Terms & Conditions
TERMS & CONDITIONS
1. Introduction. ServiceChannel is a forum and offers the Platform and Services to customers and contractors in the course of their business. Customers and contractors can use the Services to buy and/or offer products or services, respectively. Customers and Contractor can conclude and execute contracts solely and exclusively with each other in connection with the purchase and offering of Contractor products or services (such contracts, “Purchase Contracts,” and such customers, “Customers”). ServiceChannel is not involved in Purchase Contracts, neither as a contractual party nor as agent or intermediary. It is the sole responsibility of Contractor to (i) provide protection and maintain safeguards of the security, confidentiality and integrity of customer data and (ii) provide representations, warranties and guarantees and assume all responsibilities for any products or services provided by Contractor on the Platform, the Services or otherwise to Customers, in accordance with any applicable Purchase Contracts. All transactions are solely between Contractor and Customers (or its customers outside of the Services), and ServiceChannel is only responsible for providing and maintaining the Services to enable potential or existing Customers to search, choose and initiate purchases from Contractor. ServiceChannel is not responsible or liable for any loss or damage of any sort incurred as the result of any such transactions, and Contractor shall release and hold ServiceChannel harmless from any and all liability arising from or in connection with any products or services provided by Contractor on the Services or to Customers, any such transactions or Purchase Contracts.
2. Scope of Services. Subject to the terms and conditions of this Agreement, ServiceChannel agrees to provide Contractor with access to the Services, through which Contractor may offer certain Contractor products and services for purchase by other users of the Services.
3. Contractor Catalog.
a. Catalog. Contractor will provide certain information, such as Contractor’s business listing, links to Contractor websites, geographical areas serviced by Contractor (the “Directory”), an electronic catalog containing conditions, terms, warranties or representations and/or other information relating to Contractor and its services or product offerings (collectively with the Directory, the “Catalog”), in order to enable ServiceChannel to host such Catalog on, and to permit Customers to communicate with Contractor about Purchase Contracts (including potential projects, work orders and invoices) using, the Services. Contractor shall provide such Catalog, including its data, contents and format, in compliance with all the specifications and/or standards as required by ServiceChannel and any applicable Purchase Contracts.
b. Service Automation. Customers who participate in the ServiceChannel’s “Service Automation” services through the Services (“Service Automation”) may use the Services to update the applicable User Content (as defined below) to identify those Contractors with which such Customers regularly do business as “Listed Contractors/Suppliers.” A Listed Contractor/Supplier may use the Services to (i) access User Content such as information about Contractor services or materials requested by (and/or applicable Purchase Contracts with) such a Customer and (ii) to update Contractor Content (as defined below) to communicate with such a Customer as to the status of such Listed Contractor/Supplier’s applicable services or provision of materials, including the completion thereof in accordance with the applicable Purchase Contracts.
c. Monitor. The development, operation, maintenance and the updating of the Catalog and Contractor Content (as defined below) will be Contractor’s sole responsibility. Contractor shall update the Catalog and Contractor Content on a regular basis to maintain consistency and accuracy of such Catalog and Content (as defined below) on the Services. ServiceChannel has the right, but no obligation, (i) to monitor the Services and Contractor’s Catalog and Content as ServiceChannel believes necessary to make sure that such Catalog and Content are appropriate and that the Catalog and Content otherwise comply with the terms of this Agreement and all applicable laws, and (ii) to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself, its employees, affiliates, subsidiaries, partners or customers or the public. ServiceChannel reserves the right to refuse to post or to remove any information or materials, in whole or in part, in its sole discretion, for any reason or no reason whatsoever, including if ServiceChannel determines that such information or materials are unacceptable, undesirable, inappropriate or in violation of this Agreement or any applicable laws, without incurring any liability to Contractor.
