Terms of Service
These Terms & Conditions (the “Terms & Conditions”) set forth the agreement between BIZSLATE and Customer (the “parties” and each a “party”) relating to the Hosted Services and are incorporated into and part of the Hosted Services and Software License Agreement entered into by the parties. (the “Agreement”) If there is a conflict between the Terms & Conditions and any schedule or statement of work, the Terms & Conditions shall govern unless explicitly stated otherwise in the schedule or statement of work.
1. RULES OF INTERPRETATION.
(a) The term “including” (in all of its forms) means “including, without limitations” unless expressly stated otherwise.
(b) Any headings set forth in this Agreement are solely for convenience or reference and do not constitute a part of this Agreement, nor do they affect the meaning, construction or effect of this Agreement.
(c) All references to a number of days mean calendar days, unless expressly stated otherwise.
(d)Any contractual terms included in documents exchanged between the Parties, such as invoices, receipts, bills of lading, documents of title or other commercial documents are void and of no effect. Any course of dealing at variance with the terms of this Agreement will not be deemed to amend or waive either party’s right to insist on strict performance in accordance with the terms of the Agreement.
(e) The parties understand and agree that this Agreement governs BIZSLATE’s provision of Hosted Services, such as the BIZSLATE Application, and any consulting or professional development services will be governed by a separate schedule or statement of work.
2. SERVICE; LICENSE.
BIZSLATE shall provide a hosted computer application software system for Customer’s ERP needs and resource management (“BIZSLATE Application”) which allows Customer to organize, manage and track resources, data and information. On or before the Startup Date (as set forth above), BIZSLATE will begin startup implementation of the Hosted Services and the BIZSLATE Application for Customer (the “Startup Implementation”). BIZSLATE hereby grants to Customer, for the Term of this Agreement, a limited, non-exclusive and non-transferable license to allow authorized Customer users (“Users”) to access the BIZSLATE Application through the Internet web-site located at the URL www.bizslate.com, or such other URL as identified by BIZSLATE from time to time (“BIZSLATE Site”). BIZSLATE may terminate any User’s access to the BIZSLATE Application if BIZSLATE, in its sole discretion, determines that the User has exceeded authorized access to the BIZSLATE Application or has taken any action that would be considered a violation of this Agreement or the terms of any schedule or statement of work entered into by the parties. Additional Users may be added after the Agreement Effective Date, subject to Section 12(b). Users may be substituted. Customer may only allow the number of Users set forth above to access the BIZSLATE Application, unless Customer notifies BIZSLATE by sending a request to firstname.lastname@example.org, notifying BIZSLATE that Customer wishes to substitute or add Users.
3. OWNERSHIP OF BIZSLATE IP.
(a) Except as set forth in Section 4 below, the parties agree that BIZSLATE shall exclusively own and retain all Intellectual Property Rights in and to the “BIZSLATE IP”, defined as (i) the BIZSLATE Application, (ii) all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, and concepts, any of which existed prior to the Effective Date of this Agreement, whether created by or for BIZSLATE (“Pre-Existing Materials”), including but not limited to BIZSLATE’s business, templates, documents, materials, technology, trademarks, software, source code, website(s), modifications, updates and enhancements, and (iii) any and all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, and concepts that Customer or BIZSLATE develops during the Term of this Agreement that are derived from or relate to the BIZSLATE Application or Pre-Existing Materials. To the extent BIZSLATE is not automatically deemed to be the author, inventor or owner of any BIZSLATE IP, Customer agrees to assign and hereby assigns, all right, title and interest it may have in any BIZSLATE IP to BIZSLATE, and agrees to execute all documents necessary to effect BIZSLATE’s full ownership in and to all BIZSLATE IP. Customer appoints BIZSLATE its attorney in fact to execute such documents. This appointment is coupled with an interest and is therefore irrevocable. The term “Intellectual Property Rights” means copyrights, trademarks, service marks, patents, applications and registration for each of the preceding, trade secrets, moral rights, contractual rights of non-disclosure and/or any other intellectual property or proprietary rights, however arising, throughout the world.
