Terms and Conditions

TEMANDO™ SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT

THIS SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT, together with any and all schedules attached hereto and incorporated herein (each, a “Schedule”, and collectively, this “Agreement”), is dated as  the date on which this Agreement is accepted by the Customer (the “Effective Date”) and is entered into by and between Temando LLC, a Delaware limited liability company with an address at 2711 Centerville Road, Suite 400, Wilmington, DE 19808 ("Temando") and the party contracting with Temando and accepting the terms of this Agreement (“Customer”).  Temando and Customer may individually be referred to in this Agreement as a "party," and collectively as the "parties."

 

B A C K G R O U N D

 

Temando has developed a proprietary software product (including downloadable plug-in and Temando SaaS platform) which streamlines shipping options and execution for users of ecommerce websites and/or back-end platforms (the “Product”).  Pursuant to the terms and conditions of this Agreement, Customer wishes to utilize the Product for users of Customer’s website and/or back-end platform (“Users”) expressly identified in Schedule I (as hereinafter defined), and for Temando to provide the customization, maintenance and support services set forth herein. 

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

 

1.         Product Subscription.   In consideration of Customer’s payment of the applicable Fees (as hereinafter defined) and otherwise Customer’s adherence to the provisions of this Agreement, during the Term (as hereinafter defined) Temando hereby grants to Customer (a) a limited, non-transferable, non-exclusive, royalty-free license to install, access and use Temando’s plug-in component of the Product, and (b) a limited subscription during the Term to use the Product solely for Customer’s and User’s own use in connection with Customer’s ecommerce website and/or Customer’s back-end platform (as the case may be) (the “Platform”), in order to enable Users to select among various choices of applicable shipping carriers (collectively, the “License”).   All rights not expressly provided to Customer as part of the License are retained exclusively by Temando, and Customer shall use the Product only in the manner expressly authorized by this Agreement.  

 

2.         Services.                                                                                                                                 

 

2.1        SOW; Customizations.  In consideration of Customer’s payment in full of the applicable Fees, and otherwise Customer’s adherence to the provisions of this Agreement, during the Term Temando may provide Customer with (a) certain integration and customization services related to the Product (the “Customization  Services”) including the delivery of deliverables (“Deliverables”) described in each applicable statement of work as may be executed between the parties (each, a “SOW”) or otherwise as agreed to in writing by the parties.  Temando shall provide the Customization Services and deliver the Deliverables in accordance with the timetable and milestones (if any) contained in each applicable SOW or otherwise in writing by the parties.  All work performed by Temando under a SOW shall be charged at Temando’s then current hourly rates, as set forth in each such SOW or other writing.   Each SOW duly executed by the parties shall be numbered chronologically and incorporated herein by reference.  Temando may also provide Customer with upgrades, updates, releases, patches, fixes, workarounds and other versions of the Product and other modifications to the Product (collectively, “Updates”) as Temando deems in its sole discretion are in its best interest as owner of the Product.

 

            2.2        Support and Maintenance Services. Temando may provide during the Term to Customer certain maintenance and support services for the Product as set forth in writing between the parties (the “Support Services”, and together with the Customization Services, the “Services”).

 

