Service Terms

SUBSCRIPTION SERVICES TERMS AND CONDITIONS

Updated March 15, 2024

THESE SERVICES TERMS INCLUDE A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, AND SELECTION OF GOVERNING LAW AND CHOICE OF FORUM (INCLUDING MANDATORY ARBITRATION INSTEAD OF COURT). IF YOU DO NOT AGREE TO THESE SERVICES TERMS, DO NOT USE THE SERVICES. THESE TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME BY VENDOR WITH THE MOST RECENT VERSION POSTED AT https://www.e2open.com/service-terms/.

These Services Terms govern the use of the subscription and/or related services of the member of the Vendor Group identified on the Order Form as Vendor and the member of the Customer Group identified on the Order Form as Customer. In consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are acknowledged, Vendor and Customer agree as follows:

Defined Terms.

“Action” means a claim, suit, action, or proceeding by a third party.

“Confidential Information” means the terms of these Services Terms and all documents, software, reports, data, records, forms, and other materials obtained by the Receiving Party from the Disclosing Party: (a) that have been marked as confidential; (b) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (c) that, due to their character and nature, a reasonable person under like circumstances would treat such material as confidential. The Subscription Services, Professional Services, Documentation, Vendor Materials, and pricing are Vendor’s Confidential Information. Transaction Data is Customer’s Confidential Information.

“Competitor” means any person, business, or entity that makes commercially available subscription services, software, or application products and services similar to those offered by Vendor.

“Competitor” means any person, business, or entity that makes commercially available subscription services, software, or application products and services similar to those offered by Vendor.“Computer Equipment” means each item of computer hardware including associated peripheral equipment and terminals, configured as required to operate any one or more of the Subscription Services.

“Customer” means the entity identified as Customer on the Order Form.

“Customer Affiliate” means any company directly or indirectly controlled by or under common control with Customer’s ultimate parent company, where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Customer Data” means any content, materials, data, and information that Users input or cause to be input into the Subscription Services or that Users derive from their use of and store in the Subscription Services. Customer Data and its derivatives do not include Vendor’s Confidential Information.

“Customer Group” means Customer’s ultimate parent company and any operating company owned or controlled (directly or indirectly) by Customer’s ultimate parent company, including Customer.

“Customer Indemnitees” means Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Disclosing Party” means a party disclosing Confidential Information to a Receiving Party under these Services Terms.

“Documentation” means Vendor’s user guides, training materials, and technical manuals in any medium, generally made available to Vendor’s customers, and includes all updated versions as may be provided from time to time. Documentation shall not include Vendor’s marketing materials or proposals.

“Expenses” means all actual, reasonable travel, living, and out-of-pocket expenses incurred by Vendor pursuant to these Services Terms.

“Feedback” means comments, suggestions, enhancement requests, or other feedback provided by Customer.

“Indemnitee” means the party seeking an indemnification.

“Indemnitor” means the party providing the indemnification.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Losses” means any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees.

“Order Form” means each separate, written document signed by the parties under which Customer orders the Services identified therein. Order Forms will identify the Subscription Services and/or Professional Services and include quantities, duration, applicable use, fees, costs, general project plans, scope, objectives, schedules, and Service Level Agreement, as appropriate. Each Order Form becomes a part of these Services Terms. If for Professional Services only, an Order Form may be called a Statement of Work (SOW). May have been formerly called a “Work Order” or similar.

“Patches” mean bug fixes, updates, maintenance, and service packs necessary for the proper function and security of the Subscription Services, as generally released pursuant to the Service Level Agreement.

“Professional Services” means the work performed by Vendor for Customer pursuant to an Order Form to install, configure, or upgrade the Subscription Services in accordance with the terms and conditions set forth in these Services Terms. Professional Services do not include Subscription Services.

“Receiving Party” means a party receiving Confidential Information from a Disclosing Party under these Services Terms.

“Results” means the information derived by Customer from its input of Customer Data into the Subscription Services.

“Service Level Agreement” means the document that describes Vendor’s application uptime, customer support offerings, and product release and maintenance schedule.
“Services” means the Subscription Services and the Professional Services.

“Services Terms” means these Subscription Services Terms and Conditions.

“Statistics” means data compiled, calculated, or otherwise resulting from de-identified, aggregated, and anonymized output from the operation and use of the Services, in whole or in part. Examples of Statistics are transaction volume, number and type of partners, and revenue volume. Statistics will not include personal data.

“Subscription Services” means Vendor’s subscription-based service including software applications and related hosting, maintenance, and support services made available to Customer for access, and excluding any Third-Party Software that is accessed or used in association with the Subscription Services. May have been formerly called “SaaS Services,” “Applications,” “Licensed Material,” “Software,” or similar.

“Substantial Contact” means a party’s interaction with the other party’s employee where such employee had material involvement with the Services during the last 18 months prior to the employee’s last day of employment with his/her respective employer.
“Third Party Software” means software that is not owned or licensed by Vendor.

