Last Updated: August 11, 2020
The DocQ Terms of Service (the “Terms of Service”), including each Order Form attached hereto or issued hereunder (collectively, the “Agreement”), is a binding agreement between the party identified on an Order Form (“Company”) and NDM Global Inc., a Delaware Corporation (“NDM”). This Agreement governs the relationship between the Company and NDM and the license and access rights to the Platform, Services, and Subscription (as defined herein). Throughout this Agreement, NDM and the Company are sometimes referred to herein, individually, as a “Party”, or collectively, as the “Parties”.
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BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE APPROPRIATE BOX TO ACCEPT THIS TERMS OF SERVICE AGREEMENT, OR BY ACCESSING OR USING NDM PLATFORM, SUBSCRIPTION, OR SERVICES YOU THEREBY ACCEPT THIS TERMS OF SERVICE AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF AN ORDER FORM FOR THE PLATFORM, SUBSCRIPTION, OR SERVICES CONSTITUTES AN ACCEPTANCE OF THIS AGREEMENT ON THE BEHALF OF THE COMPANY.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE COMPANY.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE COMPANY, DO NOT CLICK ON THE BUTTON, DO NOT ACCEPT, AND DO NOT ACCESS OR OTHERWISE USE THE PLATFORM, SUBSCRIPTION, OR SERVICES.
CHANGES TO THIS AGREEMENT
NDM reserves the exclusive right to make changes to this Agreement from time to time. The continued access to and use of the Platform, Services, or Subscription constitutes the Company’s agreement to be bound by the terms and conditions of the Agreement posted at such time. Company acknowledges and agrees that it accepts this Agreement (and any amendments thereto) each time it or one of its End Users sign into its Account, accesses, or uses the Platform, Subscription, or Services. Therefore, NDM encourages Company to review this Agreement regularly.
If, within thirty (30) days of NDM posting changes or amendments to this Agreement, Company decides that it does not agree to the updated terms, Company may provide NDM written notice detailing, with specificity, those terms to which it objects, and NDM may in its sole discretion: (i) agree to apply the last version of the Agreement that the Company accepted, (ii) agree to apply some other mutually agreed upon terms and conditions, or (iii) terminate this agreement. If NDM elects to terminate the agreement under this Section, NDM shall refund the Company unused Fees on a prorated basis, and the Company and its End Users shall immediately cease use of the Platform, Subscription, and Services.
Unless otherwise defined herein or in one or more Order Forms, the capitalized terms used herein are defined in this Section Definitions.
“Account” means Company’s dedicated access to the Platform, through which Company is able to utilize the Platform’s features, upload and manage Content, and request Services.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Billing Period” means the specific period of time that is a billing interval for an active Subscription. The Billing Period is set forth in the Order Form.
“Content” means all information, materials, pictures, audio, video, artistic works, writings, and other works of authorship.
“Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, data, charts, analytics, research, or other works based on, referring to, or derived from the Platform or other NDM Materials.
“Documentation” means the materials, the user documentation, and any other operating, training, and reference manuals relating to the use of the Services, as supplied by NDM to Company, as well as any Derivative Works thereof.
“End Users” means all of Company’s employees, agents, and individual third parties who are authorized by Company to use the Platform and are provided an account to access the same.
“Feedback” means all feedback, suggestions, and ideas that Company or End Users provide to NDM concerning improvements or enhancements to the Platform.
“Helpdesk Services” means the customer support services provided by NDM in connection with the Platform.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship.
“NDM Software” means the software and applications of the NDM, regardless of whether the same is provided by NDM to Company in connection with the Platform, a Subscription thereto, or otherwise.
“Order Form” means the ordering document specifying the particulars of Company’s Subscription, access to the Platform, Services, Fees, and other commercial terms. Each Order Form may be a document executed by the Parties, or a webpage or portal on NDM’s website that provides such ordering functionality and references this Agreement. Each Order Form may contain terms and obligations that are different from, or that are in addition to, those set forth in this Agreement.
“Platform” means the NDM Software and other technologies provided by NDM to Company under this Agreement.