4. Transactions with Customers.
a. Offering of Products and Services. Through the Services, Contractor may list, offer or otherwise provide products or services. Any transactions or exchange of data between Contractor and Customers (including any ServiceChannel customers) is solely between Contractor and such Customers, including any purchase of Contractor products or services. ServiceChannel does not warrant or support any Contractor products or services, whether or not they are designated by ServiceChannel as “certified” or otherwise. In addition, ServiceChannel shall have the absolute right and freedom to list, market or otherwise transact with other contractors of products or services, whether or not similar or competitive to those provided by Contractor, without incurring any liability in connection therewith.
b. Contractor Responsibilities. ServiceChannel is in no way responsible for (A) content or information made available to Contractor through the Services (or otherwise) that is provided by third parties, including Customers, (B) any obligations of Contractor to pay any fees or other amounts to any third parties, including employees, subcontractors or suppliers of Contractor, or (C) any obligations of Contractor under applicable laws or regulations relating to recordkeeping, reporting (including tax reporting) or disclosure to any governmental entity or agency or any other third party, including employees, subcontractors or suppliers of Contractor (including without limitation, the issuance of federal 1099 forms). Contractor will be responsible for its employees, agents and subcontractors’ compliance with this Agreement and will ensure that such employees, agents and subcontractors have sufficient rights to authorize any actions hereunder, including any payments or withdrawals or electronic funds transfer (“EFT”) or automated clearinghouse (“ACH”) authorizations.
c. Relationship with Customer. If a Customer enables Contractor to access such Customer’s data for use with the Services, Contractor and that Customer shall be solely responsible for any disclosure, modification or deletion of such data resulting from such access and for the resolution of any disputes in connection therewith or any liability related to any of the foregoing. ServiceChannel may, in the ordinary course of business between ServiceChannel and a Customer, charge such Customer fees for access, requesting, tracking or administering acquisitions of Contractor products or services. Contractor shall be solely and fully responsible to Customers with respect to the quality and adequacy of, and for addressing any questions in connection with, Contractor products or services, Contractor or Customer data (or any omission therein), whether or not included in User Content, and any other issues arising out of such transactions or Purchase Contracts.
d. Disclaimer. The Parties expressly agree and understand that ServiceChannel: (i) DOES NOT AND HAS NO ABILITY TO CONTROL OR REVIEW FOR ACCURACY OR ERRORS any information exchanged by Contractor and Customers, including that in any transaction, or contained in any transaction documents, between them, the quality, completeness, safety, legality or availability of Contractor or third-party goods or services, the terms and conditions on which such goods or services are offered, purchased or delivered or the truth or accuracy of any Catalog, Content or any other content; (ii) is NOT a party to or, third party beneficiary or a guarantor of, any agreement between Contractor and ANY customer or other third party, including with respect to performance thereunder; (iii) makes NO representations or warranties of any type, expressed or implied, including from a course of dealing or usage of trade, with respect to the quality of any goods or service offerings of any Contractor or any third-party site, person or business to which the Platform or the Services may be linked. Contractor expressly releases ServiceChannel of any liability related to a Customer’s or other third party’s election to decline or discontinue conducting any transactions with Contractor.
5. Fees and Payment for the Services.
(i) General Terms. Contractor may post to the Services information about fees or other amounts due to Contractor from a Customer for services or materials provided to, or to be provided to, such Customer (a “Contractor Invoice”), which ServiceChannel will then make available for such Customer’s review using the Services. For each Contractor Invoice approved by a Customer through the Services, Contractor agrees to pay to ServiceChannel the lesser of (a) one percent (1%) of the total fees and other amounts included in such Contractor Invoice or (b) one dollar ($1.00). Contractor agrees that Contractor’s use of the Services is subject to the foregoing transaction fees and any other applicable fees mutually agreed upon by the Parties through the Services. Any modification of or addition to the existing Services may be subject to additional charges, which shall be clearly identified and agreed upon by the Parties through the Services. If any sum due from Contractor to ServiceChannel under this Agreement is not paid within thirty (30) days after the due date, in addition to any other remedies available to ServiceChannel, ServiceChannel may suspend access to the Services, in whole or in part, until ServiceChannel receives payment of the sum due. All amounts payable under this Agreement shall be paid in full without set-off, deduction or other withholding of any amount that may be due to Contractor. All Contractor payment obligations hereunder are non-cancelable, and fees hereunder paid by Contractor are non-refundable.