(b) LICENSE GRANT. BIZSLATE grants Customer a non-exclusive, non-transferable, limited license to use the BIZSLATE IP in accordance with the terms of this Agreement, and only for the purpose of utilizing the Hosted Services.
(c) Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to the BIZSLATE IP. Except as otherwise expressly allowed in this Agreement, Customer shall not (i) use, distribute, sell, sublicense or disclose any of the BIZSLATE IP without written authorization of BIZSLATE; or (ii) reproduce, modify, prepare derivatives of, reverse assemble, reverse compile or otherwise reverse engineer the BIZSLATE IP.
(d) Nothing herein will be construed as granting Customer, by implication, estoppel or otherwise, any license or other right to any Intellectual Property Rights of BIZSLATE or its licensors except for the rights and license expressly granted herein. BIZSLATE and its licensors retain all rights not so granted.
(e) Customer acknowledges and agrees that the source code of BIZSLATE Application constitutes both “Confidential Information” and “BIZSLATE IP,” as defined in this Agreement. Subject to the limited license granted to Customer by BIZSLATE under this Agreement, BIZSLATE reserves all of its right, title and interest in BIZSLATE Application and any and all Intellectual Property Rights (as defined in this Agreement) in or in connection with the BIZSLATE Site and BIZSLATE Application. BIZSLATE retains exclusive editorial control over the BIZSLATE Site and may make administrative or operational decisions it deems necessary or helpful in the normal course of business.
4. CUSTOMER RIGHTS.
(a) Customer exclusively owns and retains all right, title, and interest in and to (i) its business, technology, trademarks, and websites and all other Intellectual Property Rights in materials that: (A) have been developed by Customer prior to the Effective Date of this Agreement; (B) are provided by Customer, its Affiliates, or its or their Representatives to BIZSLATE in connection with this Agreement or the Hosted Services (other than BIZSLATE IP); and (ii) any and all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, and concepts that Customer develops independently of any collaboration with BIZSLATE, that are not derived from or that do not directly relate to the Hosted Services, or Pre- Existing Materials, and that relate to Customer’s properties or data; and (iii) any information or data entered into the BIZSLATE Application by Customer, its Affiliates, or its or their Representatives (as defined below) or information or data processed by the BIZSLATE Application, including any output or reports (all of the foregoing and “Data” (as defined below) are collectively, “Customer Materials”). Customer exclusively owns and retains the Customer Materials and all Intellectual Property Rights, title, and interest in and to each of the Customer Materials. Customer grants to BIZSLATE a non-exclusive, revocable, fully paid license to use, reproduce, distribute and prepare derivatives of the Customer Materials solely as permitted under this Agreement and solely for purposes of performing the Hosted Services. Each party shall be fully responsible for all acts, errors or omissions of its Representatives. For the purposes of this Agreement, the term “Representatives” means the applicable party’s personnel, employees, officers, directors, members, managers, partners, consultants, temporary resources, agents, representatives, suppliers, contractors and/or subcontractors, and its subcontractor’s Representatives. ￼
(b) Data Migration. All data entered by Customer, or provided by BIZSLATE to Customer exclusively, shall be (as between Customer and BIZSLATE) the sole and exclusive property of Customer (“Data”). At the conclusion of the Term of the Agreement or at any other time as reasonably requested by Customer, at no additional charge to Customer, BIZSLATE shall provide Customer with Customer’s Data in a format as reasonably determined by BIZSLATE. Should Customer require the Customer Data in a different format such Customer Data shall be provided at Customer’s expense, as reasonably determined by BIZSLATE. Basic Customer Data migration assistance shall be provided at BIZSLATE’s standard rates for migrating Customer’s data to either Customer’s system or an alternate third-party provider’s system. If any such assistance or cooperation involves BIZSLATE providing professional services or consulting services, then Customer will pay BIZSLATE for those services at BIZSLATE’s then-current time and materials rates for professional services. The Customer Data shall be treated as confidential information under the terms of the Agreement.