“Services” means, all instruction and training, initial setup and configuration, and Helpdesk Services that may be offered and provided by NDM to Company in connection with the Platform.
“Subscription” means a combined package of Platform access and a defined scope of Services on a recurring basis under this Agreement.
“Subscription Level” means the characteristics applicable to the Company’s Subscription, as reflected on the Order Form, with respect to the features, benefits, limitations, availability of Services, availability and amount of Platform Data Storage, and scope of Helpdesk Services that are available to the Company.
“Third Party” means any natural person or legal entity that is not NDM or Company.
“Update” means provide periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections in connection with the Platform that NDM makes generally available free of charge to its customers with Subscriptions to the Platform. All Updates shall be deemed to be NDM Software, and related documentation will be deemed Documentation.
General. NDM provides the Platform and accompanying Services that allow its customers to create, produce, manage, and collaborate within a document management interface, including managing workflow processes and e-signature capabilities (dependent on the Subscription Level).
Platform Use. The Platform’s functionality allows Company the ability to: (i) upload Content created by Company, its End Users, or third parties at Company’s direction; (ii) provide End Users the ability to collaborate via workflow processes to review, manage, and amend the Content uploaded; (iii) compile Content into a final document capable of receiving electronic signature(s); and (iv) manage, store, and download such Content managed within the Platform.
Subject to Company’s compliance with the terms of this Agreement, including timely payment of Fees, NDM hereby grants to Company a non-exclusive, non-transferable, non-assignable, revocable, limited license to access and use the Platform and associated Services, solely through End Users and solely during the Subscription Term.
Platform Data Storage. As part of Company’s Subscription to the Platform, Company’s Account may include a dedicated volume of data storage, which Company may use to store Content (“Platform Data Storage”). The availability of and specific amount of Platform Data Storage will depend upon Company’s Subscription Level, as may be indicated via an Order Form. If Company reaches the limit of its Platform Data Storage volume, it will no longer be able to upload any additional Content to the Platform. Company will be notified via the Platform when it has reached its Platform Data Storage limit, after which, Company will need to delete Content from its Account. Alternatively, NDM may offer Company additional Platform Data Storage volume, for an additional, recurring fee. The specific amount of additional Platform Data Storage volume and amount of the corresponding Fees will be as set forth in the applicable Order Form.
Platform Maintenance. Company acknowledges that certain maintenance activities involving the Platform may be necessary or appropriate, from time to time, which include development and deployment of Updates. In most instances, the NDM infrastructure is designed to support Updates by the NDM engineering and support teams without the need to interrupt the uptime of the Platform. Where such maintenance activities are not reasonably anticipated to materially impact Company’s use of the Platform, NDM will have no obligation to provide notice to Company regarding such maintenance activities, although NDM generally does so, in the ordinary course, at least twenty-four (24) hours in advance of the same. If NDM reasonably determines that maintenance activities will require an unavailability or outage of the Services in excess of fifteen (15) consecutive minutes, then NDM will attempt to give Company reasonable advance written notice of the same. NDM will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours. Company acknowledges and agrees that NDM may develop and provide Updates in its sole discretion. NDM has no obligation to develop any Updates at all or for particular issues, and NDM expressly disclaims any liability for not doing so.
Subject to Company’s compliance with the terms of this Agreement, including timely payment of Fees, during the Subscription Term, Company will have the ability to request Services from NDM for additional Fees. The specific Services available to Company may correspond to the Subscription Level purchased by Company or else as provided herein.
Onboarding Services. If offered by NDM, Company may have the option to request Services, for additional Fees, in connection with Platform onboarding, including by example without limitation, Account setup or on-site server install for Company and its End Users. Any Services in connection with onboarding, if and as applicable, shall be set forth in a corresponding Order Form which will be attached to and become part of the Agreement.
Training Services. NDM may make available at its sole option for Company and End Users training Documentation, videos, articles, and other Materials as part of Company’s Subscription and at no additional cost from time to time. If offered by NDM, however, Company may have the option to request Services, for an additional Fee, for training Company and its End Users in the use of the Platform. Any Services in connection with training, if and as applicable, shall be set forth in a corresponding Order Form, which will be attached to and become part of the Agreement. Each Order Form may contain terms and obligations that are different from, or that in addition to, those set forth in this Agreement.
