3. The Site and Service
Elemica grants you a limited, revocable, nonexclusive license to access the Site, and if you are a registered Elemica user (each a “User”), to access and use that portion of the Service limited to Users, for your own personal use. You may not sub-license your rights hereunder to a third party, and this license does not extend to: (a) access to the Site by posting agents; or (b) any collection, aggregation, copying, duplication, display or derivative use of the Site nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by Elemica.
5. Eligibility; Registration
The registration process is initiated when You provide the information specified on the registration page located at http://www.elemica.com. Elemica may, at any time and in its sole discretion, refuse to accept a prospective User and/or limit a User’s use of the Site and/or the Service.
6. Registration Representations
When You register for the Site, You represent and warrant that all of the information You provide as part of that registration is true, complete and accurate. You also agree to notify Elemica immediately at any time information You have provided ceases to be true, complete or accurate.
7. Access Codes
All access codes, user identification numbers and other passwords or security items issued to or provided by Users are referred to herein as “Codes”. User is solely responsible for the use and protection of its Codes and User agrees to take all reasonable precautions to protect the security and integrity of its Codes and to prevent unauthorized use thereof. If User becomes aware of any unauthorized access or use of the Service with its Codes, User will immediately notify Elemica.
8. Access to the Site and Service
- Physical Connection To Site
You are responsible, at Your sole cost and expense, for providing all equipment necessary to access the Internet and the Site. Requirements for access to the Site are available from Elemica.
- Site Availability
While Elemica’s objective is to make the Site accessible 24 hours per day, seven (7) days per week, Elemica may make the Site unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of Elemica, access to the Site may be interrupted, suspended or terminated from time to time. You agree that Elemica shall not be liable for any damages arising from any such interruption, suspension or termination of the site.
9. Appropriate Activities
- Applicable Laws
You agree to comply with all applicable local, state, federal, and international laws, statutes, rules and regulations relating to Your use of the Site and the Services.
- Malicious Intent
You agree not to tamper with the software or functionality of the Site or the Services and not to introduce any material into the Site or the Services that contains any viruses, time bombs, trojan horses, worms, cancelbots or other computer programming routines that may damage, interfere with, intercept or expropriate any system, data or information. You may not take any action which imposes an unreasonable or disproportionately large load on Elemica’s infrastructure, including, but not limited to, “spam” or other such unsolicited mass e-mailing techniques. You and Your company are responsible for taking all reasonable precautions necessary to ensure the security and integrity of Your system.
- Information; Privacy
You shall not take any action, or omit to take any reasonable action, which would constitute an invasion of privacy of any other user of the Site in any applicable jurisdiction. Use or distribution of tools designed for compromising privacy or security is strictly prohibited.
10. Information on the Site
- Information Provided by Elemica
Although Elemica makes all reasonable efforts to ensure that the content it posts on the Site is up to date and correct, Elemica makes no warranties as to its accuracy. It is up to You to take precautions to ensure that information and content You download or otherwise select for use is free of viruses and other destructive items. All materials on the site are provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties or merchantability, fitness for a particular purpose, title and non-infringement.
The Site may contain links to third party websites not under the control or operation of Elemica. Such links are provided only as a convenience and Elemica does not endorse and is not responsible for the contents or any linked site or any link contained in a linked site. Unless You have written authorization from Elemica, You may not provide a hyperlink to the Site from another website. Elemica reserves the right to revoke its consent to any link at any time in its sole discretion.
The security of the Site shall be maintained through the use of various technical controls including passwords and secure socket layer (SSL) which Elemica may employ. However, You acknowledge that Elemica cannot guarantee that the Site, the Service or information transmitted by You to the Site and/or Service will be protected against all third party or other actions beyond its reasonable control.
12. Intellectual Property and Privacy
14. Relationship of the Parties
15. Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of laws provisions.
