BY SELECTING "I Agree" DISPLAYED AS PART OF THE ORDERING PROCESS, OR BY USING EBRIDGECONNECTIONS.COM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF EBRIDGE CONNECTIONS, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY,"EBRIDGE CONNECTIONS"). 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 “Customer”, "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 NOT SELECT "I AGREE" AND MAY NOT USE EBRIDGE CONNECTIONS.
Capitalized terms shall have the same meaning as in the applicable Order Form
1.2. " eBRIDGE" means collectively eBRIDGE Software, inc., an Ontario corporation, having its principal place of business at 1550 Appleby Line Suite 200, Burlington, ON L7L 6X7;
1.3. "eBridge Connections" means the online software integration eBridge Connections that are hosted by, proprietary to and branded by eBRIDGE, that are accessed by you or other customers via http://www.ebridgeconnections.com or another designated website or IP address, or ancillary online or offline products and eBridge Connections provided to you by eBRIDGE, including the eBRIDGE Technology.
1.4. "eBRIDGE Technology" means all of eBRIDGE's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by eBRIDGE in providing eBridge Connections;
1.5. "Content" means the audio and visual information, documents, software, products and eBridge Connections contained or made available to you in the course of using eBridge Connections;
1.6. "Effective Date" means the date your order is accepted via the online ordering process or as indicated on an Order Form;
1.7. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, eBridge Connections marks, trade names, domain name rights, mask work rights, knowhow and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
1.8. "License Term(s)" means the period(s) during which You are licensed to use eBridge Connections pursuant to the Order Form(s);
1.9."Order Form(s)" means the form evidencing the initial subscription for eBridge Connections and any subsequent order forms submitted online or in written form, specifying, among other things, the licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
1.10. “Professional Services” shall mean services performed pursuant to an executed Statement of Work (“SOW”).
1.11."User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use eBridge Connections and have been supplied user identifications and passwords by you (or by eBRIDGE at your request).
2. EBRIDGE CONNECTIONS.
2.1. Grant of Right to Use. eBRIDGE grants to Customer the non-exclusive and non-transferable right to access and use eBridge Connections elected during the online subscription process, or as specified on an Order Form as well as the related documentation, all in accordance with the terms of this Agreement.
2.2. eBridge Connections Service Level. Customer has read, understands and agrees to be bound by the eBridge Connections Service Level Agreement ("SLA") posted at http://www.ebridgeconnections.com/corporate/contracts/index.html as amended from time to time by eBRIDGE. Any new features added by eBRIDGE that update, augment or enhance eBridge Connections will also be subject to this Agreement.
3. INTELLECTUAL PROPERTY.
3.1. eBridge Connections Ownership. Customer acknowledges that (i) eBridge Connections and the related documentation are the exclusive property of eBRIDGE and its licensors and (ii) Customer has no right to transfer, sublicense or lease eBridge Connections.
3.2. License Grant & Restrictions. Subject to the terms and conditions of this Agreement, eBRIDGE grants Customer, during the Term of this Agreement, the non-exclusive, non-transferable (except in connection with an assignment permitted under Section 14.7) and terminable license (a) to display content from eBridge Connections solely for Customer's internal business operations, provided such operations will not include service bureau use, outsourcing, renting, or time-sharing of eBridge Connections and (b) to copy and use on Customer's computer system any object code generated by eBridge Connections for use by the Customer. The rights granted to Customer are provided to Customer on the condition that Customer does not (and does not allow any third party to) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, or decompile eBridge Connections, any object code generated by eBridge Connections or any part thereof, or otherwise attempt to discover any source code, modify eBridge Connections in any manner or form, or use unauthorized or modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to eBridge Connections. You may not access eBridge Connections if you are a direct competitor of eBRIDGE, except with eBRIDGE 's prior written consent. In addition, you may not access eBridge Connections for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Except as expressly provided in this Agreement, the license granted to Customer does not convey any rights or ownership in eBridge Connections, or any source or object code generated by eBridge Connections express or implied, or any intellectual property rights in eBridge Connections,. Any rights not expressly granted in this Agreement are expressly reserved by eBRIDGE and its licensors.
