(b) “Authorized Users” means Representatives of Customer who have been specifically granted authority by Customer to access the Gelnius Service Offering(s).
(c) “Confidential Information” means (i) the business or technical information provided by one Party (“Disclosing Party”) to the other Party (“Receiving Party”); (ii) as to Gelnius as Disclosing Party, the Gelnius Technology and (iii) as to Customer as Disclosing Party, Customer Content. Confidential Information shall not include any information that: is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; was known to a Receiving Party prior to its disclosure by the Disclosing Party; was independently developed by a Receiving Party without use of or reliance upon the Confidential Information of the Disclosing Party; or is received from a third party not having an obligation of non-disclosure owed to the Disclosing Party.
(d) “Customer Content” means information and data relating to Customer, uploaded to a Gelnius Service Offering(s) by Authorized Users.
(e) “Documentation” means end-user documentation regarding the then-current features, functionality and/or use of the Gelnius Service Offering(s) which Gelnius generally provides to its customers.
(g) “Fees” means, collectively, the Subscription Fees payable by Customer to Gelnius as set forth in the TMS Lite Service Offering(s) on this website.
(h) “Force Majeure” shall mean causes beyond a Party’s reasonable control, including, but not limited to, governmental actions, fire, work stoppages or labor problems, shortages, civil disturbances, acts of terror, transportation problems, interruptions of power or communications, internet slowdowns or failures, failure of suppliers or subcontractors, natural disasters or acts of God (including flood, fire and earthquakes).
(i) “Harmful Code” means any malicious code or other feature that prevents or impedes use of all or any part of the Gelnius Service Offering(s), or facilitates unauthorized access to, or tracking of, the Gelnius Service Offering(s).
(j) “Improvements” means all improvements, customizations, updates, enhancements, error corrections, bug fixes and changes to a Gelnius Service Offering(s), as developed by Gelnius and which it generally puts into production for its customers’ use.
(k) “Intellectual Property Rights” means any and all common law, statutory and other intellectual property rights, including, without limitation, copyrights, trademarks, trade secrets, patents and database rights, issued, honored or enforceable under any applicable Laws anywhere in the world.
(l) “Law” means any local, state, national and/or foreign law, treaty, and/or regulation applicable to a respective Party.
(m) “Representatives” means the employees, consultants, agents or representatives of a Party.
(n) “Gelnius Service Offering(s)” means Gelnius’ proprietary software applications and all Improvements thereto.
(o) “Gelnius Technology” means and includes: (i) the Gelnius Service Offering(s) and third party software applications included therein; (ii) all technology, technical information, processes, algorithms, software, inventions and specifications embodied in the Gelnius Service Offering(s); and (iii) all Documentation.
(p) “Subscription Fees” means the fees payable for access to and use of a Gelnius Service Offering(s) as set forth in the TMS Lite Service Offering(s) on this website.
(q) “Subscription Term” means the period during which a Gelnius Service Offering(s) will be made available to Customer and/or is accessed by Customer, including any access to the TMS Lite SaaS service.
2. Customer’s Use of the GELNIUS Service Offering(s).
2.2 Access Methods & Authorized Users. Authorized Users may access the Gelnius Service Offering(s) only through use of one or more passwords or other access methods as provided by Gelnius (collectively, “Access Methods”). Customer is solely responsible for ensuring that Access Methods are kept confidential and Customer will be solely responsible for all acts or omissions of any person using the Gelnius Service Offering(s) through the Access Methods, and all transmissions generated by use of Customer’s Access Methods will be deemed to have been authorized by Customer. [Customer is solely responsible for ensuring that it does not exceed the number of Authorized User logins included in the Subscription and corresponding Subscription Fees for the specific version of the TMS Lite Service Offering selected. In the event that Customer exceeds the number of Authorized Users for its Subscription, Customer shall be automatically charged for the upgraded Subscription package that corresponds with the number of users it has actually activated[A1] .]
2.3 Support and Availability. Gelnius will provide the Gelnius Service Offering(s) in accordance with its then-current Support and Availability Policy (“Support and Availability Policy”), which can be provided to Customer upon request. The Support and Availability may be changed from time to time, with any material change requiring sixty (60) days prior written notice to Customer.
2.4 Security. Gelnius shall maintain a formal security program (“Security Standards”) which is designed to: (i) promote the security and integrity of Customer Content; (ii) protect against threats or hazards to the security or integrity of Customer Content; and (iii) prevent unauthorized access to Customer Content. Customer’s current Security Standards can be obtained upon written request from the Gelnius. Gelnius may modify the Security Standards from time to time, but such changes will not materially degrade the level of security accorded Customer’s Content.
