You (the “Customer”) have requested that eZCom Software, Inc. (“eZCom”) provide certain electronic data interchange and RELATED SERVICES for the Customer, including providing the Customer with access to certain proprietary computer software programs which are hosted on EZCOM servers and made available to eZCom’s customers by means of the Internet, AS WELL AS OTHER SERVICES PROVIDED by EZCOM to the customer (collectively, “Services”). The terms and conditions under which the Services will be provided to, and used by, the Customer are set out below. Please read these terms and conditions carefully.
THESE TERMS AND CONDITIONS ARE EXECUTED IN CONNECTION WITH, AND INCORPORATED INTO, A FEE SCHEDULE/proposal EXECUTED BY THE PARTIES RELATING TO THE SERVICES (AS AMENDED FROM TIME TO TIME, the “FEE SCHEDULE”). THESE TERMS AND CONDITIONS AND the FEE SCHEDULE, as amended from time to time, are hereinafter collectively referred to as THIS “AGREEMENT”.
EzCOM reserves the right to amend thiS AGREEMENT at any time upon thirty (30) days prior written notice to the customer. The customer’s continued use of the services after such written notice will constitute acknolwedgment and acceptance of the AMENDED AGREEMENT.
- Access. eZCom grants the Customer a nonexclusive, non-assignable and non-transferable right during the Term hereof to access and use the Services (including services pertaining to processing of data contained therein) via the Internet (or otherwise, if applicable) and to view and download a copy of the files, text and images expressly designated to the Customer by eZCom (collectively, the “Documentation”) for the Customer’s internal business purposes only. The Customer may use the Services only for services pertaining to the processing of data and for the retrieval of the Documentation and shall comply with all applicable laws and regulations with respect to use of the Services and the Documentation hereunder. This license only grants to the Customer the right to use the Services and the Documentation in accordance with the terms hereof. The Customer does not acquire any right of ownership or title in the Services or the Documentation.
- Customer Requirements. The Customer represents, warrants and covenants that it shall:
(a) ensure that all of its users of the Services on behalf of the Customer (collectively “Authorized Users”) comply with this Agreement, and not permit any person or entity, other than its Authorized Users, to gain access to the Services, and provide reasonable
security devices, commensurate with accepted industry standards, to protect against unauthorized usage or access, including by protecting its transmission facilities, premises, equipment, data, and its ID(s), password(s), user names and the like;
(b) be solely responsible for (i) providing and maintaining such facilities, hardware and software, including, without limitation, a computer and Internet services, as may be required to access and use the Services, and (ii) paying the service providers for all telecommunications and Internet service fees and charges incurred by it in accessing the Services, as well as any Value Added Network (“VAN”) charges if the Customer’s data is routed via a VAN;
(c) not use the Services for any obscene, offensive or immoral purpose, or in any manner that violates any applicable international, federal, state or local law, rule, regulation or ordinance, including those relating to data privacy, international communications, and the transmission of international or technical data;
(d) not (i) use the Services for time-sharing, rental or service bureau purposes; (ii) sell, sublicense, resell, or otherwise transfer its right to use the Services; (iii) modify, reverse engineer, decompile or disassemble any part or all of the Services; or (iv) create or attempt to create derivative works based on the Services, in whole or in part;
(e) not remove, obscure or alter eZCom’s proprietary notices or trademarks form any Documentation or other document; and
(f) ensure that all data and information that the Customer submits in the course of using the Services is free from viruses, worms, Trojan horses and other malicious code.
- Charges and Payment. The Customer shall pay all fees and charges accruing to its account (including as a result of any unauthorized use) in accordance with the Fee Schedule. The fees and charges stated in the Fee Schedule shall be fixed for the Initial Term, as defined in Section 10, but eZCom reserves the right to change its fees and charges for each Renewal Term, as defined in Section 10, upon written notice to the Customer which shall be provided not less than thirty (30) days prior to the commencement of the Renewal Term for which the changes apply. Any such changes shall remain fixed for the balance of the applicable Renewal Term. eZCom further reserves the right, at any time, to charge additional or different fees in consideration for providing new or modified Services. The Customer’s continued use of the Services after such change will constitute acknowledgment and acceptance of the revised fees and charges. Fees and charges are non-refundable and shall be due AND OWING whether or not the Customer uses the Services DURING THE TERM.
