If Company is a party to a separate signed contract between Company and Broadleaf governing Company’s use of services, such signed agreement controls the terms of such services. The following Professional Services Terms & Conditions (these “Terms”) govern the services provided by Broadleaf to its customers in situations where there is no separate signed contract between Company and Broadleaf governing use of services.
| 1.1 |
"Confidential Information" means information or materials provided by one party (the “Discloser”) to the other (the “Recipient”) which are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and a reasonable person would understand the information or materials to be confidential; subject to the exclusions in Section 3.2 The following information shall be considered Confidential Information whether or not marked or identified as such: (i) the terms of a Service Order; (ii) for Broadleaf, its product roadmaps, source code, formulae, processes, methodologies, release dates, feature sets, and strategic business plans; and (iii) for Company, its architecture, customer data, and strategic business plans. |
| 1.2 |
"Services" means those services provided by Broadleaf to Company as delineated in a Service Order. |
| 1.3 |
"Company" means the person or entity acquiring Services from Broadleaf. |
| 1.4 |
"Company Materials" means any and all materials or Technology that Company provides to Broadleaf that are required for Broadleaf to complete the Deliverables. Company Materials shall not be included in the Deliverables, unless necessary to perform the applicable Services. |
| 1.5 |
"Deliverables" means the work product from the Services that Broadleaf performs pursuant to a Service Order and any Prior Technology incorporated therein. |
| 1.6 |
"Derivative Work" means a derivative work within the meaning of the U.S. copyright and other intellectual property laws. |
| 1.7 |
"Intellectual Property Rights" means (by whatever name or term known or designated) copyrights, trade secrets, trademarks, patents, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals and extensions of such rights. |
| 1.8 |
"Prior Technology" means any and all Technology incorporated into the Deliverables that is developed or otherwise created by or on behalf of Broadleaf or licensed by Broadleaf, and which may be improved or modified in the course of developing the Deliverables. |
| 1.9 |
"Service Order" means any Statement of Work, services data sheet, or other document specifically incorporating these Terms pursuant to which Broadleaf is providing services to Company. |
| 1.10 |
"Technology" means algorithms, approaches, code, concepts, data, designs, developments, documentation, discoveries, expressions, inventions, know how, methodologies, multi-media files, object codes, processes, programs, skills, software, techniques, technology, text, tools, and web pages. |
| 1.11 |
"Broadleaf" means Broadleaf Commerce, LLC, a Texas limited liability company, with offices located at 15303 Dallas Parkway, Suite 470, Addison, TX 75001 USA. |
| 2.1 |
Proprietary Rights. All Intellectual Property Rights and all software, Prior Technology, and Deliverables developed or provided by Broadleaf are and remain Broadleaf property (“Broadleaf Proprietary Works”). All written reports, analyses and other working papers delivered by Broadleaf to Company in the performance of Broadleaf’s obligations under a Service Order (“Document Work Product”), subject to and exclusive of any Broadleaf Intellectual Property Rights and Prior Technology embodied therein, belong to Company. Nothing herein shall preclude Broadleaf from developing, using or marketing services or materials that are similar or related to such Document Work Product. |
| 2.2 |
Company Furnished Materials. Any tangible Company Materials furnished for use by Broadleaf remain Company property. |
| 2.3 |
Work Product License. Upon Company’s payment in full for Deliverables, and to the extent that Broadleaf Proprietary Works are contained in the Deliverables, Company is licensed to (i) use such Broadleaf Proprietary Works internally, for the limited purpose for which the Deliverables were provided, on a non-exclusive, non-transferable, without rights to sublicense, royalty-free, worldwide basis, and (ii) make, for internal use only, a reasonable number of copies of the original Document Work Product in amounts reasonably necessary for Company’s use. Company shall not sublicense or otherwise transfer to any third party any Broadleaf Proprietary Works. Other than as specifically provided herein, Company may not modify, alter, decompile, disassemble, reverse-engineer, or create Derivative Works from the Deliverables. |
| 2.4 |
Software License. If Company is granted a license to use software solely in conjunction with a Service Order ("Project License"); such shall consist solely of a non-exclusive, non-transferable, and without rights to sublicense right to use such software only in direct connection with such Service Order. The term of the Project License shall start on delivery of the software and expire upon the completion of Services in such Service Order. |
| 2.5 |
Broadleaf License. Company hereby grants to Broadleaf a non-exclusive, worldwide, perpetual, personal, royalty-free, non-transferable (except for entities controlling, controlled by, or under common control with Broadleaf) license under Company’s Intellectual Property Rights in the Company Materials necessary for Broadleaf to use, make, copy, modify, and create Derivative Works of the Company Materials, for the purpose of developing and testing the Deliverables. |
| 2.6 |