“User” means any individual natural person or approved automated system (commonly called a bot) granted access through a unique user ID, issued by Customer for access and/or use of the Subscription Services.

“Vendor” means the entity identified as Vendor on the Order Form. May have been formerly called “Company,” “Provider,” “Supplier,” or similar.

“Vendor Affiliate” means any company directly or indirectly controlled by or under common control with Vendor’s ultimate parent company where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Vendor Group” means E2open, LLC and any operating company owned or controlled (directly or indirectly) by E2open, LLC, including Vendor.

“Vendor Indemnitees” means Vendor and Vendor’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Vendor Materials” means any technology, equipment, information, and materials provided or developed by Vendor (independently or with Customer’s or another party’s cooperation) on its own initiative and in the course of performance under the Services Terms, including the delivery of any support or Professional Services to Customer including Documentation, and any derivative works thereof, which may be updated by Vendor. Vendor Materials do not include Customer’s Confidential Information.

Subscription Services.

2.1 Grant of Rights. Subject to the terms of these Services Terms:
2.1.1 Vendor hereby grants Customer a non-exclusive, non-transferable, non sub-licensable worldwide right during the term of an applicable Order Form for its Users to access and use the applicable Services, Documentation, and Vendor Materials, solely for Customer’s internal business purposes as contemplated by these Services Terms; provided that any User that is an automated system must be approved by Vendor (not to be unreasonably withheld). Unless the Order Form expressly permits Customer to install the Subscription Services on its Computer Equipment, Customer will access and use the Subscription Services from Vendor’s datacenter;

2.1.2 Customer hereby grants Vendor a non-exclusive, worldwide right to use Transaction Data, as reasonably necessary to provide the Services during the term of the Services Terms; and

2.1.3 Customer hereby grants Vendor a non-exclusive, irrevocable, worldwide right to incorporate the Statistics in works in any form, media, or technology for Vendor’s business purposes and to make available to others, provided that Vendor does not reveal the identity of any member of the Customer Group, Users, or Customer’s Confidential Data.

2.2 Access Management. Customer is responsible for the accuracy, quality, integrity, and legality of Transaction Data, the means by which it acquired the Transaction Data, and for the administration, authorization, and termination of all User access authorizations. Customer will provide Vendor with accurate, complete, and updated registration information of its Users. Notwithstanding the foregoing, Vendor may refuse registration of or suspend Users’ access to the Services if, in Vendor’s reasonable judgment, a significant threat to the security or functionality of the Services or any component thereof is imminent, or due to spamming or illegal activity. Vendor will notify Customer of any such occurrence. Customer is responsible for the security of its access to the Services and the security of Users’ access authorization. Customer will not permit Users to share User IDs and passwords. Customer will promptly notify Vendor of any unauthorized use of the Services, or any other breach of security suspected or known to Customer. Customer is responsible for acquiring and maintaining the required hardware, software, internet connections, and other resources necessary for Users to access and use the Services. Customer is responsible for any and all acts and omissions of any Users to the same extent as if such action or omission were the action or omission of Customer.

2.3 Rights and Restrictions. Customer is responsible for its Users’ compliance with the terms and conditions of these Services Terms. Except as expressly permitted herein, Customer:

2.3.1 will use the Services in compliance with Vendor’s Acceptable Use Policy located at https://www.e2open.com/acceptable-use-policy/, incorporated by reference herein;

2.3.2 will comply with Vendor’s Security Guidelines Policy located at https://www.e2open.com/customer-security-policy/, incorporated by reference herein; and

2.3.3 will not, without the prior written consent of Vendor, directly or indirectly:

2.3.3.1 transfer, assign, lease, loan, resell, distribute, convey, sublicense, or otherwise grant any rights in the Services, Documentation, or Vendor Materials in any form to any third party, including commercial time-sharing, rental or service bureau use;

2.3.3.2 reverse engineer, decompile, disassemble, or attempt to discover the source code from any Services or Vendor Materials;

2.3.3.3 copy, modify, or create derivative works based on the Services, Documentation, or Vendor Materials; or

2.3.3.4 remove or alter any notices of Intellectual Property Rights or confidentiality or similar legends appearing in or on any aspect of any Services.

2.4 Order Process/Contracts With Affiliates. Order Forms incorporate the terms of these Services Terms. Customer may enter into Order Forms with Vendor or a Vendor Affiliate and allow Customer Affiliates to access and use such Services. Customer Affiliate may enter into Order Forms with Vendor or a Vendor Affiliate. Where Order Forms are to be fulfilled by a Vendor Affiliate, if the relevant Vendor Affiliate fails to accept or fulfill any Order Form, Vendor will be responsible for such Order Form. Where Order Forms are to be fulfilled by a Customer Affiliate, if the relevant Customer Affiliate fails to fulfill any Order Form or comply with these Services Terms, the Customer will be responsible for such Order Form.