(ii) Additional Terms applicable to Service Automation. Within five (5) days of the date on which a Listed Contractor/Supplier posts a Contractor Invoice to the Services for services or materials provided by such Contractor to a Customer who participates in Service Automation, such Customer shall approve or reject such Contractor Invoice. If such Customer does not so expressly approve or reject such services or materials within such five- (5-) day period, such services or materials shall be deemed approved by Customer.
b. Payment. ServiceChannel may, in its sole discretion, agree to allow Contractor to pay fees by debit or credit card. Contractor is responsible for providing complete and accurate billing and contact information to ServiceChannel and notifying ServiceChannel of any changes to such information. If Contractor will pay by debit or credit card, Contractor agrees to provide ServiceChannel with an authorized credit card name, number and date of expiration and proper debit authorization for purposes of allowing ServiceChannel to charge the applicable account to collect fees due under this Agreement. By authorizing ServiceChannel to charge a credit or debit card, Contractor is authorizing ServiceChannel or its designated representatives or agents to automatically continue charging that card (or any replacement credit card account if the original card is renewed, lost, stolen or changed for any reason by the credit-issuing entity, and such entity informs ServiceChannel of such new replacement card account) until this Agreement is terminated and all fees are paid in full. If Contractor’s debit or credit card fails to validly pay the fees due to ServiceChannel, ServiceChannel may, in its sole discretion without limiting ServiceChannel’s other rights or remedies, (i) accelerate Contractor’s unpaid fee obligations through the remaining applicable payment term(s) of any applicable Services provided hereunder (or as mutually agreed upon through the Services) so that all such obligations become immediately due and payable and (ii) terminate or suspend Contractor’s access to the Services, in whole or in part.
If the Parties agree through the Services that ServiceChannel will remit applicable fees or other amounts included an applicable Contractor Invoice to Contractor on behalf of an applicable Customer, Contractor acknowledges and agrees that ServiceChannel may deduct any fees or other amounts due under this Agreement (or otherwise agreed to between the Parties through the Services) from such remittance without any further authorization of such deduction by Contractor. Contractor will use the Services to promptly provide to ServiceChannel and keep updated any and all Contractor payment account information and other information requested by or on behalf of ServiceChannel or required to enable ServiceChannel, its agents or subcontractors to issue valid ACH instructions for any such remittance, including without limitation information regarding Contractor’s applicable account(s) with a financial institution and applicable ACH or EFT instructions.
c. Invoicing. ServiceChannel will post invoices through the Services. Unless paid by credit or debit card, Contractor shall pay all invoices within thirty (30) days of the date of the applicable invoice. ServiceChannel reserves the right, without limiting ServiceChannel’s other rights or remedies, to assess late interest at the rate of one and one-half percent (1.5%) of the outstanding balance or the highest amount allowed by law, whichever is lower, per month if payment is more than thirty (30) days past due and to use any lawful means to collect any unpaid charges, at Contractor’s expense. ServiceChannel may also assign such unpaid balances to a collection agency for collection and, if legal action is taken, to collect on such balances, and Contractor agrees to reimburse ServiceChannel for all expenses incurred to recover such fees, including attorneys’ fees and other expenses.
d. Payment Disputes. If Contractor notifies ServiceChannel of a payment dispute within ten (10) days of receipt of the applicable invoice, is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, ServiceChannel will not exercise its rights under Section 5(b) to assess late interest or with respect to collection actions or Section 5(c) to terminate or suspend the Services. If a dispute is not raised within such period, an invoice shall be deemed to have been constructively accepted by Contractor.
e. Taxes. ServiceChannel’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Contractor is responsible for paying all Taxes associated with Contractor’s payment and/or sale of products or services hereunder.
6. Intellectual Property Rights.
a. Content. For purposes of this Agreement, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics and interactive features generated, provided or otherwise made accessible on or through the Services, including all User Content and Contractor Content (as defined below). Content added, created, uploaded, submitted, distributed or posted to the Services by users (collectively, “User Content”) is the sole responsibility of the person or entity who originated such User Content, including any User Content provided by or for Contractor (“Contractor Content”). Contractor represents, warrants and covenants that (i) all Contractor Content will be legal, true, accurate, complete and current, (ii) it has sufficient rights to provide and use Contractor Content, (iii) Contractor Content and Contractor’s provision thereof do not violate this Agreement, any contractual obligations of Contractor or any third-party rights and (iv) Contractor is responsible for and assumes all risks in connection with Contractor Content and the provision thereof, including any personal information contained therein.
