Last Updated: 01/30/24
1. Parties; Effective Date. These Software Agreement Terms and Conditions (this “Agreement”) is between SupplyAssist, Inc. d/b/a OrbAid, a Delaware corporation (“Company”), and the customer or counterparty (“Customer”) that executed the Orbaid Order Form (“Order”) in which this Agreement is referenced or to which it is attached. This Agreement is effective as of the effective date set forth in the Order. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Order.
2. Purpose of Agreement; Company created business profit and environmental impact optimization platform, described in Schedule A (the “Software”) that helps customers manage their sustainability projects more effectively. Company shall also provide related services in connection with the use of the Software (the “Services”) as described in the Order. This Agreement contains the terms and conditions for Customer’s access to the Software for a limited period. Customer agrees to use the Software in accordance with documentation, including user manuals, use guides, training materials and other documentation provided to or made available by Company to Customer (“Documentation”).
3. License; Fees; Term; Customer Obligations.
A. Company grants Customer a limited, nontransferable, non-sublicensable, limited, non-exclusive license to access and use the Software, solely for Customer’s internal purposes strictly in accordance with this Agreement, as intended by Company and as set forth in the Documentation (the “License”). Each set of user credentials provided or made available by Company to Customer for use of the Software shall only be allocable to one Customer employee or permitted third party contractor and may not be shared. Except as expressly stated herein, nothing contained in this Agreement will be deemed to grant any other license, sublicense, copyright interest, proprietary rights or other claim against or interest in any software or computer programs utilized by Company. All rights not expressly granted by Company to Customer are retained by Company, and Customer may not use the Software and/or any element of the Software in any manner or for any purpose not expressly authorized by this Agreement. The rights granted to Customer do not include, and are not applicable to, the design or layout of the Software, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part. Customer acknowledges and agrees that the Software is provided under limited license to Customer, and that Customer is not being sold or provided with any ownership right whatsoever. Customer shall not: (i) copy, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software, except as expressly permitted by this license; (ii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software, including any copy thereof; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time; or (v) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software.
B. Customer acknowledges and agrees that the Software and any Services are solely provided and made available to supplement Customer’s own analytics and business decisions and judgments. Customer acknowledges and agrees that it shall be solely responsible for any decisions made or informed by any data, information or results provided through Customer’s or any Customer personnel’s use of the Software or Services and Company shall have no responsibility for, and expressly disclaims, any liability for any decisions Customer may make in connection with or as a result of Customer’s receipt of the Services or use of the Software.
C. Customer shall be charged a fee for its access to the Software and the Services received from Company during the Term, as set forth in the Order. Company will provide electronic invoice(s) to Customer. Customer payments can be made via credit card, ACH or check. Customer expressly consents to Company charging the Customer’s provided payment method, or debiting Customer’s provided ACH account, for any such fees set forth in the Order without Customer’s further approval or any further action or notice from Company. Company will use reasonable efforts to provide Customer a monthly invoice or other notice in advance of such charge or debit.
D. The License shall renew as stated in the Order (such period and any renewal periods in total, the “Term”), provided that the Term shall also terminate if Company gives written notice to the Customer of Company’s intent to terminate and the date of termination due to Customer’s breach or reasonably suspected breach of this Agreement, without any further obligation from Company hereunder. Customer is bound by the Order as agreed between Customer and Company. The Order may include additional terms and conditions for termination applicable to Customer’s specific Services. Upon termination, Customer shall return to Company any Documentation, materials or copies of Software provided by Company. Customer shall not be entitled to retain any results of their use of the Software unless the parties enter into an additional formal license agreement for Customer’s continued, paid use of the Software.
4. Intellectual Property Ownership; Updates; User Data; Publicity.
A. Company retains all intellectual property rights in the Software and all Documentation. It is free to use any suggestions from Customer without compensation or permission, and will own the intellectual property rights in its embodiment (if any) of such suggestions. Company owns and shall retain all rights, title and interests, including all intellectual property rights, in and to the Software, and any and all other materials created by Company in connection with, or pursuant to, this Agreement, including, without limitation, all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, manuals, and business plans), ideas, inventions (whether patentable or not), know-how, processes, compilations of information, trademarks, the manner in which the Software receives, stores, formats, displays and organizes content and permits users to view, print, display, download, manipulate, analyze and reformat content, and all modifications, adaptations and derivative works of any of the foregoing, whether created by Company, Customer and/or the parties jointly (collectively, “Proprietary Materials”). No Proprietary Materials created by Company in connection with, or pursuant to, this Agreement are or shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that Customer owns any rights in such Proprietary Materials, Customer hereby irrevocably assigns to Company all rights, title and interest, including all intellectual property rights, in such Proprietary Materials. Customer agrees to provide reasonable assistance to Company, at Company’s cost, in connection with Company’s registration or recordation of its intellectual property rights in Proprietary Materials. Furthermore, Company reserves the right to Relist and Customer hereby agrees to the Relisting of all Proprietary Materials, and User Data (as defined and described below), in other network applications. “Relisting” means Company’s right to list and use these Proprietary Materials on or for websites or services for third parties, even if competitive with Customer, without Customer’s prior written consent.
