions as defined herein.
USE OF THE TRADESHIFT SERVICE
Subject to the terms and conditions of this Agreement, Tradeshift grants to Company a limited, worldwide, non-exclusive, non-transferable (except as permitted under the assignment provisions of this Agreement), right, until terminated, to use and access the Software and Services solely in connection with Company’s business processes. Company’s right to use the Tradeshift Services is subject to the Company’s agreement to and continued compliance with the covenants set forth herein. Tradeshift reserves to itself all rights to the Services and Documentation not expressly granted to Company in accordance with this Agreement.
Tradeshift Software and Services enable an enterprise, in Compliant Countries to send and receive invoices that are legally compliant pursuant to applicable laws and regulations in such country governing authenticity of origin and integrity of transfer, provided that the enterprise sending or receiving such invoice operates in a Compliant Country and in its own use of the Services complies with all other laws and regulations, including without limitations, any laws and regulations relating to the contents, storage and archiving of invoices. A list of countries (each such country a “Compliant Country”, and collectively “Compliant Countries”, which may be augmented from time to time by Tradeshift) is as follows: Australia, Austria, Belgium, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, India, Italy, Japan, Latvia, Lithuania, Luxembourg, Malaysia, Mexico, Monaco, Morocco, Netherlands, New Zealand, Norway, Peru, Poland, Portugal, Puerto Rico, Slovakia, Slovenia, Singapore, South Africa, Spain, Sweden, Switzerland, United Arab Emirates, United Kingdom and the United States. However, if Company and/or its suppliers operate in, and are subject to the laws and regulations of countries not defined herein as a "Compliant Country", use of the Services by Company and/or its suppliers may not be compliant and Company assumes all risks associated therewith. Notwithstanding the foregoing, use of the Services by an enterprise that is sending and receiving invoices or a supplier, does not imply or warrant that all other laws and regulations are or have been complied with.
Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by mutual written agreement of the parties or by applicable law, Company will not, and will not authorize third parties to: rent, lease, or use the Tradeshift Services or Documentation; use the Tradeshift Services to provide services to third parties (e.g., as a service bureau); nor circumvent or disable any security or other technological features or measures of the Tradeshift Services.
Protection against Unauthorized Use. Company will use reasonable efforts to prevent any unauthorized use of the Services and notify Tradeshift in writing of any unauthorized use that comes to Company’s attention within a commercially reasonable period of time. If there is unauthorized use by anyone who obtained access to the Services directly Company, Company will take all commercially reasonable steps to: (a) terminate the unauthorized use; and Company will (b) reasonably cooperate and assist Tradeshift with any actions taken by Tradeshift to prevent or terminate unauthorized use of the Services.
WARRANTY AND LIABILITY
EXCEPT FOR THE WARRANTY THAT THE SERVICE WILL COMPLY IN ALL MATERIAL RESPECTS TO THE SPECIFICATIONS AND SERVICE LEVELS SET FORTH, TRADESHIFT MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TRADESHIFT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TRADESHIFT DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR WILL ALWAYS BE AVAILABLE. TRADESHIFT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF COMPANY’S UNAUTHORIZED USE OF THE SOFTWARE AND SERVICE ANY PROFESSIONAL SERVICES AND RESULTING DELIVERABLES.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY COMPANY TO TRADESHIFT UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING SUCH CLAIM.
NOTWITHSTANDING THE FOREGOING, TRADESHIFT’S LIABILITY TO COMPANY SHALL NOT BE LIMITED FOR COMPANY’S DAMAGES AS A DIRECT RESULT FROM:
TRADESHIFT’S INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY IN CONNECTION WITH DELIVERY OF THE SERVICES;
TRADESHIFT’S FRAUDULENT ACTIONS;
ACTIONS BY TRADESHIFT THAT RESULT IN BODILY INJURY OT PROPERTY DAMAGE;
ASSESSMENT OF FINES BY THE EUROPEAN COMMUNITY FOR TRADESHIFT’S VIOLATION OF DATA PRIVACY LAWS.
INTELLECTUAL PROPERTY RIGHTS.
Company PropertyNothing herein shall be construed as granting any right or claim to Tradeshift in software, data or other information or materials of Company (the “Company Property”) that is made available to Tradeshift in connection with the performance of this Agreement other than a right to internally use such Company Property to the extent required for rendering the Services. Company shall retain sole and exclusive ownership of all right, title and interest in and to Company Property, including any derivatives, improvements or modifications of Company Property created by either party under this Agreement and Tradeshift shall have no ownership interest therein. Company Property shall not be used by Tradeshift other than in connection with providing the Services. Company Property shall not be disclosed, sold, assigned, leased or otherwise provided to any party other than Company. Company hereby grants Tradeshift a non-exclusive, personal, non-assignable, limited license, for the duration of the Agreement to reproduce, reference, store and use the Company Property solely in connection with rendering the Services and in accordance with the terms of this Agreement.
