The following capitalized terms shall have the following meanings whenever used in this Agreement.
- “AUP” means Vendor’s acceptable use policy as defined in this document.
- “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users. The only customer data that will be persisted by CPN will be email and phone number. First name and Last name of customer will not be stored.
- “Order” means an order for access to the System(s), defined in 1.5
- “Systems” means Vendor’s eCommerce Enablement Engine (CPN) stack, which has the following components: AWS middleware infrastructure, Middleware pre-built integrations, Agent Console Extension, HubSpot, Pulse, Zapier, Know Your Customer (KYC) reports, and New Relic.
- “SLA” means Vendor’s standard service level agreement, currently defined as 5x8 support, Monday - Friday, Eastern Standard Time
- “Term” is defined in Section 11.1 below.
- “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- Use of the System. During the Term, Customer may access and use the Systems pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires, and (b) Vendor’s policies posted on its Website at www.objectedge.com/policies, as such policies may be updated from time to time.
- Service Levels. Vendor shall provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. The Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
- Documentation. The Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
- System Revisions. The Vendor may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 5 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions shall not go into effect with respect to such Order until the start of the Term beginning 45 or more days after Vendor posts the revision and so informs Customer.
The Customer shall pay Vendor the fee set forth in each Order (the “Subscription Fee”) for each Term. The Vendor will not be required to refund the Subscription Fee under any circumstances.
Customer Data and Privacy
- Use of Customer Data. Unless it receives Customer’s prior written consent, The Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third-party access to Customer Data, except for Vendor’s subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
- Data Accuracy. The Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
- Data Deletion. The Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
- Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor's computers or other media, any data (“Excluded Data”) regulated pursuant to ____________________ (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
- Aggregate and Anonymized Data. The term “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers. Notwithstanding the provisions above of this Article 4, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
Customer’s Responsibilities & Restrictions
- Acceptable Use. The Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. If the COMPANY suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Vendor is free to take any such action it sees fit.
- Unauthorized Access. The Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. The Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
- Compliance with Laws. In its use of the System, The Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
- Users & System Access. The Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
Intellectual Property and Feedback
- Intellectual Property Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. The Customer recognizes that the System and its components are protected by copyright and other laws.
- Feedback. The term “Feedback” refers to any suggestion or idea for improving or otherwise modifying the System or any of Vendor’s other products or services. Vendor has not agreed, and does not agree, to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Customer hereby grants Vendor a perpetual, irrevocable right and license to exploit Feedback in any and every way.
- Definition. The term “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within thirty (30) business days; (c) the Documentation and system architecture, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Vendor, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of Vendor’s disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. The Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
- Nondisclosure. The Customer shall not use Confidential Information for any purpose other than execute transactions on the eCommerce channel (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
- Injunction. Customer agrees that breach of this Article 7 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.2 above (Nondisclosure) will terminate five (5) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
Representations & Warranties
- From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply where infringement arises out of the use of the System in combination with software not provided by Vendor. In the event of a breach of the warranty in this Section 8.1, Vendor, at its own expense, will promptly take one of the following actions, at its cost and discretion: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
- From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Each party shall defend, indemnify, and hold harmless the other and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to an alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to party’s negligence.
Limitation of Liability
- Dollar Cap. BOTH PARTIES’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED TEN THOUSAND DOLLARS ($10,000) USD.
- Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, liability will be limited to the maximum extent permissible. For the avoidance of doubt, liability limits and other rights set forth in this Article 10 apply likewise to either party’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Reference Components. Reference Components are defined as technologies that are part of the System that are used to support the execution of the value of the System. The CUSTOMER will not have access to Reference Components. Reference Components are currently defined as:
Google Cloud Platform and Amazon Web Services
Access Components. Access Components are defined as technologies that are part of the system that realize the value of the system. The CUSTOMER will have read only access to Access Components. Access Components are currently defined as:
- Customer frontend
- CUSTOMER will have a monthly 1GB data transmission limit between eCommerce and System. Additional data bandwidth can be purchased at published Amazon or Google rates at time of bandwidth extension request
- CUSTOMER will have a 1GB storage limit of custom persisted objects and data. Additional storage can be purchased at published Amazon rates at time of storage extension request
- Customer frontend
- Access Components. Access Components are defined as technologies that are part of the system that realize the value of the system. The CUSTOMER will have read only access to Access Components. Access Components are currently defined as:
Term and Termination.