B. Company may collect and use Customer-provided data, including, but not limited to, any de-identified, aggregated and/or anonymized data, for its business purposes but in no event in a manner that would disclose Customer’s Confidential Information in a manner that would be directly attributable to Customer. Customer acknowledges that when Customer interacts with the Software, including to implement, operate, use and maintain the Software, Company may use automatic means (including, for example, cookies and web beacons) to collect information about the device(s) used to access the Software and about Customer’s use of the Software, and that Customer may also be required to provide certain information as a condition to using the Software or certain of its features or functionality, and the Software may provide opportunities to share information about itself with others (collectively, “User Data”). All User Data is treated as Company’s Confidential Information, together with any other information Company collects through or in connection with the Software. Company respects the Customer’s interest in the confidentiality and privacy of User Data and will take reasonable measures to deidentify it, while retaining its utility for aggregated analysis. The purpose of this deidentified data is to derive unique market insights that will allow Company to provide benchmarking and insights in the ordinary course of its business. Customer understands and consents that such aggregated insights may be used by Company for further product enhancement, feature development, and analytical purposes, always prioritizing the protection of privacy and anonymity of company data sources. Notwithstanding the foregoing, Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data, or for any actions or omissions which Company takes in reliance upon the User Data. Further notwithstanding the foregoing, by using the Software, Customer agrees to Company’s use of Customer’s name and logo for promotional purposes related to Company’s Software and Services.
C. Customer shall not use any of Company’s trademarks, services marks, trade names and/or logos, or refer to Company directly or indirectly in any marketing materials, customer lists, media release, public announcement or other public disclosure relating to this Agreement or its subject matter without obtaining Company’s prior express written consent.
5. NO WARRANTY; Disclaimers; Updates; Customer Responsibilities.
A. COMPANY’S SOFTWARE IS PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY HAS NO LIABILITY FOR CUSTOMER’S USE OF THE RESULTS OBTAINED FROM THE SOFTWARE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE OR THE SERVICES COULD INCLUDE TECHNICAL OR OTHER ERRORS OR INACCURACIES; THE SOFTWARE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES ON THE SOFTWARE MAY BE OR BECOME OUT OF DATE AND COMPANY MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. COMPANY ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO VIA THE SOFTWARE OR SERVICES. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICES OR SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR MATERIALS INCLUDED IN THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
B. The Software or the Services may contain links to external websites. Company is neither responsible nor liable for the content of such external websites and has no control over the functionality of any third party links. Information or the Software or the Services, or available via hypertext link from the Software or the Services, is accessible to Customer without responsibility or liability on the part of Company. Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) Customer might be requested to give any third party, and Customer hereby irrevocably waives any claim against Company with respect to such sites and third party content. Company strongly encourages Customer to make whatever investigation Customer feels necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
C. Company may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on Customer’s settings of the device(s) used to access the Software: (a) the Software may automatically download and install all available Updates; or (b) the Customer may receive notice of or be prompted to download and install available Updates. The Customer shall promptly download and install all Updates and acknowledges and agrees that the Software or portions thereof may not properly operate should Customer fail to do so or may continue to operate improperly if Updates are designed to remedy an issue in the Software. Customer further agrees that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement.
D. Some jurisdictions do not allow the exclusion of implied warranties such that the above exclusion may not apply to Customer. This warranty gives Customer specific legal rights, and Customer may also have other rights that vary from jurisdiction to jurisdiction.
E. Customer is solely responsible for any and all activities that occur under its constituent user accounts including inputting, maintaining, and managing accurate information and ensuring that such users exit or log-off from their account at the end of each session of use. Customer shall notify Company immediately of any unauthorized use of a user’s password or account or any other breach of security that is known or suspected by Customer. Customer shall also use its best efforts to stop immediately any copying or distribution of the Software that is known or suspected by Customer. Company shall not be responsible for any unauthorized access to, or alteration of, Customer’s transmissions or User Data, any material, information or data sent or received, regardless of whether the data is actually received by Company, or any transactions entered into through the Service or Customer’s failure to abide by this Agreement.
6. Limitations of Liability for Damages. In connection with this Agreement and the Software, and regardless of the form of action or theory of recovery, to the extent not prohibited by law, in no event shall Company be liable for any indirect, special, exemplary, consequential, incidental or punitive damages; lost profits, lost revenue, lost business expectancy, business interruption losses, or loss of data; and/or direct damages in an amount in excess of the amount paid by Customer to Company for Software and Services during the previous month, even if Company has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to Customer. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose. Any cause of action or claim Customer may have arising out of or relating to this Agreement or the Software or the Service must be commenced within one (1) year after the date Customer knew, or reasonably should have known, of the existence of such claim of action, otherwise such cause of action or claim is permanently barred.
A. During the term of this Agreement, each party may disclose to the other party (orally, in writing, or electronically), or a party may obtain, observe, or otherwise be granted access to, information and materials considered confidential by the other party. Confidential Information includes, but is not limited to, information relating to Software and Service prices, compensation, research, products, services, developments, inventions, processes, protocols, methods of operation, techniques, strategies, programs (both software and firmware), designs, systems, proposed business arrangements, results of testing, distribution, engineering, marketing, financial, merchandising and/or sales information, individual customer profiles, customer lists and/or aggregated customer data (“Confidential Information”).
