GENERAL TERMS AND CONDITIONS FOR E2OPEN TMS SERVICES
1. DEFINED TERMS.
1.1. “Agreement” means an Order Form and any documents incorporated into an Order Form.
1.2. “Affiliates” means an entity that is directly or indirectly owned or controlled by a party. For purposes of this definition, “control” refers to the power to direct the management or affairs of an entity and “ownership” refers to the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
1.3. “Confidential Information” means the terms of the Agreement and any information that is marked or otherwise designated in writing as confidential at the time of disclosure, and which is disclosed by a party to the other party whether such information was or is shared by the parties in the course of negotiating the Agreement before the Effective Date or thereafter; provided that Confidential Information does not include information that: (i) is or becomes known to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (ii) is or becomes publicly known or otherwise ceases to be confidential, except through a breach of the Agreement by the receiving party; or (iii) is independently developed by the receiving party. The Subscription Services, Documentation, E2open Materials, and pricing set forth in an Order Form are E2open’s Confidential Information. The Transaction Data is Customer’s Confidential Information.
1.4. “Documentation” means the then-current user guides, training materials, technical and functional manuals, and other instructional and reference materials that E2open generally distributes or makes available to its customers.
1.5. “E2open Materials” means any technology, equipment, information, and materials provided or developed by E2open (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer including Documentation and any derivative works thereof. E2open Materials do not include the Transaction Data, Customer’s Confidential Information, or the Subscription Services.
1.6. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.7. “Order Form” means the ordering document under which Customer orders Services from E2open.
1.8. “Consulting Services” means training, consulting, configuration, and/or other Consulting Services identified on an Order Form, but do not include Subscription Services.
1.9. “Services” collectively means the Subscription Services and the Consulting Services.
1.10. “Shipment” means an inpidual order entered into the Subscription Services.
1.11. “Subscription Services” means the subscription-based services identified on an Order Form.
1.12. “Trading Partner” means Customer’s identified third-party logistic providers, channel partners, suppliers, and/or contract manufacturers.
1.13. “Transaction Data” means any content, materials, data, and information that Users input or cause to be input into the Subscription Services or that Customer or Users derive from their use of and store in the Subscription Services. Transaction Data and its derivatives does not include E2open’s Confidential Information.
1.14. “User” means any inpidual or automated system granted access through a unique user ID authorized to access and/or use the Subscription Services, including but not limited to Trading Partners.
2. GRANT OF RIGHTS; USAGE RIGHTS.
2.1. Grant of Rights. Subject to the terms of the Agreement:
(a) E2open hereby grants Customer a non-exclusive, non-transferable, worldwide right during the term of the Agreement to access and use the Subscription Services and the Documentation and E2open Materials solely for Customer’s purposes as contemplated by the Agreement;
(b) Customer hereby grants E2open a non-exclusive, worldwide right to use Transaction Data as necessary to provide the Services during the term of the Agreement and, solely with respect to E2open’s channel data management services, a non-exclusive, worldwide right to use Customer’s trademarks as necessary to provide the Services during the term of the Agreement; and
(c) Customer hereby grants E2open a non-exclusive, worldwide right to create aggregated or anonymized forms of the Transaction Data that do not identify Customer or any Users (“Aggregated Content”) for E2open’s business purposes. Aggregated Content may include transaction volume, number of Trading Partners, and revenue volume but will not include or contain Customer Confidential Information, information that would allow a person to infer information about Customer or Customer’s business, or personally identifiable or sensitive information as defined by applicable laws.
2.2. Administration of User ID’s. Customer is responsible for the Transaction Data and for the administration, authorization and termination of all User access authorizations. Customer will provide E2open with accurate, complete and updated registration information of its Users. Notwithstanding the foregoing, E2open may refuse registration of, or suspend, a User’s access to the Subscription Services if, in E2open’s reasonable judgment, a significant threat to the security or functionality of the Subscription Services or any component thereof is imminent. E2open will notify Customer of any such occurrence. Customer is responsible for the security of its access to the Subscription Services and the security of each User’s access authorization. Customer will not permit Users to share User IDs and passwords. Customer will promptly notify E2open of any unauthorized use of the Subscription Services, or any other breach of security suspected or known to Customer. Customer is also responsible for maintaining the required hardware, software, internet connections, and other resources necessary for Users to access the Services.
