These Terms and Conditions are attached to this Services Agreement (“Agreement”) by and between the Subscriber executing such Agreement (“Subscriber”) and ExpenseEDGE, LLC. (“Provider”) and are applicable to the services specified on such Agreement (the “Services”).
WHEREAS, Provider provides a subscription based spend management platform and other consulting services, including but not limited to any services described in any Order Form attached hereto and made a part hereof (collectively, the “Services”),
WHEREAS, Subscriber desires to purchase from Provider certain Services that contain a set of hosted spend management applications and managed services in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
- Definitions & Interpretations:
1.1 “Intellectual Property Rights” means all right, title, and interest in and to any copyright, database, design, logo, trademark, service mark, patent, invention, trade secret, domain name, confidential and proprietary information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), and any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations in part, divisional, reissues, re-examinations, and revivals thereof and existing anywhere in the world.
1.2 “Order Form” means any written or electronic document or registration form for placing orders for the Services and any addenda or amendments thereof, entered into contemporaneously with this Agreement or from time to time thereafter. Each Order Form shall be governed by and deemed to incorporate the terms and conditions contained herein, except as otherwise expressly provided in the Order Form. Each Order Form will describe all the Services that Provider agree to make available to Subscriber.
1.3 “Services” means, collectively, the computer applications, interfaces, software, programs, products, services and websites provided or made available by Provider and its affiliates pursuant to any Order Form, including provision of access to the Website.
1.4 “Subscriber” means the company, organization, employer, principal or other legal entity named in each Order Form and for whom Provider provide the Services pursuant to this Agreement.
1.5 “User” means an individual who has been provisioned with a user account to the Website by the Provider. This includes any individual that Provider creates a user account per a Subscriber’s direction and any individual invited by Subscriber to become a user.
1.7 “Website” means the website at https://tcglass.wpengine.com; https://www.tcglass.wpengine.com and any other URLs maintained by Provider for the purpose of making the Services accessible to Users.
1.8 “User Interface” means an interface within the Website configured for Users authorized by Subscriber.
- Agreement for Services. In consideration of Subscriber’s payment of Compensation (as defined below), Provider shall use commercially reasonable efforts to provide the Services thereof in accordance with the terms and conditions contained in this Agreement.
- Grant of License; Proprietary Rights:
3.1 Provider hereby grant to Subscriber a non-transferable, non-exclusive, non-licensable limited term right and license to access and use, and to authorize and permit Users to access and use, the Services, solely as provided in each Order Form. Except for the rights specifically granted under this Agreement, Subscriber is not given any right, title or interest in or to the Services or Website.
3.2 As between the parties, Provider shall hold title to all Intellectual Property Rights in and to the Services and Website. Such Intellectual Property Rights may only be used by Subscriber in the manner stated in this Agreement and Order Form. Under no circumstances shall Subscriber or a third party acquire any Intellectual Property Rights to the Services or Website. Access to the Services and Website is licensed, and not sold, on the terms set out in this Agreement.
3.3 Subscriber agrees that it shall not do or authorize any Users to do any of the following acts without written permission by Provider:
- Modify, translate, amend or otherwise alter the Services or Website;
- Attempt to decompile, reverse engineer or create derivative works of or from any part of the Services or Website;
- Redistribute, encumber, sell, rent, or otherwise transfer any Services or portion of the Website, or
- Remove, alter, or destroy from the Services or Website any logo, copyright or proprietary notices, symbols, labels, watermarks, signatures or any other like marks affixed to or embedded therein.
3.4 Subscriber agrees to use the Services within the parameters of the Services Subscriber has purchased. Provider reserves the right to terminate the Services immediately on breach of this clause and Provider are under no obligation to provide a refund in full or in part for the fees paid.
- Availability of Service
4.1 The Services are normally available over the Internet around the clock. Provider shall be entitled to take measures that affect the fore-mentioned accessibility when Provider deem such to be necessary for technical, maintenance, operational, or security reasons. Provider guarantee at least 99.95% total uptime of the Services, as measured over a rolling 3-month (90 day) period. This excludes any planned maintenance periods.
4.2 Provider assumes no responsibility for technical support or problems arising from or relating to third party systems, equipment owned or maintained by Subscriber or any Users.
4.3 Provider agrees to take commercially reasonable steps to maintain the Services in a secure manner.
4.4 Provider reserves the right at any time and from time to time to reasonably modify or discontinue, temporarily or permanently, the Services or Website (or any part thereof), including but not limited to modifications to the design, operational method, technical specifications, systems, and other functions.