Monthly fees will be invoiced at the end of the each month, and are to be paid by the Customer upon receipt, unless otherwise agreed by eZCom in the Fee Schedule. The Customer shall be responsible for all sales, use, excise and other taxes relating to the Services (exclusive of taxes based solely on eZCom’s net income). Any questions or discrepancies with respect to an invoice must be raised by the Customer, in writing, within thirty (30) days of the invoice date, and do not do not provide an extension of the time for paying such invoice.
eZCom reserves the right to suspend or terminate this Agreement and/or the Customer’s
access to the Services if the Customer’s account becomes delinquent. If the Customer’s access to the Services is suspended or terminated, it shall not be reactivated until all unpaid amounts, as well as a new set-up fee, are paid. If the Customer’s account becomes more than thirty (30) days past due, there will be a finance charge of one and one half percent (1.5%) of the outstanding amount charged for each month, or portion of a month, the account remains unpaid. The Customer shall pay eZCom for all costs of collection (including attorneys’ fees and expenses) incurred in the collection of any delinquent account or other enforcement of its rights hereunder.
The Customer may pay amounts due hereunder by check, credit card, wire transfer, ACH transaction or other means acceptable to eZCom. Upon the request by eZCom at any time during the Term, the Customer shall provide a valid credit card account number or a deposit as security for amounts that will become due from the Customer to eZCom hereunder. In such case, upon the failure of the Customer to pay any amount when due to eZCom hereunder, the Customer hereby authorizes eZCom to charge all unpaid amounts to the credit card on file or to apply the deposit to pay such unpaid amounts; provided that the Customer shall remain liable for any deficiency.
- Additional Trading Partner. From time to time during the Term, the Customer may request (in such manner as eZCom shall designate) that eZCom add new trading partners in connection with the Services. The Customer acknowledges that set-up of a new trading partner requires contact with, and cooperation from, such trading partner. eZCom shall work in a commercially reasonable manner to complete each new trading partner set-up, but cannot guarantee how long it will take to add such new trading partner or that eZCom will be able to add such new trading partner. Fees for new trading partner set-up will be in accordance with the fees set forth by eZCom as of the date the Customer’s written request is received by eZCom. eZCom may invoice the Customer for the applicable fee(s) for such new trading partner on the date it receives a written request from the Customer, and such fee(s) shall be earned and nonrefundable, regardless of whether the new trading partner is added or whether the Customer later withdraws its request to add such new trading partner.
- Proprietary Rights. All right, title and interest in and to the Services and the Documentation will at all times remain the property of eZCom and its licensor(s) and service providers. All right, title and interest in and to the data or information that the Customer submits in the course of using the Services shall remain the property of the Customer.
- Warranty. eZCom warrants that the Services shall be performed in accordance with applicable industry standards in all material respects, and that it will use commercially reasonable efforts to transmit and deliver the Customer’s data in industry standard format. This warranty will apply only to failures to meet the warranty that are reported by the Customer to eZCom in writing within thirty (30) days after the date of the failure. The Customer will cooperate fully and provide such information as is necessary for eZCom to verify the failure. If any failure should not be corrected within a reasonable period of time, as eZCom’s sole obligation and the Customer’s exclusive remedy, the charges paid by Customer for the particular Service affected by the failure will be equitably reduced and a credit issued to the Customer in the amount of the reduction. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 6, THE SERVICES ARE PROVIDED “AS-IS,” AND
EZCOM DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES (i) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) OF NONINFRINGEMENT, (iii) THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE, (IV) THAT THE SERVICES WILL FUNCTION PROPERLY IN COMBINATION WITH THE CUSTOMER’S EQUIPMENT, OR (V) THAT THE FILES AVAILABLE FOR DOWNLOADING WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
- Confidentiality. The Customer acknowledges that it may have access to information of eZCom of a confidential or proprietary nature, including, without limitation, the Documentation (collectively, “eZCom Confidential Information”) in connection with its use of the Services. Without limiting the generality of Section 2(c) above, the Customer agrees to maintain the confidentiality of all eZCom Confidential Information using the same degree of care that the Customer uses to protect its own most confidential or proprietary information (but not less than a reasonable degree of care). The Customer shall limit access to the Services to its Authorized Users who are reasonably required to have access to the Services, and shall direct its Authorized Users to treat eZCom Confidential Information in accordance with this Agreement. The Customer shall use its best efforts to assist eZCom in identifying and preventing unauthorized access, use, copying or disclosure of the Services, or any component thereof. The Customer shall notify eZCom immediately, in writing, in the event that it learns or has reason to believe that any person, including any Authorized User, has violated or intends to violate this Section 7 and will cooperate with eZCom in seeking injunctive or other equitable relief against any such person.