2.5 Customer Obligations. Customer is responsible for providing the Third Party Software and Computer Equipment necessary to properly operate the Subscription Services. Customer is responsible for site preparation at its facility, including, but not limited to, climate control, foundation mounting, provision of adequate utilities, wiring for all PC and RF devices, and shall bear sole liability for any expenses incurred thereby.

Professional Services.

3.1 Customer Performance; Project Cooperation. Professional Services will be outlined in an Order Form. Customer will timely perform all activities and provide all items required by Customer on the Order Form, or as reasonably requested by Vendor during Vendor’s performance of the Professional Services. Customer will timely participate in planning, execution, and related activities, which may include identification of priorities, dependencies and constraints, allocation of resources, working sessions, and day-to-day engagement tasks, as requested by Vendor to enable uninterrupted implementation of the Professional Services.

3.2 Changes. Any changes to the scope of Professional Services will be identified on a change request form signed by the parties.

3.3 Expenses. Customer will reimburse Vendor for Expenses incurred in providing Professional Services.

3.4 Delay; Suspension. If the Professional Service project schedule or any portion thereof is interrupted solely due to Customer’s delay or suspension, Vendor’s performance for the Professional Services stated in the applicable Order Form is excused for such period of the delay or suspension and Vendor may re-allocate resources. Vendor may terminate the Order Form upon written notice to Customer if Customer delays or suspends the project schedule for 30 days or more, and Customer will pay Vendor for all Professional Services performed through the termination date of the Order Form within 30 days of such termination notice by Vendor.

Service Level Agreement.

4.1 Support. Vendor will support the Subscription Services pursuant to the Service Level Agreement attached to the Order Form. The Order Form may identify this as Annual Maintenance and Support, Customer Service, or Customer Support.

4.2 Patches. Customer will accept all Patches necessary for the proper function and security of the Subscription Services, as generally released by Vendor. Vendor will apply Patches during a maintenance window (as set out in the Service Level Agreement) unless the Patch relates to an emergency or security-related issue.

Term; Termination.

5.1 Term. These Services Terms commence on the Effective Date and continue until terminated as permitted herein. Each Order Form may have its own effective date, term, and termination provision; however, unless otherwise agreed to by the parties in writing, Order Forms are not cancelable for convenience. The term for any Order Form that does not contain a term provision will automatically renew on an annual basis unless terminated in writing no less than 45 days prior to the scheduled expiration date. The expiration or termination of any Order Form, in whole or in part, will not modify the efficacy of any other active Order Form(s).

5.2 Termination. Either party may terminate these Services Terms:

5.2.1 if the other party breaches these Services Terms in any material respect and fails to cure the breach, if capable of cure, within 30 days after receiving notice from the other party specifying the nature of the breach; or

5.2.2 immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

5.3 Effect of Termination. Upon termination of these Services Terms, all rights granted to Customer hereunder with respect to the Services and all Vendor Materials will automatically terminate and Customer will immediately discontinue its use thereof. After termination, each party will destroy all Confidential Information of the other party in its possession received under these Services Terms and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law, regulation, or reasonable internal record-keeping or information technology policies. Notwithstanding the foregoing, non-destruction of electronic copies of materials containing or reflecting Confidential Information that are automatically generated through data backup or archiving systems will not be deemed to violate these Services Terms, so long as the Confidential Information contained therein is not disclosed or used in violation of the other terms of these Services Terms. Upon termination of these Services Terms, the following provisions will survive: Sections 2.1.3 (Statistics), 5.3 (Effect of Termination), 8 (Confidential Information; Exceptions), 9 (Proprietary Rights), 10 (Indemnification), 11 (Limitation of Liability), 12 (Compliance), and 14 (Miscellaneous).

Warranties.

6.1 Mutual Warranty. Each party represents that it has the authority to enter into these Services Terms and the right to disclose its Confidential Information in accordance with the terms set forth herein.

6.2 Subscription Services Warranty. Vendor warrants that the Subscription Services will substantially perform in accordance with the Documentation. As Customer’s sole remedy for a breach of this warranty, Vendor will, at its discretion, either repair or replace the portion of the Subscription Services that do not comply with this warranty, or refund the amounts paid by Customer for the nonconforming portion of the Subscription Services for the period of the nonconformance. Customer acknowledges that Vendor does not control the transfer of data over communications facilities, including the internet, and the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

6.3 Professional Services Warranty. Vendor warrants that the Professional Services will be performed with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Professional Services. As Customer’s sole remedy for a breach of this warranty, Vendor will re-perform any materially nonconforming Professional Services provided Customer notifies Vendor of the nonconformity within 30 days after delivery.