c. Compliance with Laws and Third-Party Rights. When using the Services, including but not limited to when publishing the Catalog or providing Content on the Services, Contractor represents, warrants and covenants that it shall (i) at all times comply with applicable laws, regulations, statutes and ordinances, (ii) not infringe the intellectual property or any other rights of third parties and (iii) not transmit any viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful programming routines (“Malicious Code”). Contractor undertakes to only use the Platform or the Services in a way that does not have any negative or damaging effect on the Platform or the Services.
d. Ownership. Subject to the terms and conditions of this Agreement, all right, title and interest to Contractor Content posted to the Services or made available to ServiceChannel pursuant to this Agreement shall remain the property of Contractor or its licensors. Notwithstanding the foregoing, ServiceChannel shall have the right to use service transaction data provided by Contractor or Customers through the Services and to compile, use, distribute, copy, incorporate, report on, create derivatives of and otherwise benefit from Anonymous Data for ServiceChannel’s business purposes, including but not limited to assessing the operation and organizational effectiveness of the ServiceChannel website or Services (including benchmarking, performance and usage), for use in ServiceChannel’s existing or future products or services and marketing, internal or external reporting and/or management purposes, and any other rights to use or otherwise benefit from Contractor Content as agreed to by Contractor through the Services. “Anonymous Data” means data submitted to or collected or generated by ServiceChannel in connection with use of the Services by Contractor, Customers or customers, but only in anonymized form that is not linked specifically to Contractor.
e. Platform. All right, title and interest (including all intellectual property rights) in, to or connected with the Platform, the Services or any related software, documentation or information, in whole or in part, shall remain the exclusive property and Confidential Information of ServiceChannel or its third-party licensors. ServiceChannel will retain all right, title and interest (including all intellectual property rights) in, to and relating to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Contractor or any third party relating to the Platform, the Services or any related software, which Contractor hereby irrevocably assigns to ServiceChannel. Contractor agrees not to use or share any ServiceChannel Confidential Information (as defined below) except as expressly authorized by ServiceChannel.
f. License to Services. Subject to the terms and conditions of this Agreement and any applicable documentation or policies posted on the Services, ServiceChannel hereby grants to Contractor a nonexclusive, nontransferable, non-sublicensable, revocable, limited license to access and utilize the Platform, Services and ServiceChannel Content solely for its internal business purposes to facilitate the sale of goods or services to potential or existing Customers. All rights not expressly granted to Contractor hereunder shall remain at all times with ServiceChannel. “ServiceChannel Content” means materials developed or provided by or for ServiceChannel under this Agreement, or used on, to or in connection with, or to create or operate, the Services or any part thereof, including but not limited to any computer software (in object code and source code form), data or information (including data and information about potential or existing Customers), know-how, methodologies, equipment or processes and all copyrights, trademarks, patents and trade secrets and any other intellectual property or proprietary rights therein, excluding any Contractor Content.
7. Security. ServiceChannel will provide Contractor with a unique user ID and login information (“Credentials”) to access the Services. Contractor may appoint and authorize end users to access and use the Services as instructed by Contractor or on Contractor’s behalf (“End Users”), provided that Contractor requires each End User to agree to accept this Agreement for the benefit of ServiceChannel in advance of and as a condition to such End User’s use of Credentials. Contractor is responsible for maintaining the security and the confidentiality of the Credentials, and is solely and fully liable for all Contractor and End User activities occurring under the Credentials and on the Services, with or without Contractor’s knowledge or consent, including use by any third party, whether or not authorized by Contractor. For any instruction, communication, Content or other information ServiceChannel receives from someone using Credentials, ServiceChannel is entitled to consider such transmission as having been sent by Contractor and/or its End Users. In addition, Contractor agrees that ServiceChannel, in its sole discretion, may, upon thirty (30) days’ notice, require new connectivity standards to access the Services. Contractor will notify ServiceChannel immediately of any unauthorized use of Credentials.
8. Usage Restrictions. Contractor agrees, on behalf of itself and each of its End Users, affiliates and subsidiaries and any third party parties acting for or on Contractor’s behalf, to comply with the terms and conditions set forth in this Agreement. Contractor acknowledges and agrees that it is responsible and liable for any actions of any of the foregoing persons or entities that are taken at the direction or otherwise on behalf of Suppler in connection with this Agreement. Any use, access, storage or distribution of or other act with respect to the Services by Contractor not expressly authorized by ServiceChannel under this Agreement or otherwise by ServiceChannel through the Services is prohibited.