3.         NOT A CARRIER; RELEASE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) TEMANDO IS ACTING MERELY AS A SOFTWARE PROVIDER TO FACILITATE COMMUNICATION WITH POTENTIAL CARRIERS TO DELIVER CUSTOMER’S (OR OTHER REQUESTED THIRD PARTY) PRODUCTS TO USERS WHO EXECUTE PURCHASES THROUGH THE PLATFORM, AND TEMANDO IS NOT IN ANY WAY ITSELF A CARRIER, (B) TEMANDO IS NOT INVOLVED IN ANY PART OF THE SHIPPING PROCESS AT ALL, AND CANNOT BE AND WILL NOT BE LIABLE FOR ANY ERRORS WHICH OCCUR AS PART OF THE SHIPPING PROCESS.  WITHOUT LIMITING THE FOREGOING, NEITHER TEMANDO NOR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR LICENSORS (COLLECTIVELY, THE “TEMANDO PARTIES”) SHALL BE LIABLE, DIRECTLY OR INDIRECTLY, TO CUSTOMER, ANY USER OR ANY OTHER PERSON, FOR ANY ERROR OCCURRING AS PART OF THE SHIPPING PROCESS, WHETHER MADE BY A CARRIER OR SOME OTHER PERSON, INCLUDING WITHOUT LIMITATION FOR ANY DELAYED SHIPMENT, LOST SHIPMENT, MISTAKEN SHIPMENT OR DAMAGED SHIPMENT.  ACCORDINGLY, CUSTOMER HEREBY FULLY RELEASES EACH OF THE TEMANDO PARTIES FROM ANY AND ALL CLAIMS, ACTIONS, SUITS, DEMANDS AND OTHER LIABILITY WHICH IS RELATED TO THE ACT OR OMISSION OF ANY CARRIER ENGAGED AS A RESULT OF CUSTOMER’S OR A USER’S USE OF THE PRODUCT.

 

4.         Responsibilities; Requirements.   Customer shall (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Product, and by no means less efforts than those safeguards employed by Customer to protect its own non-public proprietary and other confidential information, (b) notify Temando immediately in writing if Customer learns of any unauthorized access or use of the Product, (c) maintain those minimum requirements provided to Customer by Temando in writing regarding the Platform which must be adhered to strictly by Customer in order to ensure proper functioning of the Product, (d) use the Product only in accordance with the provisions of this Agreement and any related technical documents provided by Temando which related to the use of the Product, and (e) disclose to Users any privacy collection or use protocols in the Privacy Statement (as hereinafter defined) which differ from Customer’s own such policies as communicated to Users.  Temando has the right to suspend or cancel access to and/or use of the Product by Customer and/or any User at any time if Customer has violated any of the provisions of this Agreement or attempted to harm the Product, or has caused another person to violate any of the provisions of this Agreement or attempted to harm the Product.  Furthermore, Customer shall not, and shall not authorize or permit any person acting on its behalf, directly or indirectly, to: (i) sell, resell, transfer, assign, distribute, copy, publish, transmit, distribute, create derivative works of or otherwise disseminate, exploit or make available the Product, (ii)modify, reverse engineer, decompile, translate or disassemble the Product, (iii) remove, conceal or obliterate any copyright or other proprietary notice or any credit-line or other mark or source identifier contained in the Product, (iv) attempt to create a substitute or similar product or service to the Product, or (v) use the Product in any manner or for any purpose other than as expressly contemplated by this Agreement.  

 

5.         Term; Termination.

 

5.1        Term. The term of this Agreement shall commence on the Effective Date, shall continue for an initial period of one (1) year (the “Initial Term”), and, thereafter, shall automatically renew for successive renewal terms of one (1) year (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides written notice to the other party of its intent not to renew this Agreement no less than ninety (90) days prior to the expiration of the Initial Term or any such applicable Renewal Term. 

 

5.2        Termination for Breach. If either party materially breaches any of the provisions of this Agreement and such breach is not cured within ten (10) days of the breaching party receiving written notice thereof from the non-breaching party, then the non-breaching party may terminate this Agreement by a written notice to the breaching party.  Other than for Temando’s indemnification obligations hereunder, Customer’s sole remedy for any breach by Temando due to a third party claim of infringement shall be, at Temando’s sole option and expense, (a) to replace the Product or any part thereof that is the subject of such a claim with materially comparable functionality that does not cause any infringement, or (ii) refund to Customer the pro-rata amount of Fees paid by Customer from the time such infringement became known to Temando, but in each such case only if such infringement materially affects Customer’s or any User’s use of the Product.

 

5.3        Suspension or Termination of Access and Use.  Notwithstanding anything to the contrary in this Agreement, Temando may immediately terminate this Agreement and/or suspend, restrict, revoke and/or take any other appropriate action with regard to Customer’s and Users’ continued access to, and use of, the Product, without the benefit of any cure period, in the event of a material breach by Customer of Sections 1 and 4 of this Agreement.  Any suspension or termination of this Agreement shall automatically, and without further action by Temando, terminate and extinguish all of Customer’s and Users’ rights to access and use the Product.