16. Disclaimer of Warranty
You acknowledge and agree that Elemica provides the site and the service on an “as is” and “as available” basis and without warranty or condition, express or implied. You acknowledge and agree that use of the site is at your sole risk. Elemica expressly disclaims all warranties of any kind, including, but not limited to,
- The implied warranties of merchantability
- Fitness for a particular purpose
- Non-Infringement, and
- That services will be continuous, uninterrupted and/or error-free
17. Limitation of Liability
Elemica shall have no liability for any reason and upon any cause of action, including, without limitation, acts or omissions by A) users of the site or B) third parties and outages or non-availability of the site or any portion of the service. You agree that neither Elemica, nor any officer, affiliate, director, equity holder, agent or employee of Elemica will be liable to you or any third party for any indirect, incidental, special, punitive, or consequential damages or lost profits.
You shall indemnify, defend, and hold harmless Elemica, its officers, affiliates, directors, equity holders, agents and employees with respect to any claim, demand, cause of action, debt, judgment or liability, including reasonable attorneys’ fees, to the extent that it is based upon a claim that:
- arises out of or in relation to Your use of the Site and/or the Service and is not caused by the negligence or conduct of Elemica;
- if true, would constitute a breach of any of Your representations, warranties or agreements hereunder; or
- arises out of Your gross negligence, willful misconduct, or abandonment
Elemica may, at its discretion and at its own expense, assist in the defense of any indemnified claim through counsel selected by Elemica. Any settlement intended to bind Elemica shall not be valid or binding on Elemica without Elemica’s prior written consent.
19. Jurisdiction Issues
The Site and the Services may be controlled, operated and administered by Elemica from its offices in Germany and the United States of America and any other location selected by Elemica from time to time. Elemica makes no representations that the Site and Services are appropriate for use in all locations, or that transactions, products instruments or services discussed are available or appropriate for sale or use in all jurisdictions. Those who access the Site and/or use the Service do so on their own initiative, and are responsible for compliance with applicable local laws and regulations.
- No Waiver
- Use of Name
You may not publicly use Elemica’s name, trademarks or logos without Elemica’s prior written consent. In the event Your company has executed a written agreement with Elemica, the terms and conditions set forth in such agreement shall apply to any public statements made by You regarding Elemica.
222 Valley Creek Blvd., Suite 220
Exton, PA 19341 USA
- Entire Agreement
Elemica is committed to protecting and carefully handling the information that You provide and that Elemica maintains about You, Your company, Your accounts and Your transactions (collectively, “Customer Information”). Customer Information also includes information that: (1) is transferred from the European Economic Area (“EEA”) or Switzerland to the United States, (2) is recorded in any form, (3) is about, or relates to, an identified or identifiable customer and (4) can be linked to that customer. Elemica’s approach to responsible data handling is founded on providing notice of Elemica’s information practices and other privacy issues to allow You to make informed decisions regarding Your use of the Site and Services.
Elemica complies with the U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection use and retention of personal information from European Union member countries and Switzerland. Elemica has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view Elemica’s certification, please visit http://www.export.gov/safeharbor/
Purpose and Use of Customer Information
To use the Services, You need to register an account with Elemica. You must supply certain identification, contact, and certification information that becomes part of Your account profile. Elemica uses information in Your account profile for nearly every Service that Elemica provides. In addition, Elemica collects certain Customer Information such as name, email address, postal address and telephone number. Elemica does not collect sensitive information as defined by the Safe Harbor framework.
Elemica facilitates transactions between buyers, sellers and/or third party service providers, using the information supplied by the parties themselves. Elemica transfers only the information that is necessary to complete the transaction from You to the other parties involved, and other information that You specifically provide or indicate. You will see the information required for the specific transaction type, and be able to postpone or cancel the transaction at certain decision points. Some of this information may come from You directly, while Elemica may supply other information from Your account profile. If You use any of the notification and documentation features, information about Your order may be transmitted to You via telephone, email, pager, or other wireless device that You have identified to us. The information transmitted through these services may not be able to be protected by Elemica. Also, when You conduct trades and other transactions through the Site, Elemica establishes and maintains appropriate records that become part of the account history for You and for Your trading partners. Elemica may contract with one or more financial services providers to help You manage invoices and payments. Customer Information needed to manage the settlement requirements that You select will be provided to such financial services providers.
