Enterprise Subscription Terms and Conditions

Suppli, Inc. (“Suppli”) provides technology-enabled services, including the offering branded as Suppli, the Suppli Services (as defined below), and the Suppli Platform (as defined below). These Enterprise Subscription Terms and Conditions (“T&Cs”) set forth legally binding terms and conditions governing access to and use of the Suppli Services and Suppli Platform.  The customer identified in the applicable order form (“Customer”) agrees that these T&Cs, together with the applicable order form (each, an “Order Form” and collectively, this “Agreement”), form the entire agreement between Customer and Suppli and are effective as of the date of execution of an initial Order Form (the “Effective Date”). Suppli and Customer are each referred to individually as a “party,” and collectively as the “parties.” All capitalized terms used but not defined herein may have the meanings assigned to them in an Order Form or the Additional Terms (as defined below), as applicable.

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Suppli may, at its discretion, update these T&Cs at any time. You can access and review the most current version of these T&Cs at https://www.gosuppli.com/enterprise-subscription-terms-and-conditions or as otherwise made available by Suppli.

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In the event of a conflict between the terms in an Order Form, these T&Cs, any Additional Terms, and any Policies (as defined below), the order of precedence shall be as follows: (i) any Additional Terms; (ii) the terms in the Order Form shall control with respect the Services provided under such Order Form; (iii) these T&Cs; and (iv) any Policies. The parties agree as follows:

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1. DEFINITIONS.

“Additional Terms” means any additional terms applicable to Customer’s access to or use of the Suppli Services or Suppli Platform, as indicated in an applicable Order Form.

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“Data” means the raw data Customer uploads or submits to Suppli and the resulting data from the processing of such raw data using the Suppli Services.

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“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Suppli related to the Suppli Services.

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“Internal Purposes” means Customer’s internal business use.

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“Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.

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“Policies” mean any and all terms and conditions posted by Suppli on the Suppli Services, including the Suppli Privacy Policy and terms and conditions provided at https://www.gosuppli.com/terms-of-service, except for these T&Cs and any Additional Terms.

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“Suppli Services” means any and all of the services, software and other offerings provided by Suppli pursuant to this Agreement, including the Suppli Platform, the services listed on an applicable Order Form, the offerings provided through https://www.gosuppli.com, any mobile applications and APIs provided by Suppli, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. Suppli Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by Suppli. Subject to the terms hereof, Suppli will provide Customer with reasonable technical support services related to the Suppli Services in accordance with Suppli’s standard practice.

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“Suppli Platform” means everything at https://www.gosuppli.com, and related services located in the https://www.gosuppli.com domain and subdomains, including software, code, algorithms, hosted services, and web interfaces.

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“User” is a distinct named user permitted by Customer to access the Suppli Services defined by an email address and tied to a specific Customer billing account.

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2. LICENSE GRANT.

Customer’s use of the Suppli Services is subject to and governed by the terms and conditions in this Agreement, applicable Additional Terms (if so indicated on an Order Form), and any Policies. Subject to and conditioned on (i) Customer’s compliance with the terms and conditions of this Agreement and applicable Additional Terms, Suppli grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license during the Term to use the Suppli Services in a secure location, only for Customer’s Internal Purposes. All applicable Additional Terms and Policies may be amended by Suppli from time to time and are incorporated herein by reference.

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3. LICENSE RESTRICTIONS.

a. Restrictions.  Except as expressly authorized in this Agreement or by Suppli, Customer will not, and will not permit any third party to: (i) access or use the Suppli Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Suppli Services (except as required to run the Suppli Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Suppli Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Suppli Services to any third party; (v) use or offer any functionality of the Suppli Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Suppli Services, or “frame” or “mirror” the Suppli Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the Suppli Services or otherwise attempt to derive the Suppli Services source code, algorithms, methods or techniques used or embodied in the Suppli Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Suppli Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Suppli Services; (ix) interfere with or disrupt servers or networks connected to any website through which the Suppli Services are provided; (x) use the Suppli Services to collect or store personal data about any person or entity; (xi) use the Suppli Services to build a similar or competitive product or service; (xii) use the Suppli Services to transmit Malicious Code or (xiii) use the Suppli Services for any illegal, unauthorized or otherwise improper purposes.