B. Subject in all respects to Company’s right to use information under Section 4(B) above, each party shall use the other party’s Confidential Information only for the purposes of this Agreement, and not for its own or any third party’s benefit. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information. In addition, neither party shall make any unauthorized commercial use of the other party’s Confidential Information.
C. Except as expressly provided herein, each party is permitted to disclose the other party’s Confidential Information only to its employees and agents who have a need-to-know the Confidential Information in order for that party to exercise its rights and/or perform its obligations under this Agreement, provided: (a) the party advises each such employee or agent of the confidential nature of the other party’s Confidential Information; and (b) each such employee and agent has agreed to comply with the provisions of this Agreement. Each party shall be and remain fully liable and responsible for its employees’ and/or agents’ unauthorized disclosure or use of the other party’s Confidential Information.
D. Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
E. The provisions of this Section shall not apply to information that the receiving party can prove: (a) was in its possession prior to receipt or disclosure hereunder; (b) was or became public knowledge through no fault of the receiving party or any of its employees or agents; (c) was lawfully disclosed to the receiving party by a third party through no breach of any obligation of confidentiality owed to the disclosing party; or (d) was created by the receiving party independently of any access to or use of the disclosing party’s Confidential Information.
F. Each party acknowledges and agrees that its unauthorized disclosure or use of the other party’s Confidential Information will cause damage to the other party that may not be adequately compensated through money damages. As such, each party expressly consents to the entry of an order for equitable remedies, including, but not limited to, temporary, preliminary and permanent injunctions to remedy any actual or threatened unauthorized disclosure or use of the disclosing party’s Confidential Information. These remedies are cumulative and in addition to all other remedies available at law or in equity.
G. At the disclosing party’s request, each party shall return the other party’s Confidential Information. Neither party shall use the other party’s Confidential Information for its own, or any third party’s benefit, except as expressly provided herein. However, each party shall be permitted to retain and use a copy of the other party’s Confidential Information as reasonably necessary to exercise its rights that survive termination of this Agreement, provided that party continues to comply with its confidentiality obligations set forth herein. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
9. General Provisions.
A. No Waiver; Entire Agreement. Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions in this Agreement. This Agreement sets forth the entire agreement of the parties, and the terms of this Agreement are contractual and not a mere recital. Without limitation to the foregoing, the parties' actions and statements prior to this Agreement shall not be used by either party to modify or interpret the rights or obligations set forth in this Agreement. All prior discussions of the subject matter of this Agreement are superseded by the terms and conditions of this Agreement.
B. Law and Jurisdiction. The Agreement shall be governed by the laws of the State of Delaware, USA, and may be amended only by a writing signed by both parties and specifically referencing this Agreement. Litigation shall be brought only in, and the parties hereby submit to, the U.S. Court for the Eastern District of Michigan, Southern Division, or the Circuit Court for the County of Washtenaw, State of Michigan; the parties stipulate to personal jurisdiction and venue in such court and waive the application of forum non conveniens.
C. Assignment. No party may assign or otherwise transfer this Agreement without the prior written consent of the other party, except that Company may assign this Agreement in whole or in part to any purchaser of all or substantially all of its business or assets pertaining to the line of business to which this Agreement relates, or to any subsidiary or other affiliate, without Customer’s approval. As a condition to any assignment, the assignee must agree to assume and be bound by this Agreement in its entirety.
D. Changes To This Agreement. Company reserves the right to change the terms and conditions of this Agreement and/or any of its other policies relating to the Software, at any time in its sole discretion, so long as such changes are applicable to the Company’s Software generally. Company shall notify Customer of such changes by posting the changes on its website (the “Site”). The Customer is responsible for regularly reviewing the Site and this Agreement regarding such changes. Continued use of the Software and Company’s Services after any such changes have been posted shall constitute Customer’s agreement to them. If any changes are made to these terms and conditions, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against the Customer but will apply to all similarly situated Company customers using the Services.
E. Compliance with Applicable Laws. Each party will comply with applicable federal and state laws, rules, and regulations relating to such party’s performance of its obligations under the Agreement. In addition, neither party shall engage in any unfair, deceptive, or abusive acts or practices.
F. Force Majeure. Neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to a Force Majeure event. If a Force Majeure event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure event on the performance of this Agreement. This Section does not excuse Customer’s obligation to pay for Services actually received.
G. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
H. Survival. All provisions of this Agreement relating to the grant of the License, representations, warranties, confidentiality, privacy, ownership, indemnification, limitations of liability, any accrued but unpaid financial obligations and any other terms related to such financial obligations, and any other subject that would, by its nature, be deemed to survive termination of this Agreement (whether or not so expressly stated), will survive the termination or non-renewal of this Agreement.
I. Independent Contractor Relationship. The relationship between Company and Customer is that of independent contractor. Nothing in this Agreement shall be construed as creating a relationship between Company and Customer of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.