Helpdesk Services. Unless otherwise set forth in Company’s specific Subscription Level, or unless otherwise agreed to by NDM and Company, NDM will provide Helpdesk Services in connection with its Platform and Services to Company and End users solely via email.
Additional Services. To the extent the same is expressly set forth in an Order Form, Company may be provided the option to receive or purchase additional consulting services, integrations, customizations, or enhancements to the Services (the “Additional Services”). The delivery of and fees for the Additional Services will be as set forth in the applicable Order Form.
Third Party Services. Company may be provided by NDM with the option to receive services from a Third Party (via the Platform or otherwise). Such Third Party may, but need not, be an Affiliate of NDM. Company acknowledges and agrees that any such option to receive Third Party services are at Company’s sole discretion, and NDM makes no recommendations or representations about the abilities or availability of any such Third Party.
Instructions from End Users. Company acknowledges and agrees that, in connection with any Services, NDM shall have the right to take instructions from and rely upon information provided by any Company End User, and any such End User shall be deemed to have the necessary authority to act on Company’s behalf for the purposes set forth herein.
Intellectual Property Rights
For the Parties. All Intellectual Property Rights belonging to a Party prior to entering into the Agreement shall remain vested in that Party.
For NDM. All title, ownership rights, and Intellectual Property Rights in and to the Platform, Documentation, the NDM Materials, all NDM Marks, and all Feedback (and all Derivative Works and copies thereof) are and will remain owned exclusively by NDM (and/or its licensors, as applicable). Company acknowledges that the Platform, in source code form, remains proprietary information of NDM and that the source code is not licensed to Company by this Agreement or any Order Form and will not be provided or escrowed by NDM. Company further acknowledges and agrees that the Platform is the product of substantial expenditure by NDM of labor, skill, and money, and Company’s use of the Platform in contravention of this Agreement would misappropriate the benefits of those expenditures. NDM will also retain all Intellectual Property Rights in any Services (except for Content, being expressly excluded), unless the Parties agree that the same are intended to be transferred to Company in connection with the performance of and payment therefor, as indicated in the applicable Order Form.
For Company. All title, ownership rights, and Intellectual Property Rights in and to (a) Company data and any other Company Materials that Company owns; (b) Content or other Company Materials that Company uploads to the Platform; and (c) processed final documents that Company receives from NDM that Company receives as the result of the Services, will remain owned exclusively by Company (and/or its licensors, as applicable).
Content. The role of NDM is only to provide Company with the Services and access to the Platform. Company shall be solely and exclusively responsible for Content that it may use in conjunction with its use of the Platform and/or the Services. Accordingly, Company is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Content that it posts, publishes, transmits, or otherwise makes available through the use of the Platform (whether such content is utilized by/for Company itself, or by/for its clients), and (ii) no portion of the Content is unlawful or infringes upon the rights of any Third Party. At no time shall NDM be responsible for any Content that Company uploads to, or transmitted through, the Platform, or otherwise provides to NDM. NDM shall have the right, in its sole discretion, to restrict, limit, or reject the posting, publication, use, storage, or transmission of any Content via the Platform and to remove any Content that has previously been uploaded or transmitted (including Content), and that NDM reasonably finds to be objectionable by law. NDM MAKES NO REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER ABOUT ANY CONTENT UTILIZED, UPLOADED, OR TRANSMITTED BY COMPANY, AND EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER THAT MAY ARISE OUT OF THE USE, UPLOADING, STORAGE, TRANSMISSION OF ANY CONTENT OR USE, SHARING, STORAGE, AND TRANSMISSION OF ANY OF COMPANY’S CONTENT. IF COMPANY HOSTS, MANAGES, AND/OR STORES ITS OWN DATA (ON ITS PREMISES AND/OR ON ITS OWN SERVERS), OR UTILIZES A THIRD PARTY DATA STORAGE FOR THE SAME, NDM EXPRESSLY DISCLAIMES ANY AND ALL WARRANTIES IN CONNECTION WITH SUCH HOSTING, MANAGEMENT, OR STORAGE OF COMPANY CONTENT.