Elemica provides a variety of tools that allow You to report and analyze Your use of the Services. Elemica will periodically generate statements for internal use that contain statistical information regarding transaction volume and value. Elemica may periodically report and publish aggregate general performance metrics. Such reports will not contain information that links You to such statistics.
Elemica uses your Customer Information: (1) to respond to or fulfill your requests, (2) to evaluate the quality of our products and services, (3) to communicate with you about our products, services and related issues, (4) to notify you of and administer marketing campaigns, and (5) for internal administrative and analytics purposes and to comply with our legal obligations, policies and procedures. Elemica will disclose your Customer Information, without notice, only if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Elemica or the Site; (b) protect and defend the rights or property of Elemica; and (c) act under exigent circumstances to protect the personal safety of users of Elemica, its web sites, or the public. Elemica retains records about customer service and technical service requests that You make. Elemica does not use these records for purposes other than to service Your request, maintain appropriate business records, and assess and improve the Services.
Mandatory and Optional Information
Elemica identifies information that it requires from You that is necessary to provide the Services to You. Whenever Elemica asks for additional or optional information, Elemica identifies that information appropriately so that You know what information is required to provide You the applicable Service.
Elemica offers You choices regarding how Your Customer Information may be used by Elemica. You may use certain public parts of the Site without providing information to Elemica. However, if You want to use the Services, Elemica will request that You provide information about, among other things, You and the company that You represent.
Data Access and Update
Elemica provides You the opportunity to update, amend, delete or correct the Customer Information that You provide to Elemica, and to review Your account and transaction history. Customer Information can be updated at any time by contacting Elemica Client Services via email at firstname.lastname@example.org or via telephone at 1-800-ELEMICA (U.S. and Canada) or 00-800-4-353-6422 (Europe, except Scandinavia). Transaction history can be reviewed at any time by authorized members using the View Reports option of the Members section of Elemica.com.
Data Security and Integrity
Elemica recognizes industry standards and employs security safeguards in an effort to protect Customer Information from loss, misuse, unauthorized access, disclosure, alternation and destruction.
When You provide information to the Site over the Internet, Elemica will store this information on its servers and provide You with cryptographically protected communications services (e.g., using Secure Sockets Layer encryption for Internet communications).
Elemica takes reasonable steps to ensure that Customer Information the company collects is relevant for the purposes for which it is to be used and that the information is reliable for its intended use and is accurate, complete and current. We depend on our customers to update and correct their Customer Information whenever necessary.
Transfer of Data
When You submit Customer Information, You understand and agree that such information may be transferred across national boundaries and may be stored and processed in any of the countries in which Elemica maintains offices, including without limitation, the United States. You also acknowledge that, in certain countries or with respect to certain activities, the collection, transfer, storage, and processing of Your Customer Information may be undertaken by trusted vendors of Elemica.
Consultants and Outsourcers
In some cases, Elemica employs or works with consultants, temporary workers, software developers, or outsourcers to complete a business process or provide a Service (e.g., delivering products, offering online software applications, or sending eMail messages on our behalf). When Elemica employs these agents or offers their services to You, Elemica may need to provide them with information about Your account. Except in limited circumstances, these agents or developers are prohibited through their contracts with us from using that information or disclosing it for purposes other than to offer or complete the service that Elemica is outsourcing.
Change of Control
Your Customer Information may be transferred in connection with a sale, merger, transfer, exchange or other disposition (whether of assets, stock, or otherwise) of all or a portion of a business of Elemica.
Elemica stores the information about its customers, the Site and Services for automated access and processing. Elemica reserves the right to keep records for a period of not less than 20 years as operational records, historical archives, and for analysis and reporting. Elemica will notify You not less than 60 days prior to the destruction of records and will provide You the option of obtaining all of Your records for Your own storage or destruction. You may request that Elemica purge specific information from Elemica’s databases and archives prior to the expiration of the data retention period.
Here is how and why Elemica uses some common Internet technologies to help manage the Site and Services:
- Cookies. A “cookie” is a small piece of information that Elemica may provide to Your browser while You are using the Site or Services. The Site supplies Your browser with cookies that contain a unique identifier used to better understand Site usage in the aggregate.