6.4 Disclaimer of Warranties. Except for the express warranties set forth in this Section 6, all Services and Vendor Materials are provided “as is” and Vendor hereby disclaims all warranties, whether express, implied, statutory, or other, and Vendor specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, Vendor makes no warranty of any kind that the Services or Vendor Materials, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements; operate without interruption; achieve any intended result; be compatible or work with any software, system, or other services; be secure, accurate, complete, free of harmful code, or free of errors; or comply with every applicable law or regulation with which Customer may be required to comply. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between Customer and the third-party owner or distributor of the third-party materials.

Fees; Taxes.

7.1 Fees. Fees are payable in the currency specified on the Order Form. Customer will pay all fees identified on the Order Form. Invoices are due and payable within 30 days of the date of invoice. Customer will timely pay all undisputed amounts and raise any invoice disputes prior to the due date of an invoice, or the dispute is waived. Disputes must describe in detail the disputed amounts and the reason for the dispute.

7.2 Late Payment. Vendor reserves the right to apply interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, to overdue payments.

7.3 Suspension of Services and Acceleration. If any amount owed by Customer is 30 or more days overdue, Vendor may (a) accelerate all of Customer’s unpaid fee obligations so that all such obligations become immediately due and payable; and/or (b) suspend Services until such amounts are paid in full. Vendor will provide at least 10 days prior notice that Customer’s account is overdue before suspending Services.

7.4 Taxes. Customer is responsible and agrees to pay or reimburse Vendor for all federal, state, and local sales tax, use tax, withholdings, VAT, GST, personal property, and any other taxes and charges of any kind, including penalties and interest, imposed by any entity having authority on the transactions contemplated by these Services Terms, excluding only taxes on Vendor’s net income.

7.5 Customer Purchase Order Requirements. If Customer requires its internal purchase order number to be identified on an invoice, Customer will issue the purchase order to Vendor at least 10 days prior to each invoice date identified on the Order Form or, if the invoice date is the effective date of the Order Form, within 5 days of such effective date. Customer’s failure to issue a purchase order in a timely manner (a) will not impact the payment terms in Section 7.1; and (b) may result in the suspension of Services and/or termination of these Services Terms under Section 5.2.

Confidential Information.

8.1 Use of Confidential Information. The Receiving Party will protect all Confidential Information of the Disclosing Party to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any person other than those necessary to enable it to exercise its rights or perform its obligations under these Services Terms and who are under substantially similar obligations of confidentiality. If a Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the terms of these Services Terms conflict or are otherwise inconsistent with terms of any non-disclosure agreement the parties entered into prior to the Effective Date, the terms of these Services Terms will control.

8.2 Exceptions. The Receiving Party bears no responsibility for safeguarding information that it can document in writing: (a) is in the public domain through no fault of its own; (b) was properly known to it, without restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to it, without restriction, by another person with the legal authority to do so; (d) is independently developed by Receiving Party without use or reference to Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding in which case the Receiving Party shall provide Disclosing Party with prior notice of the intended disclosure. Nothing contained in these Services Terms shall preclude disclosures necessary to comply with accounting and Securities and Exchange Commission disclosure obligations and other disclosure obligations imposed by law and/or filings related to Securities and Exchange Commission registration statements or amendments under the Securities Act of 1933, as amended.

Proprietary Rights.

9.1 Vendor Proprietary Rights. Vendor and its licensors own all Intellectual Property Rights in and related to the Services, Vendor Materials, and Statistics. Vendor Materials are not readily accessible to Competitors of Vendor and have been acquired and assembled at significant expenditure of resources. Vendor has taken and is taking all reasonable precautions to protect the secrecy of Vendor Materials through the use of reasonable security measures. Vendor retains ownership in all directories and information compiled and curated by Vendor using publicly available information that may be included within Transaction Data. All rights not expressly granted to Customer are reserved to Vendor and its licensors.

9.2 Customer Proprietary Rights. Customer owns all Intellectual Property Rights in and related to the Transaction Data, Results, and Customer’s Confidential Information.

9.3 Feedback. Vendor retains ownership of all right, title, and interest in and to all Feedback relating to the Services and Vendor Materials. Feedback is provided “AS-IS” and Vendor may use Feedback at its own risk. Customer has no liability arising or resulting from or in connection with Vendor’s use of Feedback, nor is Customer required to provide Feedback.

Indemnification.

10.1 Vendor Indemnification. Vendor will indemnify, defend, and hold harmless the Customer Indemnitees from and against any and all Losses incurred by such Customer Indemnitee arising out of any Action to the extent that such Losses result from any allegation that Customer’s or a User’s use of the Services (excluding Transaction Data) in compliance with these Services Terms infringes a third-party Intellectual Property Right. This obligation does not apply to any Action or Losses arising out of or relating to any:

10.1.1 access to or use of the Services or Vendor Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Vendor;

10.1.2 modification of the Services or Vendor Materials other than: (a) by or on behalf of Vendor; or (b) with Vendor’s written approval; or

10.1.3 failure by Customer to (a) keep any Subscription Services implemented in a single-tenant environment within 12 releases of the current release; or (b) allow Vendor to apply Patches as set forth in Section 4.2.

