These Terms and Conditions (the "Agreement") shall govern all orders for, and purchases and delivery of, services offered by i2o Retail, Inc. ("i2o"), unless otherwise agreed in a writing executed by i2o and the Customer. All such orders shall be deemed to incorporate and shall be governed by the terms and conditions of this Agreement. i2o's acceptance of any order form for Services is subject to and conditioned on Customer's assent to the terms and conditions of this Agreement.
1.1 i2o Obligations. i2o shall make the services (the “Services”) described in one or more order forms available to Customer during the term of this Agreement.
1.2 Customer Obligations. Customer shall use the Services solely for its internal business purposes in accordance with the applicable order form and not for the benefit of any third parties.
1.3 Responsibilities of i2o. i2o will provide the Services hereunder in a professional manner in accordance with applicable industry standards and will use reasonable efforts to provide the Services in accordance with the scope of work, subject to Customer's performance of its responsibilities and except as prevented by acts or occurrences beyond i2o's control.
2.1 Fees; Payment. Customer shall pay i2o all fees and Expenses (as defined below) specified in all order forms. All fees and Expenses are quoted and payable in United States dollars. Unless otherwise specified in an order form, fees and Expenses for the Services will be invoiced in accordance with the relevant order form and shall be due and payable within thirty (30) days of invoice date. Except as otherwise set forth herein, the fees for Services paid by Customer shall be non-refundable. Customer shall be responsible for all sales, use and other taxes, however designated, levied against the sale or delivery of the Services, excluding taxes based on i2o's net income. Travel and incidental expenses ("Expenses") will be billed in addition to the time expended.
2.2 Non-Payment and Suspension of Services. If Customer’s account is more than thirty (30) days past due (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, i2o reserves the right to suspend the Services, without liability to Customer, until such amounts are paid in full. In such event, completion of the Services or a particular phase thereof may be delayed and the schedule, costs or milestones for particular Services will be adjusted by i2o to reflect any required changes.
“Deliverables” are works and other materials provided, prepared or delivered by i2o to Customer in the course of providing Services. Any Deliverable for which Customer has paid in full, that (i) incorporates Customer’s Confidential Information or other Customer intellectual property; and (ii) does not incorporate any of i2o's Confidential Information and/or intellectual property and/or any derivative, customization, improvement, modification, upgrade or update thereof; and (iii) is not i2o IP (as defined below) or any derivative, customization, improvement, modification, upgrade or update thereof; (a "Work Deliverable"), shall be owned exclusively by Customer and shall be deemed a "Work Made For Hire" as defined under the United States Copyright Act. In the event that any Work Deliverable is held not to be a Work Made For Hire, i2o hereby agrees to assign to Customer all i2o's copyrights therein. i2o and its licensors retain ownership of all other Deliverables, including, without limitation, any derivatives, modifications and/or enhancements thereof, Intellectual Property Rights incorporated in such other Deliverables and any i2o Intellectual Property Rights on which such other Deliverables are based. Notwithstanding anything to the contrary, i2o and its licensors hereby reserve and retain ownership of all intellectual property which i2o owns, creates, licenses, or otherwise acquires, including without limitation all i2o Technology (as defined below), and/or any and all derivatives, improvements, modifications, enhancements and/or updates thereto (the "i2o IP"), all of which shall be deemed i2o's Confidential Information, with all rights, title and ownership therein remaining solely with i2o. No intellectual property license, patent, copyright, trademark or other proprietary right to any i2o IP and/or i2o Confidential Information is granted or implied by this Agreement. For the purposes of this Agreement, ("i2o Technology") means any documents, software and other works of authorship, other technology (including without limitation any interfaces utilized with the Services, software, hardware, products, processes, methodologies, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions) and other tangible or intangible technical material or information, and any other data, information and/or material provided by i2o to Customer in the course of any use of the Services and/or otherwise. Nothing herein shall be deemed to grant i2o any right, title or interest in or to any of Customer’s Confidential Information or other Customer intellectual property. i2o provides services and products to other customers that are similar to the Services i2o provides to Customer. Nothing in these terms and conditions is intended or should be interpreted to prevent or inhibit i2o from continuing or commencing to provide such services and/or products.