9. Service Availability and Modifications. ServiceChannel may at any time vary or modify the Platform or the Services in such a manner as it may see fit in its sole discretion. ServiceChannel may, in its sole discretion, terminate or suspend the access to the Services, in whole or in part, by any Contractor or any End User for any reason that ServiceChannel deems appropriate without incurring any liability in connection therewith.
10. Confidential Information. Each Party agrees that the business, technical and financial information, including without limitation the Platform, the Services, software, source code, inventions, algorithms, know-how, ideas and the terms and conditions of this Agreement, that is designated in writing as confidential or disclosed in a manner from which a reasonable person would understand the confidential nature thereof shall be deemed the confidential property of the disclosing Party and its licensors (“Confidential Information”). Confidential Information does not include information that (i) is previously rightfully known to the receiving Party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving Party, (iii) is disclosed to the receiving Party by a third party without breach of any separate nondisclosure obligation or (iv) is independently developed by the receiving Party. Except as expressly and unambiguously allowed herein, the receiving Party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, independent contractors and clients in writing. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing Party in industry standard format, and the receiving Party will make no further use of such materials, except to the extent that such Party has a continuing right to such materials herein. If required by law, the receiving Party may disclose Confidential Information but will give adequate prior notice of such disclosure to the disclosing Party to permit such Party to intervene and request protective orders or other confidential treatment therefor. Money damages will not be an adequate remedy if this Section 10 is breached; therefore, in addition to any other legal or equitable remedies, either Party may seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. Except as expressly provided in this Agreement, Contractor and End Users will not disclose any information (including any personally identifiable information) of or about any other user of the Services (including Customers) to any third party without ServiceChannel’s and such user’s prior written consent. Contractor acknowledges that ServiceChannel does not wish to receive any Confidential Information from Contractor that is not necessary for ServiceChannel to perform its obligations under this Agreement, and unless the Parties specifically agree otherwise, ServiceChannel may reasonably presume that any unrelated information received from Contractor is not Confidential Information.
11. Terms and Termination.
a. Term of Agreement. This Agreement shall commence on the date on which Contractor agrees to this Agreement in accordance with its terms and shall continue until terminated in accordance herewith.
b. Term of Subscriptions to the Services. Except as otherwise specified in documentation applicable to the Services, subscriptions to Services will automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter) unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.
c. Termination. Either Party may terminate this Agreement for any reason or no reason whatsoever after providing the other Party with at least thirty (30) days’ written notice. ServiceChannel may, in whole or in part, immediately terminate this Agreement and suspend Contractor’s access to the Platform, Services or processing of any pending or future transaction documents between Contractor and any Customers or payments pursuant to Section 4 of this Agreement in the event that (i) Contractor materially breaches its obligations under this Agreement and such breach remains uncured after ten (10) days’ notice thereof or (ii) ServiceChannel reasonably believes that Contractor has or will suspend its business activities, become insolvent or subject to bankruptcy, insolvency or any other proceeding relating to Contractor’s insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition to any of the other remedies available to ServiceChannel under the Agreement or applicable law, ServiceChannel may terminate Contractor’s right to use the Services to invoice Customers immediately upon written notice if ServiceChannel becomes aware that Contractor’s use thereof constitutes (or is likely to constitute) a breach of Customer’s obligations under the Agreement or otherwise violates (or is likely to violate) any applicable law, rule, regulation or contractual obligation of Contractor (including under any Purchase Contract).
d. Effect of Termination. Upon termination, Contractor’s access to the Platform and the Services will be suspended and Contractor shall immediately pay in full all outstanding fees covering the remainder of the term of any applicable then-current subscription hereunder or otherwise mutually agreed to through the Services. Contractor shall not be entitled to a refund of any fees. After termination of this Agreement for any reason, ServiceChannel will have no further obligation to provide Contractor with the Services or access thereto. Upon such termination, all licenses and other rights granted by this Agreement will immediately cease, but Contractor’s licenses granted to ServiceChannel shall survive. Contractor’s payment obligations hereunder and [Sections 3, 4, 6(a) through 6(e) and 7 through 15 of this Agreement and the Acceptable Use Policy shall survive such termination.