(a) As used herein, the term “Confidential Information” shall mean all proprietary or non-public information disclosed hereunder, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information shall include BIZSLATE IP, Customer Materials and other information deemed proprietary or confidential by the party disclosing the Confidential Information (the “Disclosing Party”), and all record-bearing media containing or disclosing such information.
(b) A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the Disclosing Party or for any use other than necessary for the performance of Receiving Party’s obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information to the same extent that the Receiving Party would be responsible to the Disclosing Party if the Receiving Party had breached the Agreement. Receiving Party agrees to and shall take all reasonable steps to protect the confidentiality of the Confidential Information
(c) The term Confidential Information does not include information which: (i) has been or becomes published and publicly available or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the Receiving Party which can be verified; (iii) subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of third-party’s or the Receiving Party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified. (v) is disclosed pursuant to a requirement of a governmental entity or the disclosure of which is required by law.
(d) If Receiving Party is requested by a court, governmental entity or through legal process to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information and shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment therefore.
(e) Confidential Information shall not, without the prior written consent of the Disclosing Party, be disclosed to any person or entity other than employees, Representatives or agents of Receiving Party who need to know the Confidential Information and in those instances only to the extent justifiable by that need. The Receiving Party shall use reasonable efforts to ensure that all such entities and personnel comply with the terms of this Agreement. The Receiving Party shall be responsible for any unlawful disclosure of the Disclosing Party’s Confidential Information by the Receiving Party’s employees, Representatives and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information, to the same extent that the Receiving Party would be responsible to the Disclosing Party under this Agreement.
(f) Receiving Party agrees to and shall take all reasonable steps to protect the confidentiality of the Confidential Information.
(g) Receiving Party acknowledges that, as between the parties, the Confidential Information is the exclusive property of and belongs solely to the Disclosing Party and shall not claim otherwise for any purpose.
(h) The Receiving Party will return all Confidential Information in written or electronic form, including any copies made, to the disclosing party, upon termination of this Agreement or at the Disclosing Party’s request (provided that BIZSLATE will not request the return of Confidential Information during the term of this Agreement that would impede Customer’s use of the BIZSLATE Application), whichever first occurs.
(i) In addition to any other rights and remedies available to Disclosing Party hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages. Notwithstanding anything to the contrary in this Agreement, Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.
6. TERM AND TERMINATION.
(a) Term. The term of this Agreement shall be as set forth in the License Agreement signature page (“Initial Term”), and shall automatically renew for additional one year terms unless either party provides the other party with written notice of its intent not to renew no later than sixty (60) days prior to the end of the Initial Term or any then-current Term. Payment obligations are non-cancelable and fees paid are non-refundable.
(b) Termination for Cause. Either party may terminate this Agreement upon written notice of termination if the other party: (i) materially breaches any material requirement or obligation created by this Agreement, which breach is not cured (or reasonable steps are not taken to effectuate a cure) within ninety (90) days following the defaulting party’s receipt of written notice of breach, other than any failure to pay which shall be subject to cure within thirty (30) days following written notice; (ii) ceases doing business in the normal course; (iii) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within one hundred and twenty (120) days; or (iv) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other party’s assets. Termination of this Agreement shall not relieve Customer of its obligation to pay to BIZSLATE undisputed fees and other sums that have accrued for Hosted Services rendered or either party of any claims which the other party may have against it relating to this Agreement.
(c) Effects of Termination; Survival. Upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, prohibitions on use, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue, and non-solicitation. Customer shall not be relieved of its obligation to pay any undisputed monies due or to become due as of or after the date of expiration or termination of this Agreement.
