SUPPLYFRAME/SAMACSYS MASTER SUBSCRIPTION TERMS OF SERVICE AGREEMENT

 

SUPPLYFRAME/SAMACSYS
MASTER SUBSCRIPTION TERMS OF SERVICE AGREEMENT

PLEASE READ THESE MASTER SUBSCRIPTION TERMS OF SERVICE (“MTOS”) CAREFULLY. THESE MTOS GOVERN THE USE OF THE SERVICES (“SERVICES”) PROVIDED BY SAMACSYS, A WHOLLY OWNED SUBSIDIARY OF SUPPLYFRAME, INC. (“SUPPLYFRAME”) AND DESCRIBED IN ONE OR MORE WRITTEN MUTUALLY AGREED UPON ORDER FORMS (EACH, AN “ORDER”) AND/OR STATEMENTS OF WORK (EACH, A “SOW” AND TOGETHER WITH THE MTOS, AND ALL ORDERS THE “AGREEMENT”).  BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, USING THE SERVICES, OR CLICKING THE “I ACCEPT” BUTTON, THE PERSON OR ENTITY ENTERING IDENTIFIED IN THE APPLICABLE ORDER (“CUSTOMER”) REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND AGREES TO BE BOUND BY THIS MTOS.  CUSTOMER AND SUPPLYFRAME MAY EACH BE REFERRED TO HEREUNDER AS A “PARTY” AND COLLECTIVELY, AS “PARTIES”.

  • SERVICES
  • Provision of Services. Subject to the terms herein, Supplyframe hereby grants Customer a non-exclusive, non-transferable and non-sublicensable right and license to access and use the Services, during the applicable subscription term set forth in the applicable Order (“Subscription Term”), solely for Customer’s internal business purposes, in accordance with any written documentation made available by Supplyframe relating to the use of the Services (“Documentation”). Customer may permit its: (a) employees and contractors (Customer’s “Users”); (b) companies, organizations or individuals who provide parts, software or services to Customer (“Customer-Supplier”); and customers of Customer who may be engineers, end users, or other personnel employed by Customer (“Subscribers”) to access and use the Services in accordance with the terms of this Agreement. During the Subscription Term, Supplyframe will provide the Service in accordance with the Service Level Agreement, as may be amended by Supplyframe from time to time; provided, that, during any Subscription Term, Supplyframe agrees that it shall not degrade any material support obligations or service levels set forth in such Service Level Agreement.
    1. Changes. Supplyframe may, at its discretion, change or update the Services from time to time; provided, that, Supplyframe will not materially degrade any material features or functions of the Services during the Subscription Term.
    2. Implementation Services. The Parties may enter into a written SOW describing configuration, training, or other implementation services to be provided by Supplyframe or its contractors to Customer. Supplyframe will be responsible for the acts and omissions of any such contractors.  Customer acknowledges that any intellectual property arising from the performance of any such services is and shall remain the sole and exclusive property of Supplyframe.
  • CUSTOMER USE OF SERVICES
  1. Additional Subscriptions. Except as set forth in the Order, Services are made available as subscriptions and additional subscriptions may be added during the Subscription Term at the same price applicable to that subscription type, prorated for the remainder of the then-current Subscription Term.
  2. Customer Responsibilities. Customer and Users may only use the Services in accordance with this Agreement. Customer will be responsible for any use of the Services through its account, including all use of the Services by Customer’s Users. Customer is responsible for designating administrators for its Services account who are responsible for administering Customer’s account with its Users and setting applicable security preferences (“Administrators”), maintaining updated Administrator contact information, and managing access to Administrator accounts. Customer is responsible for maintaining secure access by Users to the Services. Customer may not permit sharing of User accounts and passwords.
  3. Usage Limits. Use of the Services may be subject to usage limits set forth in the applicable Order or the Documentation.
  4. Restrictions. Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (b) modify or create derivative works based on the Services; (c) copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party; (d) remove or alter proprietary notices from the Service; (e) use the Service to create any other product or service; (f) breach or circumvent any security or authentication measures of the Service; (g) interfere with or disrupt any part of the Services; (h) transmit viruses, worms, Trojan horses, corrupted files, or other destructive content to the Services; or (i) use a robot or other automated means to access the Services.