 

6.         Fees and Payments

 

6.1        Fees. Customer shall pay to Temando the fixed monthly usage fees for the Product (collectively, the “Monthly Fees”) and a fee per transaction executed using the Product (collectively, the “Transaction Fees”, and together with the Monthly Fees and the fees owed under any applicable SOW or other writing, the “Fees”), both set forth in the order form submitted by the Customer in exchange for the License and in accordance with the provisions of this Agreement.    Payment of the Fees shall be made as indicated in any applicable SOW or other document agreed to in writing by the parties.  Temando may vary the Fees at any time by providing written notice to the Customer. .

 

6.2        Payments.  Customer authorizes Temando to charge Customer’s credit card to pay all Fees applicable to each month of the Term upon Customer’s receipt of each applicable monthly invoice. Fees already earned by Temando shall not be refundable in the event of any termination of this Agreement or for any other reason. If any payment of the Fees cannot made by Temando using Customer’s credit card when due, then (a) late fees will be charged to Customer on the unpaid balance at the rate of one and one-half percent (1½%) per month or, if lower, the maximum rate permitted under applicable law, and (b) Temando may suspend access to and use of the Product by Customer and Users, in addition to such other remedies as Temando may have at law or in equity (including without limitation recovery of any damages resulting therefrom), until Temando has been paid in full and has received other assurances of timely payment as determined by Temando its sole discretion.  Customer agrees that (i) Customer shall pay all Fees agreed to in this Agreement and otherwise as agreed to by Customer in a writing signed by Customer, and (ii) except as expressly set forth in this Agreement, Fees are non-cancelable and non-refundable.   

 

6.3        Taxes and other Obligations.  In addition to Customer’s obligation to pay all Fees when due, Customer shall pay all applicable sales, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transactions executed through the Platform or otherwise contemplated hereby, excluding, however, income tax on the profits of Temando, and if Temando pays any such taxes or charges then Customer shall reimburse Temando for the amount of any such taxes or charges paid or accrued directly by Temando as a result of such transactions.       

 

7.         Proprietary Rights; Privacy.

 

7.1        For Temando.  Customer acknowledges that as between Temando and Customer, the Product is and shall remain the sole and exclusive property of Temando, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or other intellectual property rights inherent in or related to the Product.  All rights not expressly granted to Customer or any User herein are reserved exclusively by Temando.  Customer understands that the shipping rates offered through the Product are proprietary to Temando and are deemed to be the Confidential Information (as hereinafter defined) of Temando, and Customer agrees not to divulge such rates to any third party or otherwise use such rates to for any purpose other than directly in connection with the Product.  Customer shall use its best efforts to assist Temando in identifying and preventing any unauthorized access, use, copying or disclosure of the Product, or any component thereof.All trademarks, service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress appearing through the Product which indicate a source of goods or services (“Trademarks”) are the property of their respective owners.  TEMANDO™ is a trademark of Temando.  Customer shall not use, copy, reproduce, republish, distribute or modify any Trademarks contained in the Product in any manner without Temando’s prior written consent.  Trademarks are protected by the trademark laws of the United States and/or other applicable jurisdictions. 

 

7.2        For Customer.  As between Customer and Temando, all personally identifiable information that Users input through the Platform while using the Product (“Customer Data”) is and shall remain the sole and exclusive property of Customer, and shall be handled by Temando as set forth in this Agreement and in Temando’s privacy statement (the “Privacy Statement”) which is located at http://temando.com/privacy-statement. As between Temando and Customer, all Customer Data is deemed to be the Confidential Information of Customer.  All Customer Data in the possession of Temando will be returned to Customer or destroyed by Temando (as determined by Temando in its good faith sole discretion) upon the termination of this Agreement.  To the extent that Customer or any User provides Temando with Customer Data, Customer hereby grants to Temando during the Term a non-exclusive, worldwide, royalty free, fully paid license to use such materials in connection with enabling Customer and/or Users to utilize the Product, to provide the Services to Customer and as otherwise contemplated in this Agreement. 