3.3. Grant of License in Customer Data. Customer hereby grants to eBRIDGE a worldwide, nonexclusive, limited, nontransferable right and license, during the term of the applicable Order, to store, host, reproduce, and maintain Customer’s data stored on or processed by the ebridge Connections (“Customer Data”) solely for purposes of making the eBridge Connections available to Customer and Customer's Users and for no other purpose. In addition to eBRIDGE's other obligations under this Agreement with respect to Customer Data, including without limitation, those obligations set forth in Section 3.5 hereof, eBRIDGE shall comply with all provisions of Applicable Laws relating to Customer Data and the privacy and security thereof, and shall require that all of its vendors or subcontractors with access to Customer Data or its processing adhere to the applicable terms of this Agreement as if they were parties hereto. Customer owns the Customer Data. No transfer of ownership will occur under this Agreement. All rights not expressly granted to eBRIDGE in relation to Customer Data are reserved by Customer. eBRIDGE agrees not to use any Customer Data, unless it is necessary to do so in order to fulfill an obligation under this Agreement. eBRIDGE also agrees that it will not sell, disclose, transfer, or rent any Customer Data to any third party, nor will it use any Customer Data on behalf of any third party, without the express written permission of Customer.
3.4. Access. eBRIDGE will provide to Customer unique login identification and password to gain access to eBridge Connections. Customer will keep the identification and password strictly confidential and will only reveal such information to Customer's authorized users.
3.5. Security. eBRIDGE will use commercially available security software for authentication and encryption of Customer's data and will take such other security measures as may be required by regulatory authorities with jurisdiction over eBridge Connections. Customer acknowledges that transmission of data over the Internet may not be secure, even after such reasonable security measures have been taken, and Customer will hold eBRIDGE harmless from the dissemination, misappropriation, loss or corruption of data caused by third parties, provided eBRIDGE meets its covenants in this Section 3.5.
3.6. Confidentiality. eBRIDGE and Customer acknowledge that each party may receive or have access to Confidential Information owned or maintained by the disclosing party. "Confidential Information" means all data and information of a confidential nature (including: eBridge Connections; source code; documentation; technical, financial, strategic, marketing or product information, plans, and other documents; and Customer's data) provided by, or prepared for, the disclosing party, if marked confidential or reasonably expected by the receiving party to be treated as confidential by the disclosing party. Confidential Information does not include information: (a) already known or independently developed by the receiving party; (b) already in the public domain through no act of the receiving party; or (c) received by the receiving party from a third party authorized to disclose such information for which the receiving party has no obligations of confidentiality. The receiving party will not disclose or use the Confidential Information, except (i) as required by law, or (ii) to the extent reasonably required to perform its obligations under this Agreement. The receiving party will use at least the same degree of care in safeguarding the Confidential Information as the receiving party uses in safeguarding its own confidential information, but in no event less than reasonable care. At any time upon the written request of the disclosing party, the receiving party will return all copies of the Confidential Information that are requested by the requesting party.
4. TERM AND TERMINATION.
4.1. Term. This Agreement will commence on the Effective Date and continue for the initial period specified on an Order Form (“Initial Period”) or as elected in the online subscription process. Thereafter, this Agreement will automatically renew for successive periods equal to the term specified on an Order Form (each, a "Renewal Term"), unless either party gives notice of its intention not to renew at least thirty (30) days prior the expiration of the Initial Period or any Renewal Term. The renewal charge will be equal to the 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. In the case of free trials, notifications provided through eBridge Connections indicating the number of days in the free trial shall constitute notice of termination.
4.2. Termination for Cause. Any breach of your payment obligations or unauthorized use of the eBRIDGE Technology or eBridge Connections will be deemed a material breach of this Agreement. eBRIDGE, in its sole discretion, may terminate your password, account or use of eBridge Connections 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. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of written notice of such breach, to either correct the breach or commence corrective action that is reasonably acceptable to the aggrieved party.
4.3. Effect of Termination. Termination will have no effect on Customer's obligation to pay for any eBridge Connections rendered prior to termination. The terms of Sections 3.5, 5.2, 5.3, 6, 8, 9, 10 and 14 will survive the termination of this Agreement in accordance with their respective terms.
