Terms of Use
Version – January 2024
These General Terms and Conditions (Version November, 2023) (“GTC”) are an integral part of each Order Form between LBMX Inc. (“LBMX,” “Provider,” “we,” “us,” or “our”) with a principal address at 400-148 Fullarton Street, London, Ontario, Canada, N6A 5P3, Tel: (519) 850-5269 Email: sales@lbmx.com and the “Customer” (also “you” or “your”) identified in the Order Form (together with these GTC, the “Agreement”). You acknowledge and agree that these GTC form a part of, and are incorporated by reference into, each Order Form. In the event of any conflict between these GTC and an Order Form, the terms have the order of priority set forth in the Order Form. The parties agree as follows:
Our Privacy Policy, which can be found at https://www.lbmx.com/privacy-policy/ as updated by us from time to time, provides details on what information we collect, how we use and share the information we collect, and how we protect your privacy.
WE MAY CHANGE THESE GTC FROM TIME TO TIME. WHEN WE MAKE MODIFICATIONS TO THESE GTC, WE WILL INDICATE SUCH CHANGES WITH A REVISION TO THE VERSION DATE ABOVE AND WE WILL EITHER EMAIL YOU THE REVISED GTC OR WE WILL POST THE REVISED GTC ON OUR SERVICES AT https://www.lbmx.com/terms-of-use/ YOU ARE BOUND BY ALL SUCH CHANGES WHEN NOTIFIED.
Any capitalized terms used but not otherwise defined herein will have the meaning given to such terms in the Order Form.
1. LBMX SOLUTIONS.
1.1. LBMX Solutions. We provide a hosted B2B solution center and e-commerce marketplace, solutions available through the solution center and marketplace, APIs, integrations and other methods to connect to our services and solutions, and other services, as they may be updated by us from time to time (collectively, the “LBMX Solutions”) that allow Buying Groups to provide an electronic solution to their Members for transmitting Content and allows Buyers and Sellers to transact Content electronically.
1.2. Customers. We offer the LBMX Solutions to three groups of customers:
- Buying Groups. The LBMX Solutions allow each “Buying Group” (organizations that represent a group of Buyers and/or Sellers) to provide access or use via the Services to the members of the Buying Group (each a “Member”) to electronically send and/or receive Content, including Documents relating to the procurement to pay cycle (i.e. purchase orders, invoices, remittances etc.), to and from other Members, Buyers or Sellers, and to access the Members’ purchasing/selling data to help calculate rebates accurately, to send/receive payments or payment data, to determine purchase patterns and for other permitted purposes;
- Sellers. The LBMX Solutions allow each “Seller” (whether selling Members of a Buying Group or independent suppliers/vendors), via the Services, to electronically send and/or receive Content, including Documents, payments and payment data relating to the procurement to payment cycle, to Buyers; and
- Buyers. The LBMX Solutions allow each “Buyer” (whether buying Members of a Buying Group or independent buyers or distributors), via the Services, to electronically send and/or receive Content, including Documents, payments and payment data relating to the procurement to pay cycle, to Sellers.
1.3. Services. The “Services” are the portion of the LBMX Solutions to which (a) you purchase a license as set forth in an Order Form, (b) you are given access or use through a Buying Group’s purchase of a license, or (c) you are otherwise given access or use (as directed by your Credentials). The Services may include access to deliver or receive Content and to input or receive User-Generated Correspondence. We may improve, augment, update, or modify the Services from time to time in our sole discretion, provided that such updates or modifications will not materially degrade the functionality of the Services during the applicable Subscription Term.
2. DEFINITIONS. The following capitalized terms have the meanings set forth next to them when used in this Agreement:
(a) “API” means an application programming interface made available by us for use in connecting to the Services. APIs are components of the Services.
(b) “Authorized Users” means your, or if you are a Buying Group your or your Members’, employees, subcontractors, contractors, contingent workers or agents who are authorized by you to access or use the Services.
(c) “Confidential Information” means confidential and proprietary information disclosed or made accessible by a disclosing party hereunder, including, for LBMX, the Services and, as between the parties, any Received Content. Confidential Information excludes information which: (i) is available to the public prior to disclosure to the receiving party or becomes available to the public by publication or otherwise without fault of the receiving party; (ii) is lawfully in the receiving party’s possession prior to the initial disclosure; (iii) is supplied to the receiving party by a third party having a legal right to so disclose; or (iv) is independently developed by receiving party without use of the disclosing party’s Confidential Information.
(d) “Content” means Input Content and Received Content.
(e) “Content Source” is the party which originates the relevant Content. LBMX and the Services are never the Content Source as the Services act as a network for the exchange for such information.