 

8.         Confidential Information.

 

8.1        Obligations of Confidentiality.  Each party acknowledges that during the Term each party may acquire or otherwise may be exposed to (the “Receiving Party”) Confidential Information (as hereinafter defined) of the disclosing party (the “Disclosing Party”).   Each Receiving Party agrees that it shall: (a) hold all Confidential Information of the Disclosing Party in strict confidence and not use or disclose any such Confidential Information to any individual or entity (except for the benefit of the Disclosing Party as authorized by this Agreement or otherwise in writing by the Disclosing Party), (b) disclose Confidential Information of the Disclosing Party only to those employees, contractors, representatives, agents or providers of the Receiving Party who need to know such information in order to assist in carrying out the rights or obligations of the Receiving Party under this Agreement and only to the extent necessary for such purpose, it being understood that such persons shall be informed by the Receiving Party of the confidential nature of such information and shall be required by the Receiving Party to agree in writing to keep all such Confidential Information strictly confidential, and (c) not use Confidential Information of the Disclosing Party for its own purposes or in any manner other than in strict compliance with the provisions of this Agreement.  "Confidential Information" means all non-public proprietary or other confidential information, ideas, data and materials of the Disclosing Party which the Receiving Party receives or acquires from or on behalf of the Disclosing Party, regardless of the form or manner received or acquired by the Receiving Party on or after the Effective Date, and whether labeled as “Confidential Information” or not, including without limitation all information, ideas, data and materials related to the Disclosing Party's trade secrets, proprietary materials or information, know-how, contracts, business relationships, products, potential products, technology, software, hardware, inventions, services, potential services, customers, prospective customers, customer transactions, prospective transactions, vendors, services providers, sales information, price lists, price information, markets and other business information, whether disclosed orally, in writing or in machine-readable form, and/or any other information which reasonably should be understood to be confidential or proprietary to the Disclosing Party. For the sake of clarity, Confidential Information of the Disclosing Party shall be deemed to include all notes, summaries, analyses, studies or other documents prepared by the Receiving Party that contain, or are based upon, in whole or in part, the Confidential Information of such Disclosing Party.  Except as expressly set forth in this Agreement and/or the Privacy Statement, nothing shall be construed to grant to the Receiving Party any ownership or other interest in or to the Confidential Information of the Disclosing Party.  

           

8.2        Exclusions.  Notwithstanding Section 8.1 hereof, Confidential Information of the Disclosing Party shall not include information which: (a) is or becomes publicly available through no fault of such Receiving Party or any individual or entity acting on behalf of such Receiving Party, or (b) the Receiving Party can demonstrate through relevant written records (i) was known to such Receiving Party by an authorized means prior to disclosure by the Disclosing Party, (ii) properly comes into such Receiving Party’s possession from a third party which is not under any obligation to maintain the confidentiality of such information, or (iii) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. Further, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to a judicial or other government order from any state or jurisdiction including but not limited to subpoena, court order, document request or other legal process, provided that such Receiving Party has first provided the Disclosing Party with prompt written notice prior to any such disclosure so that the Disclosing Party may seek reasonable legal remedies to maintain the confidentiality of such Confidential Information, and such Receiving Party shall comply with any applicable protective order or equivalent.

 

8.3        Enforcement. Each Receiving Party agrees that the unauthorized disclosure or use of Confidential Information of the Disclosing Party may cause irreparable harm and significant injury to the Disclosing Party for which money damages will be inadequate and/or difficult to ascertain.  Accordingly, each Receiving Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction enjoining any breach or threatened breach of this Section 8 and/or any other agreement relating to the confidentiality of such Confidential Information of the Disclosing Party, without having to post a bond or other security.  The remedies in this Section 8 shall be in addition to, and not in limitation of, any other remedies to which each Disclosing Party may be entitled under this Agreement or otherwise at law or in equity.

 

9.         Representations and Warranties.

 

9.1        Temando’s Representations.  Temando represents and warrants that: (a) Temando has the full right and authority to enter into, execute, and perform its obligations under this Agreement, (b) as of the Effective Date, Temando has the valid right and authority to grant the License to Customer pursuant to the provisions of this Agreement, (c) Temando has read, understands and agrees to abide by the terms and conditions of this Agreement, and (d) the individual signing this Agreement for Temando has the authority to bind Temando to this Agreement.