Fees and Payment Terms
Fees. All amounts due by Company under the Agreement, including for access to the Platform, Subscription, Services, and any other goods or services made available by NDM from time to time and ordered by Company (collectively, the “Fees”) shall be payable on the terms set forth on the applicable Order Form.
For each Subscription, Company agrees to pay the total of all Fees that correspond to that Subscription, for the entire Subscription Term.
Except as expressly set forth otherwise in an Order Form, all Fees shall be due and payable on a monthly basis (a “Billing Period”) in advance, initially on the Effective Date hereof, and subsequently on the same day of each subsequent calendar month (the “Billing Date”). NDM may elect to provide Company with the option to prepay Fees in advance on a quarterly or annual basis, in which event NDM may offer certain discounts or other incentives, as set forth in the applicable Order Form.
Payment. Company expressly agrees to timely pay all Fees that are due no later than the Billing Date. For all Fees that are paid on a recurring basis, Company agrees to provide NDM with a bank account and/or a payment card for use as a payment method. Company further expressly authorizes NDM to withdraw funds from the bank account and/or charge the payment card provided by Company for the full amount of the Fees, on or about the Billing Date, on a recurring basis, until Company terminates this Agreement or affirmatively cancels the Subscription for which the Fees are collected, in accordance with this Agreement.
All Fees paid, by Company under this Agreement, including all prepayments, are final and are non-refundable for any reason, even in the event of early termination or cancellation of a Subscription.
Acceleration. In the event of termination of this Agreement for any reason other than termination by Company due to breach by NDM, the due dates for payment of all Fees (including for all Subscriptions) will automatically be accelerated so that they become due and payable on the effective date of termination, even if longer terms had been provided previously.
Price Changes. NDM may, in its sole discretion, amend its Fees and pricing structure for payment of Fees in connection with the Platform, the Services, and the Subscriptions. All changes in Fees shall be communicated by NDM to Company no less than thirty (30) days prior to the effective date of such change. Notwithstanding anything to the contrary herein, for each Subscription, changes to Fees due will take effect only upon the renewal of a Subscription Term of that Subscription.
In addition to the foregoing, to the extent that applicable Third Party NDMs impose increased costs or expenses on NDM that materially affect NDM’s cost of delivering the Subscriptions to Company, NDM reserves the right, in its sole discretion, to propose to pass through any such increased costs and expenses to Company by reasonably increasing the Fees as set forth on the applicable Order Form with respect to the applicable Subscriptions upon at least thirty (30) days’ prior notice to Company; provided that if Company does not promptly agree in writing to any such increase, then NDM may not charge for the same, but may terminate the applicable Subscription(s) immediately.
Late Payment. Company’s late payments will accrue interest in the amount of one and one-half percent (1.5%) per month, or the maximum interest allowed under applicable law, on all balances not paid when due on account of all invoices which are not reasonably in dispute. Company shall reimburse NDM for all costs incurred by NDM in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees. NDM may, at its option, upon notice and a reasonable opportunity to cure, suspend Company’s access to the Platform, the Subscriptions, the use of Credits, or the provision of the Services, in whole or in part, if NDM does not receive all amounts which are due and owing, and not reasonably in dispute, under the Agreement when due; provided that it shall restore normal services promptly upon the clearance of any such disputed amounts.
Taxes. Unless otherwise required by applicable law, the Fees and expenses due to NDM as set forth in the Agreement shall be paid free and clear of any deduction or withholding on account of taxes. Company shall be responsible for all sales, use, value-added, ad valorem or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Services (other than taxes based solely on NDM’s income). If and when NDM has the legal obligation to collect such taxes, NDM will invoice Company the amount of such taxes, and Company will pay such amount, unless Company provides NDM with a valid tax exemption certificate authorized by the appropriate taxing authority. Company will provide NDM with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by NDM to establish that such taxes have been paid. The Parties shall reasonably cooperate to more accurately determine each Party’s tax liability and to minimize such liability to the extent legally permissible.