If You are a registered user, You will receive a session-based cookie when You log in to the Site. This cookie is maintained by Your browser and contains Your identifier. This cookie is also used to authenticate a user’s identity and to provide them with access to areas of the Site that are limited to registered users, such as their own account profiles and account histories.
If You simply want to browse the public areas of our Site, You do not have to accept cookies from Elemica. Should You decide, however, that You would like to register and have access to restricted areas of the Site, You will need to accept the cookies that Elemica sends to your browser. Otherwise, You may not be able to use certain portions of the Site or Services.
Third party tracking systems in use on behalf of the Site may assign different cookies to You. These cookies may be used to track Your involvement with certain links on the Site to help Elemica better understand and improve the Site and Services. You may choose not to accept these cookies and You will still have full access to site functionality. These cookies are not linked to the Customer Information You provide Elemica.
Advertising networks that serve ads on the Site may assign different cookies to You. Those cookies may be used to track Your involvement with the advertising on the Site. You may choose not to accept these cookies. Elemica does not control those parties. You should review their privacy policies to learn more about what, why and how they collect and use information they collect.
- Web Site Usage Data. With or without cookies, Elemica keeps track of usage data, such as the source address that page requests come from, IP addresses and/or domain names, the dates and times of page requests, the names and/or IP addresses of referring web sites, and other parameters in the Uniform Resource Locaters (“URLs”). Elemica uses this data to better understand Site usage in the aggregate. This information is stored in log files and is used for aggregated and statistical reporting. This log information is not linked to other Customer Information.
- Third Party Sites. Elemica may provide links to third party sites, such as those of Elemica’s business partners and customers. On these sites, these parties and others may collect information about You. Elemica is not responsible for the actions of these parties. Elemica encourages You to review their privacy policies to learn more about what, why and how they collect and use information.
- Newsletters. You may subscribe to eMail newsletters and other eMail communications by providing Your eMail address to Elemica. You may unsubscribe by following the instructions provided in each eMail newsletter. With your consent, Elemica may use Your eMail address to send You promotional materials.
- Surveys. From time to time, Elemica may offer You the option to participate in surveys through the Site or through other media. If You would like to participate, Elemica may ask You for contact information, preferences or other information. This information may be used to conduct research, improve Elemica’s offerings, or report customer perceptions and trends.
Enforcement and Oversight
Elemica will conduct compliance audits of its relevant privacy practices to verify adherence to this policy.
Any questions or concerns regarding the use or disclosure of Customer Information should be directed to the Elemica legal department at 222 Valley Creek Boulevard, Suite 220, Exton Pennsylvania 19341 USA. Elemica will investigate and attempt to resolve complaints and disputes regarding the use and disclosure of Customer Information in accordance with the principles contained in this Policy. For complaints that cannot be resolved between Elemica and the complainant, Elemica has agreed to participate in the dispute resolution procedures of the panel established by the European or Switzerland data protection authorities to resolve disputes pursuant to the Safe Harbor principles.
These Guidelines apply to the conduct of Elemica, Inc., including its subsidiaries, and its officers and employees (collectively “Elemica”). They also apply to the activities of all entities utilizing the e-commerce services and functionalities provided by Elemica, including buyers and suppliers (collectively, “Participants”). Elemica continues to further develop and improve its e-commerce services and functionalities and may not have established operational policies for all services and functionalities. Subject to any restrictions expressly stated in these Guidelines, Elemica reserves the right to revise or expand these Guidelines as it deems necessary to reflect new services and functionalities. Elemica will provide conspicuous notice at www.Elemica.com of any such revisions.
1. Access to the Site
- Elemica shall establish legitimate business criteria to control access to the services and functionalities that it offers, and shall apply them in a non-discriminatory manner. Access to the services and functionalities shall be open to qualified Participants and access shall not be denied based on whether the buyer or seller competes with any other participating buyer or seller, or on whether it buys or sells the same goods, materials and services elsewhere that it buys or sells via the services and functionalities offered by Elemica.