Feedback. Any suggestions and feedback contributed by Company, at its discretion, to Broadleaf in connection with development of Broadleaf Proprietary Works are transferred to and owned by Broadleaf; or if transfer of ownership is not allowed, licensed by Company to Broadleaf on a non-exclusive, worldwide, perpetual, personal, and royalty-free basis. |
| 3.1 |
If Company and Broadleaf are parties to a separate Non-Disclosure Agreement or other agreement governing confidentiality, then its terms control over this Section 3. In lieu of such agreement, the terms of this Section 3 control. |
| 3.2 |
Confidential Information does not include any specific information which: (i) is or becomes publicly known through no wrongful act or failure to act on the part of Recipient; (ii) is furnished to others by Discloser without similar restrictions on further disclosure; (iii) was known to the Recipient without proprietary restrictions at the time of disclosure by Discloser or becomes rightfully known to the Recipient without proprietary restrictions from a source other than Discloser; (iv) is independently developed by Recipient without reference to the Confidential Information disclosed by Discloser; or (v) is disclosed by order of law, provided that Recipient shall use reasonable efforts to preserve confidentiality and that Discloser shall be given reasonable opportunity to obtain a protective order; provided, however, that only the specific information that meets the above exclusions shall be excluded, and not any other information that happens to appear in proximity to such excluded portions (for example, a portion of a document may be excluded without affecting the confidential nature of those portions that do not themselves qualify for the exclusion). |
| 3.3 |
The Recipient shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except to exercise its rights and perform its obligations under a Service Order or in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information; provided, however, each party may disclose Confidential Information without the prior written consent of the other party in the following limited circumstances: (i) to the limited extent required by any court, administrative agency, or other governmental body, but only if the receiving party provides prompt written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure; (ii) to the limited extent otherwise required by law; or (iii) to the party’s own legal counsel. |
| 3.4 |
Recipient shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable. |
| 3.5 |
Without limiting the foregoing, the restrictions on disclosure and use set forth herein shall not restrict or limit the right of the Recipient to (i) independently design, develop, acquire, market, service or otherwise deal in, directly or indirectly, products or services competitive with those of the Discloser; or (ii) assign personnel for any purpose, provided that Recipient does not violate its obligations under this Agreement while undertaking (i) or (ii). |
| 3.6 |
Recipient shall protect Confidential Information in the manner provided herein for three (3) years after receipt thereof, unless such obligation ceases earlier pursuant to Section 3.2. |
| 4.1 |
Broadleaf Warranty. Broadleaf warrants that the Consulting Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. Company must notify Broadleaf of any failure to so perform within ten (10) days following the commencement of the Acceptance Period (as defined below). Broadleaf’s entire liability and Company’s sole remedy for Broadleaf’s failure to so perform shall be for Broadleaf to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate a Service Order and refund that portion of any fees received that correspond to such failure to perform. |
| 4.2 |
Company Warranty. Company hereby represents and warrants that it either owns or has the rights to all Company Materials it provides to Broadleaf necessary to grant the rights and licenses granted by Company to Broadleaf hereunder. Company further warrants that it has the ability to pay for all Services. |
| 4.3 |
Disclaimer of Additional Warranties. THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE CONSULTING SERVICES AND DELIVERABLES, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM, AND BROADLEAF DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BROADLEAF WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICES OR PRODUCTS IDENTIFIED OR REFERRED TO COMPANY BY BROADLEAF. |
| 4.4 |
Indemnity. Broadleaf shall (i) defend Company against any third party claim that: (y) the Deliverable or Service infringes a patent, trademark, trade secret or copyright under the laws of a Covered Country; or (z) Broadleaf’s gross negligence or willful acts resulted in the death, disability or damage or real property of such third party; and (ii) pay the resulting costs and damages finally awarded against Company by a court of competent jurisdiction or the amounts stated in a written settlement negotiated by Broadleaf. For purposes of this Section, “Covered Country” means a country in which Broadleaf offices are located, the United States of America, Mexico, Canada, the European Union, Japan, Australia, and South Korea. The foregoing obligations are subject to the following: Company (a) notifies Broadleaf promptly in writing of such claim; (b) grants Broadleaf sole control over the defense and settlement thereof; (c) reasonably cooperates in response to a Broadleaf request for assistance; and (d) is not in material breach of this Agreement. Should any such Deliverable or Service become, or in Broadleaf’s opinion be likely to become, the subject of such a claim, Broadleaf may, at its option and expense, (1) procure for Company the right to make continued use thereof; (2) replace or modify such so that it becomes non-infringing; (3) request return of the Deliverable