a. General. Contractor warrants that: (i) all of its authorized representatives and End Users have authority to act on behalf of and bind Contractor; (ii) Contractor products and services provided to Customers pursuant to Work Orders, Contractor’s provision of such products and services, the Contractor Content and the Catalog do not misappropriate, infringe or violate any third party’s rights or violate any applicable law, statute, ordinance or regulation or contain any Malicious Code; (iii) Contractor has validly entered into, and has the requisite authority to enter into, this Agreement; and (iv) Contractor has sufficient rights to fulfill its obligations and grant the licenses hereunder.
b. Price Data. ServiceChannel assumes no liability for the input of any User Content, Contractor Content or the Catalog or any information included therein, including information related to Contractor fees or pricing (“Price Files”). Contractor shall remain solely and fully responsible in this regard and acknowledges that ServiceChannel is not involved in this process and disclaims any liabilities arising therefrom or in connection therewith. Contractor further agrees to hold ServiceChannel harmless without fault or liability whatsoever from any claims, damages, liabilities, costs or expenses relating to any errors or omissions in Price Files, whether or not competitors or other third parties consequently gain access or become aware of any information contained in Price Files, Contractor Content or the Catalog. In the event of a dispute at law or in equity related to the foregoing, the burden of proof in this regard shall rest entirely with Contractor. Subject to ServiceChannel’s rights to use Anonymous Data under Section 6(d), ServiceChannel further agrees that all information at its disposal that is contained in the Price Files of Contractor shall be regarded as Confidential Information hereunder.
c. Disclaimer. EXCEPT AS EXPLICITLY PROVIDED OTHERWISE HEREIN, THE SERVICES, THE PLATFORM AND ALL SOFTWARE, INFORMATION, CONTENT AND MATERIALS INCLUDED IN OR RELATED TO THE FOREGOING, ARE PROVIDED “AS IS.” EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SERVICECHANNEL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OR COMPLETENESS OF DATA, QUALITY OF SERVICE, TIMELINESS, RELIABILITY, AVAILABILITY AND SUITABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICECHANNEL DOES NOT WARRANT THAT THE PLATFORM, SERVICES OR ANY CONTENT WILL BE UNINTERRUPTED, ERROR- OR VIRUS-FREE. SERVICECHANNEL DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY INTERNET SERVICE OR HOSTING PROVIDERS.
13. Indemnification. Contractor shall defend, indemnify and hold harmless ServiceChannel and each of its respective officers, directors, members, agents, and employees from and against all losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees, incurred by any of them arising out of or resulting from (a) any breach by Contractor of this Agreement or violation of applicable law; (b) any activity occurring using Credentials, whether by Contractor or any other person accessing the Service with such Credentials; (c) Contractor’s violation of any third-party right, including without limitation any patent, copyright, property or privacy right; (d) the Catalog or Contractor Content or (e) any transaction or arrangement with any Customer or other third party, any agreement entered into by and between Contractor and a Customer or any other third party (including any Purchase Contracts) or any representation, warranty, or breach of, or covenant made by Contractor, Customers or other third parties thereunder. ServiceChannel reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Contractor, in which event Contractor will assist and cooperate with ServiceChannel in asserting any available defenses. This Section 13 will survive any termination of this Agreement or Contractor’s use of or access to the Services.
14. Limitation of Liability. SERVICECHANNEL (TOGETHER WITH ITS AGENTS, OFFICERS, AFFILIATES, CONTRACTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO CONTRACTOR (I) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FROM HARM TO BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS (ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME, INJURY TO PERSONS, DAMAGES TO PROPERTY OR THIRD-PARTY CLAIMS) (II) IN ANY CASE FOR AN AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY CONTRACTOR TO SERVICECHANNEL DURING THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF ANY ALLEGED DAMAGE, IN EACH CASE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND OTHER THEORY OF LIABILITY AND REGARDLESS OF NOTICE TO A PARTY OR ANY FAILURE OF ESSENTIAL PURPOSE.