2.5 Customer Covenants. Customer shall access and use the Gelnius Service Offering(s) solely for its internal and legitimate business purposes. Customer shall: (i) have sole responsibility for the accuracy and quality of, and obtaining necessary permissions for, all Customer Content; (ii) use its reasonable commercial efforts to prevent unauthorized access to, or use of, the Gelnius Service Offering(s) from or through its information technology systems, and notify Gelnius promptly of any such unauthorized access or use of which it has notice; and (iii) comply with all applicable Laws in connection with its use of the Gelnius Service Offering(s).
2.6 Prohibited Activities. Customer shall not: (i) send or upload through the Gelnius Service Offering(s) infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (ii) introduce any Harmful Code into the Gelnius Service Offering(s); or (iii) interfere with or disrupt performance of the Gelnius Service Offering(s). Further, Customer shall not: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Gelnius Service Offering(s) available to any third party; (B) attempt to gain unauthorized access to the Gelnius Service Offering(s) or its related networks or software; (C) modify, copy or create any derivative works based on Gelnius Service Offering(s); (D) reverse engineer, de-compile, disassemble or otherwise attempt to discover or replicate the computer source code of the Gelnius Service Offering(s); (E) use any Gelnius Confidential Information to copy any features, functions, interfaces or graphics of the Gelnius Service Offering(s) or to otherwise create a product that competes with the Gelnius Service Offering(s); or (F) create internet “links” to the Gelnius Service Offering(s), or “frame” or “mirror” any content forming part of the Gelnius Service Offering(s).
2.7 Customer License to Gelnius. Customer hereby grants to Gelnius a non-exclusive, nontransferable (except as otherwise provided in Section 10.5), non-sublicensable (except as necessary to any third party hosting provider) and royalty-free right and license to copy, store, access, use, transmit and distribute and display the Customer Content solely for the purpose of providing Customer with access to and use of the Gelnius Service Offering(s). In addition to the foregoing, Gelnius may retain and use on an irrevocable, perpetual and royalty-free basis, the Customer Content which has been rendered non-Customer and non-personally identifiable and is aggregated with other Gelnius customer information solely to develop, use and distribute trend, benchmarking and statistical analyses. Gelnius retains all Intellectual Property Rights in such aggregated data.
3. Fees & Payment.
3.1 Fees. In consideration of Gelnius’ provision of access to the Gelnius Service Offering(s), Customer agrees to pay Gelnius the Subscription Fees as noted in the TMS Lite, or other Gelnius Service Offering(s) description on this website. The Subscription Fees shall be due on thirty (30) day recurring terms, in advance, measured from the Effective Date, or from Customer’s first access of and/or use of the Gelnius Service Offering(s). Any and all payments by Customer shall be made on a recurring basis, and by pre-approved electronic payment method.
3.2 Overdue Payments. Any payment not received from Customer by the due date may accrue, at Gelnius’ discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid. If Customer’s account is past due, Gelnius shall suspend access to the Gelnius Service Offering(s) until payment on the account is made current.
3.3 Price Changes. Fees shall be subject to change or increase, subject to prior notice by Gelnius to Customer of not less than thirty (30) days.
3.4 Taxes. The Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with this Agreement, excluding taxes on Gelnius’ net income.
4. Proprietary Rights.
4.1 Gelnius IP Ownership. Gelnius (or its licensors, where applicable) owns, and shall retain, all rights, title and interest in and to the Gelnius Technology, and all Intellectual Property Rights therein.
4.3 Customer Content. As between Gelnius and Customer, Customer owns the Customer Content.
5.2 Disclosure in Compliance with Law. The Receiving Party may disclose the Confidential Information of the Disclosing Party in response to a valid court order, Law or other governmental action; provided, however, that: (i) if lawfully permitted, the Disclosing Party is notified in writing reasonably in advance of the disclosure of the information and (ii) the Receiving Party makes only such disclosure, in manner and content, as is required by such order, Law or other governmental action.
5.3 Remedies Upon Breach. The Disclosing Party may seek injunctive or other equitable relief to prevent or remedy a breach or threatened breach of any provision in this Section 5 by the Receiving Party or any of its Representatives, and the Receiving Party agrees not to object or defend against such action on the basis that monetary damages would provide an adequate remedy.
