Terms of Service
This Terms of Service (the “Agreement”)
is made as an acceptance to meta commerz website or System Terms of Service, at the time, date, month, year of accepting the terms online (the “Effective Date”) by and between meta commerz Inc., a Delaware corporation (“Licensor”), and any party that would like to view or subscribe to meta commerz website content or System a corporation (“Licensee”).
Every time Company or User representing a Company, or an individual accepts to use meta commerz terms of service and privacy terms and conditions terms of services and any additional Statement of Work hereunder agreed, executed forms a part of this part of this Agreement. Terms and conditions in any such document shall supersede any conflicting terms and conditions in this Agreement. Each a Company or User representing a Company, or an individual accepts Terms of Service, privacy terms and conditions and Statement of Work, used to view content on meta commerz site or on meta commerz System shall constitute and be construed in this Agreement.
BACKGROUND
Licensor offers content on meta commerz website or System that runs on proprietary and third-party software and is marketed under the service mark “meta commerz inc.” Licensor wishes to provide access to meta commerz System to the Licensee in accordance with the terms contained herein. In consideration of the mutual covenants and obligations set forth below, the parties agree as follows:
Definitions
“Authorized User”
means a specific Licensee employee of subscribing Company, consultant or independent or third-party contractor who has received access with valid User ID and Password from the Licensee’s Use Administrator or System.
“Enhancement”
means any modifications, derivative works, variations or revisions of meta commerz that Licensor reasonably determines not to be a “New Product” and which Licensor intends to provide to its licensees at no additional cost.
“Content & Documentation”
means the provided user and reference manuals for the Licensed Products.
“Licensed Products”
shall mean the products, modules and services set forth on an applicable Online Subscription Form.
“Platform”
is comprised of the features and functionality made available by Licensor via the meta commerz System, as such features and functionality may be modified from time to time as set forth below.
“Content”
means Licensor proprietary information, materials, databases and other content (other than Third Party Content), which is made available to Licensee and each Authorized User through meta commerz.
“System”
means the Licensor proprietary software and hardware configuration, as well as certain functionality provided by third parties that generates, enables and serves meta commerz, including all Enhancements and New Products.
“Online Subscription Form”
means a document by which Licensee orders Licensed Products.
“Password”
shall refer to a unique user ID and password given to an Authorized User by the Use Administrator that permits a single individual to access meta commerz. Passwords may not be shared.
“Premium Support Services”
has the meaning set forth in Section 2(c).
“System”
means the Licensor proprietary software and hardware configuration, as well as certain functionality provided by third parties that generates, enables and serves meta commerz, including all Enhancements and New Products.
“Online Subscription Form”
means a document by which Licensee orders Licensed Products.
“Site”
means the meta commerz site on the World Wide Web on which Authorized Users may access meta commerz (initially, https://metacommerz.io, https://www.metacommerz.io, https://app.metacommerz.io .)
“Site Content”
means the meta commerz Content and the Third-Party Content.
“Statement of Work”
means a document by which Licensee orders Premium Support Services.
“Term”
has the meaning set forth in Section 4(a).
“Third Party Content”
means content created by or received from parties other than Licensor for use and/or display on meta commerz. Certain Third-Party Content (for instance, rating and mileage) requires Licensee to acquire a license directly from such third party. Licensor will inform Licensee of such requirement.
“User Administrator”
shall mean the person designated to administer the use of meta commerz by Licensee’s Authorized Users.
“User Acceptance Testing”
(r) shall mean Licensee’s opportunity to test, in a specified pre-production environment, the Licensed Software prior to its promotion into production use.
“New Products”
shall mean modifications, variations, revisions, products, modules and/or components provided by Licensor that may be used in connection with the use of meta commerz and for which Licensor will charge additional fees for use, subject to the parties entering into a separate agreement covering terms of use and pricing for such New Products. New products and services that are merely re-packaging of existing products and services—without increasing functionality—shall not be deemed to be “New Products” hereunder.