(f) “Credentials” is defined in Section 3.1.
(g) “Documents” means Input Documents and Received Documents.
(h) “Input Content” means Input Documents and Input Product Data.
(i) “Input Documents” means commercial invoices, purchase order acknowledgements, advance ship notices, purchase orders, remittance advice, quotes, estimates, payment authorizations and other such documents and content, including any such documents provided before the date of this Agreement including under prior agreement(s) between the parties but excluding any Input Product Data, that are or have been input into the Services (i) if you are a Buyer or Seller, by you or your Authorized Users, or (ii) if you are a Buying Group, by your Authorized Users, by your Members or their Authorized Users, or by Buyers or Sellers or their Authorized Users for the benefit of your Members.
(j) “Input Product Data” means information relating to commercial products or services, such as descriptions, specifications and digital identifiers of the products, including any such information provided before the date of this Agreement including under prior agreement(s) between the parties, that are or have been input into the Services (i) if you are a Buyer or Seller, by you or your Authorized Users, or (ii) if you are a Buying Group, by your Authorized Users, by your Members or their Authorized Users, or by Buyers or Sellers or their Authorized Users for the benefit of your Members.
(k) “LBMX Documentation” means all written or electronic instructions, data request guide, manuals, functional specifications, user guides and other materials related to use of the Services, which may be provided by us to you hereunder, including any new versions or updates thereto.
(l) “LBMX IP” means the LBMX Solutions, the Services, any other content or data originating with LBMX (excluding Content), De-Identified Content, Aggregated Content (each as defined below), Usage Data, LBMX Documentation, the software, hardware, systems, materials, processes, know-how and the like utilized by and developed in the provision of the Services, including APIs and interfaces, Marks, and all goodwill therein, and all error corrections, updates, enhancements, modifications, improvements, derivative works, changes, customizations and components in any of the foregoing, and all intellectual property rights therein.
(m) “Received Content” means Received Documents and Received Product Data.
(n) “Received Documents” means commercial invoices, purchase order acknowledgements, advance ship notices, purchase orders, remittance advice, quotes, estimates, payment authorizations and other such documents and content, including any such documents received before the date of this Agreement including under prior agreement(s) between the parties but excluding any Received Product Data, that are or have been received through the Services from a Content Source (i) if you are a Buyer or Seller, by you or your Authorized Users, or (ii) if you are a Buying Group, by your Authorized Users, by your Members or their Authorized Users, or by Buyers or Sellers or their Authorized Users for the benefit of your Members.
(o) “Received Product Data” means information relating to commercial products or services, such as descriptions, specifications and digital identifiers of the products, including any such information received before the date of this Agreement including under prior agreement(s) between the parties, that are or have been received through the Services from a Content Source (i) if you are a Buyer or Seller, by you or your Authorized Users, or (ii) if you are a Buying Group, by your Authorized Users, by your Members or their Authorized Users, or by Buyers or Sellers or their Authorized Users for the benefit of your Members.
(p) “Service Limits” means the applicable license parameters or other service limits set forth in an Order Form or permitted by your Credentials.
(q) “Subscription Term” means the subscription term to which you have a license to the Services, as defined in the applicable Order Form or permitted by your Credentials.
(r) “Usage Data” means any statistical and usage data derived or generated from the performance, operation and use of the Services, and all analysis thereof, including the review and interpretation of how individuals engage with Content, User-Generated Correspondence or data published, posted, uploaded, transmitted, generated or otherwise provided through or via the Services.
(s) “User-Generated Correspondence” means any information in any medium including, without limitation, any text, photograph, graphic, video, audio or any other type of media, that is communicated or disclosed to us or the Services via a chat or messaging feature by (i) if you are a Buyer or Seller, you or your Authorized Users, or (ii) if you are a Buying Group, your Authorized Users, your Members or their Authorized Users, or Buyers or Sellers or their Authorized Users for the benefit of your Members. User-Generated Correspondence will include the contents of any chat and direct message conversations between you or your Authorized Users and LBMX personnel.
3. CONNECTING TO THE SERVICES
3.1. Connections; Credentials. You or your Authorized Users may connect your system(s) to the Services via a variety of methods, including our web portals, direct connection, value added network (“VAN”), FTP/SFTP sites or an API connection agreed to by us or you or your Authorized Users (each a “Connection”). Accessing these Connection methods may require the creation of account(s), and may require additional fees. In connection with such access, we will provide you with, or you may create, credentials (“Credentials”), such as a username, password, security key, tokens, or other mechanism for ensuring the security of the Services. You agree to hold us harmless and indemnify us against any claim arising out of the use, access, disclosure, alteration, deletion, or loss of data in transit to and from LBMX or the Services. We may provide you with LBMX Documentation explaining how to use any such Connections to connect with your information systems. Such LBMX Documentation is our Confidential Information, and may only be used for such purposes. We may establish limits on the volume and frequency of your use of Connections and suspend your use of Connections if they exceed such limits; such limits, if established, will be delivered to you in writing.
