Rev: Oct 08 Rev: 1.0
TERMS OF SERVICE
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT (THE "AGREEMENT") GOVERNING YOUR USE OF EBRIDGE’S ePORTAL SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
Use of the Service requires that you purchase and install eBRIDGE’s integration solution. The terms and conditions governing your purchase of eBRIDGE’s integration solution are in addition to, not in replacement of, the terms and conditions contained in this Terms of Service.
1. Privacy & Security; Disclosure
2. License Grant & Restrictions
eBRIDGE hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by eBRIDGE and its licensors.
You may not access the Service if you are a direct competitor of eBRIDGE, except with eBRIDGE's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. The Service
eBRIDGE will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage, in the edition selected by you in the Order Form.
eBRIDGE shall provide the Service in accordance with the Service Level Agreement, which is incorporated into and governed by these Terms of Service. Except as set forth in the Service Level Agreement, eBRIDGE makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service. eBRIDGE will inform the User of any significant changes to the Service or terms and conditions of this Agreement that it may make from time to time.
If you require configuration, set-up and training services, the project will be outlined on an eBRIDGE work order signed by you and eBRIDGE. Charges will apply for any additional services. Further support and services are also available on request, at an additional charge. Any such orders shall be subject to and governed by these Terms of Service.
4. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify eBRIDGE immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to eBRIDGE immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another eBRIDGE user or provide false identity information to gain access to or use the Service.
5. Account Information and Data
eBRIDGE does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). However, you agree that eBRIDGE may use aggregate, anonymized data in read-only format that is generated in the course of your use in the Service for its own internal business purposes, including the development of marketing and sales collateral and general studies relating to the industry.
You, not eBRIDGE, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or the right to use all Customer Data. eBRIDGE shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), eBRIDGE will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. eBRIDGE reserves the right to withhold Customer Data without notice for any breach by you, including, without limitation, your non-payment.
6. Intellectual Property Ownership
eBRIDGE alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the eBRIDGE Technology, the Content and the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the eBRIDGE Technology or the Intellectual Property Rights owned by eBRIDGE. The eBRIDGE name, the eBRIDGE logo, and the product names associated with the Service are trademarks of eBRIDGE or third parties, and no right or license is granted to use them.
7. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. eBRIDGE and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. eBRIDGE provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
8. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses (internal and Trading Partner) requested multiplied by the User license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are noncancellable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide eBRIDGE with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. eBRIDGE reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days’ prior notice to you, which may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
9. Excess Data Storage Fees
The maximum data retention period per User is 3 months. If an extended data retention period is required please contact your eBridge Account Representative to discuss purchasing an extended data retention period. eBRIDGE reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
10. Billing and Renewal
eBRIDGE charges and collects in advance for use of the Service. eBRIDGE will automatically renew and bill your credit card or issue an invoice to you each year (or such other period as agreed to in an Order Form) on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses multiplied by the license fee in effect during the prior term, unless eBRIDGE has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. eBRIDGE's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on eBRIDGE's income.
You agree to provide eBRIDGE with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, eBRIDGE reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless eBRIDGE in its discretion determines otherwise: (i) entities with headquarters and a majority of Users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); and (ii) all other entities will be billed in Canadian dollars ("Non- U.S. Customers").
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date. The notice must contain the invoice and amount in question to be eligible to receive an adjustment or credit.
11. Non-Payment and Suspension
In addition to any other rights granted to eBRIDGE herein, eBRIDGE reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 4.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or eBRIDGE initiates termination of this Agreement, you will be obligated to pay the balance due on your account for the remaining term, computed in accordance with the Charges and Payment of Fees section above.
eBRIDGE reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that eBRIDGE has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
12. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term will be one (1) year or as otherwise mutually agreed upon in writing. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one year at eBRIDGE's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), eBRIDGE will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that eBRIDGE has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
13. Termination for Cause
Any breach of your payment obligations or unauthorized use of the eBRIDGE Technology or Service will be deemed a material breach of this Agreement. eBRIDGE, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, eBRIDGE may terminate a free account at any time in its sole discretion. You agree and acknowledge that eBRIDGE has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. eBRIDGE represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online eBRIDGE help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
15. Mutual Indemnification
You shall indemnify and hold eBRIDGE, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that eBRIDGE (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release eBRIDGE of all liability and such settlement does not affect eBRIDGE's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
eBRIDGE shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by eBRIDGE of its representations or warranties; or (iii) a claim arising from breach of this Agreement by eBRIDGE; provided that you (a) promptly give written notice of the claim to eBRIDGE; (b) give eBRIDGE sole control of the defense and settlement of the claim (provided that eBRIDGE may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to eBRIDGE all available information and assistance; and (d) have not compromised or settled such claim. eBRIDGE shall have no indemnification obligation, and you shall indemnify eBRIDGE pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
16. Disclaimer of Warranties
eBRIDGE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. eBRIDGE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY eBRIDGE AND ITS LICENSORS.
17. Internet Delays
eBRIDGE'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. eBRIDGE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS EXCEPT AS SET FORTH IN eBRIDGE'S SERVICE LEVEL AGREEMENT
18. Limitation of Liability
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE IS WITH the User. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
20. Local Laws and Export Control
This Service provides services and uses software and technology that may be subject to Canadian or United States export controls administered by the Canadian or American governmental agencies. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which Canada or the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all Canadian and U.S. export laws (if such laws apply to you) and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No.1334/2000.
eBRIDGE and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside Canada or the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to Canadian or United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the Canadian or United States government, as the case may be, for such purposes.
eBRIDGE may give notice by means of a general notice on the Service, by electronic mail to your e-mail address on record in eBRIDGE's account information, or by written communication sent via first class mail or pre-paid post to your address on record in eBRIDGE's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to eBRIDGE (such notice shall be deemed given when received by eBRIDGE) at any time by any of the following: letter sent by confirmed facsimile to eBRIDGE at the following fax number: 905-631-8811; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to eBRIDGE at the following address 1550 Appleby Line Suite 200, Burlington, ON L7L 6X7, addressed to the attention of the Chief Financial Officer.
22. Modification to Terms
eBRIDGE reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
23. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of eBRIDGE but may be assigned without your consent by eBRIDGE to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of eBRIDGE directly or indirectly owning or controlling 50% or more of you shall entitle eBRIDGE to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by the laws of Ontario, Canada and the federal laws applicable therein, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the provincial and federal courts located in Toronto, Ontario. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form and SLA, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and eBRIDGE as a result of this agreement or use of the Service. The failure of eBRIDGE to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by eBRIDGE in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and eBRIDGE and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org