 

9.2        Customer's Representations. Customer represents and warrants that: (a) Customer has the full right and authority to enter into, execute, and perform its obligations under this Agreement, and (b) Customer shall immediately notify Temando in writing upon learning of any breach of this Agreement, (c) Customer has read, understands and agrees to abide by the terms and conditions of this Agreement, (d) the individual signing this Agreement for Customer has the authority to bind Customer to this Agreement, and (e) Customer’s or any User’s participation, correspondence and/or business dealings with any third party through the Product and all terms, conditions, representations or warranties associated with such dealings, are solely between Customer and such third party and/or such User and such third party. 

 

10.        Indemnification.

 

10.1      Indemnification by Customer.  Notwithstanding anything to the contrary in this Agreement, Customer shall indemnify, defend and hold each of the Temando Parties harmless from and against (a) any and all threatened or actual claims, actions, suits and demands (collectively, “Claims”) and any and all resulting losses, liabilities, damages, expenses and costs, including without limitation reasonable attorneys’ fees and disbursements (collectively, “Costs”) which are brought by any User in connection with or related to such User’s use of the Product, including without limitation any act or omission relating to the relationship between Customer and any User, and/or (b) any and all third party Claims and all Costs which arise out of or are related to (i) a breach by Customer of any of its representations, warranties, covenants or undertakings made in this Agreement, or (ii) the negligence or misconduct of Customer, or the violation of any law or regulation by Customer.  

             

 

10.3      Indemnification Procedures.  Upon the assertion or commencement of any Claim covered by a party’s indemnification obligations against one or more of the indemnified parties that may give rise to liability of any of such indemnified parties hereunder, each such indemnified party shall promptly notify the indemnifying party in writing of the existence of such Claim and shall give the indemnifying party a reasonable opportunity to defend and/or settle such Claim at the indemnifying party’s own expense and with counsel of its own selection that is reasonably acceptable to such indemnified party; provided, however, that each such indemnified party shall reasonably cooperate with the indemnifying party and shall at all times have the right to fully to participate in such defense at its own expense.  The indemnifying party shall not make any settlement of any Claim which imposes any liability or obligation on any of the indemnified parties or which gives rise to any admission of liability (or any liability) by any indemnified party without the prior written consent of each such indemnified party, provided that such consent shall not be unreasonably withheld. 

 

11.        DISCLAIMER OF WARRANTIES.  AS BETWEEN THE TEMANDO PARTIES AND THE CUSTOMER PARTIES, CUSTOMER EXPRESSLY AGREES THAT (A) THE USE OF THE PRODUCT AND THE SERVICES (IF APPLICABLE), AND/OR USE OF THE PRODUCT BY USERS, ARE ALL AT CUSTOMER'S SOLE RISK, AND THAT ALL SUCH USES ARE PROVIDED TO CUSTOMER "AS IS" AND “AS AVAILABLE”, AND (B) TEMANDO MAKES NO WARRANTIES TO ANY OF THE CUSTOMER PARTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEMANDO CANNOT AND DOES NOT WARRANT THAT THE PRODUCT AND/OR THE SERVICES WILL (I) MEET THE EXPECTATIONS OR NEEDS OF ANY OF THE CUSTOMER PARTIES AND/OR ANY OTHER PERSON, OR (II) BE TIMELY, ADEQUATE, ACCURATE, COMPLETE, SECURE, UNINTERRUPTED, OR FREE FROM ERRORS, OMISSIONS, DEFECTS OR OTHER PROBLEMS, OR THAT ANY OF THEM WILL BE CORRECTED TO THE SATISFACTION OF ANY OF THE CUSTOMER PARTIES AND/OR ANY OTHER PERSON.  EXCEPT AS OTHERWISE EXPRESSLY AGREED TO IN THIS AGREEMENT, NONE OF THE TEMANDO PARTIES (1) SHALL BE SUBJECT TO ANY DAMAGES OR OTHER LIABILITY FROM ANY OF THE CUSTOMER  PARTIES OR ANY OTHER PERSON FOR ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION FOR ANY ERROR IN THE SHIPPING PROCESS MADE BY A CARRIER (SUCH AS FOR ANY DELAYED SHIPMENT, LOST SHIPMENT OR DAMAGED SHIPMENT), OR FOR ANY OTHER REASON, (2) MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USING THE PRODUCT AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION REGARDING THE SUCCESS OF ANY TRANSACTION PERFORMED (OR FAILED TRANSACTION ATTEMPTED) BY ANY USER OR ANY OTHER PERSON USING THE PRODUCT, OR (3) SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO ANY OF THE CUSTOMER PARTIES, ANY USER OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH OR RELATED TO CUSTOMER’S OR ANY USER’S USE OF THE PRODUCT, WITH THE SERVICES, AND/OR WITH ANY THIRD PARTY SOFTWARE OR SYSTEM USED IN CONJUNCTION WITH THE PRODUCT. 

