The following Terms and Conditions are attached to, and incorporated by reference into, that certain
Master Purchase Agreement (the “MPA
”) between Purchasing Platform, Inc. (“Purchasing Platform
the provider signatory thereto (the “Provider
”). Capitalized terms not otherwise defined shall have the
meanings ascribed to them in the MPA. 1. Confidentiality.
Each party will hold in confidence and will not disclose the terms and conditions of the MPA and these Terms and Conditions (collectively, the “Agreement
”), including pricing, rebates, and incentives. Provider shall not, at any time during or after the Term, disclose or use for its own purposes or the purposes of others any information, knowledge or data relating to Purchasing Platform’s know-how, inventions, trademark applications, property lists and information, financial information, employee files, supplier and customer lists and information, correspondence, procedural documents relating to the administration of its business, marketing materials, future marketing strategy, advertising materials, computer systems, computer software, business plans and the like.2. Intellectual Property, Data Use and Ownership.
All trademarks, patents, copyrights, and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in the Agreement shall be deemed to confer any rights to any such intellectual property on the other party. Purchasing Platform shall be entitled to post Provider’s name and logo in its published customer lists, website, and marketing materials, on the Platform and within any mobile application as a participant of the Platform. Each party hereby licenses use of its names and trademarks to the other party to the limited extent necessary for such party to carry out its responsibilities hereunder during the term of the Agreement. Provider shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of the Platform, including by copying its presentation, style or organization. Provider agrees and acknowledges that Purchasing Platform owns all the data submitted, provided or made available by or on behalf of any Customer or Provider or processed, collected or generated by Purchasing Platform as a result of Provider or Customer’s use thereof, in any form, format or media whether collected via its website, mobile apps, email, or phone, and shall have all rights with respect to such data, including the right: (a) to use the data as necessary to perform hereunder; (b) to collect and process the data subject to applicable law to use internally for record keeping, internal reporting, analytics, optimization, fraud detection and support purposes; (c) to compile and disclose data in the aggregate where Provider’s individual or user data is not identifiable, including calculating averages by location, item, category, or region; and (d) to provide the data as required by banks, law or court order, or to defend Purchasing Platform’s rights in a legal dispute.3. Limitations of Liability, Disclaimers and Indemnification.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, PURCHASING PLATFORM’S CUMULATIVE LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES AND THE FEES PAID BY PROVIDER TO PURCHASING PLATFORM DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM. PURCHASING PLATFORM DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES HEREUNDER, INCLUDING AS TO ANY AMOUNT OF BUSINESS, THE ACTIONS OR INACTIONS OF CUSTOMERS AND OTHER PERSONS ACCESSING AND USING THE PLATFORM, THE AVAILABILITY AND FUNCTIONALITY OF THE PLATFORM, THE SUITABLITY OF THE PLATFORM FOR PROVIDER’S PURPOSES, THE QUALITY OR SUITABIILITY OF THE CONTRACT ITEMS AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE CONTRACT ITEMS AND THE CUSTOMERS.3.2
Provider shall indemnify, defend and hold harmless Purchasing Platform and the Customers and each of their respective Affiliates, parent, subsidiaries, officers, directors, partners, members, managers, agents, employees, successors and assigns (collectively, the “Indemnitees
”) harmless from any losses, costs, claims, expenses (including attorney’s fees, expenses and costs), suits, actions, judgments, fines, penalties or damages of every nature and description (collectively, “Losses
”), which arise out of or are directly or indirectly related to the Agreement, including any Losses resulting from (a) injury or damage to any property, or death of any person, caused by Provider or any of its agents; (b) any breach by Provider of any of its covenants, obligations, representations or warranties set forth in the Agreement; (c) violation of any local, state or federal law or regulation; (d) workers compensation or other insurance claims; (e) infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party resulting from any content or Intellectual Property provided to Purchasing Platform or used by Purchasing Platform in connection with the Contract Items; or (f) Provider’s or its employees’ or agents’ negligent acts or omissions or willful misconduct or violation of any law or regulation, in connection with the Agreement. Such indemnification obligations shall be limited if, and to the extent that, such Losses arose due to the gross negligence or willful misconduct of Purchasing Platform as determined by a court of competent jurisdiction in a final, non-appealable order. 3.3
The Indemnitees will provide to Provider prompt written notice of the indemnification claim, reasonable assistance and sole control of the defense and settlement thereof, except that any settlement must unconditionally release the Indemnitees of all liability.4. Force Majeure.
Time is of the essence. Neither party will be liable to the other party or deemed to be in breach of the Agreement for any delay or failure to perform its obligations under the Agreement, other than failure to pay amounts due, due to fire, explosion, flood, war or threat of war, act of God, act of any governmental authority or agent, pandemic and epidemics, labor disputes or troubles, shortage of materials or raw materials, failure of sources of supply, or any other circumstance or event beyond such party’s reasonable control.5. Assignment.
The Agreement may not be assigned by Provider absent the prior written consent of Purchasing Platform, provided that such consent shall not be required in connection with any sale or transfer of all or substantially all its assets to a successor in interest who agrees to comply with the terms hereof.6. No Waiver of Rights
A failure or delay in exercising any right, power or privilege in respect of the Agreement will not be presumed to operate as a waiver, and a partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege.7. Any questions?