7. SERVICE LEVEL TERMS. This Section 7 relates to the Hosted Services provided by BIZSLATE under this Agreement.
a. Definitions. (i) “Planned Outages” means scheduled service interruptions for maintenance and software upgrades (including new releases and patches). If Planned Outages are scheduled to last more than two (2) hours, BIZSLATE will notify Customer at least five (5) days in advance and if ￼￼￼￼ scheduled to last less than two (2) hours, BIZSLATE will notify Customer as soon as reasonably possible. Notice of such interruptions will be provided to the email address provided to BIZSLATE by the Customer. BIZSLATE shall make every reasonable effort to ensure that Planned Outages are performed during times that are believed to have the least impact on Customer’s daily use of the BIZSLATE Application or Hosted Services. (ii) “Service Downtime” means Customer is unable to access due to reasons that are within BIZSLATE’s reasonable control. Service Downtime is measured from the time of the failure to the time the relevant service is once again available to Customer, and does not include Planned Outages. (iii) “Customer Outages” means disruptions to the extent caused by Customer’s systems or the failure of third party networks (including the Internet).
(b) Security and Privacy. BIZSLATE will have security mechanisms installed and operating at all times consistent with the highest industry standards, including, without limitation, current security patches and procedures for monitoring security breaches. Furthermore, each party shall comply with all applicable laws relating to data protection and privacy of personal information.
(c) Service Availability. (i) Uptime. BIZSLATE shall make the Hosted Services available and functional twenty-four (24) hours per day, seven (7) days per week, except for Planned Outages. BIZSLATE shall use its best efforts to ensure that Hosted Services are available 99.5 % of the time in a month, excluding Planned Outages and Customer Outages. (iii) If BIZSLATE fails to meet the availability standard set forth herein for three (3) consecutive months, and Customer has provided written notice thereof after each month to the address provided in the Agreement or email@example.com, with a copy to firstname.lastname@example.org, Customer may, at its option, terminate this Agreement in accordance with the notice provisions set forth in this Agreement, or continue to receive the Hosted Services, in which case, BIZSLATE will provide a credit to Customer in the amount of ten percent (10%) of the fees paid or payable by Customer in each month in which the failure occurred.
(d) BIZSLATE will have personnel onsite at their location at minimum Monday through Friday, 8:30am – 5:30pm EST. BIZSLATE has emergency technical support personnel available by phone and email 24 hours a day, 365 days per year, at no additional cost. Each Party will provide the other party with an email address and telephone number for resolution of service availability or technical issues, as follows: For BIZSLATE: email@example.com. Customer may appoint a reasonable number (as mutually determined by Customer and BIZSLATE) of individuals per region and help desk who are authorized to call or contact BIZSLATE for general support, maintenance or technical support, and a reasonable number (as mutually determined by Customer and BIZSLATE) of individuals in connection with second and third tier support.
(e) Customer will be entitled to receive all reasonably necessary technical support from BIZSLATE in order for Customer to be able to use the BIZSLATE Application, including but not limited to product updates and upgrades
8. REPRESENTATIONS AND WARRANTIES.
(a) Each party warrants and represents at all times that it has the right and full power and authority to enter into this Agreement, and it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.
(b) BIZSLATE represents that to its knowledge the Hosted Services and the BIZSLATE Application, do not and will not infringe on any valid and enforceable Intellectual Property Right of any third party.
(c) BIZSLATE warrants that (i) BIZSLATE Application will substantially conform to the Documentation; and (ii) BIZSLATE shall use all commercially reasonable efforts to (A) maintain the BIZSLATE Application and the Hosted Services in good working order, (B) keep the BIZSLATE Application free from defects in material and workmanship, and (C) promptly remedy any failure of the BIZSLATE Application or the Hosted Services to perform in accordance with this Agreement which impairs Customer’s use thereof, and any other malfunction, defect or non-conformity in the BIZSLATE Application or the Hosted Services. BIZSLATE’s warranty and obligation shall extend during the Initial Term and any Renewal Term (“Warranty Period”). With respect to warranty claims reported by Customer in writing to BIZSLATE during the Warranty Period, BIZSLATE agrees to use commercially reasonable efforts to correct the reported problem at no additional cost to Customer, but failing the ability in a reasonable amount of time under the circumstances to correct the problem or to replace the BIZSLATE Application with an unproblematic version, then Customer may terminate this Agreement without penalty or application of any additional fees. As used herein, “Documentation” means the on-line help files included with the BIZSLATE Application or otherwise provided to Customer by BIZSLATE in writing.