4.1 Confidentiality; Protection. In connection with the delivery of Services the parties may have access to Confidential Information of the other. “Confidential Information” shall mean the i2o IP, Customer Data, related documentation, and all parts, copies and modifications thereof, and any other information, in whatever form, received by one party from the other which is identified as being proprietary or confidential, including without limitation and whether or not designated or marked as confidential, all computer programs, source code, routines, methodologies, data information, documentation, know-how, business and financial information, and technology relating to or forming any part of the products and/or services of the parties hereof; provided, however, such information shall not be deemed Confidential Information if it (a) is or becomes a part of the public domain through no act or omission of the receiving party; or (b) was in the receiving party's lawful possession prior to the disclosure and had not been obtained by the receiving party from the disclosing party; or (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party without access to and/or utilization of the disclosing party’s Confidential Information. The parties agree, both during the term of this Agreement and for a period of five (5) years after termination of this Agreement, to hold each other's Confidential Information in confidence. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than the implementation of this Agreement. Each party shall limit the use of, and access to, all Confidential Information of the other party to its employees, contractors, agents or Authorized Parties whose use of or access to is necessary to fulfill the objectives of this Agreement, and shall take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, contractors, agents or Authorized Parties in violation of the provisions of this Agreement, and without limitation, to enter into appropriate written agreements with its employees, contractors, agents and/or Authorized Parties to prevent the unauthorized use, disclosure or copying of Confidential Information. The receiving party shall be responsible for any use or disclosure of Confidential Information by any of its employees, contractors, Authorized Parties and/or agents, and shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the receiving party uses to protect its own confidential information. Neither party shall copy any Confidential Information of the other party without the prior written permission of the other party, and shall reproduce all such notices on any copies of Confidential Information which such party is authorized to make. Neither party shall remove any copyright, proprietary rights or confidentiality notice included in or affixed to any Confidential Information of the other party. i2o shall have the right to disclose through publication or otherwise, the existence and general nature of this Agreement. Neither party shall alter, modify, adapt or reverse engineer any Confidential Information of the other party, including, without limitation, related documentation, whether by converting, translating, de compiling, disassembling, creating derivative works, or merging any such Confidential Information or any part thereof with any other software except as specifically permitted hereunder. Within twenty days after the termination or expiration of this Agreement for any reason, each party shall return all Confidential Information of the other party provided to it hereunder, and all copies thereof in its possession, custody or control, and shall destroy or render unusable all other Confidential Information of the other party and copies thereof which for any reason cannot be delivered. In such event, an authorized representative of such party shall certify in writing to the other that all Confidential Information of the other party has been returned or destroyed. In no event, shall Customer be entitled to any refund or credit against any portion of the fees hereunder by reason of the return or destruction of Confidential Information pursuant to this Section 4.1
4.2 Compelled Disclosure. If a party is compelled by Law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party’s cost, if the other party wishes to contest or limit the disclosure.
4.3 Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to seek injunctive relief, it being acknowledged by the parties that any other available remedies may be inadequate.
Each party hereby agrees that during the term of this Agreement and for a period of one year thereafter, neither party nor any of its employees, agents or contractors will, without the other party’s prior written approval, directly or indirectly hire any employee or consultant of such other party or recruit, solicit or knowingly induce, or attempt to induce, any employee or consultant of such other party to terminate his or her employment or consulting relationship with, or otherwise cease his relationship with, such other party. Notwithstanding the foregoing, the parties acknowledge that hiring an applicant as a result of such applicant’s response to a general job advertisement shall not be considered a violation of this Section 5.
6.1 Warranties. (i) Each party represents and warrants that it has the right to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it, including those related to data privacy, international communications, export, and the transmission of technical or personal data.