Tradeshift Property. Company agrees that the Software and Services, and any documentation are proprietary products and services and that all right, title and interest in and to the Software and Services, including all associated intellectual property rights, are and shall at all times remain with Tradeshift and its third party licensors. The Software contains trade secret and proprietary information owned by Tradeshift or its third party licensors and is protected by United States copyright laws and international trade provisions. Company shall treat the Software like any other copyrighted material and Company may not distribute the Software or the Documentation, electronically or otherwise, for any purpose.
Trademarks. Each Party will continue to own but grants to the other party the limited right to make reasonable of use its trademarks, trade names, trade device, service marks, or other proprietary symbols or designations ("Trademarks") or any abbreviation, contraction or simulation thereof for the sole and exclusive purpose of fulfilling its obligations under the Agreement.
SECURITY AND COMPLIANCE.
Data Ownership. Company Data shall at all times remain the sole property of Company and Company shall retain the sole and exclusive right to delete such data, or arrange for Tradeshift to remove such data from the Services at Company's reasonable cost, during or after termination of Company's use of the Services. Notwithstanding the foregoing, any data entered in the course of use of the Services by any one of Company's customers, suppliers, partners or any entity that elected to use the Services, shall remain the property of the respective party entering such data, even if Company chooses to delete its received copy of such data.
Compliance with Data Privacy Laws. Tradeshift represents, warrants, and covenants that, in its provision of the Services in Compliant Countries, it (a) does and will comply with all applicable laws, rules and regulations including all applicable data protection, privacy, and encryption security laws, rules and regulations and those industry standards that are applicable to the Services, including, if applicable, the EU General Data Protection Regulation and EU Member State implementing laws; and (b) has developed and implemented, and will maintain and monitor, a written and comprehensive information security program in compliance with these requirements and applicable laws and regulations. Upon request from time to time, Tradeshift will certify its compliance with the foregoing. Tradeshift shall require all Subcontractors to comply with all applicable laws, rules and regulations, including privacy and data security laws, rules and regulations.
Relationship. Tradeshift will be and act as an independent contractor and not as the agent or representative of Company in fulfilling its obligations under this Agreement.
Tradeshift Network Visibility. Company understands that, as of the Effective Date, they will be listed as a customer on the Tradeshift Network with their logo, a short company description and guidelines on how to connect and do business with them and entities and individuals will be able to search and find Company on the Tradeshift network and follow any Company's public updates to their profile.
Publicity. Tradeshift may refer to or identify Company, use specific Company Trademarks made available by Company for this purpose or refer to the existence of this Agreement or the general nature of the relationship between Company and Tradeshift, in advertising, publicity releases, promotional marketing or any other material (“Publicity Material”), so long as such disclosures are made in accordance with reasonable and generally accepted publicity provided that Company shall approve in writing all such references and Publicity Material prior to any such reference or use, if such disclosures include direct quotes, references or joint statements from Company representatives.
Export Compliance. Tradeshift must and will comply with all applicable export control laws and economic sanctions programs in connection with the Services being provided to Company pursuant to this Agreement and requires its customers and their suppliers to be and remain fully compliant as a condition to use the Software and Services. With respect to the delivery of hosted services and/or technical data, or the direct product thereof, Tradeshift will comply with U.S. and international export control and economic sanctions laws, including restrictions mandated by the Treasury Department’s Office of Foreign Asset Control.. Prior to Tradeshift providing any goods, software, services and/or technical data subject to export controls controlled at a level other than EAR99/AT, Tradeshift shall provide written notice to Company specifying the nature of the controls and any relevant export control classification numbers.
Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
US Law. Tradeshift Holdings, the ultimate parent company of Tradeshift will at all times comply with US Federal law and the laws of the State of California. Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Assignment. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
Non-cancellation. This Agreement will commence upon the Effective Date and continue for the initial term specified in the Agreement and cannot be cancelled unless otherwise permitted.
Termination. Either Party may terminate this Agreement if the other Party (i) the other Party ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or (ii) does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party or such longer period if so agreed in writing signed by the parties. If Company fails to timely pay any undisputed fees, Tradeshift may, without limitation to any of its other rights or remedies, suspend performance of the Tradeshift Services until it receives all amounts due.
Transition. The termination of an Order or SOW shall not result in the termination of this Agreement. If this Agreement or any SOW is terminated in accordance with this Agreement, then: (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the parties respective activities under this Agreement or the terminated SOW, including transition assistance at Tradeshift’s then-prevailing labor rates (b) Tradeshift will return to Company any and all equipment, documentation and all data, information and other materials provided by or belonging to Company (and all media of any nature containing information and data provided by or belonging to Company) and Tradeshift shall certify full compliance with this provision in writing; (c) unless the termination is by Company for cause, Company will pay to Tradeshift any undisputed fees payable for Services performed under the terminated SOW prior to the effective date of the termination (which fees shall be reasonably pro-rated for fixed fee arrangements based on the portion of work performed in accordance with this Agreement); (d) Tradeshift shall promptly deliver all Deliverables then in progress; (e) any and all liabilities accrued prior to the effective date of the termination will survive; and (f) the parties'; respective rights and obligations under any provisions which expressly or by their nature survive termination of this Agreement, will survive.Termination of this Agreement and/or any SOW shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law or in equity.
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