License and Subscription Grant
During the Term of this Agreement, Licensor grants Licensee and its Authorized Users a non-exclusive, non-transferable, right and license, solely for Licensee’s internal business purposes, to access and use the Site and the Site Content related to the Licensed Products.
Support of Licensed Products
A license to the Licensed Products includes Standard Support or a specific Support Plan as outlined as per specific Online Subscription Plan in accordance with Licensor’s then current Support policies.
Premium Support Services.
Licensor may from time to time provide Premium Support Services and/or training subject to availability, to Licensee at the rates and on the terms and conditions set forth on an applicable Statement of Work (including the product of such services, the " Premium Support Services "). Licensor grants Licensee a non-exclusive, non-transferable license to use the results of the Premium Support Services solely with the Licensed Products pursuant to the terms and conditions of this Agreement and not for distribution or resale to third parties.
Restrictions.
Licensee agrees to use reasonable efforts to ensure that neither meta commerz nor the Site Content is any way distributed to, or accessed by, any third party who is not an Authorized User. Licensee shall not rent, lease, sublicense, distribute, transfer, timeshare, copy, reproduce, display, reverse-engineer, create derivative works or otherwise modify the Licensed Products, the Site, the meta commerz System or the Site Content or any portion thereof, or use such as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution outside of the Authorized Users. Licensee agrees not to demonstrate or disclose the results of any testing or benchmarking of the Licensed Products, the Site, the meta commerz System, or Site Content to any third party, which information will constitute Confidential Information of Licensor, without Licensor’s prior written permission. Licensor reserves all rights not expressly granted to Licensee in this Section 2.
Fees. Licensee agrees to pay to Licensor the fees and charges set forth on any applicable Online Subscription Form or Statement of Work attached hereto. Such fees shall be invoiced and due as set forth on the applicable Online Subscription Form or Statement of Work. Unless otherwise stated on an applicable Statement of Work, Licensor will invoice Licensee for Premium Support Services based on Licensor’s then current list rate.
All fees paid by Licensee to Licensor during the Term shall be non-refundable. All amounts required to be paid to Licensor hereunder shall be paid in US dollars based on payment terms and payment methods defined on the Online Subscription Form or any additional customizations through a Statement of Work. Licensee also agrees to pay all reasonable travel and out of pocket expenses incurred by Licensor under this Agreement. All amounts due hereunder are net amounts, and Licensee agrees that it will be responsible for all sales, use or services taxes of any kind, with the exception of taxes due on Licensor’s income. If any of Licensor’s invoices to Licensee have not been disputed and remain unpaid for more than thirty (30) days after the invoice date, Licensor may restrict any Authorized User’s access to meta commerz System.
Term.
This Agreement and any Online Subscription Form or Statement of Work shall continue in effect unless terminated as set forth below (the “Term”) or by agreement of the parties. In the event there is no Statement of Work or Online Subscription Form then in effect, Licensee shall be entitled to terminate this Agreement by notice in writing of no less than six (6) months without any penalty or other liability arising therefrom.
Licensor or Licensee may terminate this Agreement and any Online Subscription Forms and Statements of Work upon forty-five (45) days’ written notice of a material breach of this Agreement if such breach is not cured within such forty-five (45) day period; provided, however, that any willful unauthorized access, use, copying, disclosure, distribution, or sublicensing of the Licensed Products, the Site, the meta commerz System, Site Content or any related methods, algorithms, techniques, or processes by Licensee or any of its Authorized Users will be deemed a material breach of this Agreement that cannot be cured.