10.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless the Vendor Indemnitees from and against any and all Losses incurred by such Vendor Indemnitee in connection with any Action to the extent that such Losses arise out of or relate to any:

10.2.1 Customer Data, including any processing of Transaction Data in accordance with these Services Terms;

10.2.2 materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User, including without limitation complying with any applicable terms and conditions governing any third-party materials or information; or

10.2.3 failure to allow Vendor to apply Patches as set forth in Section 4.2.

10.3 Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to these Services Terms. The Indemnitee will cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense of the Action and will employ counsel to handle and defend the Action, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will have no authority to settle an Action on terms that would have a material adverse effect on the Indemnitee, without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed.

10.4 Mitigation. If any of the Services or Vendor Materials are, or in Vendor’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any User’s use of the Services or Vendor Materials is enjoined or threatened to be enjoined, Vendor may, at its option and sole cost and expense:

10.4.1 obtain the right for Customer to continue to use the Services and Vendor Materials as contemplated by these Services Terms;

10.4.2 modify or replace the Services and Vendor Materials, in whole or in part, while not materially diminishing its functionality or utility; or

10.4.3 terminate the respective Order Form with respect to the potentially infringing Services and/or Vendor Materials and require Customer to immediately cease any use of the Services and Vendor Materials or any component thereof, and Vendor will refund prepaid but unused fees covering the remainder of the term of the terminated subscriptions.

Section 10 sets forth Customer’s sole remedies and Vendor’s sole liability and obligation for any actual, threatened, or alleged Intellectual Property Rights Action made pursuant to these Services Terms.

11 Limitation of Liability; Disclaimers.

11.1 Exclusion of Damages. In no event will either party (including Vendor’s licensors) be liable under or in connection with these Services Terms or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue or profit or diminution in value; (b) impairment, inability to use or loss, interruption or delay of the Services, (c) loss, damage, corruption or recovery of data, or breach of data or system security, or (d) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

11.2 Limitation of Liability. Except as otherwise provided in Section 11.3, in no event will the aggregate liability of either party (including or Vendor’s licensors) under or in connection with these Services Terms or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total fees paid or payable by Customer for the specific Service giving rise to the liability, as such fees are identified on an Order Form, during the 12 month period preceding the event or action giving rise to liability. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose. The provisions of these Services Terms fairly allocate the risks between Customer and Vendor, and Vendor’s pricing reflects the allocation of this risk and the limitation of liability specified herein.

11.3 Exceptions. The exclusions and limitations in Section 11.2 do not apply to Vendor’s breach of its obligations under Section 8 or gross negligence or willful misconduct. The exclusions and limitations in Section 11.2 do not apply to Customer’s breach of its obligations under Section 8, gross negligence, or willful misconduct; or its payment obligations.

Compliance.

12.1 Customer Compliance. Customer will comply with all applicable laws and regulations governing the use, access, or export of the Services or any part thereof. Without limitation, the Subscription Services or any part thereof may not be used or accessed within or by, or otherwise exported to, (a) any United States embargoed country; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals, the United States Department of Commerce’s Table of Denial Orders, or other similar lists.

12.2 Data Protection Compliance (Personal Data). Both parties will comply with the Data Protection Addendum and Standard Contractual Clauses at https://www.e2open.com/data-processing-addendum/.

12.3 Vendor Compliance. Vendor will comply with the privacy policy at https://www.e2open.com/privacy-policy.

12.4 Compliance with Law. Each party will fully comply with all applicable laws.

12.5 Securities Laws; Insider Trading. Each of the parties acknowledges that it is aware, and will advise each of its representatives who are informed as to the matters which are the subject of these Services Terms, that United States securities laws restrict persons with material non-public information about a company, obtained directly or indirectly from that company, from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

Insurance.

13.1 Policy Coverage. Vendor will, at its own expense, procure and maintain during the entire performance period of these Services Terms, insurance of at least the kinds and minimum amounts set forth below:

13.1.1 Workers’ Compensation: In accordance with applicable laws and having an Employers’ Liability limit of at least $1,000,000;

13.1.2 Comprehensive General Liability including Contractual Liability: $1,000,000 Combined single limit for Bodily Injury & Property Damage;

13.1.3 Automobile Liability Insurance including owned (if applicable), hired, and non-owned vehicles: $1,000,000 Combined Single Limit for Bodily Injury and Property Damage; and

13.1.4 Professional Errors and Omissions Insurance/Privacy/Cyber/Network Security Insurance: $5,000,000 in the aggregate with coverage to specifically provide protection against liability for the following: (a) privacy breaches and resulting liability arising from the loss or disclosure of Customer data; (b) denial or loss of service; (c) introduction, implantation, or spread or malicious code software; and (d) unauthorized access to or use of computer systems to include first party coverage for forensic investigation, notification, and credit monitoring and third party coverage for network security errors and omissions with no exclusions for unencrypted portable devices or media or cyber events.