- Indemnification. The Customer shall indemnify eZCom, its officers, directors, employees, agents, affiliates and licensors against, and defend and hold them harmless from, any and all lawsuits, demands, claims, expenses (including reasonable attorneys’ fees), settlements, damages and judgments arising from any alleged or actual violation of this Agreement by the Customer or its Authorized Users. eZCom hereby reserves the right, which the Customer hereby grants to eZCom, to assume exclusive defense and control of any matter subject to indemnification by the Customer.
- Limitation of Liability.
(A) The Customer acknowledges that the Internet or any VAN that may be utilized is not a secure or an error-free network and that transmissions made thereon may not be completed or may contain errors or omissions. The Internet or any VAN, or portions thereof, may also become inaccessible or inoperable, in whole or in part, at any time or from time to time, AND EZCOM DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED THERETO.
(B) IF DATA FURNISHED BY THE CUSTOMER IS LOST, DESTROYED OR IMPAIRED (COLLECTIVELY, “LOST DATA”) SOLELY DUE TO THE NEGLIGENCE OF EZCOM, THEN EZCOM’S SOLE
LAIBILITY AND THE CUSTOMER’S SOLE REMEDY SHALL BE FOR EZCOM TO (I) TO THE EXTENT REASONABLY POSSIBLE, RESTORE THE CUSTOMER’S LOST DATA FROM EZCOM’S ARCHIVES IF EZCOM IS NOTIFIED OF THE LOSS WITHIN SIXTY (60) DAYS OF THE LOSS, OR (II) IF EZCOM IS
NOTIFIED OF THE LOSS MORE THAN SIXTY (60) DAYS OF THE LOSS, PROVIDE TO THE CUSTOMER A CREDIT FOR THE FEES PAID IN CONNECTION WITH THE TRANSMISSION OF THE LOST DATA.
(C) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9(B) ABOVE, IN NO EVENT SHALL EZCOM OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS RESULTING FROM BUSINESS DISRUPTION, LOSS OF DATA, LOST PROFITS, LOST GOODWILL, OR DAMAGE TO SYSTEMS OR DATA, RESULTING FROM OR IN CONNECTION WITH ANY SERVICES, WHETHER IN AN ACTION FOR CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF EZCOM OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES THAT EZCOM IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER SHALL BE LIMITED TO THE FEES PAID BY THE CUSTOMER FOR USE OF THE SERVICES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY (1) THE INTEGRITY OF DATA SUPPLIED BY THE CUSTOMER, (2) BAR CODING PERFOMED BY THIRD-PARTIES, OR (3) FEES, FINES OR PENALTIES ASSESSED AGAINST THE CUSTOMER BY ANY OFF ITS TRADING PARTNERS FOR ANY REASON, WHETHER OR NOT DUE TO THE FAULT OF EZCOM. THE LIMITATIONS IN THIS SECTION 9(C) SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(D) No action, regardless of form, arising out of THis agreement OR ANY SERVICES, may be brought by THE CUSTOMER more than one (1) year after THE CUSTOMER haS knowledge of the occurrence which gives rise to such action.
(E) EZCOM SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY THIRD-PARTY SOFTWARE LICENSED BY THE CUSTOMER FROM A THIRD-PARTY IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SUCH SOFTWARE RESOLD BY EZCOM.