- Term. The term of this Agreement (the “Term”) shall commence on the Effective Date [ ] and continue for [ ] months. This Agreement shall auto-renew and convert to a month-to-month agreement if no written notice of termination is given within 1 month of scheduled termination. A 30-day notice will be required to terminate the month-to-month agreement.
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in five (5) days unless the other party first cures such breach.
- Termination without Cause. Either party may terminate this Agreement for any reason, effective in thirty (30) days from email notice.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (Intellectual Property and Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive in order to fulfill its essential purpose.
- Terms and responsibilities for support.
- Object Edge will be responsible for providing, provisioning, or co-licensing all environments;
- Work will be performed from Object Edge offices;
- Object Edge will not be executing any business operation responsibilities such as setting up any promotions, content groups, segments, etc. or enhancements or training. This is exclusively a support agreement;
- All assets will be hosted by Object Edge or licensed host;
- This support agreement does not include any custom development for the Customer.
- Premises. The following premises were used to compile this agreement:
- All issues, independently of severity classification, must follow the Market Standard best practices (ITIL)
- Only the production environment is in the scope of this document
- It is Object Edge’s Responsibility to create a Support Knowledge Base and it will be used by Object Edge and it may be shared or not with the CLIENT.
- If the contract is not renewed or terminated, Object Edge will do knowledge transfer for 3 days during commercial hours. If more time is needed, this will be charged separately. Object Edge will transfer knowledge specific to the CLIENT implementation. Commercial Platform specific knowledge is expected to be provided by the platform provider.
- Only Production Issues can be classified as severity 1 and 2 issues.
- Only Severity 1 and 2 issues can be reported by email, phone, or other means. Any other issue must be handled through a proper support platform (JIRA).
- Software License Responsibilities. Object Edge will be responsible to provide the proper licenses for the following software:
- Operation Systems (Mac OS X / Linux)
- Corporate Email (Email, Agenda, Contacts)
- Classifying Issue Severity
- Severity 1: System Unavailable or issues that prevent the system to be used for over 20% of the total traffic of the system.
- Severity 2: System Unavailable or issues that prevent the system to be used for under 20% of the total traffic of the system.
- Severity 3: Slowness that cause difficulties in the use of the systems and / or functionalities by all or part of the users or incidents that generate difficulties in the use of the systems, functionalities and / or information generated by all or part of the users
- Severity 4:
- Scheduled Actions and Services requests.
- Incidents that do not impact on the use of systems / functionalities to place an order, but may impact visual appeal or correctness of the site
- Service Level Agreements. Please see Appendix A for Service Level Agreements.
- Support Hours.
- Severity 1: 12x5, defined as 7AM EST – 7PM EST, Monday through Friday
- Severity 2-4: 8x5, defined as 7AM EST – 3PM EST, Monday through Friday
- Terms and responsibilities for support.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.
- Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to , and such notices will be deemed received 72 hours after they are sent.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- Dissolution. In the event of Object Edge Inc. being dissolved, Princess Auto will receive a perpetual, non-sellable license to the Agent Console Extension and to any pre-built integrations provided on the CPN Middleware stack that are used by Princess Auto.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Choice of Law and Jurisdiction. This Agreement will be governed solely by the internal laws of the Province of Ontario, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Toronto, Ontario, Canada.
- Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
- Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
- Terms on termination. This agreement has the following guidelines on termination of this agreement
- All data stored in the instance of the customer will be deleted within 5 business days of termination
- Frequency. All payments will be due within 30 days of receiving an invoice. Payments made after the 31 days will be subject to a 10% penalty
- Term. Customer agrees to license CPN for a period of a minimum of 12 [term]months.
- Price. For all orders that are marked as delivered through the CPN application;
- The Customer will receive CPN for free for a period of [ ] days.
- The Customer will pay $0 USD for all orders that have an order value of less than $[ ] USD, inclusive of all applicable taxes.
- The Customer will pay $1 USD, which includes all taxes, for each order that has an order value of greater than $[ ] USD, inclusive of all applicable taxes