2.3. Rights and Restrictions. Customer is responsible for its Users’ compliance with the terms and conditions of the Agreement. Except as expressly permitted herein, Customer will:
(a) use the Subscription Services in compliance with E2open’s Acceptable Use Policy located at http://www.e2open.com/company/acceptable-use-policy/, incorporated by reference;
(b) comply with E2open’s Security Guidelines Policy located at http://www.e2open.com/company/customer-security-policy/, incorporated by reference;
(c) not, without the prior written consent of E2open, directly or indirectly:
(i) transfer, assign, lease, loan, resell, distribute or otherwise grant any rights in the Services, Documentation, or E2open Materials in any form to any third party, including commercial time-sharing, rental or service bureau use;
(ii) reverse engineer, decompile, disassemble, or attempt to discover the source code from any Services or E2open Materials;
(iii) copy, modify, or create derivative works based on the Services, Documentation, or E2open Materials; or
(iv) remove or alter any notices of Intellectual Property Right or confidentiality or similar legends appearing in or on any aspect of any Subscription Services.
2.4. Mobile Usage. Users may access certain Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications is governed by an end user license agreement presented upon download/access to the mobile application and not by the terms of the Agreement.
3.1. Mutual Warranty. Each party represents that it has the authority to enter into the Agreement and the right to disclose its Confidential Information in accordance with the terms set forth herein.
3.2. Subscription Services Warranty. E2open warrants that the Subscription Services will substantially perform in accordance with the Documentation. As Customer’s sole and exclusive remedy for a breach of this warranty, E2open will, at its discretion, either repair or replace the portion of the Subscription Services that do not comply with the warranty, or refund the amounts paid by Customer for the nonconforming portion of the Subscription Services for the period of the nonconformance.
3.3. Consulting Services Warranty. E2open warrants that the Consulting Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy for a breach of this warranty, E2open will re-perform nonconforming Consulting Services provided Customer notifies E2open of the nonconformity within 30 days after delivery.
4. CONSULTING SERVICES AND SERVICE LEVEL AGREEMENT.
4.1. Consulting Services. Any Consulting Services required will be set forth in an Order Form. Any changes to the scope of Consulting Services will be identified on a change request form signed by the parties.
4.2. Service Level Agreement. E2open will maintain the Subscription Services per the Service Level Agreement below.
4.3. Expenses. Customer agrees to reimburse E2open for actual, reasonable travel, living, and out-of-pocket expenses incurred in providing Consulting Services.
5. PROPRIETARY RIGHTS.
5.1. E2open Proprietary Rights. E2open and its licensors own all Intellectual Property Rights in and related to the Services and E2open Materials and the Aggregated Content. E2open retains ownership in all directories and information compiled and curated by E2open using publicly available information that may be included within Transaction Data. All rights not expressly granted to Customer are reserved to E2open and its licensors.
5.2. Customer Proprietary Rights. Customer owns all rights, title, and interest in and to the Transaction Data and Customer’s Confidential Information.
5.3. Feedback. From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to E2open, including during support (“Feedback”). Feedback is provided “as-is” and with all faults and without any implied or express warranty of any kind. E2open may, in any of its products or services, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise. Feedback is considered E2open’s Confidential Information, and nothing in the Agreement limits E2open’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
6. CUSTOMER OBLIGATIONS.
6.1. Customer Performance. Customer grants E2open a license to host, copy, transmit, and display Customer’s internal software, documentation, tools, and other items reasonably necessary for E2open to provide the Services in accordance with the Agreement. Customer will timely perform and deliver all items required to be delivered under the Order Form, or as reasonably requested by E2open during its performance of the Consulting Services.
6.2. Integration with Mileage and/or Mapping Software. Customer is responsible for directly transferring and procuring the necessary license and rights to use mileage and/or mapping software that is compatible with the Subscription Services (each, “Mileage and/or Mapping Software”). The Mileage and/or Mapping Software is integral to Customer’s receipt of the full benefits of the Subscription Services and obtaining a license from the vendor is Customer’s sole responsibility. E2open will have PC Miler, Rand McNally, SMC3 for LTL, Google Maps, and other necessary third-party software functionality embedded in its TMS application and is responsible for providing support relating to the inoperability of the Subscription Services with the Mileage Software and/or Mapping Software. Customer is responsible for:
(a) transferring its current license and applicable fees for the Mileage Software (PC Miler or Rand McNally) and/or Mapping Software (Google Maps) if those components are being accessed within the Subscription Services;
(b) transferring its current SMC3 LTL Rateware XL, Czar-Lite license, or inpidual tariffs and applicable fees with that provider for LTL rating if that component is being accessed within the Subscription Services;
(c) the fees associated with accessing the carrier safety/insurance websites if that component is being accessed within the Subscription Services; and
(d) the fees associated with other, optional third-party software to which the Subscription Services is integrated including, but not limited to, DAT Rateview, BreakthroughFuel, LocusTraxx and Truckstop.com.