All intellectual property rights, title and interest in and to the Licensed Products, meta commerz , the Site, the meta commerz System and the Site Content and related documentation (including any Enhancements, New and Derivative Products and any software and/or databases contained therein, including without limitation, compilations and expressions of distinctive and creative formats, or authorized copies thereof and business process definitions and technology within the intellectual property of Licensor) shall remain exclusively with Licensor and its licensors, as applicable. Licensee agrees to ensure that each authorized copy of any portion of the Site Content will contain the same proprietary notices that appear on meta commerz or the Site. In addition, unless the parties mutually agree otherwise in writing, Licensor will own all rights, title, and interest in the Premium Support Services, including all rights, title, and interest in all worldwide copyrights, trade secrets, trademarks, patents, confidential and proprietary rights therein. Licensee hereby assigns to Licensor without further consideration, ownership of all intellectual property rights in such Premium Support Services, or any improvement, modification, derivatives or enhancement thereto.
Licensor warrants that it either owns or has the right to license in accordance with the terms of this Agreement, the Licensed Products of meta commerz and Content.
Licensor warrants that the Licensed Products shall conform in all material respects to the Documentation with respect to Licensee’s specific implementation as approved pursuant to any applicable User Acceptance Testing processes for a period of one (1) year after the initial license of such Licensed Product. If Licensor is unable to correct such non-conformity within a reasonable time, Licensee’s sole and exclusive remedy for a breach of this Section 6(b) shall be to terminate the applicable Online Subscription Form. Notwithstanding the foregoing, meta commerz shall have no obligation to repair nonconformities in the Licensed Product caused by misuse, improper operation, misapplication, Licensee’s subsequent configuration or any other cause external to the Licensed Product.
Licensor warrants that the Premium Support Services shall be of a professional quality conforming to generally accepted industry standards and practices.
EXCEPT FOR THE LIMITED WARRANTIES CONTAINED IN SECTION 6 HEREOF, LICENSOR PROVIDES THE LICENSED PRODUCTS, THE PREMIUM SUPPORT SERVICES, meta commerz, THE SITE, THE meta commerz SYSTEM, AND SITE CONTENT ON AN “AS IS” AND “WHERE IS” BASIS. LICENSOR IS NOT RESPONSIBLE FOR AND DOES NOT ENDORSE ANY THIRD-PARTY CONTENT OR WARRANT THAT ACCESS THERETO WILL BE ERROR FREE, CURRENT, OR UNINTERRUPTED AND SUCH THIRD-PARTY CONTENT WILL NOT BE SUBJECT TO LICENSOR’S SERVICE LEVEL AGREEMENT. EXCEPT FOR THE LIMITED WARRANTIES CONTAINED IN SECTION 6 HEREOF, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY OR LICENSOR’S LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFIT, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM OR DATA, OR CLAIMS BY ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S SOLE AND EXCLUSIVE REMEDY IS SET FORTH IN THIS AGREEMENT. OTHER THAN WITH RESPECT TO LIABILITY ARISING UNDER SECTIONS 3, 9 AND 10 HEREUNDER, THE CUMULATIVE AGGREGATE LIABILITY OF EITHER PARTY OR LICENSOR’S LICENSORS FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL MONTHLY FEES PAID TO LICENSOR HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS WITH RESPECT TO THE RELEVANT LICENSED PRODUCT OR PROFESSIONAL SERVICE GIVING RISE TO SUCH LIABILITY.
Licensor, at its expense, shall defend, indemnify and hold harmless the Licensee and its Authorized Users and their officers, directors, employees, agents and contractors from any claim, suit, proceeding or loss, damages or liability of any kind resulting from, arising out of, or related to a claim of U.S. copyright, trademark, patent, trade secret or other proprietary right infringement by the Licensed Products, the Site, the meta commerz System or the Site Content; provided that Licensee provides Licensor with prompt notice of such claims, and provides Licensor with reasonable cooperation with such claims; and provided further that Licensor shall not be liable to the Licensee or its Authorized Users under the terms of this Section 9(a) if any infringement or claim is based upon:
- the use of Licensed Products in violation of the license granted under this Agreement.