3.2. Security of Credentials. It is the responsibility of Customer and its Authorized Users to protect the Credentials, including without limitation, by using effective, complex passwords. You and your Authorized Users will not sell, transfer, share, or disclose the Credentials. You must keep the Credentials confidential to protect the security of the Services. If you become aware that someone else has obtained your or your Authorized Users’ Credentials or that unauthorized use of your or your Authorized Users’ Credentials may be occurring, you must use the Services to change your Credentials. The activities, including any business transactions, undertaken with the use of your Credentials will be legally binding and you agree that you will be responsible for such activities to the same extent and effect as if your activities were accompanied by your signed, written authorization to us and the other users of the Services. You authorize us to accept such activities without any further verification. You will be responsible for all access to the Services under your Credentials.
4. SERVICES; LICENSE FROM LBMX.
4.1. Services. Subject to the terms and conditions of this Agreement, during each Subscription Term, we will perform the Services. As part of the Services, we will provide reasonable technical support and assistance to you pursuant to the terms set forth in https://www.lbmx.com/support/ or a subsequent link we make available to you, as updated by us from time to time (“Support Terms”); provided, however, that during each Subscription Term, no such update will materially detrimentally impact the support we offer.
4.2. License. Subject to the terms and conditions of this Agreement, during the Subscription Term (except as noted below), we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable right, solely in compliance with this Agreement, the LBMX Documentation, any Service Limits and all applicable laws to:
(a) use any Connection permitted by us solely to develop, implement, and, as applicable, integrate interfaces in order to provide access to the Services from your permitted systems;
(b) copy the Connection(s) that are code only as necessary to exercise your rights hereunder, and subject to copying of all legal, copyright, trademark and other proprietary rights notices contained in or on the Connection;
(c) access and use the components of the Services made accessible to you via your Credentials solely for the purpose of using the features and functionality of the Services, including to submit and receive Content and User-Generated Correspondence relevant to your use of the Services;
(d) use the LBMX Documentation, in connection with your use of the Services; and
(e) with respect to any and all Received Content received through or via the Services: (i) download and use the Received Content solely for your internal business purposes; (ii) share Received Content with banks and other financial institutions for the purpose of generating, administering, or facilitating payments responsive to Received Content; and (iii) capture, copy, and store the Received Content or any information expressed by the Received Content solely for the purposes of use in subsections (i) and (ii). The rights in this subsection (e) will continue during the Subscription Term and, with respect to Received Content downloaded during the Subscription Term, thereafter as necessary for recordkeeping and audit purposes.
4.3. Authorized Users. You acknowledge and agree that you will ensure that your Authorized Users use the Services consistent with this Agreement, including requiring any third parties which are Authorized Users to agree to the AULA or, if the AULA is not made available by us to such Authorized Users, to substantially equivalent terms. You will be responsible for any breach of this Agreement by your Authorized Users.
4.4. Reservation of Rights. We, and our licensors, retain all right, title and interest in and to the Services and Received Content not granted, including without limitation, all hardware and software incorporated into or used by the Services, and this Agreement does not grant you any intellectual property rights in the Services or Received Content. You agree to use the Services and Received Content only as permitted by your license. You may not:
(a) use the Services and Received Content except as expressly permitted herein;
(b) copy, translate, display, perform, modify and make derivative works of, reverse engineer, or reproduce the Services and Received Content or any component thereof in whole or in part including, without limitation, by posting them on your personal website, blog, social network, or any other online, electronic, or printed resource, except as expressly permitted in Section 4.2;
(c) sublicense, license, resell, distribute, share or otherwise transfer any portion of the Services and Received Content to any third party except for your subcontractors, contractors and agents that use the Services and Received Content as Authorized Users on your behalf;
(d) use the Services and Content in a manner that violates any applicable law;
(e) interfere with or disrupt the integrity or performance of the Services;
(f) attempt to gain unauthorized access to the Services or its related systems or networks;
(g) remove or alter any proprietary notices or labels from the Services or Received Content; and
(h) use the Services: (i) to transmit or store infringing, libelous, salacious, or otherwise unlawful, harmful, or tortious material, or to transmit or store material in violation of the legal rights of any third-party; (ii) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, disability, or any other legally protected status or characteristic; (iii) to submit false or misleading information; (iv) to collect or track the personal information of others; (v) to spam, phish, pharm, pretext, spider, crawl, or scrape; (vi) for any obscene or immoral purpose; (vii) in any manner intended to interfere with or circumvent the security features of the Services, other websites, or other services or devices on the Internet; or (viii) to incorporate the Services or any component of them into other applications or websites.