a. Notices. All notices shall be in writing and be delivered in person, by overnight courier service, or mailed by first class or registered mail to the respective office (or as otherwise identified by ServiceChannel) at the address first set forth herein or as amended by notice pursuant to this subsection and shall be deemed to have been given upon receipt.
b. Governing Law and Jurisdiction. This Agreement shall be governed solely in accordance with the laws of the state of New York, excluding both its conflict of law principles and the UN Convention for the International Sales of Goods, and the United States of America. Any dispute, action, suit or proceeding arising from or related to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York. In any action or proceeding to enforce rights hereunder, the prevailing Party is entitled to recover costs and reasonable attorney’s fees from the other Party.
c. Entire Agreement and Severability. This Agreement is the entire agreement between the Parties with respect to the Services, including use of the Platform, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the Parties with respect to the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation.
d. No Waiver. ServiceChannel’s failure to enforce any part of these Terms & Conditions shall not constitute a waiver of its right to later enforce that or any other part of these Terms & Conditions. Waiver of compliance in any particular instance does not mean that ServiceChannel will waive compliance in the future. In order for any waiver of compliance with these Terms & Conditions to be binding, ServiceChannel must provide Contractor with written notice of such waiver through one of ServiceChannel’s authorized representatives
e. Assignment. This Agreement is personal to Contractor and is not assignable, transferable or sublicensable by Contractor except with ServiceChannel’s prior written consent. ServiceChannel may assign, transfer or delegate any of its rights or obligations hereunder, in whole or in part, without consent.
f. Force Majeure. ServiceChannel shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including without limitation mechanical, electronic or communications failure or degradation, whether in connection with the Services or any services or products of any third parties, including without limitation any third-party payment processors.
g. Relationships of Parties. The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
h. Publicity. Subject to the terms and condition of this Agreement, each Party hereby grants to the other Party a limited, nonexclusive, worldwide (solely in the case of Contractor as licensee, revocable, limited to the term of this Agreement, non-transferable, non-sublicensable, and solely in the case of ServiceChannel as licensee, perpetual, transferable, sublicensable) license to use, during the term of this Agreement, its respective trademarks, trade names, service marks and logos (collectively, “Marks”) on such other Party’s respective websites, in mutually agreed-upon collateral sales materials solely in furtherance of this Agreement or as otherwise mutually agreed upon in writing or through the Services. Each Party will only use and display the other Party’s Marks in accordance with the applicable guidelines provided by such other Party. Each Party will ensure that any trademark and copyright notices required in accordance with such guidelines are displayed at all times with the Marks, including any such use or display on the other Party’s website. Neither Party may adopt any Mark that is confusingly similar to the other Party’s Marks.
i. Modification. ServiceChannel reserves the right, in its sole discretion, to modify or replace any of these Terms & Conditions, or change, suspend or discontinue the Services (including without limitation, the availability of any feature, database or content) at any time by posting a notice on the Platform or by sending Contractor notice through the Services, via e-mail or by another appropriate means of electronic communication. ServiceChannel may also impose limits on certain features and services or restrict Contractor’s, any Customer’s or any third party’s access to parts or all of the Services without notice or liability. While ServiceChannel will timely provide notice of modifications, it is also Contractor’s responsibility to check these Terms & Conditions periodically for changes. Contractor’s continued use of the Services following notification of any changes to these Terms & Conditions constitutes acceptance of those changes.
Contact: Contractor may contact ServiceChannel at the following address: ServiceChannel.com, Inc., 18 East 16th Street, New York, NY 10003
Effective Date of Terms & Conditions: November 1, 2015
ACCEPTABLE USE POLICY
1. Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms & Conditions are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms & Conditions or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
2. Registration. To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request submitted to firstname.lastname@example.org.
Rules of Conduct.
a. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms & Conditions. You are responsible for all of your activity in connection with the Services.
b. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any of your Content, that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
ii. you know is false, misleading, untruthful or inaccurate;
iii. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
iv. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
v. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
vi. impersonates any person or entity, including any of our employees or representatives; or
vii. includes anyone’s identification documents or sensitive financial information.
c. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
d. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
e. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms & Conditions, including investigation of potential violations hereof, (iii) detect, prevent or otherwise address fraud, security or technical issues, (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public.
4. Free Trials and Other Promotions. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at email@example.com.