 

12.        LIMITATION OF LIABILITY.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NONE OF THE TEMANDO PARTIES SHALL BE LIABLE TO ANY OF THE CUSTOMER PARTIES, ANY USER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, AND/OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST TIME, LOST DATA, LOSS OF GOODWILL, LOSS OF BUSINESS REPUTATION OR OTHER LIKE DAMAGES) WHICH RESULT (DIRECTLY OR INDIRECTLY) FROM OR ARE OTHERWISE RELATED TO THE USE OF, LOSS OF USE OF, OR DELAY IN USING THE PRODUCT (AND/OR THE PROVISION OF OR CESSATION OF ANY OF THE SERVICES), OR THE COST OF OBTAINING A REPLACEMENT OF ANY OF THE FOREGOING, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR WHICH OTHERWISE ARISES OUT OF OR IS RELATED TO THIS AGREEMENT, EVEN IF ANY OF THE TEMANDO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT (EXCEPT FOR TEMANDO’S INDEMNIFICATION OBLIGATIONS HEREUNDER), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ALL OF THE TEMANDO PARTIES TO ALL OF THE CUSTOMER PARTIES COLLECTIVELY AND TO ANY OTHER PERSON, WHICH ARISES OUT OF OR IS RELATED (DIRECTLY OR INDIRECTLY) TO CUSTOMER’S (AND/OR ANY USER’S) USE OF THE PRODUCT AND/OR THE SERVICES, REGARDLESS OF THE FORM OF CLAIM, EXCEED THE LESSER OF (A) THE CUMULATIVE AMOUNT OF FEES PAID TO TEMANDO BY CUSTOMER OVER THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE CLAIM ON WHICH SUCH LIABILITY IS BASED OR IS ALLEGED TO BE BASED, OR (B) TEN THOUSAND DOLLARS ($10,000).  THE ABOVE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY OF THE TEMANDO PARTIES IN SECTION 11 AND THIS SECTION 12 SHALL APPLY WHETHER OR NOT ANY OF THE TEMANDO PARTIES HAVE BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF ANY LOSSES, DAMAGES OR OTHER LIABILITIES OF ANY OF THE CUSTOMER PARTIES OR OF ANY OTHER PERSON. 

 

13.        Governing Law; Arbitration; Timely Filing of Claims.  This Agreement shall be governed by and construed in accordance with the laws of the State of California.  Any dispute arising out of or relating to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction.  The arbitration will be conducted in the City of Los Angeles, State of California, by a panel of three arbitrators with applicable industry expertise in the field of ecommerce software, who shall be named in accordance with such rules.  The award of the arbitrators shall be final and binding on the parties and shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such arbitration proceedings including without limitation all evidence and materials submitted by the parties shall be deemed to be Confidential Information hereunder and shall not be made public by either party.  The non-prevailing party in such proceedings shall pay the prevailing party's costs and expenses, including but not limited to reasonable attorneys’ fees.  No arbitration or Claim under this Agreement shall be joined to any other arbitration or Claim, and no class arbitration proceedings shall be permitted.  Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision, without breach of this arbitration provision. EACH OF CUSTOMER AND TEMANDO AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM, SUIT OR ACTION THAT CUSTOMER MAY HAVE AGAINST ANY OF THE TEMANDO PARTIES UNDER THIS AGREEMENT MUST BE BROUGHT BY CUSTOMER PURSUANT TO THIS SECTION 13 WITHIN ONE (1) YEAR AFTER THE LIABILITY ON WHICH SUCH CLAIM, SUIT OR ACTION AROSE (OR IS CLAIMED TO HAVE ARISEN). 