13.2 Certificate of Insurance. Vendor will provide a certificate of the above-required insurance upon Customer’s written request. The certificate will provide that Customer be given no less than 30 days written notice prior to any cancellation thereof.

14 Miscellaneous.

14.1 Entire Agreement. These Services Terms contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior representations and understandings, whether oral or written. These Services Terms may not be amended, nor any obligation waived, except by a writing signed by the authorized representatives of both parties hereto. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the acquisition of the Services will have any effect on the rights, duties or obligations of the parties relating to Customer’s use of the Services provided under, or otherwise modify, these Services Terms, regardless of any failure of Vendor to object to such terms, provisions, or conditions. The parties exclude in its entirety the application to these Services Terms of the United Nations Convention on Contracts for the International Sale of Goods.

14.2 Governing Law; Dispute Resolution. These Services Terms shall be governed by, construed, and enforced under the laws of the State of Texas, USA, without regard to its conflicts of laws principles. The parties will resolve all disputes, claims, and causes of action arising from or relating to these Services Terms or the relationship of the parties including its existence, validity, and termination exclusively in arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect when the claim is filed before one arbitrator selected in accordance with the named rules with a minimum ten years of experience in the high-tech industry. The arbitration will take place in Austin, Texas in the English language. The federal and state laws governing arbitration in Austin, Texas will apply to any arbitration of these Services Terms. The arbitration panel will decide any issues relating to the agreement to arbitrate, the scope of arbitration, and the authority of the arbitration panel. The arbitration panel has the authority to issue equitable and monetary remedies in connection with the arbitration. All information and material shared by the parties in connection with the arbitration will be Confidential Information and governed by Section 8 of these Services Terms. The dispute resolution process described in this Section will apply regardless of the country of origin of any dispute. The costs of the arbitration, including administrative and arbitrator fees, shall be shared equally by the parties. Each party shall bear its own costs and attorney and witness fees.

14.3 Assignment. Customer will not assign or sublicense, in whole or in part, any of its rights or obligations under these Services Terms without the prior written consent of Vendor. Notwithstanding the foregoing, Customer may assign these Services Terms in whole without Vendor’s consent, but with notice to Vendor within 10 days of assignment, to an entity within the Customer Group or to the surviving entity in a merger, acquisition, or similar transfer of all or substantially all of Customer’s stock or assets so long as (a) the assignee agrees in writing to be bound by the terms of these Services Terms; (b) any right to use the Services will be limited to the scope of the Customer’s authorized use of such immediately prior to the assignment; and (c) the assignee is not a Competitor of Vendor. Any prohibited assignment or sublicense of these Services Terms is void. Vendor reserves the right to revise the fees in the event of such assignment, and the parties will negotiate such revised fees in good faith. Customer will, at Vendor’s request, execute all documents and do all acts that may be required for the purpose of transferring all rights and obligations of these Services Terms under this provision.

14.4 Merger and Acquisition Activity. If Customer undergoes a merger or acquisition, Customer’s use of the Subscription Services may change materially. Fees do not include additional volume which results from a merger or acquisition. If Customer’s use of the Subscription Services will materially change as a result of an event, Vendor reserves the right to revise the fees in such event, and the parties will negotiate such revised fees in good faith.

14.5 Force Majeure. Except for the payment of monies due hereunder, neither party is liable to the other for any conditions outside of its control including, but not limited to, failure of a portion of the power grid, failure of the Internet, acts of God, strikes and other labor disputes, natural disasters such as floods, earthquakes, typhoons and epidemics, wars, government acts, terrorist acts, riots, revolutions, sabotage, or other events of a magnitude or type for which precautions are not generally taken in the industry.

14.6 No Partnership. Nothing contained in these Services Terms will be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties will be that of independent contractors. Neither party will have the authority to contract for or bind the other in any manner whatsoever. These Services Terms confer no rights upon either party except those expressly granted herein.

14.7 Notices. Any notice or communication required to be given hereunder must be in English and may be delivered by hand, overnight courier, or confirmed email as listed for each party herein or at such other address as may hereafter be furnished in writing by either party to the other party.

14.8 Severability; Waiver. If any provision of these Services Terms is found to be unenforceable, the remainder will be enforced as fully as possible, and the unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed. Any failure to enforce any provision of these Services Terms will not constitute a waiver thereof or of any other provision.

14.9 Non-Solicitation. Each party acknowledges that the other party’s employees are critical to servicing its customers and that each party has expended substantial resources in recruiting and training its employees. Therefore, each party agrees not to solicit, employ, or otherwise engage the other party’s employees with whom there was Substantial Contact.