(d) Each party warrants and represents that it will not violate any law, regulation or contractual obligation by entering into this Agreement, and that it is free to enter into this Agreement, is not subject to any obligation or disability and has not made or will not make any grant or assignment which can, will or might prevent or interfere with the full performance of its obligations hereunder, or conflict with or impair the complete enjoyment of the rights and privileges granted Customer hereunder.
(e) Customer represents that the Customer Materials do not infringe on any valid and enforceable Intellectual Property Rights of any third party and are not based on a misappropriation of any trade secrets of any person.
(f) This warranty only covers damages that occur pursuant to normal use of the Hosted Services and BIZSLATE Application during the Term. This warranty does not cover damages that occur due to any use not conforming to usage requirement or any Third Party Materials or Customer Materials. This warranty also does not cover any failures or damages that result from accidents, misuse, abuse, neglect, misapplication, alteration, secondary installation, set-up, improper maintenance, or modifications to the Hosted Services or BIZSLATE Application by any Person other than BIZSLATE, or damage attributable to acts of nature, terrorism, vandalism or war.
(g) Customer acknowledges that from time to time, pursuant to this Agreement, Customer may be required to provide BIZSLATE with materials that may have been developed by third parties, including without limitation textual material, visual works, and HTML files (collectively, “Third Party Materials”). Customer represents that at the time it delivers any Third Party Materials to BIZSLATE, Customer will not modify the Third Party Materials in a way that infringes the Intellectual Property Rights of any third party.
(a) “Losses” means losses, liabilities, damages, fines, penalties, settlements, judgments, and interest (including taxes) arising out of a third party claim against an indemnitee, in each case that a court finally awards to a third party or which are included in the amount of any settlement paid to a third party and agreed to by the party financially responsible for such settlement, and all reasonable and related costs and expenses, including reasonable attorneys’ fees, costs, liens, judgments, settlements, penalties.
(b) Indemnity by BIZSLATE. BIZSLATE will indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, successors and assigns (the “Customer Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by a Customer Indemnified Party or to which a Customer Indemnified Party becomes subject, resulting from, arising out of, or relating to any of the following third party claims: (i) Injury, illness, death, or damage to any tangible personal or real property caused by or arising from or relating to the negligent acts or omissions of BIZSLATE or any of BIZSLATEs subcontractors or Representatives in connection with performance under the Agreement. (ii) Claims arising out of BIZSLATE’s willful misconduct or gross negligence in connection with this Agreement. (iii) Breach of BIZSLATE’s obligations of confidentiality under this Agreement. (iv) Breach of BIZSLATE’s representations or any warranties made under this Agreement. (v) any claim by any third-party that any Hosted Services or the BIZSLATE Application or the use thereof infringes, breaches or violates any valid copyright, patent, trade secret or other intellectual property right of any person or entity. ￼BIZSLATE shall not be required under this Section to defend, indemnify or hold harmless any Customer Indemnified Parties for any damages resulting directly from any willful misconduct or gross negligence of such Customer Indemnified Parties.
(c) Indemnity by Customer. Customer will indemnify, defend and hold harmless BIZSLATE and its officers, directors, employees, successors and assigns (the “BIZSLATE Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by an BIZSLATE Indemnified Party or to which an BIZSLATE Indemnified Party becomes subject, resulting from, arising out of, or relating to any of the following third party claims: (i) Injury, illness, death, or damage to any tangible personal or real property caused by or arising from or relating to the negligent acts or omissions of Customer or any Customer’s subcontractors in connection with performance of the Agreement. (ii) Customer’s willful misconduct or gross negligence in connection with this Agreement. (iii) Breach by Customer of its obligations of confidentiality under this Agreement. (iv) Breach of Customer’s representations or any warranties made under this Agreement. (v) Customer’s failure to pay and discharge any Taxes (including interest and penalties) for which Customer is responsible pursuant to the provisions of this Agreement. (vi) any claim by any third-party that any Customer Materials or Third Party Materials infringes, breaches or violates any valid copyright, patent, trade secret or other intellectual property right of any person or entity. Customer shall not be required under this Section to defend, indemnify or hold harmless any BIZSLATE Indemnified Parties for any damages resulting directly from any willful misconduct or gross negligence of such BIZSLATE Indemnified Parties.