4.5 The Services or Website may contain links to third party websites that are not owned or controlled by Provider. These links are provided solely for Users’ convenience. Provider have no control over any linked third-party sites, are not responsible for the content of such sites, and make no representations or warranties with respect to such sites.
- Subscriber Obligations
5.1 Subscriber agrees to reasonably:
- appoint at least one Account Administrator
- provide true, accurate, current and complete information about Users who access the Services on Subscriber’s behalf (“Subscriber’s Users”) as prompted by the registration process, including Users’ identity and a correct and legitimate email address (the “Registration Data”);
- maintain and promptly update the Registration Data to keep it accurate, current and complete;
- cause Subscriber’s Users to maintain the security of their login credential(s).
5.2 Subscriber acknowledges and agrees that Provider may access, preserve and disclose Subscriber’s account information if and solely to the extent required to do so by law or in good faith belief that such access, preservation, or disclosure is reasonably necessary to:
- respond to Subscriber’s requests for service;
- comply with legal process; or
- enforce this Agreement.
5.3 Subscriber agrees to notify Provider immediately of any unauthorized use of Subscriber’s account, the login credentials of any of Subscriber’s Users, or any other breach of security. Subscriber may be held liable for losses incurred by Provider or any User of the Services or Website due to someone else using the Registration Data.
5.4 Subscriber agrees not to:
- Use or launch any automated system, including without limitation, “robots”, “spiders” or “offline readers” that accesses the Services or Website in a manner that sends more request messages to Our servers in a given period of time than a single human can reasonably produce in the same period by using a conventional online web browser;
- Use any part of the Services or Website to upload, post or transmit viruses, Trojan horses, corrupted files, or any other software or programs that may interrupt, damage, destroy or limit the functionality of any computer software or hardware equipment;
- Use any part of the Services or Website to pretend to be Provider or someone else or otherwise misrepresent the identity or affiliation of a User or attempt to disguise the origin of any Content;
- Use the Services, Website or any part thereof to violate or infringe anyone’s Intellectual Property Rights;
- Interfere with or disrupt the Website, servers, or networks connected to the Website, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website;
- Attempt to gain unauthorized access to the Services or Website or any portion or feature of thereof, or any other systems or networks connected to the Website or to any of our servers.
- The term of this Agreement shall be one (1) year from the date hereof unless otherwise specified on the Agreement attached hereto. After the one (1) year period, the term shall automatically renew for subsequent one (1) year terms unless either party provides the other with written notice of its intent not to renew at least sixty (60) calendar days prior to the end of the then-current term. The termination shall be effective as of the last day of the Initial Term or any subsequent Renewal Term, as applicable. If the notice of termination is not received at least sixty 960) days prior to the end of the Initial Term or and subsequent Renewal Term, as applicable, the Agreement shall continue until the end of the next Renewal Term.
- Effect of Termination. The termination of this Agreement shall not affect ExpenseEDGE’s entitlement to payment of all undisputed amounts for Subscription Fees and Services provided to Subscriber prior to termination of this Agreement. Upon termination of this Agreement, Subscriber’s rights to access the System, use the Software or receive the Suppliers and Vendors programs and pricing shall immediately terminate.
- Compensation and Payment. Subscriber will pay the fees for the Services as set forth in any Schedule to this Agreement. The Subscription Fees are due and payable by Subscriber in advance and shall be paid by Subscriber via credit card at the beginning of the initial Term and any subsequent Renewal Term. All Subscription Fees are non-refundable. ExpenseEDGE may increase the amount of the Subscription Fees for any subsequent Renewal Term upon at least thirty (30) days prior written notice before the end of the initial Term or the then current Renewal Term.
- Taxes. Subscriber shall pay all federal, state, and locally taxes and fees (collectively, “Taxes”) incurred by Provider in connection with the sale and delivery of the Services and/or the use of the Services provided to Subscriber.