- any alteration or modification of Licensed Products;
- use of superseded, altered or allegedly infringing versions or releases of Licensed Products or any portion thereof if such alleged infringement could be avoided by the use of a different version made available by Licensor; or
- any information, design, specification, instruction, software, data, or material not furnished by Licensor. If any Licensed Product or Premium Support Services becomes, or in Licensor’s opinion may become, subject to any claim of infringement of any third party intellectual property right, then Licensor at its option may: (x) procure for the Licensee the right to continue to use the Licensed Product or Premium Support Services; (y) replace or modify the affected Licensed Product or Premium Support Services in a manner that provides Licensee with substantially similar functionality; or if neither (x) nor (y) can be accomplished in a commercially reasonable manner, terminate the license for the affected portion of the Licensed Products or Premium Support Services and refund the affected portion of the license or services fees received by Licensor during the previous twelve (12) months. LICENSEE ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND LIMITED REMEDY IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND RECOURSE WITH RESPECT TO THE WARRANTY SET FORTH IN SECTION 6(A) OF THIS AGREEMENT AND TO THE INFRINGEMENT BY meta commerz OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Except as set forth in Section 9(a) above, Licensee agrees to defend and indemnify Licensor and its respective affiliates, and all of its officers, directors, shareholders, legal representatives, employees, contractors, successors, assigns, and agents, at Licensee’s expense, and hold them harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses or liability of any kind (including reasonable attorneys’ fees and litigation expenses) as they are incurred from any claim, suit, proceeding or loss, damages or liability of any kind resulting from, arising out of, or related to Licensee’s and the Licensee’s Authorized Users’ unauthorized use of meta commerz , the Site, the meta commerz System or the Site Content (including without limitation the unauthorized use of a Password provided by any Authorized User to an unauthorized person, or the negligence of any Authorized User which causes a third party to obtain unauthorized access to a Password); provided that Licensor provides the Licensee with prompt notice of such claims, and provides Licensee with reasonable cooperation with such claims. Licensee shall not settle or otherwise dispose of any matter that is subject to indemnification by it without the prior written consent of Licensor. Licensor reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Licensee.
meta commerz is a Cloud Based Technology Platform offering proprietary and third party technology hosted on Cloud Platform. Licensee acknowledges that the Site acts only as a Cloud Based Technology Platform for companies to manage their supply chain contracts, document audit, compliance check, approval, posting on financial systems and operations systems, manage receivables/payables services and that Licensor is not involved in the actual transactions between any such company. In connection with operating the multi-party Site and enabling other parties to collaborate with Licensee, Licensor shall make known Licensee’s connection to the Site. Licensor has no control over the quality, safety or legality of the goods or services purchased and sold among any such companies. In the event that a Licensee has a dispute with another such company, Licensee hereby releases and holds harmless Licensor (and its agents, employees and third-party partners) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and suspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Nothing contained in this Agreement or in the use or operation of meta commerz is intended to create a joint venture, partnership, employment or agency relationship between a company and Licensor.
Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any and all
- technical and non-technical information including patent, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment and algorithms related to meta commerz, the Site, the meta commerz System, Site Content, and related documentation;
- information relating to either party’s costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
- information designated Confidential Information pursuant to this Agreement; and
- information that a reasonable person would deem to be proprietary and/or confidential. Notwithstanding the foregoing, “Confidential Information” shall not include information that:
- is or becomes generally known or available by publication, commercial use or otherwise through no fault of the disclosing party.
- is known and has been reduced to tangible form by the disclosing party at the time of disclosure and is not subject to restriction.
- is independently learned or developed by either party without use of the Confidential Information; or
- is lawfully obtained from a third party who has the right to make such disclosure without restriction as to confidentiality.
Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of, disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except as necessary to fulfill their respective obligations hereunder and for any purpose the disclosing party may hereafter authorize in writing or as mandated to be disclosed by law. If the Confidential Information is mandated to be disclosed by law then the disclosing party will give the other party immediate notice to allow that party time to attempt to enjoin the production of such information. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information of a similar nature, but in all cases not less than reasonable care.
Governing Law. This Agreement and any disputes under, relating to, associated with or arising in connection with this Agreement shall be governed by, construed and resolved under Delaware Law without giving effect to any conflict of law principles that would result in the application of the laws of any other jurisdiction. All disputes shall be subject to the exclusive jurisdiction and venue of the state and federal courts in Wilmington, Delaware, and the parties consent to the personal and exclusive jurisdiction of these courts and waive any right to contest such jurisdiction and venue.
Licensor and Licensee recognize and acknowledge that their employees possess special, unique and extraordinary technical talents which are in great demand in the present economy and further recognize and acknowledge that each party has incurred substantial expense in recruiting and training such employees and would incur even greater expense if required to replace any such employee. Therefore, both parties agree not to recruit, either directly or indirectly, a present employee of the other party during the term of this Agreement and one (1) year after without the other party’s prior written consent, except that either party may make general solicitations to the public (including solicitations by way of job posting web sites) or solicitations by a retained third party and hire or contract with any such person that responds to such a general solicitation.
The parties agree that a claim brought under or with respect to this Agreement must be filed within two (2) years after the claim accrues or the claim will be forever barred. Moreover, notice of a claim must be given within ninety (90) days from when the party first becomes aware of the claim as a condition precedent to bringing suit upon the claim.
Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
If any provision in this Agreement is held by a court having competent jurisdiction to be invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect. Moreover, the parties shall negotiate in good faith to replace an unenforceable provision with an enforceable provision.
Neither party shall assign this Agreement or any right or obligation hereunder, and no attempted assignment shall be effective, without the prior written consent of the other party; provided, however, that this Agreement may be assigned to a purchaser of all or substantially all of the assets or outstanding capital stock of such party whether by merger, consolidation or otherwise. Any authorized assignee shall be bound by and subject to all of the terms and provisions of this Agreement. This Agreement shall inure to the benefit of the respective parties, their legal representatives, successors and permitted assigns.
Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by hand, by overnight courier, by facsimile or by registered mail, return receipt requested, to the addresses set forth below or to such other address of the parties designated in writing in accordance with this subsection and shall be effective upon receipt:
Licensor:
meta commerz Inc
651N.Broad Street., Suite #201,
Middle Town, Wilmington, Delaware DE19709
Licensee:
Company Accepting Terms of Services Online
Attention: Legal Department – [email protected]
Licensee agrees to allow Licensor, with reasonable prior notice, to enter Licensee’s premises during normal business hours to review pertinent documentation and information and access the Licensed Products as installed at Licensee’s location, to verify Licensee’s compliance with this Agreement.
This Agreement sets forth the entire agreement between the parties and supersedes prior proposals, agreements, and representations between them, whether written or oral, relating to the subject matter contained herein. Neither party has relied on any statement, representation or agreement of the other party except for those expressly contained in this Agreement. Terms and conditions in this Agreement supersede and replace any and all terms and conditions set forth on any purchase order, invoice, requests for proposal or information or other similar document. This Agreement may be changed only if agreed to in writing and signed by an authorized signatory of each party.
If the Licensee hereunder is the U.S. Government, or if the Licensed Products are acquired hereunder on behalf of the US Government with U.S. Government federal funding, notice is hereby given that the Licensed Software and related Documentation are commercial computer software and documentation developed exclusively at private expense and are furnished as follows: U.S. GOVERNMENT RESTRICTED RIGHTS. Licensed Software and Documentation delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Licensed Software and Documentation by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software – Restricted Rights (June 1987). If the license hereunder is acquired by or on behalf of units of the Department of Defense (“DOD”), the license shall be subject to the terms of this Agreement as specified in the DOD FAR Supplement 227.7202-2.