(ii) i2o warrants that the Services will be of a professional quality conforming to generally accepted industry standards and practices. Such warranty shall apply to the particular Services or Deliverable for a period of 30 days following rendering of the Services or delivery of the Deliverable.
6.2 Warranty Remedies. If Customer believes that any Services or Deliverable fails to conform to the foregoing warranty, Customer must notify i2o within 30 days of the Services being rendered or a Deliverable being delivered. As Customer’s exclusive remedy and i2o’s sole liability for breach of the warranty set forth in Section 6.1(ii), i2o shall (a) correct the non-conforming Services or Deliverable at no additional charge to Customer, or (b) in the event i2o is unable to correct such deficiencies after commercially reasonable efforts, refund Customer amounts paid for the defective Services or Deliverable.
6.3 Disclaimer. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE SERVICES AND/OR DELIVERABLES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ALL DELIVERABLES ARE DELIVERED "AS IS, WHERE IS".
6.4 Limitation of Warranty. i2o shall have no liability under any of the foregoing warranties or otherwise to anyone other than Customer or to the extent that: (a) Customer has failed to report to i2o in writing any deficiency, non conformity or defect claimed to be a breach of warranty within thirty (30) days of completion of the Services or delivery of a Deliverable claimed to be deficient; the warranty period; (b) the claimed deficiency, non conformity or defect has been caused, in whole or in part, by misuse or exposure to environmental or operating conditions other than those specified by i2o; (c) the work has been damaged or altered by accident, neglect, misuse or other abuse; (d) the claimed deficiency, non conformity or defect has been caused, in whole or in part, by a person or persons other than i2o, or by other products or equipment not manufactured or developed by i2o; or (e) Customer has failed to comply with the provisions of Section 1.5 above.
7.1 Indemnification by i2o. i2o shall defend or, at its option, settle, any third-party claim, action or proceeding brought against Customer on grounds that any Deliverable infringes a patent, copyright, trade secret or other proprietary right of a third-party ( a "Claim") and shall indemnify Customer against all damages and costs incurred by Customer in any such action or proceeding which results from any such Claim, and reasonable expenses (including reasonable attorneys’ fees) incurred in connection with such Claim. If a Deliverable or any part thereof becomes, or in i2o’s opinion is likely to become, the subject of a valid claim of infringement or the like under any patent, copyright, trade secret or other proprietary right law, i2o shall, at its expense, either (i) obtain for Customer a license permitting the continued use of the Deliverable or such part, or (ii) replace or modify it so that it becomes non infringing, or (iii) in the event the foregoing options under (i) and (ii) above are not available after the exercise of commercially reasonable efforts, then use of the Deliverable may be terminated at the option of i2o and i2o’s sole liability shall be to refund any prepaid fees paid by Customer for such infringing Deliverable. i2o shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent. i2o shall have no liability hereunder with respect to any Claim based upon (a) the combination of the Deliverable with other products not furnished by i2o, (b) any addition to or modification to the Deliverable by any person or entity other than i2o, or (c) the use of other than a new version of a Deliverable which is provided to Customer, (d) information or requirements or directives furnished by Customer, (e) use of the Deliverable in a manner inconsistent with or not otherwise contemplated by this Agreement, or (f) Customer’s use of software licensed from third parties. THE PROVISIONS OF THIS SECTION 7.1 STATE THE EXCLUSIVE LIABILITY OF i2o AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT INFRINGEMENT BY ANY SERVICES, DELIVERABLES, ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF NON-INFRINGEMENT.
7.2 Indemnification Procedures. To be indemnified, Customer shall (a) promptly give written notice of the claim to i2o; (b) give i2o sole control of the defense and settlement of the claim (provided that i2o may not settle any claim unless it unconditionally releases Customer of all liability); and (c) provide to i2o, at i2o's cost, all reasonable assistance.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO SECTION 3 (PROPRIETARY RIGHTS) AND/OR EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4 AND/OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 AND/OR ANY PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S TOTAL, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SERVICES FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR i2o’S SERVICES DELIVERY DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PERTNINENT ORDER FORM GIVING RISE TO THE CLAIM.