5. FINANCIAL TERMS.
5.1. Fees and Payment. You shall pay all fees or charges to your account as specified on an Order Form, or as indicated in the online subscription process. Prices do not include, and Customer will promptly pay, all applicable taxes in connection with eBridge Connections, except for taxes levied on eBRIDGE's net income. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form or through the Online Order Center. All payment obligations are noncancelable and all amounts paid are nonrefundable. You must provide eBRIDGE with valid credit card or approved purchase order information as a condition to signing up for eBridge Connections. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting license term (either Initial Period 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. All pricing terms are confidential, and you agree not to disclose them to any third party.
5.2. 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 eBridge Connections if your account becomes falls into arrears. Customer's failure to make any payment for eBridge Connections when due will constitute a material breach of this Agreement. You will continue to be charged applicable fees for eBridge Connections 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 computed in accordance with the Fees and Payment section above. You agree that eBRIDGE may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Furthermore, eBRIDGE's suspension or resumption of eBridge Connections will not limit or prevent eBRIDGE from pursuing all other remedies available to it.
5.3 Reconnection Fee and Customer Data. eBRIDGE reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to eBridge Connections. 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.
6. WARRANTIES AND DISCLAIMERS.
6.1. Warranties. eBRIDGE warrants to Customer that: (i) during the term of this Agreement, eBridge Connections will achieve in all material respects the functionality described in the related documentation (available at www. ebridgeconnections.com or any successor web site), and such functionality will be maintained in all material respects in subsequent upgrades to eBridge Connections; (ii) during the term of this Agreement, it will use commercially reasonable efforts to ensure that eBridge Connections will meet the service levels outlined in eBRIDGE's Service and Support Policy (the "Policy") posted at www. eBRIDGE.com/tos; (iii) eBRIDGE has the power and authority to grant the license for the use of eBridge Connections and the other rights granted by this Agreement to Customer.
6.2. Exceptions to Warranty. eBRIDGE and its licensors do not warrant that eBridge Connections will be error-free. eBRIDGE and its licensors will have no obligations to Customer under Section 5.1 if Customer: (a) does not properly maintain all associated equipment, software, Internet access and environmental conditions in accordance with applicable specifications and industry standards; (b) introduces other equipment or software creating an adverse impact on eBridge Connections; (c) does not pay all amounts due under this Agreement; or (d) is in default of any material provision of this Agreement.
6.3. Disclaimers. EXCEPT AS SPECIFICALLY CONTAINED IN SECTION 5.1, EBRIDGE CONNECTIONS IS PROVIDED TO CUSTOMER WITHOUT ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, SUCH AS ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE.
7. INTERNET DELAYS.
EBRIDGE CONNECTIONS 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.
8. LIMITATION OF REMEDIES.
The parties acknowledge that the provisions of Sections 5 through 8 have been negotiated by them and result in a fair allocation of risk that is reflected in the fees payable under this Agreement.
8.1. Limited Remedy. Customer's sole and exclusive remedy for eBRIDGE's breach of this Agreement will be that eBRIDGE, at its sole option and expense: (i) will use commercially reasonable efforts to modify or replace eBridge Connections either, as appropriate, to achieve in all material respects the functionality described in the related documentation or to make eBridge Connections no longer infringing; (ii) in the case of infringement, will procure for Customer the right to continue to use eBridge Connections; or (iii) will terminate the Agreement and refund to Customer a pro-rata portion of the fees paid under the Agreement for its use of eBridge Connections but for which use has not yet been furnished by eBRIDGE as of the date of such termination. eBRIDGE will have no obligation with respect to such a breach unless notified of such breach in writing sent to accounting@ eBRIDGE.com within ten (10) days of the first instance of any material functionality problem or notice of infringement.
8.2. Time Limit for Claims. If Customer fails to commence a cause of action related to this Agreement within one (1) year from its accrual, then Customer will be deemed to have waived whatever rights Customer may have had in relation to such cause of action.
9. LIMITATION OF LIABILITY AND DISCLAIMER.
EXCEPT WITH RESPECT TO EBRIDGE'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, EBRIDGE'S AND ITS LICENSORS' COMBINED, AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID TO EBRIDGE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN THE CAUSE OF ACTION AROSE. IN NO EVENT WILL EBRIDGE OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 WILL REMAIN FULLY OPERATIVE EVEN IF THE LIMITED REMEDY SET FORTH IN SECTION 6 FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE HELD TO BE UNENFORCEABLE.