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b. Other Parties.  Any employee, consultant, contractor or agent hired to perform services for Customer may operate the Suppli Services on Customer’s behalf solely under these terms and conditions, provided that: (i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Customer remain fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.

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c. Immediate Termination.  Any violation of this Section 3 by Customer shall be a material breach of this Agreement and Suppli may immediately terminate this Agreement without notice.

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4. CONFIDENTIALITY.

a. Definition. “Confidential Information” means information that either: (i) is designated as confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of Suppli also includes the Suppli Services and the existence and terms and conditions of this Agreement.

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b. Use of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement.

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c. Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 2 and Recipient will remain responsible and liable for each such person’s compliance with this Agreement.

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d. Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).

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e. Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.

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f. Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.

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5. TERM AND TERMINATION.

a. Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of all Order Forms (“Term”).

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‍b. Order Form Terms. Unless stated otherwise in the applicable Order Form, the initial term length for such Order Form shall commence on the Order Effective Date (as defined in the applicable Order Form) and shall continue for the initial term length set forth therein (the “Initial Order Term”), which shall automatically renew for successive terms of one (1) year beginning on the day immediately following the expiration of the Initial Order Term or then-current renewal term (each, a “Renewal Order Term” and each together with the Initial Order Term, collectively, the “Order Term”) unless either party provides notice to the other party of its intent not renew at least forty-five (45) days before the end of the Initial Order Term or then-current Renewal Order Term.

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c. Termination. This Agreement or any applicable Order Form may be terminated at any time by Suppli, with or without cause, effective upon forty-five (45) days prior written notice of termination. In such cases, Suppli will refund any prepaid fees applicable to the remaining term after the termination date. This Agreement or applicable Order Form may be terminated with cause by either party, upon written notice if the other party breaches any material term or condition of this Agreement or such Order Form and fails to remedy such breach within thirty (30) days after receipt of written notice specifying the breach. Suppli will refund any prepaid fees applicable to the remaining term as of the effective date of termination if this Agreement or applicable Order Form is terminated by Customer in accordance with this Section for Suppli’s uncured material breach. Customer must pay any unpaid fees applicable to the remaining term if Suppli terminates this Agreement or applicable Order Form for Customer’s material breach in accordance with this Section. In no event will Suppli’s termination for cause relieve Customer of its obligation to pay any fees payable to Suppli for the period prior to termination.

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‍d. Events upon Termination of Order Form. Upon termination of an Order Form for any reason: (i) all rights granted by the parties under such Order Form shall immediately terminate; (ii) Customer shall immediately cease all use of the Services made available under such Order Form; and (iii) each party shall immediately cease all use of the other party’s Confidential Information made available under such Order Form and return or destroy all copies of such Confidential Information that are within its custody or control.

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e. Effect of Termination.  Immediately upon termination of this Agreement, (i) all licenses granted under this Agreement will immediately terminate and Customer will immediately cease all use of the Suppli Services; (ii) Customer will destroy the Suppli Services in its possession, or upon request by Suppli, return to Suppli the Confidential Information that is in its possession or control; and (iii) any and all of Customer’s payment obligations under this Agreement will immediately become due. Upon Suppli’s request, Customer will certify in writing that Customer has returned or destroyed all copies of Suppli’s Confidential Information. Sections 1, 3 - 12, and 14 - 16, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.

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f. Suspension.  Suppli reserves the right at any time to modify, suspend, or discontinue the Suppli Services (or any portion thereof) with or without notice, and Suppli shall not be liable to Customer or any third party for any such modification, suspension or discontinuance.

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6. OWNERSHIP.

The Suppli Services are licensed, not sold, and Suppli, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. Suppli, its suppliers or its licensors own all worldwide right, title and interest in and to the Suppli Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (collectively, “Intellectual Property Rights”). Except as expressly stated in this Agreement, Suppli does not grant Customer any Intellectual Property Rights in the Suppli Services. The Suppli Services is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.

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7. FEES.

a. Service Fees.  Customer shall pay to Suppli the applicable fees set forth in the Order Form pursuant to the payment terms therein. Unless otherwise set forth in an Order Form, recurring subscription Fees for access to the Suppli Services (“Subscription Fees”) shall due and payable annually in advance and due within thirty (30) days after the Order Effective Date (or subsequent anniversary date) of the Initial Order Term or each subsequent Renewal Order Term.