- Elemica does not require buyers or suppliers to transact any minimum amount of business via the services and functionalities it offers or to otherwise use those services and functionalities on an exclusive or semi-exclusive basis.
2. Bulletin Boards and Chat Areas
- Bulletin boards, if established, will operate pursuant to appropriate rules, and will have a defined purpose and topic of discussion, approved by Elemica’s General Counsel. Posted messages will be required to relate strictly to the defined topic and may not contain Competitively Sensitive Information.
- Elemica will not establish, or permit the creation of, “chat” areas on the Site that would enable real-time discussions between Participants.
- Elemica will be the sole owner of all transactional information related but not limited to aggregated buying, auctions, catalog transactions, or private area transactions. Elemica may analyze this information for its own purposes (e.g., to offer additional value or new services to its customers by studying the trends and preferences of its users). It is not the current intention of Elemica to sell, publish, or otherwise disseminate or provide access to such information to any person, including Members, Board Managers, Buyers, and Sellers. Elemica will not change that intention without first consulting counsel and ensuring the adoption of adequate safeguards to ensure that such sale or publication is consistent with legal and regulatory obligations.
3. Aggregated Buying
- Elemica may facilitate the aggregation of demand for certain goods, materials and services.
- In facilitating aggregated purchases, Elemica shall not facilitate the aggregation of purchases that might enable a group to exercise unlawful, monopsony or anti-competitive buying power, or might enable a group to coordinate activity in selling final products. To avoid these concerns, Elemica places restrictions on the types and amounts of goods, materials or services for which aggregated purchases are facilitated and limits access to information regarding such aggregated purchases.
4. Utilization of the Services and Functionalities
- Suppliers should provide bids, quotes, information or otherwise offer goods, materials and services for sale via the services and functionalities offered by Elemica only if they have a good faith intention of selling them in connection with those services and functionalities. Buyers should accept bids, quotes or other information regarding materials and services for sale via the services and functionalities offered by Elemica only if they have a good faith intention of actually making a purchase or purchases in connection with those services and functionalities.
- Only buyers and suppliers participating in a particular E-Sourcing Events, or other particular activities via the services and functionalities, and Elemica employees will have access to event or activity specific information.
Commercial Terms and Conditions
These Commercial Terms and Conditions (“Standard Terms and Conditions”), together with the Order Form (defined below) govern Elemica, Inc.’s (“Elemica”) provision and Client’s use of the Elemica services set forth in the applicable Order Form (the “Services”). As used in these Standard Terms and Conditions, “Agreement” means, collectively, (1) these Standard Terms and Conditions, and (2) the Order Form. If a conflict exists between the Standard Terms and Conditions and the Order Form, the terms and conditions of the application Order Form will control. “Order Form” means an agreement executed by Elemica and the Client that sets forth the Services purchased by Client and the fees for the Services.
1. Elemica Services.
(a) Services. Subject to the terms and conditions of the Agreement, Elemica agrees to provide the Client with the Services.
(b) Monitoring. Elemica reserves the right, but not the obligation, to monitor any or all activities and information in connection with the Services (each, a “Transmission”). Elemica further reserves the right to: (i) reject, suspend, censor or prohibit any Transmission that Elemica, in its sole discretion, determines in good faith may be prohibited by law, is inappropriate, or otherwise violates this Agreement or any Order Form; and (ii) suspend Client’s access and use of the Services in the event that Elemica reasonably believes Client is in breach of any applicable law or this Agreement. Elemica will make commercially reasonable efforts to provide advance notice of such actions.
(c) Availability of the Services. Elemica shall use its commercially reasonable efforts to maintain the Services at least 98% of the possible time in each calendar month, excluding maintenance windows, scheduled downtimes and force majeure events. Downtime is the period of time (expressed in minutes) commencing when Elemica first becomes aware that the services are not available to Client and such unavailability has a significant impact on Client’s business, and ending when the services are again available to Client.