  5. Suspension. Supplyframe may suspend Customer’s and its Users’ right to use the Services if (a) Customer’s or any User’s use of the Services poses a security risk to or may adversely affect the Services, Supplyframe’s systems or infrastructure, or a third party, (b) Customer or User’s use of the Services could subject Supplyframe to liability, or (c) Customer is in material breach of this Agreement. Supplyframe will use commercially reasonable efforts to provide prompt notice of any impending suspension and provide Customer with thirty (30) days to cure any issue prior to suspending Customer or User’s right to use the Services.
  • OWNERSHIP AND DATA
  1. Reservation of Rights. Except for the rights granted in Section 1.1, Supplyframe and its licensors own and reserve all right, title, and interest in and to the Services, Documentation, and Supplyframe’s branding, logos and trademarks (collectively, the “Supplyframe Technology”).
  2. Customer Data. Customer grants Supplyframe and its contractors a limited, non-exclusive right to use any data, information or materials uploaded by Customer to the Services (“Customer Data”) as reasonably necessary for Supplyframe to provide and maintain the Services. Further, Customer grants Supplyframe a non-exclusive, transferable, sublicensable, royalty-free, fully paid, irrevocable and perpetual license to use Customer Data on an aggregated and anonymized basis to improve Supplyframe’s products and services. Notwithstanding anything to the contrary in this Agreement, the term Customer Data does not include any (a) publicly available data or information; (b) models created by Supplyframe pursuant to this Agreement or otherwise; (c) information that Supplyframe obtains when any Subscriber uses Supplyframe’s model library; (d) information which has been aggregated and anonymized to remove all data that directly or indirectly identifies a natural person; and (e) data that Subscribers agree Supplier may use. Use of Supplyframe’s model library requires the Subscriber to first register and agree to Supplyframe’s terms and conditions, which are enforceable and unaffected by the terms of this agreement.
    1. Security & Privacy. During the Subscription Term, Supplyframe will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data. Supplyframe utilizes Standard Contractual Clauses (SCC’s) and will transfer, store, and process Customer Data in accordance with Supplyframe’s privacy policy, as may be amended by Supplyframe from time to time. Customer agrees that Supplyframe may engage sub-processors subject to confidentially restrictions no less protective than the level of protections provided by Supplyframe hereunder. Customer agrees that Supplyframe and its sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country to the extent needed to provide the service. All such transfers shall comply with the provisions outlined here.
    2. Standard End User Terms and Conditions.  Standard end-user terms and conditions can be found at: https://componentsearchengine.com/TermsOfUse.html
    3. Standard Privacy Policy.  Standard Privacy Policy can be found at: https://componentsearchengine.com/PrivacyPolicy.html
    4. Data Exchange. The Services may allow Customer to import and export data to and from certain third party products or services that interoperate with the Services for which Customer has an account (“Third-Party Services”).Customer represents and warrants that it is entitled to disclose its Third-Party Services account login information and/or grant Supplyframe access to such account.  By granting Supplyframe access to any Third-Party Services accounts, Customer understands that Supplyframe may access, make available and store (if applicable) any information, data, and/or other materials that Customer has provided to and stored in its Third-Party Services account. Supplyframe will not be responsible for any act or omission of the Third-Party Service, including the Third-Party Service’s access to, use, provision, modification, or deletion of Customer Data. Supplyframe does not warrant or support of any particular Third-Party Service.
    5. Suggestions. Customer agrees that with respect to any feedback, reviews, and other suggestions related to the Services (“Suggestions”), such Suggestions are not considered Confidential Information.  Customer hereby grants Supplyframe a non-exclusive, transferable, sublicensable, royalty-free, fully paid, irrevocable and perpetual right and license to use any Suggestions for any lawful purpose.
    6. Customer List. Upon Customer’s prior written consent, Supplyframe may identify Customer as such, in general listings of customers that Supplyframe may make available on its website or in promotional or marketing materials.
  • FEES & PAYMENT
    1. Fees. Customer will pay Supplyframe the fees for the Services set forth in the applicable Order. All payments are due in U.S. dollars unless otherwise indicated on the Order. Customer is responsible for providing complete and accurate billing and contact information to Supplyframe and updating Supplyframe of any changes. All fees paid are non-refundable and not subject to set-off.