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b. Implementation Fee.  Customer shall pay Suppli an implementation fee as set forth in the Order Form pursuant to the payment terms therein (“Implementation Fee”, and together with the Subscription Fees, the “Fees”). Unless otherwise set forth in an Order Form, such implementation Fees shall be due and payable thirty (30) days after the applicable Order Effective Date.

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c. Payment Terms. Customer will pay Fees when due.  Customer shall provide Suppli with complete and accurate billing contact information including a valid email address. All payments to Suppli are non-refundable except as otherwise expressly provided in writing by Suppli.  All payments will be made in United States dollars via electric funds transfer, as per the instructions of Suppli.

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d. Late Payments.  If Customer fails to pay any past due amount, Suppli may revoke or suspend the Suppli Services until such time as Customer brings its account completely current.  Suppli may charge interest on all past due amounts at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.  If Customer is delinquent in its payments for two (2) consecutive payment periods, Suppli may, upon written notice to Customer, require assurances to secure Customer’s payment obligations hereunder.

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e. Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Suppli Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Suppli’s net income, and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts.  If Customer is legally required to withhold any amounts to be paid to Suppli, Customer will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Suppli on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Suppli to establish Suppli’s right to a credit for such taxes against Suppli’s income tax liability.  Customer shall provide Suppli with such assistance as Suppli shall reasonably request in connection with any application by Suppli to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.

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8. FEEDBACK.

Customer may provide Suppli with Feedback. Suppli, in its sole discretion, may or may not respond to Customer’s Feedback or promise to address all of Customer’s Feedback in the development of future features or functionalities of the Suppli Services or any related or subsequent versions of such Suppli Services. Customer assigns, at no charge, all rights, title and interests in Feedback to Suppli, and agrees that Suppli is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require Suppli to comply with any additional obligations with respect to any Suppli Services that incorporates Customer’s Feedback.

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9. DATA.

a. Data Processing. Suppli shall process and use any personal data that Customer provides in accordance with the Suppli Privacy Policy located at https://www.gosuppli.com/privacy-policy. To the extent Customer provides to Suppli personal data from a third party data subject when Customer is acting as their data controller, Suppli will process such personal data in accordance with applicable data processing and privacy laws and regulations.  Suppli will maintain a security program materially in accordance with industry standards that are designed to protect the security, confidentiality and integrity of the Data. Customer hereby grants Suppli a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Suppli Services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. Suppli may use, publish, share, distribute, or disclose such Data on an aggregate basis or in a de-identified manner that does not allow personal data about Customer to be separated from the aggregate data and identified as originating from Customer.

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b. Data Warranty and Obligations.  Customer represents, warrants and agrees that Customer has all rights to provide the Data and other materials that Customer provides or makes available to Suppli. Customer acknowledges and agrees that it is solely responsible for all Data and for its conduct while using the Suppli Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Data; (ii) it is responsible for protecting and backing up the Data; (iii) it is responsible for protecting the confidentiality of all Data in its possession and control; and (iv) under no circumstances will Suppli be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Data. Customer has full discretion and control on how to store, protect, remove or delete any Data on the Suppli Services and Suppli shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.

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10. WARRANTY.

a. Mutual Representations and Warranties.  Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.

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‍b. Customer Representations and Warranties.  Customer represents and warrants that (i) it has full right, power, and authority to enter into this Agreement and the Merchant Agreements and to perform its obligations and duties, in each case, thereunder, (ii) that it has and shall continue to have, the equipment and related supplies necessary to utilize the Merchant Services, and (iii) that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of Customer or any judgment, order, or decree by which Customer is bound.

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c. Disclaimer.  EXCEPT AS SET FORTH IN SECTION 10.a., SUPPLI DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. SUPPLI SPECIFICALLY DOES NOT WARRANT THAT THE SUPPLI SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SUPPLI SERVICES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER PROVIDES THE DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE DATA PROVIDED TO SUPPLI. Suppli is not obligated to support, update or upgrade the Suppli Services.