and, upon receipt thereof; pay an amount equal to the price paid by Company, less straight-line depreciation based on a three (3) year useful life for such Deliverable; or (4) discontinue the Service and refund the portion of any pre-paid Service Fee that corresponds to the period of Service discontinuation. Broadleaf shall have no liability to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of Deliverable or Service with any third party products or services; (B) use for a purpose or in a manner for which the Deliverable or Service was not designed; (C) any modification made by any person other than Broadleaf or its authorized representatives; (D) any modifications to Deliverable or Service made by Broadleaf pursuant to Company’s specific instructions; (E) any technology owned or licensed by Company from third parties; or (F) use of any older version of the Deliverable when use of a newer version of the Deliverable made available to Company (under the same terms as Broadleaf makes such release generally available to its customers) would have avoided the infringement. Company will indemnify Broadleaf and, at its option, defend any action brought against Broadleaf to the extent that it is based upon a third party claim arising out of (i) the unauthorized or unlicensed use of a Project License, combination of the Deliverable with any third party product to the extent that such claim would have been avoided but for combination therewith, or violation of export laws; (ii) Company’s Materials violation of a third party’s intellectual property rights, or privacy rights; (iii) Company’s gross negligence or willful acts resulting in the death, disability or damage or real property of such third party; or (iv) Broadleaf’s compliance with Company’s designs, specifications, or instructions where such claim would have been avoided but for such compliance with Company’s request, and will pay any costs, damages and reasonable attorneys' fees attributable to such claim that are awarded against Broadleaf, provided that Broadleaf (a) notifies Company in writing of the claim promptly after becoming aware of such claim; (b) grants Company sole control of the defense and settlement of the claim, if Company assumes such defense; and (c) provides Company with all assistance, information and authority reasonably required for the defense and settlement of the claim. THIS SECTION STATES THE NON-INFRINGING PARTY’S SOLE AND EXCLUSIVE REMEDY AND THE INFRINGING PARTY’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS. |
| 4.5 |
Limitation. EXCEPT FOR A PARTY’S OBLIGATION OF INDEMNITY OR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF, UNDER A SERVICE ORDER. EXCEPT FOR A PARTY’S OBLIGATION OF INDEMNITY OR BREACH OF CONFIDENTIALITY, A PARTY’S TOTAL LIABILITY UNDER A SERVICE ORDER SHALL NOT EXCEED THE FEES PAID FOR THE SERVICES AND DELIVERABLES PROVIDED BY BROADLEAF UNDER SUCH SERVICE ORDER. |
| 6.1 |
Payment.Broadleaf will provide the Services as outlined in a Service Order for i) a fixed price or ii) a time and materials price described therein, plus applicable taxes and travel expenses. Invoicing occurs upon Company acceptance of each milestone or timesheet (as is applicable), or approval of travel expenses, and must be paid by Company within thirty (30) days of the date of invoice. In the event Company uses pre- purchased Broadleaf Consulting and Training Credits as means of payment, upon acceptance of Deliverables, timesheets, or travel expenses, the Broadleaf Consulting & Training Credits will be deducted from the Company’s balance. It shall be the Company’s responsibility to ensure that its purchase order (“PO”) issued to Broadleaf for the Services reflects the pricing set forth in a Service Order. Once a PO from Company has been fulfilled by Broadleaf, Broadleaf shall have no liability for any pricing in Company’s PO which is inconsistent with the pricing set forth in a Service Order. Company agrees that POs do not have to be signed to be valid and enforceable. Subject to these Terms, all fees are non-refundable.
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| 6.2 |
Taxes.All charges and fees provided for in a Service Order are exclusive of any taxes, duties, or similar charges imposed by any government. Company shall pay or reimburse Broadleaf for all federal, state, dominion, provincial, or local sales, use, personal property, withholding, excise or other taxes, fees, or duties arising out of a Service Order or the transactions contemplated by a Service Order (other than taxes on the net income of Broadleaf). If Company is required to pay any withholding tax, charge or levy in respect of any payments due to Broadleaf hereunder, Company agrees to gross up payments actually made such that Broadleaf shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
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| 6.3 |
Late Payments.All amounts that are not paid by Company as required by a Service Order shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any fee is overdue, Broadleaf may also suspend provision of the Services until such delinquency is corrected.
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| 6.4 |
Currency.All charges and fees provided for in a Service Order shall be in US Dollars unless otherwise agreed.
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| 6.5 |
Cancellation.A minimum of fifteen (15) business days’ written notice is required for rescheduling or canceling a Service Order prior to the commencement of the Services. A full refund less any expenses (e.g., airfare) will be provided if such notice is given. Broadleaf reserves the right to charge Company the entire amount if a Service Order is canceled with less than such notice.