    2. Invoicing & Payment. Unless otherwise set forth in the Order Form or any SOW, all fees will be invoiced in advance. All invoices issued under this Agreement are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from date of invoice. If Customer provides Supplyframe with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes Supplyframe to charge the credit card for the Services listed in the Order Form for the Subscription Term or for additional subscriptions added for the Subscription Term. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.
    3. Late Payments. Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Supplyframe in collecting past due amounts. Supplyframe may suspend or terminate the Services for material breach for fees that are past due.
    4. Taxes. Customer is responsible for all taxes, except those directly relating to Supplyframe’s income, gross receipts, or capital stock. Supplyframe will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Supplyframe with a valid tax exemption certificate authorized by the appropriate taxing authority.
  • TERM & TERMINATION
    1. Agreement Term. The Agreement will commence as of the date Customer accepts this Agreement (as set forth in the preamble), and will continue until all Orders have terminated or expired. Unless otherwise set forth in the applicable Order, each Order will automatically renew for successive one (1) year terms, unless either Party provides no less than thirty (30) days’ notice prior to the end of the then-current term.
    2. Termination. Either Party may terminate this Agreement if (a) the other Party is in breach of any material term of this Agreement and fails to cure that breach within 30 days after receipt of written notice, or (b) the other Party ceases its business operations or becomes subject to insolvency proceedings. Supplyframe may also terminate this Agreement if it has the right to suspend the Services under Section 2.5 or in order to comply with law or regulation.
    3. Effect of Termination. If this Agreement expires or is terminated, then (a) the rights granted by one Party to the other will cease immediately except as otherwise set forth in this Section, (b) upon request made by Customer within 45 days after the effective date of termination or expiration of the Agreement, Supplyframe will make forecast data and reports not available to Customer through Third-Party Services available to Customer for export or download, and (c) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.3 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnity), 9 (Limitation of Liability), 10 (Disputes), and 11 (General Provisions).
  • CONFIDENTIALITY
    1. Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. This Agreement including all Orders, and the Supplyframe Technology will be Confidential Information of Supplyframe. Customer Data will be Confidential Information of Customer. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, or (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
    2. Obligations. The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by the Customer to provide Confidential Information to a Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its employees and contractors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.
    3. Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure. If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.
  • WARRANTIES AND DISCLAIMERS
    1. Customer Data. Customer represents and warrants that: (a) it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement; and (b) none of the Customer Data contains any viruses or malicious code, is defamatory or is illegal.
    2. Supplyframe Warranties. Supplyframe represents and warrants that: (a) the Service will be provided in a professional and competent manner in accordance with industry standards; (b) the Service provided hereunder is and will be in compliance with all applicable federal, state and local laws and government rules and regulations; and (c) Supplyframe uses industry standard measures designed to prevent any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code to be installed or introduced into the Services. 
    3. General. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS PROVIDED HEREIN, SUPPLYFRAME AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATORY OR OTHERWISE REGARDING THE SERVICES OR ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE OUTPUT OF THE SERVICES IS ACCURATE OR RELIABLE. 
    4. Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any products or features available to Customer on a trial, beta, early access, or similar basis (“Beta Services”), (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services are provided without any warranties of any kind and are provided on an “as-is” basis; and (d) Supplyframe will have no liability arising out of or in connection with Beta Services.
  • INDEMNIFICATION
    1. By Customer. Customer will indemnify, defend and hold harmless Supplyframe from and against all damages, judgments, liabilities, losses, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred by Supplyframe in connection with or arising from third-party claims, lawsuits, and demands (“Claims”) based on or arising out of any claim or allegation regarding (a) Customer Data, or (b) or use of the Services by Customer or Users in violation of this Agreement.