By using the Services or Received Content, you represent and warrant that you: (1) are not located in Cuba, Iran, North Korea, Russia, Syria, or the occupied regions of Ukraine (Crimea, Donetsk, and Luhansk) (2) are not listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List, the Entity List, or the Unverified List; (3) are not subject to sanctions imposed by the United States, Canada, the European Union, the United Nations, or the United Kingdom; and (4) will not divert or export, directly or indirectly, our Services or Received Content in ways that are inconsistent with applicable U.S. and non-U.S. export controls.
4.5. Use. We obtain the rights to make Received Content available to you. Using the Services you may elect to share Input Content with other LBMX customers you select, and access certain Received Content from LBMX customers that elect to share Received Content with you. You agree to use the Services, Content and User-Generated Correspondence in accordance with this Agreement and all applicable laws. Without limiting the foregoing, you agree not to disturb the normal operation of the Services and to use the Services only in a responsible manner. Once Content is deposited into the Services, you are responsible for ensuring they are read and acted upon in a timely manner, as dictated by agreements with the applicable Content Source. If you are unable to access the Services on a regular basis or for an extended period of time, it is your responsibility to notify the applicable Content Source.
4.6. Capacity Limits for Storage and Transmission. You agree that we may establish Service Limits for your use of the Services. Such limits may, for example, constrain the volume of data stored and transmitted, and the size of attached files, the size of documents within Input Content.
4.7. Beta Features. “Beta Features” means features, functionalities, and/or modules of the LBMX Solutions which are not generally available to our customers for production use. From time to time, we may invite you to try Beta Features at no charge. You may accept or decline any such trial in your sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any Beta Features trial period will expire upon the date that a version of the Beta Features becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such Beta Features. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available as part of the LBMX Solutions. We will have no liability for any harm or damage arising out of or in connection with any use of a Beta Features, and you use any Beta Features at your own risk.
4.8. Acquisition and Support of Hardware and Third Party Software. You are solely responsible for the acquisition, installation and maintenance of all hardware, third party software and telecommunications lines and related services necessary to access and use the Services.
5. CONTENT AND YOUR LICENSE TO LBMX.
5.1. Conversion. You acknowledge and agree that as part of the Services, the Services may custom map and modify (including to convert for purposes of facilitating connections and electronic data interchange (“EDI”)), allow the transmission of, and temporarily store Input Content you provide to us and maintain information derived from Input Content as well as data about the use of the Services by you. The existence of any of Input Content or User-Generated Correspondence on or in the Services does not create any express or implied approval by us of such material, nor does it indicate that such material complies with the terms of this Agreement.
5.2. Input License to Us. You hereby grant to LBMX a non-exclusive, perpetual, irrevocable, royalty-free, paid up, worldwide, transferable and sublicensable license to access, use, host, reproduce, upload, analyze, manipulate, modify and create derivative works of, transmit, store, distribute, disclose, display, make available, and otherwise process:
(a) Input Content to:
i. provide Input Content to you and LBMX’ other customers which have selected delivery or receipt of Input Content or for which you have selected such delivery or receipt;
ii. provide and improve the Services and our other products and services, including testing, improvement, and new product development, including through the use of artificial intelligence or machine learning; and
iii. remove information from and de-identify Input Documents so long as such resulting information, insofar as third parties are concerned, does not identify, and are not capable of identifying, you (such de-identified data is “De-Identified Content”) and use such De-Identified Content or aggregate such De-Identified Content with other data or analysis to generate “Aggregated Content.” You further agree that LBMX (A) exclusively owns all such De-Identified Content and Aggregated Content, as well as any information derived therefrom (which are collectively, LBMX IP, but excluding Input Documents that are non-public provided hereunder), (B) may use the De-Identified Content and Aggregated Content for any purpose, either directly through LBMX or indirectly through or to third parties; and
(b) User-Generated Correspondence in any way we deem fit including, without limitation, the modification, reproduction, repurposing, or deletion of it; we reserve the right to alter, remove, re-post, re-purpose, distribute, market, or trade any such User-Generated Correspondence.
5.3. Warranties. Your Input Content becomes a different LBMX’ customer’s Received Content. You warrant and represent that you have the legal right to grant the licenses described in this Section and that Input Content and your User-Generated Correspondence will not (a) infringe upon any third party’s rights; (b) misappropriate any trade secret; (c) be unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage our system or data; and (e) otherwise violate the rights of a third party. By communicating or disclosing any User-Generated Correspondence to us, you represent and warrant that the User-Generated Correspondence is your own original work or work that you are authorize to share with us, is not defamatory, and does not infringe upon any applicable laws.
