"Billable Transactions" means each individual inventory transaction line contained on each of the following transaction documents created through the Service: Receipt Lines on all Receipt documents, Kit Product Lines on all Kit Order documents, and Shipment Lines on all Shipment documents.
"Content" means the visual information (other than Customer Data), Documentation, and services contained or made available by DiCentral to Customer in the course of providing the Service or fulfilling the requirements of any attached Schedules or Addenda.
"Customer" means the person, company or organization on whose behalf this Agreement is accepted, and their respective directors, officers, agents, and employees. Customer's name is set forth in the Services Agreement.
"Customer Data" means any electronic data, information or material provided or submitted by Customer to DiCentral in the course of using the Service. Customer Data does not include statistical or aggregated data derived in whole or in part from Customer Data, or unidentifiable data components derived from Customer Data that is not attributable to Customer.
"Documentation" means the manuals and other relevant materials generally made available by DiCentral for use with the Service, provided in any medium.
"Environment Requirements" means the computing environment required to access and use the Service set forth in the Documentation.
"Go-Live Date" means the date that DiCentral has substantially completed the delivery of Implementation and Training services, and the Service is available for Customer's use in Customer's Site(s).
"Party or Parties" means DiCentral Corporation, Customer, or both DiCentral Corporation and Customer collectively.
"Professional Services" may include any of the following: the implementation, training and other services set forth in Schedule A to the DiCentral Services Agreement, or other consulting services as requested by Customer and paid for at DiCentral's standard rates for such Professional Services.
"DiCentral Technology" means all technology (including, without limitation, software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) proprietary to DiCentral and its licensors, including all associated intellectual property rights, made available by DiCentral in the course of providing the Service or fulfilling the requirements of any attached Schedules or Addenda.
"Service" means the then current DiCentral online data processing services, to be undertaken by DiCentral and accessible via a DiCentral-designated website or IP address, including the applicable DiCentral Technology, Documentation and Content.
"Service Fees" means those fees payable by Customer to DiCentral as a condition to Customer's access to and use of the Service and, as applicable, Third Party Services, as may be defined in the Services Agreement and herein.
"Site" means the geographic or virtual locations (e.g., warehouses or areas) specified in the Services Agreement and further below on any additional Schedule(s).
"Third Party Services" means third party software or services offered by DiCentral on an implementation fee and/or subscription fee basis in conjunction with Smart Turn, if so specified in the Services Agreement, the use of which may be further governed by the terms of a separate Service Agreement or End User License Agreement between Customer and any Third Party Services provider.
"Transactional User" means any person that uses a login and password to access the Service and creates, updates, modifies or deletes any document, transaction, or item of inventory impacting inventory levels or locations.
LICENSE TERMS AND CERTAIN OBLIGATIONS
Licenses Granted. Subject to the terms of this Agreement, DiCentral hereby grants, and Customer hereby accepts, a limited term, nonexclusive, nontransferable, nonassignable and nonsublicensable license to: (a) access and use the Service in accordance with the Documentation; (b) display, copy, download, print and distribute the results of using the Service to Customer's directors, officers, agents, and employees; and (c) use the Documentation to the extent reasonably required to support the licensed use of the Service. Customer grants to DiCentral a limited term, non-exclusive, nontransferable, nonassignable, nonsublicensable, and royalty free right to use, copy, store, transmit and display Customer Data solely to the extent necessary to provide the Service to Customer.
License Restrictions. No right is granted under this Agreement (a) to use, read, copy, display, print, distribute or otherwise make available to any third party the DiCentral or any Third Party Services Technology or Content, except as expressly provided in this Agreement and the Documentation; (b) to modify or make derivative works based on the DiCentral Technology or Content; or (c) other than on Customer's own secure, internal intranets, to create Internet "links" to the Service or to "frame" or "mirror" any Content accessible from the Service. Customer is prohibited from reverse engineering, disassembling and reverse compiling and assembling all or any part of the DiCentral Technology. Customer is further prohibited from using the Service for timeshare or service bureau purposes, or otherwise providing data caching and/or management functionality to third parties, except as otherwise permitted herein. Except as expressly provided in this Agreement, all rights in the DiCentral Technology, Service, and Content are reserved to DiCentral.
CERTAIN DICENTRAL OBLIGATIONS
DiCentral will use commercially reasonable efforts to: (a) maintain the security and confidentiality of Customer Data and will take such security measures as may be required by regulatory authorities with jurisdiction over the Services; and (b) make the Service available on a 24x7 basis, except that DiCentral reserves the right to make the Service unavailable during scheduled and unscheduled maintenance, subject to providing reasonable notice to Customer for any maintenance planned during regular business hours. Customer acknowledges and agrees that DiCentral may access Customer Data or Customer accounts to respond to Service problems.