Technical Requirements. Company must have the required hardware, equipment, software, and Internet access to be able to use the Platform. Acquiring, installing, maintaining and operating hardware, equipment, and Internet access is solely Company’s responsibility, except as otherwise expressly provided in an Order Form. NDM neither represents nor warrants that the Platform will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices, except for the browsers expressly set in the Documentation made available by NDM, if and as applicable, and which NDM may update from time to time in its sole discretion.
Use of Services Restrictions. Company shall not and shall not knowingly permit others in using the NDM website, the Platform, or the Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or NDM; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortious, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that constitutes a criminal offense; (iv) misrepresent or in any other way falsely identify Company’s identity or affiliation, including through impersonation or altering any technical information in communications using the Platform or the Services; (v) knowingly transmit or upload any material through the Platform containing viruses, Trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing NDM’s, or any other person’s or entity’s, network, computer system, or other equipment; (vi) interfere with or disrupt the Platform, networks or servers connected to the NDM systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Platform; (vii) attempt to gain unauthorized access to the Platform, other NDM customers’ computer systems or networks using the Platform through any means; (viii) copy, modify or create derivative works or improvements of the Platform; (ix) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (x) bypass or breach any security device or protection used by the Platform or access or use the Platform other than through the use of then valid access credentials; (xi) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any the Platform; (xii) access or use the Platform for purposes of competitive analysis of the Services or the Platform, the development, provision or use of a competing software service or product or any other purpose that is to NDM’s detriment or commercial disadvantage; or (xiii) interfere with another party’s use of the Platform or the Services. NDM has no obligation to monitor Company’s use of the Platform; however, NDM reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with any applicable law, regulation or governmental request.
Account Activation. NDM will provide Company Accounts for use by its End Users. Company is fully responsible for all actions and activities performed on or through Company’s Account and those of its End Users. Company agrees that Company and each End User will: (a) provide true, accurate, current and complete information as prompted by the registration form; (b) maintain and promptly update the registration data to ensure the information is always true, accurate, current and complete; (c) upon receiving knowledge, immediately inform NDM of any unauthorized use of an Account or any other breach of security; and (d) exit from the Account at the end of each work session. NDM undertakes no obligation to verify the data provided by Company or its End Users. However, if NDM finds or reasonably suspects that the provided information is untrue, inaccurate, not current or incomplete, NDM may suspend Company’s Account, and suspend or terminate an End User’s Account until such information is updated and verified.
Password Confidentiality. Each End User that uses the Platform must choose a password when registering. Company will cause such End Users to maintain the confidentiality of the passwords. Company will also be assigned a password or passwords for access to and use of the Platform. Company acknowledges that once the initial password provided to Company is changed, NDM does not retain the technical ability to retrieve such passwords. Company is fully responsible for all activities that occur using Company and End User passwords. Company acknowledges and agrees that NDM shall not be liable for any loss that Company or any End User may incur as a result of someone else using a password that has been assigned to or obtained by Company or its End Users, either with or without the knowledge of Company or the applicable End User; nor shall NDM be liable or responsible for any unauthorized access or misuse of the Platform by Company or any of its End Users.
Compliance with Law. Both Parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under this Agreement. Company will notify NDM, promptly and without any undue delay, of any discovered unauthorized use of the Platform or any other breach of security that is known or reasonably suspected by Company, provided that Company is legally able to give such notice. NDM may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by Company of any obligation contained in this Sections Company Obligations, until such violation ceases, and NDM receives reasonable assurances that such violation will not continue. If NDM believes, in its sole discretion, that the NDM Systems are being currently used for criminal activity, in a manner that violates the legal rights of NDM, NDM’s customers (including Company), any user or other Third Party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the NDM Systems places the NDM Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to Company.
Non-Disclosure; Confidentiality; Data Protection
Disclosure. Each Party may disclose to the other party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Confidential Information” means information, that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law); the “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
Requirement of Confidentiality. The Recipient agrees to hold all Confidential Information disclosed to the Recipient by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any Third Party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.