- Limitation of Warranties and Liability. Provider represents and warrants that it has the right, power and authority to enter into the Agreement and provide the Services under the terms hereunder, and that the Services shall be provided in a professional and workmanlike manner. THE WARRANTIES AND REMEDIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES. PROVIDER DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO SERVICES THAT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION GIVEN BY PROVIDER’S EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY. EXCEPT FOR PROVIDER’S OBLIGATIONS UNDER SECTION 13 (INDEMNITY), UNDER NO CIRCUMSTANCES SHALL PROVIDER OR SUBSCRIBER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY SERVICES HEREUNDER. Without limiting the foregoing provisions, and except for Provider’s obligations under Section 12 (Indemnity), a party’s total liability to Subscriber for damages, from any cause whatsoever, and regardless of the form of action, whether in contract or in tort, is limited to actual damages, but not to exceed the fees paid by Subscriber to Provider for the Services that caused the damages.
- Default; Remedies.
10.1 Provider Default and Subscriber Remedies. In the event Provider is in default of a material term or obligation of this Agreement, Subscriber will give Provider written notice of default, setting forth the nature of the default. Provider will have thirty (30) days following receipt of Subscriber’s notice to cure such failure or to take reasonable steps to cure such failure if such failure cannot reasonably be cured within such 30-day period. In the event of the failure of Provider to cure such failure or to take reasonable steps set forth above, this Agreement, at Subscriber’s option and upon written notice to Provider, will terminate and all obligations of Subscriber to make payments to Provider for Services not yet performed will cease upon delivery of written notice to Provider by Subscriber. APART FROM ANY CLAIM RELATING TO THE TERMS OF SECTION 9, THIS SECTION 10.1 SETS FORTH SUBSCRIBER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY PROVIDER.
10.2 Subscriber Default and Provider Remedies. Subscriber will be in default under this Agreement in the event Subscriber fails to pay any amounts when due and does not cure such breach within ten (10) business days of notice except to the extent such default arises from acts or omissions of Provider. At the end of such 10 days, if such default remains uncured, Provider will have no further obligation to provide Services to Subscriber and Provider may terminate this Agreement.
- Force Majeure. Except for Subscriber’s payment obligations, neither party, nor their respective affiliates shall be liable in any way for any delay, failure, loss or damage resulting from any cause beyond such party’s reasonable control of the party experiencing such delay. The affected party shall use all commercially reasonable efforts to remedy any inability to perform under this Agreement due to Force Majeure.
- Indemnity. Each party to this Agreement shall defend, indemnify and hold harmless the other party for all damages and expenses (including reasonable attorneys’ fees) the other party may incur as a result of third party claims, to the extent such claims arise from the grossly negligent acts or omissions of the indemnifying party, provided the party seeking indemnification promptly notifies the other party in writing of any such third party claim. The indemnifying party shall have sole control of the defense of such claim.
- No Waiver. No waiver of any right, obligation or default shall be implied, but must be in writing, signed by the party against whom the waiver is sought to be enforced. Any waiver of any right, obligation or default shall not be construed as a waiver of any right, subsequent or other right, obligations, or default. The remedies of either party provided herein shall be cumulative and not exclusive.
- Relationship Between Parties. Each party hereto is an independent contractor under this Agreement, and no license, joint venture or partnership, express or implied, is granted pursuant to this Agreement.
- Confidentiality. Each party shall comply with Provider’s Confidentiality Policy. All specifications, data and other information furnished by Provider, or its agents, to Subscriber in connection with this Agreement remain the exclusive intellectual property of Provider and shall be treated by the Subscriber as proprietary and shall not be disclosed or used, outside the limitation of this Agreement, without prior written approval. In addition, the purchase of the Provider’s Services does not authorize the Subscriber to use the name of or make reference to Provider for any purpose in any releases for public or private dissemination, nor shall the Subscriber divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval from Provider.
- Notices. All notices or other communications required or permitted to be given by one party to the other party shall be given in writing by first class mail, postage prepaid, properly addressed, return receipt requested or via national overnight courier or hand delivered to such other party at the addresses listed above or at such other addresses as may be specified by a party.
- Assignment. No right or obligation under this Agreement may be assigned by either Party without the prior written consent of the other Party, not to be unreasonably withheld. Notwithstanding anything in this Agreement to the contrary, Provider may subcontract any its obligations hereunder, so long as it shall remain fully responsible for all such obligations.
- Choice of Law. This Agreement shall be subject to and construed in accordance with the laws of the State of Minnesota, without regard to its choice of law provisions, and shall be subject to state and federal laws and regulations as such laws and regulations.
- Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
- Entire Agreement. This Agreement including all other attachments constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior written or oral agreements, proposals, quotations and representations.
- Binding Effect. This Agreement is binding upon each of the parties and their respective successors and permitted assigns.