DiCentral will not be responsible for (a) the use, deletion, modification, destruction, loss or failure to store any Customer Data by Customer or any person accessing the Service, or the unauthorized access to or theft of such Customer Data; or (b) any transactions entered through the Service.
CERTAIN CUSTOMER OBLIGATIONS
Customer Obligations. Customer shall take sole responsibility for (a) obtaining and maintaining the Environment Requirements in accordance with the Documentation; (b) delivering to DiCentral the information and assistance it reasonably requires to provide the Service; (c) the accuracy, quality, integrity, legality, reliability and propriety of all Customer Data; (d) the use and security of all usernames and passwords; and (e) notifying DiCentral immediately of any unauthorized access to the Service or unauthorized use of a password or account.
Service Guidelines. Customer shall not use the Service to (a) send spam or any other form of duplicative and unsolicited messages; (b) harvest or collect information or data regarding other Service users without their consent; (c) transmit through or post using the Service, unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors; (d) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents or programs; (e) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Service, other user accounts, computer systems, any Third Party Services technology or Content, or networks related to the Service; or (g) harass or interfere with another DiCentral customer's use of the Service. DiCentral may modify its service guidelines in its sole discretion from time to time and shall notify Customer of such modification.
Payment. Service fees shall be paid electronic means (via credit card or other payment mechanism). Customer shall initially provide DiCentral, and thereafter maintain with DiCentral, valid and active Credit Card information. Payment and prices are described during the sign-up process for Customer or are described in other written instruments signed by the parties.
Late or Non-Payment. Amounts unpaid when due under this Agreement will accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted under applicable law.
Suspension of Service. If Customer's account becomes thirty (30) days or more overdue, then DiCentral may suspend Customer's right to use the Service, in addition to and not in lieu of any of its other rights or remedies under this Agreement.
Professional Services and Services Rates. Professional Services rates set forth in this Agreement are subject to annual adjustment in accordance with DiCentral's then prevailing rates.
Services Rates. Services rates set forth in this Agreement are subject to adjustment at the end of the Initial Service Term and before any Renewal Term in accordance with DiCentral's then prevailing rates.
Taxes. Customer shall be responsible for payment of all taxes or other regulatory assessments of any kind (including but not limited to sales and use taxes) arising from this Agreement or its use of the Service, excluding taxes on DiCentral's net income.
WARRANTIES, DISCLAIMERS AND LIABILITY
Warranties. DiCentral warrants that: (a) it has the right to grant the licenses set forth herein and to supply the Service; (b) it is an authorized representative for any Third Party Service provided hereunder, and (c) that the Service will perform in all material respects in accordance with the then current Documentation when used in compliance with this Agreement and such Documentation. DiCentral's commercially reasonable efforts to furnish such performance at all times shall constitute DiCentral's sole and exclusive duty and basis for liability. Customer acknowledges that DiCentral supplies the Service "AS IS" without any warranty of any kind other than set forth herein.
Disclaimers. THE WARRANTIES ABOVE ARE THE COMPLETE AND EXCLUSIVE WARRANTIES OF DICENTRAL AND ITS LICENSORS, RELATED TO THE SERVICE (WHICH, FOR PURPOSES OF CLARITY, INCLUDES THE DICENTRAL TECHNOLOGY, DOCUMENTATION AND CONTENT ASSOCIATED WITH THE SERVICE). DICENTRAL AND ITS LICENSORS MAKE NO FURTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. DICENTRAL AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE IS VIRUS-FREE OR ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NEITHER DICENTRAL NOR ITS LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA OR FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGES OCCUR AS A RESULT OF DICENTRAL'S, OR ITS LICENSORS' NEGLIGENCE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Internet Delays. USE OF THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER ISSUES INHERENT IN THE USE OF THE INTERNET. DICENTRAL IS NOT RESPONSIBLE FOR ANY RESULTING DELAYS, DELIVERY FAILURES OR OTHER DAMAGE OR DISPUTES.
Indemnification by Customer. Customer will defend and indemnify DiCentral, its licensors, suppliers and resellers from any loss, cost, liabilities or expense (including attorneys' fees, experts' fees, court costs, etc.) arising from any claims, demands, suits or proceedings made or brought against DiCentral, its licensors, or suppliers by third parties, relating to or arising from Customer or Customer's third party's use of the Service, including but not limited to any claims that the collection or use of Customer Data infringes the rights of a third party.