5.4. Disclaimer. We are not responsible for Input Content and User-Generated Correspondence. Without limiting the foregoing, the Content Source is: (a) solely responsible for its Content; and (b) solely responsible not to transmit or publish any information in Content where such activity constitutes a crime or is otherwise unlawful. Notwithstanding the foregoing, we reserve the right (although we do not assume the obligation) to decline Services with respect to any Content and User-Generated Correspondence brought to our attention that we determine, in our sole discretion, to be in breach of this Agreement, or to be otherwise objectionable and to remove from the Services any material we reasonably conclude to violate this Section. You acknowledge and agree that we are not responsible, and will bear no liability, for other LBMX customers’ access to and use of Input Content and your access to and use of other LBMX customers’ Received Content.
6. SUSPENSION. We may suspend your access to the Services if we reasonably believe that you are in breach of any of the terms of this Agreement. We will promptly restore such access once you resolve such breach.
7. FEES; PAYMENT.
7.1. Fees and Increases. The fees payable for the Services are set out in the applicable Order Forms that reference these GTC. We may increase the fees on not less than sixty (60) days prior written notice. Your continued use of the Services after the effective date specified in any notice of a fee increase will be deemed to constitute your acceptance of the increase. Except as otherwise specified herein or in an Order Form, (a) fees are payable in the currency quoted, (b) fees are based on Services purchased and not actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable.
7.2. Expenses. You will pay all fees and expenses associated with our travel, lodging, meals, and other incidental expenses related to on-site visits for training and other requested visits as requested by you and as stated in an Order Form.
7.3. Invoicing and Payment. You are responsible for providing and maintaining complete and accurate billing and contact information for the Services. We will invoice for all Services. Invoices for Services are made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoices are due net thirty (30) days from the invoice date.
7.4. Overdue Charges. If any fees or expenses are not received from you by the due date, then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (equivalent to 18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7.5. Taxes. Unless otherwise stated, fees and expenses do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, real property and employees.
7.6. Disputes. In the event you, in good faith, dispute the charges set forth on an invoice, you will: (a) timely pay all undisputed charges; (b) promptly notify us of the dispute and the basis for it; and (c) reasonably cooperate with us in the event we request additional information from you to investigate or resolve the dispute. You will pay disputed charges within the earlier of fourteen (14) days after (a) the resolution of the dispute or (b) sixty (60) days after the date of the invoice on which the disputed charges first appeared (even if the dispute is not resolved). No interest will accrue on disputed charges until such 14-day period has elapsed. For payment, time will be of the essence.
8. CONFIDENTIALITY. Each party will protect the other party’s Confidential Information from unauthorized use or disclosure using no less than reasonable measures. The receiving party will not disclose the Confidential Information to any third party except those who have a need to know such information for the uses contemplated herein, are informed of the confidential nature of such information, and agree to be bound by obligations of confidentiality substantially similar to those set forth in this Agreement. The receiving party will use the Confidential Information solely and exclusively for the purpose of performing or receiving the benefits of this Agreement. Notwithstanding anything to the contrary, if you or your personnel or Authorized Users provide any ideas, suggestions or recommendations regarding the Services or other of our Confidential Information, (even if designated as your Confidential Information) (“Feedback”), we are free to retain, use, incorporate and disclose, on a perpetual and irrevocable basis, such Feedback in our products, technology and/or services, without payment of royalties or other consideration. Such right is fully transferable and sublicensable. If the receiving party is required by law or court order to disclose the Confidential Information, the receiving party will give the disclosing party prompt notice of such requirement so that an appropriate protective order or other relief may be sought. The breach, or threatened breach, of any provision of this Section 8, or the breach of license rights or restrictions or other misuse of Confidential Information may cause irreparable harm to the disclosing party without an adequate remedy at law. Upon any such breach, violation, or infringement, or threat thereof, the disclosing party will be entitled to seek injunctive relief to prevent the receiving party from commencing or continuing any action constituting such breach, violation, or infringement, without having to post a bond or other security, and without having to prove the inadequacy of other available remedies. This Section does not limit any other remedy available to either party. This Section does not modify the scope of any rights granted in this Agreement.
