Last Updated: 10.24.2024
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Rubber Tree Systems, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”). The pre-printed terms in any of either party’s purchase orders, acknowledgements, or click-through terms do not apply to modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Administrator” means the Customer’s primary contact person who coordinates and works with the Company to implement, support, and train the Customer’s Users on their use of the Service.
1.2. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and Users of the Services.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.5. “User(s)” means an individual employee of Customer or its contractor(s) who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates (including Administrators).
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the Services available 24×7. The Services allow you to launch sales and business services on their computers, smart phones and tablets. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Implementation. Upon execution of this Agreement, we will provide the following services:
2.2.1. set-up and Administrator and User training in the use of the Services; and
2.2.2. test the Services after they have been implemented by Customer to confirm that the Services are performing to Company’s current Documentation for the Services.
2.3. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our sole discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. If we discontinue Services or materially reduce the core functionality, you may terminate the affected Services or this Agreement with 60 days prior written notice to us. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2.4. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Services. We grant you a limited, non-exclusive right to use our Services and Documentation only for your internal business purposes, subject to the terms of this Agreement including the User Rules in the attached Exhibit B. Your third-party contractors may use the Services or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement.
2.6. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any purpose competitive with Company; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather User data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity. Customer understands and acknowledges that Company does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its Users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer will be solely responsible for the Customer Content. In no event will Company be responsible for Customer Content or its accuracy or completeness, or for any loss of Customer Content.
2.7. Responsibility for Activity under Account. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. You agree to provide us prompt notice, if you become aware of any violation of this Agreement in connection with use of the Services by any person.
2.8. Training. At mutually agreeable dates and times, Company will provide virtual implementation and training of Customer’s administration team on a reasonable, as needed basis at no cost. Virtual implementation and training is limited to Company’s training curriculum covering basic module setup and functionality. Training does not include virtual or onsite customized training beyond Company’s training curriculum, onsite curriculum training or end-user training. These additional training services can be purchased via a mutually executed Order.
2.9. Support and Maintenance. We will, at no additional charge, provide standard customer support for the Services as described on our website and/or in the Documentation. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding national holidays.
3. ORDERS, FEES AND PAYMENT.
3.1. Order. Your order for Services is detailed in an accepted quote or order (“Order”). You may order additional Services using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services on the terms set forth in the Order, this Agreement, a statement of work (“SOW”), or our invoice. Unless otherwise specified in the Order or invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as otherwise expressly stated in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as providers of hardware, software, internet, voice and/or data transmission, related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the prices of our Services annually after your Initial Term. We will give you notice of any price increase at least 30 days in advance of such increase. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days of such dispute notice. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified in the Order (“Initial Term”) and begins on the earlier of the date that implementation (as described in Section 2.2) is complete and 30 days after the Effective Date. After the Initial Term, the Term will automatically renew for additional 30 day periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the then-current term expires. Terminating use of a specific Service does not affect the term of any other Service still in effect and these terms and conditions will continue to apply to those Services.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after such 30-day period. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request, or (z) as may be necessary for the performance of the Services.
5.3. Feedback. You hereby grant us a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including, but not limited to, statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) has sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our sub-processors, we will require that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of our sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such applicable laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Documentation and Marks, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.3. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8.4. No Liability in Connection With Data Accessed Through the Services. Company will not have any liability for damages or issues resulting from the data or other information accessed by Customer or Users through the Services, including any damage to User’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
8.5. No Liability For Transactions Conducted Through the Services. Company will not have any liability for any damages or issues resulting from e-commerce transactions conducted through the Services.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. EXCEPT FOR COMPANY’S INDEMNITY OBLIGATIONS FOR AN IP CLAIM, COMPANY’S ENTIRE LIABILITY TO LICENSEE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE PRIOR 12 MONTHS.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. If access to the Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below. YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND ATHAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Any arbitration claim must be brought within one year of the claim arising. The arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware. You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information. Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address, 16 W. Martin Street, Raleigh, North Carolina, 27601, within 30 days of the date of this Agreement.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and for notice related to legal matters, to Legal@Cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts.