Indemnification by DiCentral. Except to the extent Customer is required to defend and indemnify DiCentral under other paragraphs in this Agreement, DiCentral will defend and indemnify Customer from any claims or proceedings made or brought against Customer alleging that Customer's use of the Service has directly infringed any U.S. patent, or any trademark or copyright of a third party ("Infringement Claim"), provided that Customer (a) provides DiCentral with prompt written notice of the Infringement Claim; (b) grants DiCentral sole control of the defense and any negotiations for or settlement of the Infringement Claim; and (c) provides DiCentral with all reasonable assistance to perform the obligations above. In any action arising from an Infringement Claim, DiCentral may, at its sole option and expense: (aa) procure for Customer the right to continue using the Service under the terms of this Agreement; (bb) replace or modify the DiCentral Technology so that it is no longer infringing; or (cc) terminate this Agreement upon ten (10) days notice and refund to Customer the subscription fees paid to DiCentral for the Service during the twelve months preceding the termination date. Thereafter, DiCentral and Customer shall be released from any further obligation to the other under this Agreement subject to the survival of certain provisions. DiCentral will have no indemnification obligation for Infringement Claims arising from (x) Customer's failure to use the Service in accordance with this Agreement and the Documentation; (y) the modification of the Service without DiCentral's consent; or (z) the combination of the Service with any programs or equipment not supplied by DiCentral. THE PROVISIONS OF THIS PARAGRAPH SET FORTH DICENTRAL'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO AN INFRINGEMENT CLAIM.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL DICENTRAL, ITS LICENSORS OR PROVIDERS OF THIRD PARTY SERVICES, HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, PROCUREMENT COSTS FOR SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER OR NOT DICENTRAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE FEES CHARGED BY DICENTRAL HEREUNDER REFLECT THIS ALLOCATION OF RISKS.
Limitation on Liability. EXCLUDING DICENTRAL'S INDEMNITY OBLIGATIONS UNDER PRIOR PARAGRAPHS, IN NO EVENT SHALL THE COMBINED, CUMULATIVE LIABILITY OF DICENTRAL, ITS LICENSORS AND ANY PROVIDER OF THIRD PARTY SERVICES, TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY THEORY OF LAW (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID BY CUSTOMER FOR USE OF THE SERVICE HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE, LESS ANY AMOUNTS PREVIOUSLY PAID BY DICENTRAL TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS IN ACCORDANCE WITH THIS PARAGRAPH.
"Confidential Information" means any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one Party ("Discloser") to the other Party ("Recipient") prior to or during the term of this Agreement relating to the business of the Discloser, including without limitation proprietary software and methods, and information concerning proprietary inventions and technologies. The DiCentral Technology and Documentation, and the terms and conditions of this Agreement, are agreed to be Confidential Information of DiCentral. Confidential Information shall not include any information that: (a) was, prior to receipt from the Discloser, in the possession of or rightfully known by the Recipient without an obligation to maintain its confidentiality; (b) at the time of use or disclosure by the Recipient was generally known to the public without violation of this Agreement; (c) is disclosed to the Recipient by a third party not in violation of any obligation of confidentiality; or (d) is independently developed by the Recipient without use of the Discloser's Confidential Information.
Each Recipient agrees (a) to take reasonable precautions to protect the Confidential Information of the Discloser from unauthorized use, disclosure, or dissemination by using at least the same degree of care (and, in any event, not less than a reasonable degree of care) as it uses to protect its own proprietary information of similar importance; and (b) to use the Confidential Information of the Discloser solely to fulfill its responsibilities under this Agreement. A Recipient may disclose Confidential Information of the Discloser as required by law, provided that the Recipient (aa) gives the Discloser advance written notice of such requirement, (bb) reasonably assists the Discloser (at the Discloser's expense) to seek a protective order or other appropriate relief, and (cc) discloses only that portion of the Discloser's Confidential Information required to be disclosed.
TERM AND TERMINATION
Term of Service. The term of Service of this Agreement shall begin on the day Customer agrees to the terms in this Agreement, and shall expire on the last day of the month following the month in which the Agreement was signed. Thereafter, this Agreement shall renew on a monthly basis..
Termination by Non-Renewal. Either party may elect to not renew this Agreement at the end of the Term by providing the other party with written notice of non-renewal at least 30 days prior to non-renewal.
Termination for Non-Payment. DiCentral may terminate this Agreement upon seven (7) days written notice for Customer's nonpayment if such breach for nonpayment is not remedied during that notice period.