14.10 Counterparts; Electronic Delivery. Order Forms may be executed in counterparts. Order Forms may be executed and delivered via electronic transmission with the same force and effect as if they were executed and delivered by the parties simultaneously in the presence of one another.

Product Specific Schedule

Channel Data Management:
Customer hereby grants Vendor a non-exclusive, worldwide right to use Customer’s trademarks as necessary to provide Channel Data Management during the Term of this Agreement.

Vendor retains ownership in all directories and information compiled and curated by Vendor using publicly available information that may be included within Customer Data.

Global Knowledge®:
Global Knowledge® is also referred to as “Content” and means any data including, without limitation, Harmonized System (HS) classifications, restricted party lists, export controls and import controls, rules of origin for the internal trade agreements and duties and taxes for specific countries sourced by Vendor for including in services provided to customers, including Global Knowledge®. Available Content is described in the Documentation. Ordered Content is identified on the Order Form. Any new content for a country (new or existing) or rules of origin not currently maintained on the effective date of the Order Form must be ordered separately.

Vendor warrants that Content is obtained from reliable sources and is regularly updated in accordance with Vendor’s applicable Content update matrix utilizing Vendor’s ISO 9001 certified process. Except as set forth in the preceding sentence, Content is provided as-is with no warranties, express or implied. Vendor does not represent or warrant that Content will be up-to-date, accurate, complete, or sufficient to meet Customer’s requirements. Customer assumes all risk for use of and reliance on Content. Vendor does not represent or warrant that Content, to the extent defective, will be correctable or enable Customer to comply with applicable law or regulation. In the event that a defect in the Content is actually discovered or Vendor notifies Customer of a defect, where it is reasonable to conclude that damage may result, Customer assumes all risk for its continued use of the defective Content. Vendor is not a credit reporting agency and accordingly Customer may not use, or permit any third party to use, the Content for any purpose that would be regulated by the Fair Credit Reporting Act or any similar applicable state, national, or other fair credit reporting or consumer protection laws.

TM – Shippers:
Vendor will not disclose to third parties or use any Transaction Data or Account Information (each as defined below) except as reasonably necessary to perform its obligations under this Agreement (including disclosing Transaction Data to authorized agents of Customer) or to comply with any legal, regulatory, or similar requirement. Vendor reserves the right to compile and analyze its collective Customer data (including, without limitation, Transaction Data) and to prepare reports, studies, analyses and other work product resulting from such compilation and analysis on an aggregated, de-identified anonymous basis (“Compiled Data”); and, further, that Vendor will have exclusive ownership rights to, and the exclusive right to use that portion of the Compiled Data which originated from Customer for any reasonable business purpose; provided, however, that Vendor will not distribute or otherwise disclose, whether verbally or in writing, Compiled Data in a manner directly or indirectly identifiable as Customer’s data without first obtaining the prior written consent of Customer. Nothing herein will be construed as an assignment or change of ownership of Customer data from Customer to Vendor. All Customer data will remain the sole and exclusive property of Customer, notwithstanding Vendor’s right to use the Customer data as described above. “Transaction Data” means data input (by either Party or Agents) to or output by, the Subscription Services; “Account Information” means username, login ID, password and other registration information provided by Customer in connection with the Subscription Services; and “Agents” means users who are authorized by Customer to use the Subscription Service.

If Customer wishes to utilize certain functionality provided by third parties, such as SMC3 Rateware, SMC3 Carrier Connect, Trimble (fka ALK) PC*MILER, Rand-McNally Milemaker, Descartes MacroPoint, FourKites or Railinc, then Customer must contract directly with the third party. Customer may be required to provide information to Vendor regarding its third-party contracts, such as proof of authorization and account identification, to enable the third-party functionality to work with the Services.

TM – Shippers, TMS4LSP, TMFF and MobileStar
The Annual Subscription Fee includes the cost of one non-production system. If Customer requests an additional dedicated non-production system, then the fees will be mutually agreed. Non-production systems will be hosted from within Vendor’s hosting facility. The non-production system is intended for customers to view and use new software features prior to the production release, test new configurations and system usage patterns and give their users experience with the platform prior to providing production access. The non-production system is not designed with high-availability techniques, or sized to validate production volumes, workloads and system integrations and may be subject to unanticipated downtime. Vendor will use commercially reasonable efforts to correct issues but will not warrant a specific system availability or incident response SLA. Vendor reserves the right to remove or stop any long-running queries, system load or performance testing impacting the operation of the shared non-production system. The use of robotic process automation or “BOTS” must be pre-approved and follow the guidelines provided by Vendor.

Flagship:
Customer may only access and manage data transfer throughthe Software and may not directly access the database. Installing the Software on more than one application server will require an additional Oracle sublicense fee per server or virtual machine. Customer agrees to notify Vendor in such event. Customer may use the Software on a test and development server provided that the Software is deleted from the server within 90 days of installation. Customer may not publish any results of benchmark tests run on the Oracle program.