7. PAYMENT TERMS; TAXES.
7.1. Fees. Customer will pay all fees identified in the Order Form. All invoices are due and payable within 30 days of the date of invoice. All Order Forms are non-cancellable and fees non-refundable.
7.2. Late Payment. Any payment not timely received will accrue interest at a rate of 1½% per month, or the highest rate allowed by applicable law, whichever is lower.
7.3. Suspension of Services and Acceleration. If any amount owed by Customer is 30 or more days overdue, E2open may (a) accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable; and/or (b) suspend Services until such amounts are paid in full. E2open will provide at least 10 days’ prior notice that Customer’s account is overdue before suspending Services.
7.4. Taxes. Customer is responsible for all sales tax, use tax, withholdings, VAT, and any other taxes and charges of any kind imposed by any governmental entity having authority on the transactions contemplated by the Agreement, excluding only taxes on E2open’s net income.
7.5. Customer Purchase Order Requirements. If Customer requires its own internal purchase order to process payment of an invoice, Customer will issue the purchase order to E2open at least 10 days prior to the invoice date(s) identified in the Order Form or, if the invoice date is the effective date of the Order Form, within 5 days of such effective date. Any delay by Customer in issuing its purchase order will not have the effect of extending the payment terms as provided in the Agreement or the respective Order Form. Failure to timely issue a purchase order as set forth herein may result in the suspension of Services and/or termination of the Agreement as set forth in Section 11.2 (Termination).
8. CONFIDENTIAL INFORMATION; RESTRICTIONS.
8.1. Use of Confidential Information. The receiving party will protect all Confidential Information of the disclosing party to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The receiving party will not disclose any Confidential Information of the disclosing party to any person other than those necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under substantially similar obligations of confidentiality. If a party is compelled by law to disclose Confidential Information of the other party, it will provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. If the terms of the Agreement conflict or are otherwise inconsistent with terms of any non-disclosure agreement the parties entered into prior to the Effective Date, the terms of the Agreement will control.
8.2. Publicity. Customer will work with E2open to create a press release which indicates Customer’s selection of E2open after the execution of the Agreement. Upon successful implementation of the Subscription Services, Customer will work with E2open to create a case study (“Case Study”) regarding the deployment, value, and use of the Subscription Services by Customer. E2open may publicize the Case Study in its marketing and advertising material, and may reproduce Customer’s company name, logo, trademark, trade-name, service mark, or other commercial or product designations.
9. LIMITATION OF LIABILITY; WARRANTY DISCLAIMER.
9.1. Limitation of Liability. EXCEPT FOR A PARTY’S UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, DELAY OR INTERRUPTION OF BUSINESS, OR LOST GOODWILL; (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE, OR SERVICES; OR (C) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY WILL EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE 12 MONTH PERIOD PRECEDING THE EVENT OR ACTION GIVING RISE TO LIABILITY (OR IF SUCH CLAIM ARISES DURING THE INITIAL 12 MONTHS OF THE AGREEMENT, THE FEES EXPECTED TO BE PAID DURING SUCH 12 MONTH PERIOD), OR $100,000, WHICHEVER AMOUNT IS LESS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2. No Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. E2OPEN DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESSED AND/OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. E2OPEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR THAT ALL DEFECTS WILL BE CORRECTED.
10.1. E2open Indemnification. E2open will indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by such Customer Indemnitee arising out of any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses result from any allegation that Customer’s or a User’s use of the Services (excluding Transaction Data) in compliance with the Agreement infringes an Intellectual Property Right. This obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or E2open Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by E2open; or
(b) modification of the Services or E2open Materials other than: (i) by or on behalf of E2open; or (ii) with E2open’s written approval.
10.2. Customer Indemnification. Customer will indemnify, defend, and hold harmless E2open and its officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “E2open Indemnitee”) from and against any and all Losses incurred by such E2open Indemnitee in connection with any Action by a third party to the extent that such Losses arise out of or relate to any:
(a) Transaction Data, including any processing of Transaction Data in accordance with the Agreement; or
(b) materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User.
10.3. Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to the Agreement. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense of the Action and will employ counsel to handle and defend the Action, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will have no authority to compromise or settle an Action on terms that would have a material adverse effect on the Indemnitee, without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed.
10.4. Mitigation. If any of the Services or E2open Materials are, or in E2open’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any User’s use of the Services or E2open Materials is enjoined or threatened to be enjoined, E2open may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and E2open Materials as contemplated by the Agreement;
(b) modify or replace the Services and E2open Materials, in whole or in part, while providing equivalent features and functionality; or
(c) terminate the respective Order Form with respect to the potentially infringing Services and/or E2open Materials, and require Customer to immediately cease any use of the Services and E2open Materials or any component thereof, and E2open will refund prepaid fees covering the remainder of the term of the terminated subscriptions.
THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND E2OPEN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED INTELLECTUAL PROPERTY RIGHTS CLAIMS MADE PURSUANT TO THE AGREEMENT.
11. TERM; TERMINATION.
11.1. Term. The Term is set forth on the Order Form.
11.2. Termination. Either party may terminate an Order Form and, therefore, the Agreement:
(a) if the other party breaches the Agreement in any material respect and fails to cure the breach, if capable of cure, within 30 days after receiving notice from the other party specifying the nature of the breach; or
(b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Effect of Termination. Upon termination of the Agreement, all rights granted to Customer hereunder with respect to the Services and all E2open Materials will automatically terminate and Customer will immediately discontinue its use thereof. After termination, each party will destroy all Confidential Information of the other party in its possession received under the Agreement and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law or as necessary for record keeping purposes. Notwithstanding the foregoing, non-destruction of electronic copies of materials containing or reflecting Confidential Information that are automatically generated through data backup or archiving systems will not be deemed to violate the Agreement, so long as the Confidential Information contained therein is not disclosed or used in violation of the other terms of the Agreement. Upon termination of the Agreement, the following provisions will survive: Sections 2.1(c) (Aggregate Content License), 5 (Proprietary Rights), 7 (Payment Terms; Taxes), 8 (Confidential Information; Restrictions), 9 (Limitation of liability; Warranty Disclaimer), 10 (Indemnification), 12 (Term; Termination), 12 (Compliance) and 13 (Miscellaneous).
12.1. Customer Compliance. Customer will comply with all laws and regulations of the United States governing the use, access or export of the Services or any part thereof. Without limitation, the Subscription Services or any part thereof may not be used or accessed within or by, or otherwise exported to, (a) any United States embargoed country; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nations, the United States Department of Commerce’s Table of Denial Orders, or other similar list. Both parties expressly agree that each will fully comply at all times with all applicable anti-corruption laws including, but not limited to, the Foreign Corrupt Practices Act of 1977 of the U.S., as amended and the UK Bribery Act 2010. Each party agrees to indemnify and hold the other party harmless for all liability or damages caused by the indemnifying party’s failure to comply with the terms of this provision.
13.1. Entire Agreement. The Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written. The Agreement may not be amended, nor any obligation waived, except by a writing signed by the authorized representatives of both parties hereto. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition of the Services will have any effect on the rights, duties or obligations of the parties relating to Customer’s Use of the Services provided under, or otherwise modify, the Agreement, regardless of any failure of E2open to object to such terms, provisions or conditions. The parties exclude in its entirety the application to the Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
13.2. Governing Law. The Agreement is governed by the laws of the State of Texas, United States of America without reference to conflict of law principles. Any litigation hereunder will be submitted to the state or federal courts of Travis County, Texas, and the parties irrevocably consent to personal jurisdiction of said courts.
13.3. Assignment. Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party without E2open’s prior written consent.
13.4. Force Majeure. Neither party is liable to the other for anyconditions outside of its control including, but not limited to, failure of a portion of the power grid, failure of the Internet, acts of God, strikes and other labour disputes, natural disasters such as floods, earthquakes, typhoons and epidemics, wars, government acts, terrorist acts, riots, revolutions, sabotage or other events of a magnitude or type for which precautions are not generally taken in the industry.
13.5. No Partnership. Nothing contained in the Agreement will be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties will be that of independent contractors. Neither party will have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon either party except those expressly granted herein.
13.6. Notices. Any notice or communication required to be given hereunder may be delivered by hand, overnight courier, or confirmed email as listed for each party herein or at such other address as may hereafter be furnished in writing by either party to the other party.
13.7. Severability; Waiver. If any provision of the Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed. Any failure to enforce any provision of the Agreement will not constitute a waiver thereof or of any other provision.
13.8. Non-Solicitation. Each party acknowledges that the other party’s employees are critical to servicing its customers and that each party has expended substantial resources in recruiting and training its employees. Therefore, each party agrees not to solicit, employ, or otherwise engage the other party’s employees with whom there was Substantial Contact (as that term is defined below) under the Agreement and for a period of 18 months following the employee’s last day of employment with his/her respective employer. “Substantial Contact” means a party’s interaction with the other party’s employee where such employee had material involvement with the Services during the last 18 months prior to the employee’s last day of employment with his/her respective employer.
Counterparts; Electronic Delivery. The Agreement may be executed in counterparts. The Agreement may be executed and delivered via electronic transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.