9. INTELLECTUAL PROPERTY. The Services and their components are protected by copyright and other intellectual property laws. Any intellectual property and intellectual property rights associated with the Services is and will continue to be our property, the property of our licensors, or the property of the owner of the intellectual property. Certain names, graphics, logos, icons, designs, words, titles or phrases used in the Services may constitute trade names, trademarks, official marks or other intellectual property (collectively, “Marks”) of LBMX Inc., Content Sources or other entities. Marks may be registered in Canada and in other countries as applicable, and are otherwise protected according to all applicable laws. All use, reproduction, downloading, re-transmission or other copying or modification of Marks is strictly prohibited. As between the parties the applicable Content Source owns the Content they originally submit, you own the User-Generated Correspondence you submit, and LBMX owns all right, title and interest in and to the LBMX IP and Marks. You will not act in any way which may impair any rights in and to the LBMX IP and Marks.
10. DATA PROTECTION.
10.1. Technical and Organizational Measures. We will maintain appropriate technical and organizational measures to protect the security, confidentiality, and integrity of any data relating to an identified or reasonably identifiable person (“Personal Data”) associated with Customer that the Services process (such data would form part of either your Input Documents or your User-Generated Correspondence and for purposes of this Section is called the “Customer Data”). These measures will be designed to protect against unauthorized or unlawful processing of Customer Data, and against accidental loss or destruction of, or damage to, Customer Data. We will use reasonable efforts to ensure the security of the Customer Data, including but not limited to: (a) implementing and maintaining appropriate technical and organizational measures with a view to maintaining a level of security appropriate to the risk; (b) regularly testing and assessing the effectiveness of those measures; (c) promptly notifying you in writing of any security breaches affecting the Customer Data; and (d) cooperating with you to investigate and remediate such breaches.
10.2. Parties’ Roles Regarding Personal Data. For purposes of applicable data protection and privacy laws, regulations, and standards (“Privacy Laws”), you exclusively determine the purposes and means of processing of Customer Data. We will comply with Privacy Laws to the extent they apply to us in our role of processing Customer Data at the direction and on behalf of Customer.
10.3. Provider’s Rights. We retain the right to reconfigure the Services or use alternative providers for the described aspects of the Services, so long as in doing so the Services would reasonably be anticipated to provide the same degree of security.
10.4. Cross-border Transfers. If we process any Customer Data on your behalf when performing our obligations under this Agreement: (a) you agree that the Customer Data may be transferred or stored outside the country where you are located in order to carry out the Services and other obligations under this Agreement; (b) you will ensure that you are entitled to transfer the Customer Data to us so that we may lawfully use, process and transfer the Customer Data in accordance with this Agreement on your behalf; (c) you will ensure that the relevant third parties have been informed of, and, if legally required, have given their consent to, such use, processing, and transfer as required by all applicable Privacy Laws; (d) we will process the Customer Data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you or the Content Source from time to time; and (e) you will also take appropriate technical and organizational measures against unauthorized or unlawful processing of the Customer Data or its accidental loss, destruction or damage. If necessary for compliance with Privacy Laws, each party will reasonably cooperate to execute an appropriate set of standard data protection clauses to legitimize any international transfers of Customer Data.
10.5. Subprocessors. We will make a list of all parties that might process Customer Data on our behalf available to you on written request. All such parties will be engaged under legally binding requirements to protect Customer Data in accordance with this Agreement.
10.6. Reasonable Assistance. We will reasonably assist you, at your expense, when needed to respond to official inquiries regarding your processing of Customer Data, to conduct data protection assessments, or to demonstrate compliance with Privacy Laws. We will also reasonably assist you, at your expense, in responding to data subject requests. If we receive any request from a data subject seeking to exercise data subject rights with regard to Customer Data, we will provide you with a copy of such request but will take no further action on the request unless you direct otherwise in writing or unless we are compelled to act by applicable law.
10.7. Restriction on Selling. We will not, in any event, sell Customer Data. For purposes of this section, a sale will be considered any disclosure of Customer Data to a third party for money or other valuable consideration, excluding any disclosures that are performed as part of the Services at your direction or on your behalf.
10.8. Personal Data Breach. In the event that either party discovers a breach of the confidentiality of the Customer Data, the party making the discovery will notify the other party without undue delay, and, in any event, within 72 hours. The parties will then reasonably cooperate with each other in the parties’ respective investigations of the breach. If a breach of Customer Data involves the compromise of the confidentiality of Customer Data, you will be solely responsible for providing any notice required to data subjects, supervisory authorities, government officials or regulators, or other recipients entitled to notice under Privacy Law.
11. WARRANTIES; DISCLAIMERS.
11.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. We warrant to you that, during the Subscription Term after implementation, the Services will function substantially as set forth in the LBMX Documentation. This warranty does not apply to defects and issues resulting from your use of the Services other than intended, including, without limitation, use outside of the environment or use specifications as provided to you in writing or not in conformance with instructions. All breach of warranty claims must be brought within thirty (30) days of you becoming aware of the breach to be effective. Your sole remedy and our exclusive liability for any breach of this warranty is for us to correct the applicable defect pursuant to our Support Terms.