2. Intellectual Property. Client and Elemica each acknowledge and agree that each party’s intellectual property is, and shall remain, the sole property of such party. Client acknowledges and agrees that the Services, the aggregate data in the Services and all intellectual property embodied within the Services, and any and creations, developments, inventions, technical information (including without limitation, computer programs, subroutines, charts, databases, manuals and documentation) created or provided by Elemica, or on Elemica’s behalf, either solely or jointly with Client, in connection with the Services or the operation of Services (collectively, “Elemica IP”) shall be owned exclusively by Elemica. To the extent any ownership interest in the Elemica IP vest in Client by operation of law or otherwise, Client hereby assigns all such right, title, and interest in and to the Elemica IP to Elemica. Client agrees that Elemica may use Client’s name and trademarks solely for purposes of identifying Client as a client of Elemica on the Elemica website and marketing materials; provided that, Elemica shall comply with any written instructions provided by Client with respect to the proper use of the Client’s name and trademarks.
3. Payment Terms; Taxes. Client shall pay to Elemica the fees specified in an Order Form (“Fees”). All invoices are due and payable in full within 30 days of the date of the invoice, unless otherwise stated in an Order Form. At Elemica’s discretion, a charge may be assessed on all late payments in the amount of the lesser of (i) 1.5% per month, and (ii) the maximum amount allowed by law. Client is responsible for paying all taxes (other than taxes based on the net income of Elemica), and charges including, but not be limited to, excise, customs, sales, use, VAT, GST and consumption taxes in connection with this Agreement and the Fees. Such taxes are not included in the Fees. In the event that Elemica pays any such taxes or other charges on the Client’s behalf, Client shall reimburse Elemica for any such taxes and charges within 30 days of Elemica’s written request.
4. Confidentiality and Use Obligations.
(a) The Receiving Party (as defined below) shall: (i) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information (as defined below) of the Disclosing Party (as defined below); (ii) refrain from disclosing any Confidential Information to any person, other than to such of its employees, agents, consultants and representatives to whom disclosure is necessary in connection with the Services and who shall be informed of said terms and agree in writing to be bound by obligations at least as restrictive as those set forth herein; and (iii) use the Disclosing Party’s Confidential Information solely in connection with the use and operation (including testing) of the Services. The Receiving Party shall promptly advise the Disclosing Party in writing if it learns of any unauthorized use or disclosure of Confidential Information. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of its Confidential Information and/or to prevent further unauthorized use or disclosure of such. The non-disclosure and non-use obligations contained in Section 4 will remain in full force with respect to each item of Confidential Information for a period of five (5) years after Receiving Party’s receipt of that item. “Confidential Information” means all information provided by the party disclosing information (the “Disclosing Party”) to, or otherwise received by, the party receiving the information (the “Receiving Party”), and all copies thereof, concerning the Disclosing Party or its business, products or services that has been identified as confidential or proprietary or would be understood to be confidential or proprietary by a reasonable person. Confidential Information shall not include any information, however designated, that (i) is or becomes publicly known through no fault of Receiving Party; (ii) the Receiving Party obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; (iii) was independently developed by employees of Receiving Party independently of, or without reference to, the Confidential Information of the Disclosing Party or (iv) Receiving Party can demonstrate was already in the Receiving Party’s possession prior to any disclosure hereunder.
(b) The Receiving Party may disclose Confidential Information which is required to be disclosed by law, regulation or order of a court or other governmental body or any political subdivisions thereof, but only to the extent of, and for the purposes of, such law, regulation or order; provided, however, that the Receiving Party shall: (i) notify the Disclosing Party in writing of the impending disclosure; (ii) provide reasonable cooperation and assistance to the Disclosing Party in opposing or limiting the compelled or required disclosure (all at the Disclosing Party’s expense) and (iii) use its best efforts to obtain reliable assurances that such disclosure will be afforded confidential treatment.