Company acknowledges that the Platform and Documentation, as well as all pricing aspects of the Order Forms issued in connection with this Agreement, are the Confidential Information of NDM. NDM acknowledges that all data input by Company or End Users into the Platform is the Confidential Information of Company.
With regard to all Confidential Information, the obligations in this Section Requirement of Confidentiality shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.
The foregoing obligations shall not apply if and to the extent that: (i) the Recipient establishes that the information communicated was publicly known at the time of the Recipient’s receipt or has become publicly known other than by a breach of this Agreement; (ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Recipient on a non-confidential basis from a Third Party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if the Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Recipient may disclose the requested Confidential Information; provided however, that, the Recipient shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Recipient is required to disclose.
Return of Materials. Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Recipient shall promptly destroy or deliver to the Disclosing Party its Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Recipient shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or record keeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.
Data Use. Company hereby acknowledges and agrees that NDM has a perpetual and irrevocable right to use and evaluate all Feedback for NDM’s own purposes. Company hereby acknowledges and agrees that NDM has a perpetual and irrevocable right to use all Feedback and may use the Feedback without accounting or compensation to Company. Company will not provide any Feedback unless Company has all rights necessary to do so. Company hereby assigns to NDM Company’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Platform which Company may propose or make, either alone or jointly with NDM. Company agrees that any Feedback may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by NDM or by NDM’s contractors bound by confidentiality restrictions similar to those found herein. . The results of such analysis (“De-identified Data”) may be used by NDM for any lawful internal purpose, including determining future hardware and communications needs for NDM systems and determining trends associated with warehouse use, operation, and efficacy, but shall not be sold to any third-party or used for any other commercial purpose. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Confidential Information of Company, (ii) any information that identifies or can be reasonably used to identify any End Users or other individual person, (iii) any information that identifies or can be reasonably used to identify Company or its affiliates, suppliers, or vendors, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Company. Further, such De-identified Data shall not be subject to or susceptible to any re-identification, and, upon request, NDM shall certify the same to Company
Protection of Company’s Proprietary Information. NDM agrees to use its best efforts in accordance with high industry standards to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Company’s Confidential Information and other proprietary information. Except as otherwise provided herein, NDM shall only use Company’s Confidential Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
Limited Warranty; Disclaimer of Warranties
NDM Representations. NDM represents and warrants that: (i) it will provide the Services in a manner consistent with industry standards reasonably applicable to the provision thereof; (ii) it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted in this Agreement; (iii) the Platform will operate substantially in conformity with its Documentation under normal use and circumstances; (iv) NDM shall comply with all applicable federal, state and local laws, rules, and regulations when performing its obligations under this Agreement; and (v) to NDM’s knowledge, the Platform does not contain, and will not transmit to Company or its systems, any viruses, Trojan horses, timebombs, or any other code, programs or mechanisms that disrupt, modify, delete, harm, or otherwise impede the operation of computer systems.
No Other Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER NDM, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO COMPANY, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE PLATFORM, SERVICES, OR OTHERWISE REGARDING THE AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM AND SERVICES ARE PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY.
Disclaimer of Warranties. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM OR SERVICES WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM OR SERVICES WILL BE CORRECTED, THAT THE SYSTEM THAT MAKES THE PLATFORM AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR RECOMMENDED BY NDM, THAT THE OPERATION OF THE PLATFORM WILL BE SECURE, OR THAT THE PLATFORM FUNCTIONALITY WILL MEET COMPANY’S REQUIREMENTS. COMPANY ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM IS ACCURATE OR SUFFICIENT FOR COMPANY’S PURPOSE.
No Warranties for Third Party Services. NDM MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ANY THIRD PARTY. ANY AND ALL SUCH THIRD PARTY PRODUCTS AND/OR SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS.”
Limitation of Liability
Exclusions of Liability. Except in connection with and to the extent of any breach of a Party’s obligations of confidentiality or any indemnification obligations hereunder, in no event shall either Party, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to the other Party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill under or in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal or equitable theory, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.