6. Warranties & Disclaimers.
6.1 Gelnius’ Warranties. Gelnius warrants to Customer that the Gelnius Service Offering(s) will perform substantially in accordance with its Documentation.
6.2 Remedies. If a Gelnius Service Offering fails to comply with the warranty in Section 6.1, Customer must notify Gelnius in writing within ten (10) days following the first date the failure is identified by Customer. The notice from Customer shall specify in reasonable detail the alleged failure. Following such notice, as Customer’s exclusive remedy for such failure, Gelnius shall correct the non-conforming aspect of the Gelnius Service Offering(s) in accordance with the Support and Availability Policy at no additional charge to Customer. However, in the event Gelnius is unable to substantially correct such deficiencies after good faith efforts and at a commercially reasonable cost within thirty (30) days of Customer’s notification of such non-conformance, Customer, as its exclusive remedy for the breach of Section 6.1 and failure of Gelnius to correct the same, shall have the right to terminate the services and/or subscription and receive from Gelnius the prepaid but unused portion of the Subscription Fee for the Gelnius Service Offering(s) for the then-current Subscription Term.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, GELNIUS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GELNIUS DOES NOT WARRANT THAT THE GELNIUS SERVICE OFFERING(S) WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE GELNIUS SERVICE OFFERING(S).
7.1 Indemnification by Gelnius. Gelnius hereby agrees to defend Customer from and against any and all third party claims, suits, actions, demands or proceedings threatened, asserted or filed (collectively, “Claims”) against Customer, and to indemnify and hold harmless Customer from and against any and all damages, liabilities, expenses and penalties awarded or paid in settlement or incurred in the defense of such Claims (subject to Section 7.3, including but not limited to reasonable outside attorneys’ fees incurred) (collectively, “Losses”), alleging that a Gelnius Service Offering infringes, misappropriates or otherwise violates a third party Intellectual Property Right. If the Gelnius Service Offering is, or in Gelnius’ opinion may be, infringing, Gelnius may, in addition to providing the indemnification provided for herein, either obtain for Customer the right to continue use of the Gelnius Service Offering or replace or modify the Gelnius Service Offering so that it is no longer infringing, or, if neither of the foregoing options is reasonably available to Gelnius, elect to terminate the Agreement, in which case Gelnius’ sole liability (and Customer’s exclusive remedy) for such termination shall be to refund the prepaid but unused portion of the applicable Subscription Fee for the then-current Subscription Term. This Section 7.1 sets forth Customer’s sole remedy for any infringement or misappropriation of Intellectual Property Rights.
7.2 Indemnification by Customer. Customer hereby agrees to defend Gelnius and its affiliates (the “Gelnius Indemnified Parties”) from and against any Claims, and to indemnify and hold the Gelnius Indemnified Parties harmless against any Losses, arising from: (i) Customer’s use of the Gelnius Service Offering(s), except for any Claims as to which Gelnius is required to indemnify Customer as provided in Section 7.1; (ii) any breach of Section 2.5(i) or (iii) any claim that the use of the Customer Content has caused harm to a third party.
7.3 Indemnification Procedure. The indemnification provided for herein shall be subject to the terms and conditions of this Section. The Party claiming indemnification (“Indemnified Party”) must notify the other Party (“Indemnifying Party”) promptly in writing of the Claim subject to indemnification. The Indemnifying Party shall have sole control over such defense and all negotiations for the settlement and compromise of such Claim; provided, that the Indemnifying Party may only settle or compromise a Claim with the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed), except that no such approval shall be required if the settlement or compromise provides only for payment of money damages which are paid fully by the Indemnifying Party and/or, where Intellectual Property Rights of third parties all involved, limitations on continued use of materials or items covered by such third party Intellectual Property Rights. For so long as the Indemnifying Party is diligently conducting such defense, it shall not be liable for any attorney’s fees of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in a defense and settlement of any such Claim provided that, except if the last sentence of this Section 7.3 is applicable, the Indemnifying Party shall not be liable hereunder for any settlement or compromise negotiated by the Indemnified Party unless the Indemnifying Party agrees in writing to be so bound. If the Indemnified Party provides notice of a Claim in accordance with this Section 7.3 and is not notified within ten (10) business days thereafter that the Indemnifying Party intends to defend the Claim, the Indemnified Party shall be entitled to defend such Claim, and settle or compromise such Claim, subject to the indemnification provided for herein, including for reasonable attorneys’ fees of the Indemnified Party.