(d) Remedies for Infringement. Should any BIZSLATE IP become or, in BIZSLATE’s opinion, be likely to become the subject of any infringement claim, BIZSLATE shall have the right, at its sole discretion and at its expense, to either procure for Customer the right to continue using or receiving the BIZSLATE IP, replace or modify the BIZSLATE IP so it becomes non-infringing, or remove the questionable BIZSLATE IP. This Section states BIZSLATE’s entire liability, and Customer’s sole and exclusive remedy for third party Intellectual Property Rights claims relating to or arising out of any BIZSLATE IP, other than the indemnification obligations set forth herein. BIZSLATE shall have no obligation to Customer for indemnification with regard to any third party claim of infringement to the extent that the BIZSLATE IP infringement claim or allegation is based on: (1) an unauthorized modification to or use of the BIZSLATE Application made by Customer; (2) the inclusion of any Customer Materials or Third Party Materials in any BIZSLATE IP or the BIZSLATE Application (provided that but for such inclusion of the Customer Materials or Third Party Materials there would have been no claim of infringement).
(e) Indemnification Procedures. If any third-party claim is commenced against a person or entity entitled to indemnification under this section (the “Indemnified Party”), notice thereof shall be given to the party that is obligated to provide indemnification (the “Indemnifying Party”) as promptly as practicable (provided that the failure to promptly provide such notice shall only relieve the Indemnifying Party of its obligations hereunder to the extent it is materially prejudiced thereby). The Indemnified Party will reasonably cooperate, at the cost of the Indemnifying Party, in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves a remedy other than the payment of money by the Indemnifying Party will be entered into without the prior written consent of the Indemnified Party.
10. WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS. BIZSLATE PROVIDES THE HOSTED SOFTWARE “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE BIZSLATE IP FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, TELECOMMUNICATION OR INTERNET OUTAGES OR PROBLEMS, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION BEYOND SUCH PARTY’S CONTROL OR ANY ACTS OF GOD, NATURE OR TERROR. EXCEPT WITH RESPECT TO LIABILITIES ARISING UNDER A PARTY’S INDEMNIFICATION OBLIGATION OR A BREACH OF CONFIDENTIALITY, OR GROSS NEGLIGENCE, INTENTIONAL NON- PERFORMANCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) NEITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL SUMS PAID OR PAYABLE BY CUSTOMER TO BIZSLATE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING SUCH CLAIM FOR DAMAGES.
(a) BIZSLATE agrees to provide Customer with training of Customer’s employees on the use and operation of the Hosted Services. Company also agrees to provide Customer with training of Customer’s employees on the use and operation of any upgrades to the Hosted Services. Company shall provide sufficient experienced and qualified personnel to conduct such training.
(b) All training materials provided to Customer are confidential information of the Company and shall be maintained in confidence by the Customer.
12. FEES AND EXPENSES.
(a) Startup Implementation Fee. The Startup Implementation Fee, as set forth on the Agreement signature page, will be invoiced and will be due and payable as set forth on the Agreement signature page.
(b) Base Fee and Per User Fees. The Base Annual Fee and the Annual Per User Fees, set forth on the Agreement cover page, is based on services purchased and not actual usage. BIZSLATE will invoice Customer on the Effective Date and at the beginning of each annual period from the Effective Date for the Base Annual Fee and the Annual Per User Fees. Starting on the Effective Date, Customer will be responsible for the Annual Fees (the Base Annual Fee plus Annual Per User Fee for each User) for the length of the Term, as set forth above. BIZSLATE will issue invoices at the beginning of each annual period calculated from the Effective Date for the upcoming annual period’s combined Annual Fees. Users added during an annual period will be charged pro rata for the time remaining in the current annual period and for all future annual periods that the User remains a User. BIZSLATE will issue invoices upon receipt of notification from the Customer for any Users added during an annual period that were not invoiced at the beginning of the annual period.