    2. By Supplyframe. Supplyframe will indemnify, defend and hold harmless Customer from and against Losses incurred by Customer in connection with or arising from Claims alleging the Services infringe upon or misappropriate any U.S. patent, copyright, or trade secret of such third party. In no event will Supplyframe have any obligation or liability under this Section to the extent arising from: (a) any modification of the Service by any party other than Supplyframe; (b) any combination of any equipment, hardware, software or technology provided by Customer, which was not provided or approved by Supplyframe, where such combination was the but for cause of the infringement claim; and (c) any Customer Data. In the event the Services are subject to an infringement claim, or in Supplyframe’s reasonably opinion are likely to be subject to an infringement claim, Supplyframe may, in its discretion:  (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative while retaining substantially equivalent functionality, or (iii) terminate the allegedly infringing portion of the Services or this Agreement and provide Customer with a pro-rata refund of any pre-paid, unused Fees.  The indemnification obligation set forth in this Section 8.2 is Customer’s sole and exclusive remedy, and Supplyframe’s sole obligation, with respect to any infringement claim hereunder.
    3. Procedure. The Party seeking indemnification will promptly notify the other Party of the claim for which indemnification is sought; provided, that, the indemnifying Party will be relieved of its obligations hereunder to the extent any delay materially prejudices its ability to defend the claim.  The indemnifying Party will, at the indemnifying Party’s expense and request, reasonably cooperate with the indemnifying Party in defending the claim. The indemnifying Party will have full control and authority over the defense and settlement of the claim, provided, that, the indemnifying Party may not settle any claim that requires the indemnifying Party to admit liability or pay any amount of money, without the prior written consent of the indemnifying Party, such consent not to be unreasonably withheld, delayed or conditioned. 
  • LIMITATION OF LIABILITY
    1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    2. Liability Cap. NEITHER PARTY’S NOR ITS AFFILIATES’, SUPPLIERS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES AND OUTPUT OF THE SERVICES WILL EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
    3. Excluded Claims. Section 9.1 and 9.2 do not apply with respect to claims arising under Section 2 (Customer Use of Services) and Section 4 (Fees & Payment).
  • DISPUTES
    1. Informal Resolution. Supplyframe wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Supplyframe and Customer agree to try to resolve the dispute by good faith negotiation between business representatives of the Parties who have authority to fully resolve the dispute. If after 15 days of notice of the dispute, the dispute has not been fully resolved, either Party may require the other Party to submit to binding arbitration in accordance with the terms of this Agreement.
    2. Arbitration Agreement. Excluding actions seeking solely equitable relief, any dispute, claim or controversy arising out of or relating to this Agreement shall be finally determined by binding arbitration administered by the Rules of JAMS in Los Angeles, California before one (1) arbitrator.  The arbitration will take place in Los Angeles County in the English language. Supplyframe and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of Los Angeles County, California.
  • GENERAL PROVISIONS
  1. Entire Agreement. All attachments to the Agreement, SOWs, and Orders executed by the Parties are hereby incorporated into the Agreement by reference. This Agreement constitutes the entire agreement between Customer and Supplyframe with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the Parties. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order, the SOW, the Agreement, and the Documentation.
  2. Governing Law. This Agreement will be governed by California law except for its conflicts of laws principles.
  3. Notices. Notices must be sent by first class mail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent. Notices to Supplyframe must be sent to Supplyframe, Inc., Attn: Legal Department, 61 S. Fair Oaks Avenue, Suite 200, Pasadena CA 91105.
  4. Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent, not to be unreasonably withheld; except, however, either Party may assign this Agreement in its entirety, without the other Party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets which relate to this Agreement. Subject to the restrictions in this section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. Any other attempt to transfer or assign is void. If a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other Party, then the other Party may terminate this Agreement upon written notice. In the event of a termination by Supplyframe, Supplyframe will offer a pro rata refund of prepaid fees for the Services.
  5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties.
  6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
  7. Construction. Any ambiguity in the Agreement will be interpreted equitably without regard to which Party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.”
  8. Force Majeure. Neither Party will be liable for inadequate performance or delays to the extent caused by a condition that was beyond its reasonable control, including, without limitation, any natural disaster, act of war or terrorism, labor disputes, governmental action, pandemic, epidemic, utilities failures, and systemic Internet disturbance.
  9. Waiver. No failure or delay by either Party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
  10. Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
  11. Export Compliance. The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its Users’ use of the Services. Customer will not permit Users to use the Services from a U.S. embargoed country.
  12. Electronic Communications.  The communications between Customer and Supplyframe may take place via electronic means.  For contractual purposes, Customer (a) consents to receive communications from Supplyframe in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Supplyframe provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.