The Annual Subscription Fee does not include a non-production system. If Customer requests a non-production system, the fees will be mutually agreed. The non-production system is intended for customers to view and use new software features prior to the production release, test new configurations and system usage patterns and give their users experience with the platform prior to providing production access. The non-production system is not designed with high-availability techniques, or sized to validate production volumes, workloads and system integrations and may be subject to unanticipated downtime. Non-production systems will be hosted from within Vendor’s hosting facility. Vendor will use commercially reasonable efforts to correct issues but will not warrant a specific system availability or incident response SLA. Vendor reserves the right to remove or stop any long running queries, system load or performance testing impacting the operation of the shared non-production system. The use of robotic process automation or “BOTS” must be pre-approved and follow the guidelines provided by Vendor.

Parcel:
Vendor will provide notifications (upgrades, outages, downtimes, etc.) received by customs authorities in the language provided to Vendor by such customs authorities. Vendor is not responsible for any content provided by the customs authorities. Vendor will maintain declaration validations in the Software based on the technical specification approved by the relevant customs authorities.

Customer is responsible for any communications with the customs authorities regarding individual declaration issues or questions.
Work with certified declarants who have up to date knowledge of the local customs regulations to be able to submit viable declarations.
Vendor will display errors provided by the customs authority. Customer will interpret the functional errors and will engage in any required communications with local customs authorities for additional detailed information.

The Annual Subscription Fee includes the cost of one shared non-production system. If Customer requests a dedicated non-production system, any increase to the Annual Subscription Fee will be mutually agreed between the parties in writing. Non-production systems will be hosted from within Vendor’s hosting facility. The non-production system is intended for customers to view and use new software features prior to the production release, test new configurations and system usage patterns and give their users experience with the platform prior to providing production access. The non-production system is not designed with high-availability techniques, or sized to validate production volumes, workloads and system integrations and may be subject to unanticipated downtime. Vendor will use commercially reasonable efforts to correct issues but will not warrant a specific system availability or incident response SLA. Vendor reserves the right to remove or stop any long running queries, system load or performance testing impacting the operation of the shared non-production system. The use of robotic process automation or “BOTS” must be pre-approved and follow the guidelines provided by Vendor.

Rail Transportation Management:
Raven Network is Only a Venue. Vendor’s website www.ravenlogistics.com only acts as a venue for Members to manage rail shipments and Vendor is not involved in the actual transactions between Members. As a result, Vendor has no control over the quality, safety, or legality of the goods or services purchased and sold among Members. Because Vendor does not and cannot control the action of others, if Customer has a dispute with another Member, Customer hereby releases Vendor (and its agents, employees, and partners) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, 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 the Raven Network is intended to create a joint venture, partnership, employment, or agency relationship between the Members and Vendor.

Disclaimers. Customer agrees that Vendor’s primary obligation under this Agreement is the coordination of Customer transportation requirements and the carriers that transport Customer freight as set forth herein. Customer further agrees that circumstances like weather and variations in carrier capacity may, from time to time, interfere with Vendor’s ability to provide Customer with timely, cost effective, and efficient transportation and related services for the movement of Customer freight, and that price is only one of the criteria used in selecting a carrier or mode of transportation. Under no circumstances will Vendor be considered a guarantor of any price or service level of any carrier or mode of transportation. Customer releases and indemnifies Vendor from and against any third-party damages, losses, liabilities, settlements, and expenses arising out of or related to the following matters:
(a) Third Party Personal Injury, Property Damage or Other Claims. Vendor is not liable to Customer for any loss, cost, expense, claim, demand, liability, suit, or action arising out of or due to the negligence, dishonesty or bad faith of any carrier or its employees, subcontractors, or agents, that provides the transportation and related services for the movement of Customer freight.
(b) Third Party Cargo Claims. Carriers providing the transportation and related services for the movement of Customer freight have custody and control of Customer freight on a daily basis. Customer’s contracts with the carriers will address each carrier’s liability as a common carrier for loss, damage, or destruction of Customer freight while under a carrier’s care, custody, or control. Customer releases, indemnifies, and holds harmless Vendor from any and all liability for cargo loss, damage or destruction claims arising out of the movement of Customer freight.

Additional Definitions. As used herein, (i) “Member” means a person, corporation, partnership, or other entity that has (1) registered to be a member of the Raven Network; (2) agreed to the terms of the Raven Network Membership Terms of Use and (3) been accepted and authorized to access the Raven Network; (ii) “Raven Network” means the features and functionality made available to Members by Vendor via the Raven System, as such features and functionality may be modified from time to time; and (iii) “Raven System” means Vendor’s proprietary software and hardware configuration, as well as certain functionality provided by third parties, that generates, enables, and serves the Raven Network, including enhancements.

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