Maximum Liability. Except for claims arising (a) in connection with and to the extent of any breach of a Party’s obligations of confidentiality hereunder, (b) in connection with a Party’s obligations of indemnification pursuant to Section Indemnification, or (c) in connection with contractual payment obligations hereunder, in no event shall either Party’s liability for any damages to the other Party, or to any other person or entity, regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed the pro rata portion of Fees received by NDM from Company applicable to the six (6) month period immediately preceding the events giving rise to such action.
NDM Indemnification. NDM shall indemnify, defend, and hold harmless Company and its officers, directors, employees and Affiliates and End Users against any Third Party claims, actions or proceedings arising out of or in connection with, and to the extent caused by, (i) any infringement by the Platform against any patent, copyright, or trademark, or the misappropriation of any trade secret (except for claims which are specifically excluded under the terms of Section Indemnification, par. 2, or (ii) any violation by NDM of its obligations of confidentiality under this Agreement. If any of the Platform becomes, or, in NDM’s opinion, is likely to become, the subject of any claim of infringement, NDM may, at its sole option, (x) obtain for Company the right to continue using the Platform; (y) replace or modify the affected Platform so that it becomes non-infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms as determined by NDM, terminate the license to use the Services for the affected portion of the Platform, and promptly refund any subscription Fees pre-paid by Company for the affected portion of the Platform.
Notwithstanding any terms contained in Section Indemnification, par. 1, NDM shall have no liability for infringement claims if the alleged infringement is based on or arises from (i) the combination or use of the Platform with software or other materials not provided or recommended (in writing) for use by NDM, (ii) the modification of the Platform by anyone other than NDM, or at NDM’s direction, (iii) the use of the Platform not in accordance with the Documentation, Materials, or the Agreement, or (iv) the use of other than the then most current version of the Platform if the use of the most current version of the Platform would have eliminated the infringement, and Company was notified of and given a reasonable opportunity to use the most current version thereof.
Company Indemnification. Company will indemnify, defend, and hold harmless NDM against all claims, actions or proceedings, arising out of any claim that: (i) any Company software, Marks, Content, or Materials directly provided by Company or its End Users or inputted into the Platform, or the permitted use of the same by NDM, infringes or violates any Third Party patent, copyright or trade secret right; (ii) Company’s unauthorized use or reproduction of the Platform or any Services; or (iii) Company’s violation of Section Non-Disclosure; Confidentiality; Data Protection of this Agreement.
Indemnification Obligations. The indemnification provided in Sections Indemnification, par. 1 and par. 2 is conditioned on (i) the party to be indemnified (the “Indemnified Party”) giving the indemnifying party (the “Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim; provided, however, that any settlement does not deprive the Indemnified Party of any future rights. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.
Term and Termination
Agreement Term. The Agreement shall commence on the Effective Date and continue in effect until terminated in accordance herewith (the “Term”).
Subscription Term. Company may have the opportunity to purchase one or more Subscriptions during the Term of this Agreement. Each Subscription shall commence on the Subscription Start Date set forth in the corresponding Order Form and shall continue in effect until for the period of time prescribed in the Order Form, until it is terminated in accordance herewith (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
Agreement Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:
- By either Party if the other Party commits a material breach of this Agreement and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
- By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;
- By NDM, if NDM reasonably determines that further provision of the Services would be (or would present a substantial risk) in contravention of any applicable law or rule of any self-regulatory organization;
- By NDM if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to Company;
- By either Party, upon notice, in the event of any documented verbal or written abuse (including threats of abuse or retribution) by any employee, officer, agent, or representative of the other Party that is directed toward any employee, officer, agent, or representative of such Party; provided that prior notice and a reasonable opportunity to address and reasonably remediate the same shall be provided before any such termination notice may be served effectively hereunder;
- By either Party, upon the non-renewal by either Party of all of Company’s Subscriptions in accordance herewith.
Subscription Termination. Either Party may terminate a Subscription by electing not to renew it by providing the other Party with sixty (60) days’ advance written notice prior to the conclusion of the Subscription Term then in effect. NDM may, but is not obligated to, provide Company with the ability to submit a non-renewal request, or to automatically decline Subscription renewal, through Company’s Account.