8. Limitation of Liability.
Except with respect to Gelnius’ payments to third parties pursuant to its indemnification obligations under Section 7.1, in no event shall (i) Gelnius’ cumulative liability arising out of or related to the Agreement, whether in contract, tort or otherwise, exceed the greater of (A) the equivalent of Subscription Fees covering a three (3) month period or (B) the prepaid but unused portion of the Subscription Fee for the then-current Subscription Term and (ii) Gelnius have any liability to Customer for loss of revenue, profits, data or goodwill, or for any indirect, special, incidental, punitive or consequential damages, or for cost or procurement of substitute goods or services, however caused and, whether in contract, tort or otherwise, arising out of, or in any way connected with the Agreement, including, but not limited to, the use or inability to use the Gelnius Service Offering(s), or any interruption, inaccuracy, error or omission, even if Gelnius has been previously advised of the possibility of such damages.
9. Term & Termination.
9.2 Termination for Cause. A Party may, in its discretion, may terminate the Agreement for cause upon thirty (30) days prior written notice to the other Party, if such other Party commits a material breach of the Agreement, if such breach remains uncured at the expiration of such notice period. Upon any termination of the Agreement by Customer, Gelnius shall refund to Customer any prepaid but unused Subscription Fees.
9.3 Effect of Termination/Return of Customer-Owned Content. Upon any termination of the Agreement, (i) the license herein allowing Customer and its Authorized Users access and use of the Gelnius Service Offering(s) shall terminate automatically and Gelnius shall disable all applicable Access Methods; (ii) the Receiving Party shall be fully responsible for the return or destruction of all applicable Confidential Information disclosed to it, including deletion of such Confidential Information which is in electronic form from its servers; and (iii) subject to the next following sentence, Gelnius shall delete applicable Customer Content then on its servers. Upon request by Customer made within thirty (30) days after the effective date any termination of the Agreement, Gelnius will, within five (5) business days, make available to Customer for download a file of Customer Content in a standard data file format. After such thirty (30) day period, Gelnius shall have no obligation to maintain or provide any Customer Content.
9.4 Suspension. Notwithstanding anything to the contrary in this Section 9, if, in Gelnius’ reasonable judgment, due to Customer or any of its Representative’s action or inaction, the Gelnius Service Offering(s) or any component thereof are about to suffer a significant threat to security or functionality, then Gelnius may elect to immediately suspend Customer’s access to the Gelnius Service Offering(s).
10. General Provisions.
10.1 Relationship of the Parties. The Parties are independent contractors. The Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-Party beneficiaries to the Agreement.
10.2 Force Majeure. Gelnius shall not be liable for, and shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to Force Majeure. Gelnius shall provide Customer with written notice of the occurrence of any Force Majeure and shall use reasonable commercial efforts to mitigate its effects on Gelnius’ performance under the Agreement. If an event of Force Majeure materially and adversely affects Gelnius’ performance under the Agreement for a period of thirty (30) days, then Customer shall be entitled to terminate the Agreement, and shall be entitled to receive a refund from Gelnius of any prepaid but unused Subscription Fees.
10.3 Notices. All notices under the Agreement shall be in writing and shall be sent to Gelnius at 1100 Arlington Heights Road, Suite 600, Itasca, Illinois 60143, Att: General Counsel, and to Customer at the address made available to Gelnius in Customer’s profile. All notices shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after mailing, first class, return receipt requested; or (iii) one business day after deposit with an overnight courier service.
10.5 Assignment. Customer may not assign the Agreement or any of its rights or obligations thereunder, whether by operation of Law or otherwise, without the prior written consent of Gelnius. Gelnius may, without consent of Customer, assign this Agreement to a successor-in-interest in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets (or the assets used in performance of the Agreement) or otherwise is entitled to assign the Agreement to an affiliate thereof. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.6 Governing Law and Venue. The Agreement shall be governed and interpreted by the laws of the State of Illinois, U.S., without reference to its choice of law provisions. All suits to recover a claim must be exclusively submitted to the jurisdiction of a state or federal court located in Cook County, Illinois to which the Parties irrevocably consent to personal jurisdiction and waive all objections thereto. Where claims are not filed or suits are not instituted in accordance with the foregoing provisions, such claims shall be deemed waived and will not be paid. No action arising out of any breach or claimed breach of the Agreement or the transactions contemplated by the Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. For purposes hereof, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
10.8 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of the Agreement shall remain in effect.