- Term and Termination. The term hereof shall commence on the date on which eZCom first makes Services available to the Customer (the “Commencement Date”) and shall terminate twelve calendar months thereafter (the “Initial Term”). This Agreement will be automatically renewed for successive one year terms (the “Renewal Term”) unless either party shall notify the other party not less than sixty (60) days prior to expiration of the Initial Term or any subsequent Renewal Term that it does not intend to renew this Agreement for an additional one (1) year term (the Initial Term together with each Renewal Terms is herein referred to as the “Term”), or unless this Agreement is otherwise terminated in accordance with this Section. eZCom shall not have any responsibility or liability for any activities that occur prior to the Commencement Date (such as if the Customer engages in a view-only purchase order transaction). eZCom may terminate this Agreement or any Services immediately if the Customer: (i) breaches this Agreement other than for a failure to pay amounts due and fails to cure such breach within ten (10) days after receipt of written notice from eZCom; (ii) terminates or suspends its business; or (iii) becomes subject to
any federal or state bankruptcy or insolvency proceeding. Termination will not limit a party from pursuing any other remedies available to it for a breach of this Agreement by the other party including any amounts due and owing by Customer for the remaining period of the Initial Term or any then Renewal Term or which accrued prior to such termination or which will accrue after such termination. In the event eZCom shall terminate this Agreement or the Services pursuant to this Section 10, other than pursuant to a proper non-renewal notice given pursuant to this Section 10, or pursuant to Section 3 by reason of the Customer’s continued failure to pay any and all amounts due under this Agreement to eZCom then, in addition to any other rights or remedies that eZCom may have under this Agreement, at law or in equity, including, without limitation, eZCom’s claim for all other amounts due and owing by Customer to eZCom prior to the effective date of any termination, the Customer shall be obligated to pay to eZCom, in recognition of the termination of this Agreement for the above-stated reasons by eZCom prior to the expiration of the then applicable Term, an amount equal to highest amount paid or payable by the Customer to eZCom for the Services for any month during the Term times the number of months remaining in the then current Term calculated from the date of termination. Upon the effective date of termination of this Agreement or any Services, the Customer will make no further use of the terminated Services, and, within ten (10) days thereafter, will return to eZCom all materials provided to the Customer by eZCom related to the terminated Services.
- Injunctive Relief. The Customer agrees that, if it breaches or threatens to breach this Agreement in any manner, eZCom may suffer irreparable damage, and that monetary damages will be inadequate to compensate eZCom therefor. In any such case, eZCom shall be entitled to seek preliminary or other injunctive relief from any court of competent jurisdiction to prevent or stop any such breach or threatened breach, without the requirement of waiting to cure any such breach and without the requirement of posting a bond or other security. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies eZCom may have at law or in equity.
(a) No right or obligation under this Agreement may be assigned or transferred by the Customer without eZCom’s prior written consent, and any purported assignment or transfer in contradiction of this provision shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of the parties.
(b) Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein is held, by any court of competent jurisdiction, to be contrary to law, that provision shall be amended and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. Except for amendments made by eZCom as expressly authorized in this Agreement, this Agreement may be amended only in a document signed by authorized representatives of the parties.
(c) This Agreement shall be governed by New Jersey law, excluding its conflict of laws principles. The parties hereby submit to exclusive jurisdiction in the federal and state courts
in Bergen County, New Jersey for any action between the parties relating to this Agreement or to the Services.
(d) This Agreement (including any Fee Schedule), constitutes the complete and exclusive agreement between the parties and supersedes all previous and contemporaneous agreements, proposals and communications with respect to this subject matter. If the Customer issues a purchase order or other similar document, it will be for the Customer’s internal purposes only, and, therefore, even if it is acknowledged by eZCom, the terms and conditions of such purchase order or similar document will have no effect.
(e) Except for the Customer obligation to pay eZCom hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, without limitation, restrictions of law, regulations or other governmental directives, labor disputes, third party mechanical or equipment breakdown interruption or failure of telecommunication or transmission links, Internet failures or acts of God.
(f) Any notice which is required or permitted to be given by either party to the other hereunder must be in writing and may be given by personal delivery, by certified mail or by electronic transmission (i.e., fax or electronic mail with confirmation of receipt) properly
addressed to the address of the other set forth in the Fee Schedule (as such address may be amended by a party from time to time by written notice to the other party). All notices will be effective upon the date of receipt.
(g) Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement (including, without limitation, Sections 3 (with respect to fee accrued prior to termination), 5, 7, 8, 9, 10, 11 and 12 hereof) shall survive any such termination or expiration, and shall continue in full force and effect.
(h) This Agreement may be executed in any number of counterparts, all of which taken together shall constitute a single agreement. An electronic signature and/or a facsimile signature shall be deemed to be an original signature for purposes of evidencing execution of this Agreement.