(c) Upon termination of the Agreement or upon receipt of written notice from the Disclosing Party, except for Confidential Information a Party is required by law to maintain, the Receiving Party will promptly: (i) return or destroy (at Disclosing Party’s option) all Confidential Information provided by the Disclosing Party, including all copies thereof, whether or not such copies have been imbedded in other documents or materials and (ii) certify in writing that it has done so. The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled to seek, without waiving any other rights or remedies, injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
5. Term and Termination.
(a) Term. This Agreement shall commence on the Effective Date (as set forth in the first Order Form signed by Client) and shall continue until terminated in accordance with this Section 5. Each Order Form shall commence on the effective date set forth in the applicable Order Form and shall continue for the initial term set forth in the Order Form (the “Initial Term”) and any renewal term (if applicable) set forth in the Order Form (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated in accordance with the terms of this Section 5.
(b) Termination for Convenience or Cause. Either party may terminate this Agreement or an Order Form for any reason upon ninety (90) days written notice to the other party, and such termination shall be effective on the expiration of the Initial Term or Renewal Term as the case may be. Either party may terminate this Agreement or an Order Form in the event the other party materially breaches the Agreement or such applicable Order Form and does not cure such breach within 30 days after receipt of written notice from the non-breaching party.
(c) Termination Upon Insolvency. This Agreement and Order Form may be immediately terminated by either party at any time in the event of the other party’s becoming insolvent or committing any act of bankruptcy, which shall include, but not be limited to: (i) the institution by a party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement or composition of its debts; (ii) the institution of such proceedings against a party, which are not dismissed or otherwise resolved in its favor within 60 days thereafter; (iii) a party’s making any assignment for the benefit of creditors; or (iv) a party’s taking of any action to authorize, acquiesce in or for the purpose of effectuating any of the foregoing.
6. Representations and Warranties.
(a) Client. Client warrants to Elemica that (i) it is the sole owner or otherwise has the right to use any data or information transmitted to the Services; and (ii) in using the Services it shall not violate any applicable law or regulation or any rights of third parties and shall not trade in any product on the Services the sale or supply of which is contrary to any applicable law or which fails to comply with any applicable legal requirements for the sale or supply of such product. Client undertakes not to supply or buy through the Services the following: (1) any product which is subject to statutory restrictions (including export); (2) any product the delivery of which requires a prescription or certification in order to comply with applicable law; and (3) any product which, to Client’s knowledge, infringes or violates any third party rights.
(b) Elemica. Elemica warrants to Client that: (i) it is the sole owner of or otherwise has the right to use any data or information supplied to Client by Elemica in the Services; (ii) it has the right to provide the Services; and (iii) the Services will be performed with care and diligence in a good and workmanlike manner and in accordance with industry practice. Client must provide Elemica with written notice of any deficiencies in the Services within 30 days of the provisions of the Services alleged to be defective.
(c) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR AN ORDER FORM, ELEMICA DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, ANY ORDER FORM, OR THE SERVICES, INCLUDING WITHOUT LIMITATION: (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (II) THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, ACCURATE, SECURE OR OPERATE WITHOUT ERROR; AND (III) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
(a) Mutual. Each party shall indemnify, defend and hold harmless the other party, its Affiliates, and its and their respective officers, directors, equity holders, agents and employees (“Indemnified Parties”) from any damages, liability, judgments or costs (including reasonable attorneys’ fees) arising out of or in connection with any third party claim, demand, cause of action or suit (collectively, a “Claim”) brought against the other party based upon: (i) any breach of such party’s representations and warranties hereunder; or (ii) such party’s gross negligence or willful misconduct.
(b) Client. Client shall indemnify, defend and hold harmless the Elemica Indemnified Parties from any damages, liability, judgments or costs (including reasonable attorneys’ fees) arising out of or in connection a Claim brought against Elemica based upon: (i) the use of, access to or inability to use the Services (except to the extent such Claim is a result of Elemica’s breach of its obligations under this Agreement) by any party other than Client; (ii) any false, misleading, inaccurate or erroneous data provided to Elemica by Client; and (iii) the sale, purchase, transportation, delivery, use or disposal of products purchased or sold by Client through the Services that cause personal injury, illness or death of any person or damages to any property.