8.2 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO SECTION 3 (PROPRIETARY RIGHTS) AND/OR EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4 AND/OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SERVICES AND/OR ANY DELIVERABLE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES AND/OR ANY DELIVERABLE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF A PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Termination. Either party may terminate this Agreement: (i) upon sixty (60) days prior written notice to the other party; (ii) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (iii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon expiration or termination of this Agreement for any reason, Customer shall pay i2o (i) for all Services performed and/or Deliverables delivered through the date of expiration or termination, (ii) all Expenses, (iii) all amounts (e.g. equipment charges, costs, utilities, service fees, etc.) not otherwise incurred or paid for that i2o obligated itself to pay to third parties prior to the date it received the notice of termination in order for it to provide the Services, and (iv) all applicable taxes on the foregoing. Upon receipt of all of the payments described above, i2o shall thereupon provide Customer with any work in progress for which i2o has been paid. Upon the expiration or termination of this Agreement for any reason, i2o shall refund any unexpended advance payments made by Customer for Services not delivered, as of the effective date of termination.
9.2 Surviving Provisions. Upon the expiration or termination of this Agreement for any reason, each party shall be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except with respect to Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10, and any liability arising from any breach of this Agreement, which shall survive the expiration or termination of this Agreement.
10.1 Relationship of the Parties. It is the intention of the parties that i2o serve as an independent contractor to Customer. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties and this Agreement should does not make either party an agent, employee or representative of the other party. There are no third-party beneficiaries to this Agreement.
10.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the third business day after first class mailing. Notices to i2o shall be addressed to the attention of Legal Department at the i2o address first referenced above. Notices to Customer shall be addressed to Customer’s signatory of the Agreement at the Customer address first referenced above.
10.3 Waiver of Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.4 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, epidemic, strikes or other labor problems (other than those involving i2o or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused for up to thirty (30) days. In the event that a force majeure event persists for more than 30 business days, the unaffected party may terminate this Agreement upon written notice to the affected party.
10.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, consent to assign shall not be required in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assets of a party, provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Washington, without regard to its conflicts of laws rules. In any legal action relating to this Agreement, Customer agrees to submit to the non-exclusive jurisdiction of any state or federal court sitting in the State of Washington. Any legal action relating to or arising out of the performance of this Agreement must be brought within one (1) year after the cause of action arises.
10.7 Waiver of Jury Trial. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.8 Insurance. To the extent that i2o's personnel may perform work at Customer's premises, i2o shall maintain reasonable levels of insurance to protect itself from claims for damages because of bodily injury, sickness or death of any of its employees or any other person which arises out of any willful and negligent act or omission of i2o or its employees or agents in the performance of the Services hereunder and claims for damages because of injury or destruction of tangible property which arise from any willful and negligent act or omission of i2o or its employees or agents.
10.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all order forms, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of this Agreement shall take precedence over the provisions of any order form, unless expressly set forth otherwise in an order form. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.10 Amendment. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
10.11 Severability. If any provision of this 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 this Agreement shall remain in effect.
10.12 Execution. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
“Authorized Parties” means Customer’s employees and third party providers authorized to access or receive Customer Data by Customer in writing.
“Customer Data” means any and all data and content that is provided by Customer to i2o in connection with the Services.
“Intellectual Property Rights” means (a) all inventions (whether or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, divisions, continuations, continuations-in-part, revisions, renewals, extensions, and reexaminations thereof, (b) all works of authorship, including all mask work rights, database rights and copyrightable works, all copyrights, all applications, registrations and renewals in connection therewith, and all moral rights, (c) all trade secrets, (d) all registered and unregistered trademarks, service marks, trade dress, domain names, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith, (e) all derivative works of any of the foregoing; (f) any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force, and (g) all copies and tangible embodiments of all of the foregoing (a) through (f) in any form or medium throughout the world.