13.9. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
13.10. Force Majeure. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.11. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, this Section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
Last Updated: 2024-06-03
EXHIBIT A
Support Services and Service Level
This Exhibit applies to all Services (including rubbertree.app, Mobile Sales, Dashboards, WebQuery, ExecuKeys, and ValueDocs).
1. Support Services
(a) Company provides support via email or phone for all Services as part of the monthly subscription price. Regular support services include: answering questions and resolving issues pertaining to the normal operation for the software, periodic program fixes, and automatic update services.
(b) We offer customers to request additional features, enhancements, and iterations via our online forum. One User per company will be made Administrator after the implementation process. This forum allows Users to request and vote for features, as well as stay up-to-date on development activities.
(c) Company regularly monitors the availability and operation of its production hardware and software. This monitoring service automatically checks each device several times an hour, and notifies multiple staff members if a device is found to be unavailable or inoperable. Company will continue to use this or a comparable third party service, or other in-house methods with similar functionality, so that it can respond to problems with its hardware or software that might interfere with the Services.
(d) Customer understands and acknowledges that the Services are provided, in part, through the Internet and other computer networks beyond our control. Consequently, Company will take commercially reasonable efforts to avoid such events, but it cannot guarantee that such events will not occur. Consequently, Company will not be liable for any downtime or other problems with the Services that are due to factors beyond its reasonable control.
2. Scheduled And Emergency Maintenance
Routine maintenance of the data centers and other components used in providing the Services will be performed pursuant to a schedule that we will make available to you. In addition to regular maintenance, emergency work may also need to be conducted at any time. During these scheduled and emergency maintenance periods there may be an interruption in the Services. You agree to reasonably cooperate with us during scheduled and emergency maintenance.
3. Excessive Downtime.
(a) In the event of “Excessive Downtime,” Customer may terminate the Agreement without penalty by notifying Rubber Tree within 5 days following the end of the calendar month in which the Excessive Downtime occurred. Such termination will be effective as of the end of the month in which the termination notice was given.
(b) Customer will be considered to have suffered “Excessive Downtime” if, subject to the last sentence of this Section (b) and Section 1(d) above: (i) Customer experiences more than 10 downtime periods of 15 minutes or more resulting from 3 or more downtime events during a calendar month; or (ii) Customer experiences more than 24 consecutive hours of downtime due to any single downtime event. Any packet loss or network unavailability during scheduled maintenance will not be considered “downtime,” so long as Customer is given reasonable advance notice of such maintenance, and such maintenance does not last longer than commercially reasonable.
4. Limitations of Support
Standard support service is offered at no additional cost, however, there are activities subject to a support charge. WebQuery Cloud Edition allows for up to 6 hours per calendar quarter of additional training, data integrations, customizations, or auditing at no additional charge.
Issues not covered by standard support and subject to an additional charge. Customer has the option to accept or decline the following optionally priced services.
(a) Moving the software or data to a different: facility, computer, disk and all other issues related to equipment changes or hardware failures outside of Company data center.
(b) Any issues related to the setup, configuration and/or maintenance of user and/or system security, and or networking hardware or software components outside of Company data center.
(c) Complications resulting from communications failures with host computers, internet, local or wide area networks, and/or telephone lines outside of Company data center. Sometimes these communication failures are related to changing IP addresses or passwords. In those cases we can easily advise you how to quickly adjust your configuration. However, failure to identify or report these problems quickly can lead to a cascade of negative events that may require a great deal of time to correct.
(d) Data auditing, balancing, additional data integration, and/or correction of data errors originating from the host transaction processing system (i.e., Epicor Prophet 21, Epicor 10, Epicor Acclaim, Infor SXE, Infor CSD, Tribute, TrulinX, or any others) or resulting from other user errors.