(c) Annual Support and Maintenance Fee. The Annual Support and Maintenance Fee, set forth on the Agreement cover page, is based on services and maintenance provide by BIZSLATE under the Agreement. BIZSLATE will invoice Customer on the Effective Date and at the beginning of each annual period from the Effective Date for the Annual Support and Maintenance Fee. Starting on the Effective Date, Customer will be responsible for the Annual Support and Maintenance Fee for the length of the Term, as set forth above.
(d) EDI Transaction Fees. The Base EDI Transaction Fee, which is based on services purchased and not actual usage, and the Monthly EDI Usage Fees, which is based on usage, set forth on the Agreement cover page, are based on Customer’s access to and use of EDI as provided by BIZSLATE under the Agreement. BIZSLATE will invoice Customer on the Effective Date and at the beginning of each month from the Effective Date for the Base EDI Transaction Fee and the Monthly EDI Usage Fee for the prior month. Starting on the Effective Date, Customer will be responsible for the Total EDI Transaction Fees Date for the Total EDI Transaction Fees (the Base EDI Transaction Fee plus the Monthly EDI Usage Fee) for the length of the Term, as set forth above. BIZSLATE
will issue invoices at the end of each month for the prior month’s Base EDI Transaction Fee and for the prior month’s Monthly EDI Usage Fees. All invoice are payable upon receipt.
(e) Expenses. Travel, costs, and expenses for Startup Implementation, Professional Services, and training are payable by Customer at BIZSLATE’s then current rate. Startup Implementation is Customer’s responsibility and will include, at minimum: (i) two day kick off and discovery meetings and (ii) two days of training at Customer’s offices. All ordinary and customary expenses, including without limitation, travel expenses, shall be the responsibility of and paid by Customer.
(f) Taxes. BIZSLATE’s invoices shall include and Customer shall pay all federal, state, local or other sales or use taxes that may be imposed by law upon BIZSLATE or Customer, other than taxes based upon the net income of BIZSLATE, with respect to the Hosted Services and BIZSLATE Application and any material, supplies, equipment or activities furnished in the performance of the Services (the “Taxes”). BIZSLATE shall maintain full and detailed records of all Taxes charged to Customer and paid to the applicable tax authority by BIZSLATE. Customer may copy and audit these tax records during regular business hours, including any records maintained at BIZSLATE’s office pertaining to Taxes billed to Customer, for a period of twenty four (24) months following the termination of this Agreement
(a) Governing Law and Venue. This Agreement will be governed and interpreted in accordance with the laws of the State of New Jersey without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in the state or federal courts located in the State of New Jersey, and the parties further irrevocably submit to the exclusive jurisdiction of any such courts and waive any objection that such party may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court, and further agree not to plead or claim the same.
(b) WAIVER OF JURY TRIAL. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS, OR SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT.
(c) Notices. All notices, requests, demands and other communications hereunder must be in writing and will be deemed given (i) if delivered personally, on the date given; (ii) if sent by facsimile transmission, on the date transmitted if the transmission is confirmed in good order by the transmitting machine and a copy is also sent via another manner specified herein; (iii) if delivered by a courier express delivery service, on the date of delivery; or (iv) if by certified or registered mail, postage prepaid, return receipt requested, three (3) days after mailing, (in each case) to the applicable party at the following addresses, or at such other addresses as such party may designate by written notice in the manner foresaid given at least fifteen (15) days prior to the effective date of such change: ￼￼￼￼￼￼￼If to Customer: ___________ Attn: Fax: And for notices of a legal nature only, with a copy to: _______________ Attn: Fax: If to BIZSLATE: BIZSLATE INC. Attn: Marc Kalman Fax 646-224-9777
d) Entire Agreement; Severability; Modification. This Agreement, is the entire agreement of the parties, and supersedes all prior agreements and communications between the parties with respect to the subject matter of this Agreement, and represents the complete integration of the parties’ agreement. In interpreting and construing this Agreement, the fact that one or the other of BIZSLATE or Customer may have drafted this Agreement or any provision hereof shall not be given any weight or relevance, both parties having had an opportunity to review and negotiate the terms hereof. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by an authorized representative (in the case of BIZSLATE, an “authorized representative” means only the CEO or CFO of BIZSLATE) of the party against whom the modification is asserted.