10.1. eBRIDGE's Indemnity. Except to the extent of Customer's indemnification obligations under Section 8.2 and subject to the limitation of liability in Section 9.2., eBRIDGE will indemnify, defend and hold Customer harmless from and against any reasonable costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from: (i) the infringement of any copyright, patent, or misappropriation of a trade secret relating to eBridge Connections; or (ii) eBRIDGE's gross negligence in preventing unauthorized access to confidential Customer data or eBRIDGE's willful disclosure of such confidential Customer data, as determined by a court of competent jurisdiction. eBRIDGE's indemnification obligations under this Section 8.1 are expressly premised upon Customer: (a) promptly giving eBRIDGE notice of any such third party claim, suit, action, or proceeding; (b) giving eBRIDGE sole control of the defense and related settlement negotiations; and (c) promptly providing eBRIDGE with all reasonably available information and assistance necessary to perform eBRIDGE's obligations under this Section 10.1.
10.2. Customer's Indemnity. Customer will indemnify, defend and hold eBRIDGE and its licensors harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against eBRIDGE that arise out of or result from a claim by a third-party: (i) alleging that the Customer's data or any use of Customer's data infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (ii) arising out of Customer's breach of Sections 3.2, 3.3 or 3.5 above. Customer's indemnification obligations under this Section 8.2 are expressly premised upon eBRIDGE: (a) promptly giving Customer notice of any such claim, suit, action, or proceeding; (b) giving Customer sole control of the defense and related settlement negotiations; and (c) promptly providing Customer with all reasonably available information and assistance necessary for Customer to perform Customer's obligations under this Section 8.2.
11. ACCOUNTING INFORMATION AND DATA.
11.1. 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.
11.2. 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.
12. 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.
13. EXCESS DATA STOREAGE FEES.
The maximum disk storage space provided to you at no additional charge is [5 MB] per User. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. eBRIDGE will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by eBRIDGE to so notify you shall not affect your responsibility for such additional storage charges. eBRIDGE reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
14.1. Independent Contractors. The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party without prior written consent.
14.2. Force Majeure. Neither party will have any liability for delays or failures in the performance of this Agreement to the extent that such delay or failure is caused by any cause not within such party's direct control, such as fire, flood, acts of God, natural disaster, war, terrorism, internet outages, power outages and the like, other than financial inability.
14.3. Notice. eBRIDGE may give notice by means of electronic mail to your e-mail address on record in eBRIDGE 's account information, or by written communication sent by 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 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: Chief Financial Officer.
14.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, without regard to conflicts of law principles of any jurisdiction.
14.5. Disputes. The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement; however, either party may seek injunctive relief from any court of competent jurisdiction. The following specific provisions will also apply to the Arbitration: (a) the proceedings will be held before a single arbitrator; (b) the arbitrator will apply the law chosen in Section 9.4; (c) the prevailing party will be entitled to recover, in addition to any other amounts awarded, its reasonable attorneys fees, costs, and expenses; (d) the costs of the Arbitration (other than the parties' respective costs and expenses) will be allocated among the parties in the discretion of the arbitrator; and (e) the decision of the arbitrator will be in a writing stating the facts and law upon which the decision rests and will be given no later than ten (10) days following the conclusion of the necessary hearings. The Arbitration award will be final, non-appealable and binding, and any court having jurisdiction can enter judgment upon the award.
14.6. Entire Agreement and Counterparts. This Agreement contains the entire agreement between the parties with respect to eBridge Connections and supersedes all other oral or written representations, statements, or agreements with respect to such subject matter. This Agreement may be executed in several counterparts, all of which taken together will constitute the same instrument.
14.7. Non-Assignment. This Agreement may not be assigned or otherwise transferred, in whole or in part, by Customer without the prior written consent of eBRIDGE, which consent will not be unreasonably withheld.
14.8. Modifications and Waiver. This Agreement may only be modified in writing and executed by authorized representatives of both parties. Customer's subsequent purchase orders or other standard business forms will not constitute a modification of this Agreement, whether or not received, accepted, approved or signed by eBRIDGE. Any waiver must be express and in writing. No waiver by either party of a breach by the other party will constitute a waiver of any different or succeeding breach. Unless otherwise specified, remedies are cumulative.
14.9. Severability and Reformation. If any provision of this Agreement is held to be invalid or unenforceable by arbitration or a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be severed from this Agreement with the remaining terms of the Agreement to be automatically revised to best reflect the parties' original intent.