Effect of Termination. Upon termination of this Agreement for any reason: (a) all outstanding amounts owed under this Agreement shall be immediately paid to DiCentral; (b) Customer shall immediately cease all use of the Service, and return to DiCentral or, at DiCentral's sole discretion, destroy, all Documentation, Content, DiCentral Technology, DiCentral trade secret and other DiCentral Confidential Information and Third Party Services information, and provide DiCentral with written certification of the same; and (c) the license and all other rights and obligations of the parties shall immediately terminate; provided, however, that accrued payment obligations, indemnities, liability limitations, governing law and venue, confidentiality obligations and responsibilities for governmental charges, and any other term that by its nature ought to survive termination, will survive the expiration or termination of this Agreement.
Return of Customer Data. Upon written request of Customer made within thirty (30) days following termination, DiCentral will make available to Customer a file of Customer Data within thirty (30) days from DiCentral's receipt of Customer's written request. Otherwise, DiCentral shall have no obligation to store or maintain Customer Data, or to forward any Customer Data to Customer or any third party.
Notices. All notices under this Agreement will be in writing and transmitted via email. Notices will be deemed received on the day sent to the email registered by Customer. Customer agrees to update its e-mail contact information.
Execution; Electronic Signatures Valid. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one agreement. Execution of a facsimile copy or internet-posted copy will have the same force and effect as execution of an original, and a facsimile signature or electronic signature will be deemed an original and valid signature, binding Parties to comply with each of the terms and conditions contained in this Agreement.
Entire Agreement. This Agreement (including any attached Schedules or Addenda) is the complete agreement of the Parties and cancels and supersedes all prior and contemporaneous agreements, understandings and proposals, whether oral or in writing, between them relating to the subject matter hereof. This Agreement may be modified only by a duly executed written agreement or Schedule/Addendum executed by the Parties. This Agreement shall be construed in accordance with its fair meaning, and shall not be construed for or against either Party based on the principle that ambiguities are construed against the drafter. Customer purchase orders may be submitted concurrently or later for funding and administrative purposes but terms and conditions contained therein shall have no force and effect. If there is a conflict between the terms and conditions of this Agreement and a purchase order, or any other document submitted by Customer, the terms and conditions of this Agreement control.
Assignment. Customer shall not delegate, sublicense, assign or transfer (by operation of law or otherwise) this Agreement or any right, obligation or other interest hereunder without the prior written consent of DiCentral, and any attempt to do so shall be null and void. DiCentral may assign, transfer or delegate any right, obligation or other interest hereunder in its sole discretion. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Amendment. This Agreement may be amended by DiCentral Corporation by posting a new copy of this Agreement on its website and by providing Customer notice that it has been so Amended.
Governing Law and Venue. This Agreement shall be governed by, and interpreted under, the internal laws of the State of Wisconsin. Any legal proceeding arising out of this Agreement shall be subject to the exclusive jurisdiction of a Federal District Court in Wisconsin, exclusive of its conflict of laws provisions.
Severability. The illegality or unenforceability of the whole or any part of the provisions of this Agreement will not affect the continued operation of the remaining provisions of this Agreement. In the event any provision hereof is unenforceable under applicable law, it shall be deemed narrowed or eliminated to the minimum extent necessary to permit enforcement of this Agreement to the maximum extent possible.
Lawful Use. Customer will comply with all applicable laws and regulations in its use of the Service, including but not limited to all United States and foreign export control laws or regulations applicable to the Service.
U.S. Government Restricted Rights. If the Service is used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government's rights in the DiCentral Technology and Documentation will be only as set forth in this Agreement, in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
Waiver. The failure of either Party at any time to insist upon strict performance of any of the terms and conditions in this Agreement will not be deemed a waiver of its right at any time thereafter to insist upon strict performance.
Relationship of the Parties. Nothing in this Agreement shall constitute, nor shall any Party represent, that there is any relationship of employer and employee, principal and agent or partnership between the Parties as a result of this Agreement.
Force Majeure. Neither Party will be responsible for delays or failures in performance resulting from acts beyond the reasonable control of such Party, including, without limitation, acts of God, riots, acts of war, terrorist acts, interruptions of supplies, epidemics, fire, earthquakes and other natural disasters, provided that such Party gives prompt written notice to the other Party and makes all reasonable efforts to perform. In no event will this provision affect Customer's obligations to make payments under this Agreement.
Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement, the rights and obligations of the Parties hereunder, or any agreement that may be executed to implement this Agreement.
English Language. The Service, Documentation, and all communications between Customer and DiCentral shall be in English.