(c) Indemnification Procedures. Each party’s obligations to defend, indemnify and hold harmless the other party are subject to such party’s (i) giving the indemnifying party prompt written notice of any such Claim; (ii) giving the indemnifying party sole control over the defense and settlement of any such Claim; (iii) providing full cooperation for the defense of any such Claim, at the non-indemnifying party’s expense; and (iv) not entering into any settlement or compromise of any such Claim without the non-indemnifying party’s prior written approval.
8. Limitation of Liability. The parties hereby agree that this limitation of liability represents a reasonable allocation of risk between the parties and that such form an essential basis of the bargain between the parties.
(a) EXCEPT (I) THE PARTIES RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (II) DAMAGES FROM A BREACH OF (1) SECTION 4 OR (2) SECTION 2, NEITHER CLIENT NOR ELEMICA SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, REVENUES OR DATA), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF HOW CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
(b) EXCEPT FOR (I) CLIENT’S OBLIGATION TO PAY FEES PURSUANT TO AN ORDER FORM, (II) THE CLAIMS FOR INDEMNIFICATION OBLIGATIONS HEREIN, AND (III) DAMAGES FROM A BREACH OF (1) SECTION 4 OR (2) SECTION 2, IN NO EVENT SHALL EITHER PARTY’S LIABILITY, IN THE AGGREGATE, TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM IN THE 3 MONTHS PRECEDING THE DATE UPON WHICH THE FIRST CLAIM OR CAUSE OF ACTION FIRST AROSE.
9. Relationship. Client and Elemica are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created by this Agreement, an Order Form or SOW.
10. Notices. Upon execution of this Agreement, Client and Elemica may issue a press release which shall be limited to announcing the relationship and Client as a customer. Any other press release is subject to the review and approval of the parties, which approval shall not be unreasonably withheld or delayed. Elemica may use Client’s name and trademarks solely for purposes of identifying Client as a client of Elemica on the Elemica website and marketing materials; provided that, Elemica shall comply with any written instructions provided by Client with respect to the proper use of the Client’s name and trademarks. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier. All notices shall be properly addressed to the address set forth in the Order Form or to such other addresses as may be specified in a notice given hereunder. For Elemica, the notice address is 222 Valley Creek Boulevard, Suite 220, Exton Pennsylvania, 19341 USA, ATTN: General Counsel.
11. Force Majeure; Survival. Neither party shall be considered in default in the performance under this Agreement to the extent that the performance of such obligation is prevented or delayed by a fire, flood, explosion, strike (except for a strike by a party’s employees), war, insurrection, embargo, government requirement, act of civil or military authority, act of God, or any similar event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party. The provision of Sections 2, 3 (to the extent of any unpaid amounts), 4, 6(c), 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive the expiration or termination of this Agreement and an Order Form.
12. Governing Law; Forum. The United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement and an Order Form. Except as provided herein, this Agreement and an Order Form (i) shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflicts of laws principles of any jurisdiction; and (ii) the state and federal courts with jurisdiction over Wilmington, Delaware shall have exclusive jurisdiction over any case or controversy arising under or in respect of this Agreement and an Order Form. Each party waives any objection to venue or inconvenience of the forum in any such court. Notwithstanding the foregoing, the parties shall be free to seek injunctive relief in any court of competent jurisdiction.
13. Waiver. This Agreement and any documents incorporated by reference may not be modified or amended except in a writing executed by both parties. Except as provided herein, a party’s failure to insist upon or enforce strict performance of any provision of this Agreement or an Order Form shall not be construed as a waiver of such provision.
14. Severability; Assignment. If any provision of: (i) this Agreement or (ii) an Order Form is held to be invalid or unenforceable, in whole or in part, then the remaining portions shall remain in full force and effect. Elemica may assign its rights or delegate its obligations under this Agreement or an Order Form, without consent of Client, to any Elemica affiliate, or to any company in connection with a merger, acquisition, or sale of all or substantially all of the assets of Elemica. Client may not assign its rights or delegate its obligations under this Agreement and an Order Form without Elemica’s prior written consent.
15. Entire Agreement. This Agreement, together with all Order Forms, all of which are hereby incorporated by reference, constitutes the entire agreement and understanding between the parties and supersedes and replace any and all prior written.