(e) No Waiver. The failure of a party in any one or more instances to exercise any right or privilege arising out of this Agreement shall not preclude it from requiring that the other party fully perform its obligations or preclude it from exercising such a right or privilege at any time.
(f) Independent Contractors. BIZSLATE and the Customer shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties.
(g) Assignment. This Agreement shall not be assigned or transferred in whole or in part by either party without the prior written consent of the other party, provided that a party may assign this Agreement without prior written consent in connection with a public offering of its securities or in a sale of all or substantially all of its assets to which this Agreement relates or by way of merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this Section shall be void. This Agreement shall be binding upon and inure to the benefit of Customer and BIZSLATE and their successors and permitted assigns. Nothing in this Agreement shall be construed as permitting a trustee or purchaser in bankruptcy to assume this Agreement without the written consent of the other party.
(h) Force Majeure. Except for the obligation to pay sums due hereunder, neither party shall be responsible for delays or failures in performance of this Agreement resulting from acts beyond its reasonable control, such as industrial disputes of whatever nature, extreme weather conditions, public enemies or government, fire, floods, epidemics, power outages, severe weather, quarantine restrictions, strikes, other casualty, terrorism or acts of war (declared or undeclared), provided that such delays or failures could not have been avoided or mitigated by the imposition of reasonable security, back-up or other measures. The existence of such causes shall justify extension of the time of performance to the extent reasonably necessary to enable such party to satisfy its obligation hereunder after the cause of delay or failure has been removed. If any such force majeure event (other than technical failures of or caused by a third party that has contracted or is in direct privity with Customer) prevents BIZSLATE from performing its obligations under this Agreement for longer than thirty (30) consecutive days, Customer may, in addition to its other rights and remedies, terminate this Agreement without incurring any additional obligation to BIZSLATE other than for services actually provided prior to such termination date. Termination under this Section will not relieve Customer of its obligation to pay for Hosted Services rendered prior to the date the event of force majeure arose. BIZSLATE will make commercially reasonable efforts to re-establish Hosted Services as soon as possible in the event of a Force Majeure event.
(i) Marketing. Neither party shall use the other party’s name or that of any of its divisions or affiliates or otherwise expressly or impliedly refer to any of them in any advertising, promotional literature, press release or other form of public disclosure without the prior written approval of the appropriate officer of that party; provided that BIZSLATE may identify Customer as an BIZSLATE customer together with a general listing of BIZSLATE’s other customers.
(j) Compliance with Policies. Customer will make available to BIZSLATE in advance and BIZSLATE will ensure that BIZSLATE and its personnel or subcontractors will comply with Customer’s written security and other regulations in any activities at Customer sites or in connection with Customer’s systems. Unless the parties otherwise agree, BIZSLATE’s personnel (including its subcontractors) will observe the working hours, working rules and holiday schedules of Customer, while working on Customer’s premises.
(k) Non-Solicitation. Customer agrees that during the term of this Agreement and for a period of twelve months after termination of this Agreement, Customer shall not solicit, discuss employment or consultancy, or hire for a position relating to the technology or activities actually provided to Customer, any employee of BIZSLATE, without written authorization of BIZSLATE. This subsection shall not apply to general solicitations, public job postings, newspaper advertisements for employment opportunities or the independent actions or the use of advertising recruiters or otherwise.
l) Competition. Customer acknowledges and agrees that BIZSLATE may, without limitation, accept subscriptions from or grant licenses to other persons, firms, corporations, or other entities, including entities that compete with Customer, for Hosted Services and products, on any terms BIZSLATE deems appropriate.
(m) Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.
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