Terminating one (1) Subscription in accordance with this Section shall not terminate any other Subscription or this Agreement.
All Subscriptions shall automatically terminate upon termination of this Agreement pursuant to Section Agreement Termination hereof.
Effect of Termination. Upon expiration or termination of this Agreement for any reason, all access, rights, and licenses granted by NDM hereunder to Company and all End Users will immediately cease, and any monies owed by Company to NDM shall become due and payable. Upon any expiration or termination of this Agreement, NDM shall make Company’s Content available to it for a period of thirty (30) days. Upon any expiration or termination of this Agreement Company shall return any equipment provided by NDM (where applicable), and delete, destroy, or return (and certify the same), at NDM’s sole discretion, any NDM Software, Platform, Documentation, or Materials in the Company’s possession.
Survival. Termination of this Agreement or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
Authority. Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. When executed and delivered by both Parties, the Agreement will constitute the legal, valid and binding obligations of such Party, enforceable against such party in accordance with its terms.
Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Company agrees that NDM may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. With respect to any other proceeding, the federal and state courts located in Fulton County, Georgia will have exclusive jurisdiction. Company waives any objection to venue in any such courts.
International Conventions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the Parties hereunder.
No Conflicts. In the event of any conflict between the content in this Agreement or an Order Form (if any), the Agreement will control, unless the Order Form expressly states that the Order Form shall supersede the applicable provision of the Agreement.
Notwithstanding the content of any Company purchase order or any other document or record created by Company, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void in their entirety, unless any such document is signed and delivered by an authorized signatory of NDM.
Communications; Notices. All communications and notices which are required or otherwise provided under the Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective addresses set forth either on the first Order, or on the first page or signature page of these Terms and Conditions, as each may be amended by the Parties by written notice to the other Party in accordance with this Section Communications; Notices.
Assignment. Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section Assignment shall be void and of no effect. Notwithstanding the foregoing, NDM may assign this Agreement to any Third Party acquiring all or substantially all of NDM’s equity or assets pursuant to a merger, sale, reorganization, or consolidation with that Third Party without Company’s consent. NDM may further delegate its obligations, in whole or in part, to any of its Affiliates without Company’s consent. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Entire Agreement. The Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. All Schedules attached to the Agreement or subsequently added hereto by mutual consent of the Parties are incorporated into this Agreement for all purposes.
Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Modifications. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement and signed by an authorized representative of each Party. Notwithstanding the foregoing, NDM reserves the right, in its sole discretion, to make any changes to the Services and the Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of NDM’s services to its customers, (ii) the competitive strength of or market for NDM’s services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
Force Majeure. Neither party shall be in default in the performance of its obligations under this Agreement if such performance is prevented or delayed by reasons of force majeure (the “Force Majeure”), which includes, without limitation, the following: (i) acts of God, flood, fire, wind, storm, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; (vi) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; (vii) any labor or trade dispute, materials or transport, strikes, industrial action or lockouts; (viii) interruption or failure of utility service; or (ix) for any other cause, whether similar or dissimilar to those enumerated, that is beyond the reasonable control and without the fault or negligence of the party whose performance is affected.
No Third-Party Beneficiaries. The Agreement is personal to the Parties and no third parties shall be considered beneficiaries hereof, for any purposes.
Non-Solicitation. During the Term of this Agreement and for a period of one (1) year following the termination hereof, Company shall not, without NDM’s prior written consent, directly or indirectly solicit or encourage any person to leave the employment or other service of NDM or its Affiliates.
Independent Review. By executing this Agreement, the Parties expressly acknowledge that each Party has had the opportunity to review and discuss all of the terms contained herein. By executing this Agreement, each Party expressly acknowledges that it has had the opportunity to employ the aid and advice of independent counsel or that the Party is expressly waiving the right to such aid or advice.
Incorporation. These Terms of Service shall be considered entered into in connection with the execution and delivery of the first Order Form issues pursuant hereto and into which these Terms of Service are incorporated by reference, which execution may be in counterparts and electronic, which, collectively, shall be the Agreement.