11.2. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN SECTION 11.1, THE SERVICES AND RECEIVED CONTENT ARE PROVIDED BY US “AS-IS” WITH NO WARRANTIES; AND WE EXPRESSLY EXCLUDE AND DISCLAIM ANY OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. WE DO NOT WARRANT THAT ACCESS TO, OR OPERATION OF, THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE SERVICES WILL SATISFY CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS. WE UTILIZE THE INTERNET TO PROVIDE THE SERVICES. YOU ACKNOWLEDGE THAT THE FLOW OF TRAFFIC OVER THE INTERNET DEPENDS IN LARGE PART ON SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES, WHICH CAN ALSO IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF), AND CERTAIN PERFORMANCE QUALITIES OF THE SUSTAINABILITY TOOL. WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO INTERNET CONNECTIVITY. WE DISCLAIM ANY LIABILITY ARISING FROM A THIRD PARTY’S FAILURE TO PAY YOU, OR FROM FAILURES OF YOUR PAYMENT EFFORTS, INCLUDING AS A RESULT OF THE SERVICES NOT WORKING PROPERLY.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY.
12.1. Your Indemnification. You will defend, indemnify and hold harmless LBMX and its affiliates, and their respective employees, officers, and directors, against all reasonable legal fees, expert fees, costs (including costs related to the provision of notices to customers and consumers), and expenses and all liability, losses and damages arising in connection with: (a) Input Content or User-Generated Correspondence, or use thereof (except for claims caused by our breach of this Agreement), including any claims of violation, infringement or misappropriation of any third party’s rights including intellectual property rights or privacy rights including any claims brought by any third party alleging unauthorized use or disclosure of Input Content, or otherwise claiming that you failed to obtain proper consent to use or disclose Input Content for use and disclosure as contemplated herein; (b) your misuse of the Services or Content; or (c) your violation of any law or the rights of any third party.
12.2. LBMX Indemnification. We will defend at our expense any suit brought against you, and will pay any settlement we make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services, used as permitted herein (but not the Content or User-Generated Correspondence), infringe such third party’s patents, copyrights or trade secret rights under the applicable laws of Canada, the United States, the United Kingdom, Australia, or New Zealand. If any portion of the Services become, or in our opinion is likely to become, the subject of a claim of infringement, we may, at our option: (a) procure the right for you to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services to eliminate any infringement; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Services. Notwithstanding the foregoing, we will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (i) any use of the Services not in accordance with this Agreement; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by us; or (iii) any modification of the Services by any person other than us or our authorized agents. This Section states your sole and exclusive remedy and our entire liability for infringement claims and actions.
12.3. Limitation of Liability. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN UPDATING THE SERVICES OR PERFORMANCE UNDER THIS AGREEMENT. IN NO EVENT WILL WE BE LIABLE UNDER OR AS A RESULT OF THIS AGREEMENT TO CUSTOMER, AUTHORIZED USERS OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOSS OF USE OF DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY OR ANY OTHER SIMILAR DAMAGES, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL OUR TOTAL, CUMULATIVE LIABILITY FOR ANY LOSS, COST, CLAIM, LEGAL ACTION OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY) EXCEED THE AMOUNT OF FEES YOU ACTUALLY PAID TO US DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM, LEGAL ACTION OR DAMAGE UNDER THE ORDER FORM TO WHICH THE CLAIM RELATES. No claim, regardless of form, which in any way arises out of this Agreement, may be made or brought by Customer or Customer’s representatives more than two (2) years after the basis for the claim becomes known to Customer. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12.3 AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OF THE EXCLUSIVE REMEDIES PROVIDED FOR UNDER THIS AGREEMENT.
13. LINKS TO THIRD PARTY WEBSITES. The Services may contain links to third party websites. In addition, some third party websites may contain links to this Services. The linked third party websites are not under our control and we are not responsible for the availability or contents of any linked third party website site or any link contained in a linked website, or any changes or updates to such websites including the ongoing availability of any content or materials. These links are provided to you only as a convenience, and the inclusion of any link is not an endorsement or approval by us of the linked website or anything contained within it. It is up to you to take precautions to ensure your protection from malware and other risks associated with your use of the Services.
14. TERM AND TERMINATION.
14.1. Term. These GTC will remain in effect for so long as the Order Form(s) to which they relate is in effect. Services commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein, as may be renewed as set forth therein.