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Service Orders will generally be in full force and effect until (i) Company’s acceptance of the final Deliverable or submission of final timesheet, or (ii) Broadleaf and Company mutually terminate a Service Order in writing. Sections 1, 2, 3, 4, 6, 7, and 8 will survive termination or expiration of a Service Order.
| 8.1 |
No Assignment.A Service Order and any rights or obligations of Company under it may not be assigned, subcontracted or otherwise transferred by Company, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Broadleaf, which consent will not be unreasonably withheld. Subject to the foregoing, a Service Order will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. |
| 8.2 |
Independent Contractors.The relationship of Broadleaf and Company established by a Service Order is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority. Company shall make no representations or warranties on behalf of Broadleaf with respect to the Services and/or Deliverables. |
| 8.3 |
No Warranties.No employee, agent, representative or affiliate of Broadleaf has authority to bind Broadleaf to any oral representations or warranty concerning the Deliverables. Any written representation or warranty not expressly contained in a Service Order will not be enforceable. |
| 8.4 |
Governing Law; Venue.With respect to Services to be provided in North America: (i) the laws of the State of New York, USA, excluding its conflict of law rules, will govern all Service Orders; and (ii) the parties consent to the exclusive jurisdiction of the state and federal courts of New York County, New York. With respect to Services to be provided outside North America, the laws of England and Wales, excluding its conflict of law rules, will govern all Service Orders. |
| 8.5 |
Equitable Relief.Each party acknowledges and agrees that in the event of a breach of Section 2 or Section 3, the non-breaching party shall be entitled to seek immediate injunctive relief in addition to whatever remedies it might have at law or under these Terms. |
| 8.6 |
Force Majeure.Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of a Service Order if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, natural disaster, fire and explosions, or any other events reasonably beyond the control of either party, but the inability to meet financial obligations is expressly excluded. |
| 8.7 |
Export Control.The Services, Deliverables, and any software provided to Company hereunder are of United States origin and are provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, Company agrees that (i) it is not, and is not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (ii) it is not, and is not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (iii) it will not use the Services, Deliverables, and software for, and will not permit the Services, Deliverables, and software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. |
| 8.8 |
End User License Agreement.In the event the Services involve software products licensed to Company under a separate license agreement, unless otherwise provided herein, the terms set out in such separate license agreement shall apply with respect to each such software product. |
| 8.9 |
Acknowledgment.Unless otherwise expressly and specifically stated in a Service Order that also addresses the Intellectual Property Right in such software, Company acknowledges that the Services set forth in a Service Order do not include significant production, modification or customization of Broadleaf licensed software. |
| 8.10 |
Security Clearance.Company acknowledges that if any security resource requirements are required for the Services pursuant to a Service Order, Company will issue the appropriate security specifications and/or clearance requests to Broadleaf. |
| 8.11 |
Counterparts.Service Orders may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. Service Orders may be executed and delivered by facsimile or in electronic format in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN). |
| 8.12 |
Severability.If any provision in a Service Order is found to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to affect the intent of the parties, and the remaining provisions of a Service Order will remain in full force and effect. |
| 8.13 |
Notices.Any notice required or permitted under the terms of a Service Order or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth herein. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, five (5) business days after deposit in the mail as set forth above, or two (2) days after delivery to an overnight air courier service. All notices shall be directed to Company to the address set forth in the Service Order, and to Broadleaf at the address in the definition of Broadleaf, Attn: Legal Department. |
| 8.14 |
Non-solicit.During the Term of the Agreement and for one (1) year thereafter, neither party may offer employment to, employ or subcontract work to any person employed then or within the preceding six (6) months of this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld. This Section will not prohibit a general solicitation of employment in the ordinary course of business or prevent either party from employing any employee who contacts it as a result of such a general solicitation or at his or her own initiative without any direct or indirect solicitation by or encouragement from such party. Furthermore, this provision shall only be enforceable to the extent it would not conflict with applicable law. |
| 8.15 |
Entire Agreement.A Service Order (including its Exhibits) together with these Terms constitutes the entire agreement between the parties with respect to the subject matter thereof and, with respect to such subject matter, supersedes all previous communications, representations, understandings and agreements, either oral or written. A Service Order may not be amended except in a written document signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Company may issue to Broadleaf in connection with a Service Order will have any effect on, or otherwise modify, the rights, duties or obligations of the parties under a Service Order, regardless of any failure of Broadleaf to object to such terms, provisions or conditions. Broadleaf hereby rejects any such additional or conflicting terms and conditions on any Company purchase order, acknowledgement or other business form, unless expressly otherwise agreed to by the parties in writing. |