 

14.        Miscellaneous.

 

14.1      Entire Agreement; Amendments; Conflicts. This Agreement (including without limitation each applicable Schedule) constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes any and all previous representations, warranties, covenants and understandings between Customer and Temando as to the subject matter hereof.  This Agreement (including the Schedule) may only be amended by an instrument in writing signed by the parties.  In the event of any question caused by a contradiction or conflict between the terms of the body of this Agreement and the terms contained in any applicable Schedule, the terms of the body of this Agreement shall prevail unless the contradictory or conflicting provision contained in such Schedule specifically references the provision of the body of this Agreement which it desires to amend or override. 

 

14.2      Independent Contractor.   Customer (a) is not an employee, partner or agent of Temando and (b) shall not have any claim against Temando for employee benefits of any kind, including without limitation for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, or unemployment insurance benefits. Each party is responsible for compliance with all applicable federal, state and local laws, regulations and orders in connection with taxes, unemployment insurance, social security, worker’s compensation, disability or like matters.

 

14.3      No Assignment; No Waiver.  Customer may not assign this Agreement (or any portion of this Agreement) without the prior written consent of Temando. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same or of any other provision.

 

14.4      Force Majeure. Except for a party’s payment obligations hereunder, neither party shall be liable for delays or any failure to fulfill its obligations under this Agreement if and to the extent such delay or failure is due to causes beyond its reasonable control. Such force majeure events include, but are not limited to, flood, earthquake or other natural catastrophe, fire, explosion, war, insurrection, terrorist act, riot, governmental legislation, acts, orders, or regulation, strikes or labor disputes, failure of electronic or mechanical equipment or communications lines (including telephone, cable, fiber optics and the like), computer viruses, theft, data breach, accidents and the like, all to the extent not caused by the fault or negligence of the delayed party and beyond the reasonable control of such party.

 

14.5      Severability; Mutual Drafting; Headings; Review of Agreement.  Wherever possible, each provision of this Agreement shall be interpreted and construed in such manner as if drafted by both parties equally and for the purpose of being effective and valid under applicable law.  However, in the event that any provision of this Agreement, or the application thereof, becomes or is declared to be illegal, void or unenforceable, then the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties. All headings in this Agreement are inserted for convenience only and shall not modify or affect the construction or interpretation of any provisions of this Agreement.  Customer has been advised and given the opportunity to have this Agreement reviewed by its independent counsel.

 

14.6      Notices; Electronic Mail. All notices permitted or required to be given by this Agreement to any party must be given in writing by the other party, and will be deemed to be duly given (a) on the date of delivery if delivered in person or sent by fax (with confirmation) or e-mail, (b) one (1) day after being sent, if sent by overnight mail, or (c) on the earlier of actual receipt or three (3) business days after the date of mailing if mailed by registered or certified mail, first class postage prepaid, return receipt requested.  All notices shall be sent to the Customer at the email address provided for by the Customer and all notices to Temando shall be sent to sales@temando.com. For the sake of clarity, any requirement under this Agreement for a written communication may be satisfied by electronic mail.

 

14.7      Advertising and Publicity.  Temando may list Customer's name and standard logo in its customer lists, and Customer may list Temando’s name and standard logo in its vendor lists.  All other use of the other party’s name or logo for publicity shall require the prior written consent of the other party.

 

14.8      Survival; Counterparts.  Sections 3, 7, 8, 10, 11, 12, 13 and 14 of this Agreement shall survive the expiration or earlier termination of this Agreement, to the extent necessary to give effect to such provisions.