14.2. Termination. If either party breaches any of the terms or conditions of this Agreement, and fails to cure such breach within thirty (30) days after written notice thereof, the other party will have the right to terminate this Agreement (including the Order Form) with written notice.
14.3. Effect of Termination. On termination of this Agreement, without limiting either party’s rights and remedies at law or in equity, but subject to any exclusive remedies herein:
(a) termination of this Agreement for any reason will not affect any past sums due under this Agreement or any additional remedies provided by law or equity to either party;
(b) except for licenses stated to extend beyond the Subscription Term, all licenses hereunder will immediately terminate and you will, and will ensure that all Authorized Users will, immediately cease use of all Services and each party will promptly return to the other party any Confidential Information of the other party in whatever form or media originally provided, and upon request, provide the disclosing party written certification attesting to its destruction, except that LBMX is not obligated to return or destroy any LBMX IP, Content, or User-Generated Correspondence. Notwithstanding the foregoing, the receiving party may retain one archival copy of Confidential Information that may be used solely to demonstrate compliance with this Agreement, so long as the receiving party continues to treat such Confidential Information pursuant to the terms hereof; and
(c) any Section of this Agreement which, by its nature, is intended to survive the termination of the Agreement will survive the termination of this Agreement for any reason.
15. MISCELLANEOUS.
15.1. Governing Law and Dispute Resolution Venue. Except as otherwise expressly agreed between us in the Order Form or other writing: (a) any dispute arising out of this Agreement or the Services will be governed by the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable in the Province of Ontario without regard to conflict of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods and (b) such disputes will be dealt with exclusively by a court of competent jurisdiction in London, Ontario, Canada or such other location as the parties may later agree, except that equitable relief may be sought by us in any court of competent jurisdiction.
15.2. Headings. The headings before each section in this Agreement are for convenience only, and will not be used in the interpretation of this Agreement.
15.3 Records Retention. You are solely responsible for maintaining your own records of activity using the Services and for retaining all copies of Content and materials sent or received using the Services. Any retention we retain on your behalf is solely for your convenience and solely at our discretion. In any event, any data we retain on your behalf will be for a maximum of seven years.
15.4. Services Offered Only Where Permitted by Law. The Services are only intended for use in jurisdictions (and to persons residing in those jurisdictions) where they may be legally offered for sale. If you (or the business or other entity you act on behalf of) cannot legally purchase or use the Services, you are prohibited from using the Services.
15.5. Force Majeure. Neither party is liable for an omission or delay in the execution of its obligations hereunder caused by an event beyond the reasonable control of such party including, without limitation, fire, war, abnormal weather conditions, acts of god, governmental regulation, governmental request or requisition for national defense, viruses, worms, unethical hacking or pandemic; provided that party: (a) uses commercially reasonable efforts to prevent the impact of such force majeure event; (b) promptly notifies the other party of the commencement and nature of such force majeure event; and (c) uses commercially reasonable efforts to resume performance as soon as reasonably possible. In such circumstances, the time for the performance of the obligation which is so delayed will be extended to a reasonable time beyond the cessation of the cause of the delay. Notwithstanding any of the foregoing, nothing in this Section will relieve the Customer of its payment obligations hereunder in circumstances when Provider has provided the Services in accordance with the terms hereof.
15.6. General. No waiver of any breach of this Agreement and no course of dealing between the parties will be construed as a waiver of any subsequent breach of this Agreement. The provisions of this Agreement are severable. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby. For purposes of execution and delivery, each party may rely upon the electronic signature of the other party. LBMX has the right to (as to itself) effect an Assignment. “Assignment” means any purported assignment or transfer, directly or indirectly, of this Agreement by a party whether a party assigns this Agreement by way of merger, license or sale of assets to which this Agreement relates, or otherwise. You do not have the right to effect an Assignment, except with the prior express written consent of LBMX which consent may be withheld in its sole and absolute discretion. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any Assignment or other purported assignment in contravention of terms of this Section will be void and unenforceable. This Agreement will not be construed as creating a relationship of employment, agency, partnership, joint venture, or any other form of legal association. Neither party has any power to bind the other party or to assume or to create any obligation or responsibility on behalf of the other party. This Agreement will not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns and the indemnified parties (with respect to indemnification). Any notices provided hereunder will be in writing and will be deemed to have been duly given when delivered, or three (3) days after mailing by certified mail, return receipt requested, postage prepaid, addressed to the addresses stated in the Order Form. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, negotiations, representations, and proposals, whether written or oral, relating to its subject matter. Except for modifications made by us to these GTC (including to the terms in any URL herein), no modification of this Agreement and no waiver of any breach of this Agreement will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. Where “including” is used herein it means “including but not limited to”. The parties have required that this Agreement and all related documents be drafted in English.