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d. Beta Disclaimer.  ALL SUPPLI SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. Suppli has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Suppli does not assume any obligation to update any Beta Services. In addition, any information about Suppli’s roadmap outlines Suppli’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Suppli undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Suppli Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by Suppli. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.

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11. INDEMNIFICATION.

a. Claims Against Customer.  Suppli will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Suppli Services, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and Suppli will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If Suppli receives prompt notice of a Customer Claim that, in Suppli’s reasonable opinion, is likely to result in an adverse ruling, then Suppli may (i) obtain a right for Customer to continue using the Suppli Services at issue; (ii) modify such Suppli Services to make it non-infringing; (iii) replace such Suppli Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Suppli Services.

b. Suppli Indemnity Limits.  Notwithstanding the foregoing, Suppli will have no obligation under Section 11.a. or otherwise with respect to any infringement claim based upon: (i) any use of the Suppli Services not expressly permitted under this Agreement; (ii) any use of the Suppli Services in combination with products, equipment, software, or data not made available by Suppli if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Suppli Services by any person other than Suppli or its authorized agents or subcontractors (collectively, “Excluded Claims”).  Suppli will have no obligation under Section 11.a. or otherwise with respect to any claim based upon the use by Customer of any Data uploaded or accessed through the Suppli Services to the extent such claim is not based on the Suppli Services itself.  Section 11.a. states Suppli’s sole liability and Customer’s exclusive remedy for all third party claims.

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c. Claims Against Suppli.  Customer will defend, at its own expense, and hold Suppli, its subsidiaries, affiliates and each of their shareholders, officers, agents, employees, contractors and directors, harmless against any claim, suit or action against Suppli brought by a third party to the extent that such claim, suit or action arises from (i) Customer’s failure to comply with or violation of any applicable law or regulation, (ii) Customer’s breach of this Agreement, (iii) Customer’s infringement of any third party’s Intellectual Property Right, (iv) Customer’s use of any Data, (v) Customer’s products or services, including the provision of such products or services to end users of the Suppli Services, (vi) Customer’s own communications with any other party via the Suppli Services, (vii) Excluded Claims, or (viii) the Merchant Agreements (each, a “Suppli Claim”), and Customer will indemnify Suppli harmless from liability incurred by Suppli that is specifically attributable to such Suppli Claim or those costs and damages agreed to in a monetary settlement of such Suppli Claim.  

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d. Procedure. The foregoing obligations are conditioned on the party seeking indemnification:  (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

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12. LIMITATION OF LIABILITY.

a. IN NO EVENT WILL SUPPLI BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SUPPLI SERVICES. WITHOUT LIMITING THE FOREGOING, SUPPLI WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE SUPPLI SERVICES, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE SUPPLI SERVICES. SUPPLI TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO AND WILL NOT EXCEED  THE EQUIVALENT OF THE FEES SET FORTH IN SECTION 7(A) HERETO WHICH ARE ATTRIBUTABLE TO CUSTOMER’S ACCESS TO THE SUPPLI SERVICES UNDER THIS AGREEMENT  DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE ACT THAT GAVE RISE TO SUCH LIABILITY, WHETHER OR NOT SUPPLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

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b. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

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13. COMPLIANCE WITH LAWS.

Customer will comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Suppli Services. Customer represents and warrants that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further represents and warrants that it shall not export, re-export, ship, or transfer the Suppli Services to any restricted countries or restricted end users or use the Suppli Services in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer understands that the requirements and restrictions of the Export Laws may vary depending on the specific Suppli Services and may change over time, and that, to determine the precise controls applicable to the Suppli Services, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.

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14. CHOICE OF LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.

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15. BINDING ARBITRATION AND CLASS ACTION WAIVER.  

a. ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

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b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Customer agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

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c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

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d. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.

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e. If Suppli implements any material change to this Section 15, such change shall not apply to any claim for which Customer provided written notice to Suppli before the implementation of the change. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.

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16. GENERAL.

All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated in the signature blocks hereto, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Customer acknowledges that Suppli may assign, subcontract or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Suppli Services, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Suppli Services, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement Customer may have with Suppli. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Any prevention of or delay in performance by Suppli hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

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