Terms

These terms and conditions together with the Order Form represent the agreement (the “Agreement”) governing the use of the products and services ordered from iTradeNetwork, Inc., a Delaware corporation (“iTradeNetwork”) by the customer identified on an order form (“Customer”) (each a “Party and collectively the “Parties”).

iTradeNetwork and Customer agree to be bound by the terms and conditions of this Agreement, and any documents signed by the Parties referencing these terms. In the event of a conflict between the Order Form and these terms, the Order Form shall govern for the transaction and/or products represented in the Order form For customers with legacy agreements, Customer’s execution of an Order Form referencing these terms shall move all of Customer’s iTradeNetwork products under this Agreement, subject to any specific terms in the legacy order form (sometimes previously called a “Solution Exhibit”) following the end of the current annual term. All automatic renewals shall be subject to these terms which shall supersede any agreement terms. The execution of an Order Form to renew, change, expand, or modify an existing subscription under the

Definitions. The following definitions shall apply to this Agreement:

1. 1. “Affiliates” shall mean any entity that controls or is controlled by such party, r is under common control with such party. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (51%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation). Affiliates are not permitted to use the subscription Services unless specifically identified in an Order Form, except where pricing is exclusively based on trading volume on the solution platform.
   2. “Authorized Link” means one or more hyperlinks from a Customer site(s), or an extranet established by the Parties, to provide Authorized Users access to a Subscription Service.
   3. “Authorized User” means an individual(s) authorized by Customer and designated to iTradeNetwork to receive access to a Subscription Service who have received a User ID, password and security authentication measure to access and use a Subscription Service. If pricing is based on the number of Authorized Users, such shall be designated in the applicable Order.
   4. “Customer Data” means information, data and/or software provided, input or uploaded to the Subscription Service by an Authorized User.
   5. “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, design rights, and applications or registrations with respect to any of the foregoing, and other similar protected rights in any country throughout the world.
   6. “iTradeNetwork Support” means general support for Subscription Services provided by iTradeNetwork’s support team in accordance with the support terms set forth at Support Terms, exclusive of Project Maintenance.

1. “Order Form” or “Order” means any document that references this Agreement, ordering a subscription to Subscription Service or Professional Services to be provided by iTradeNetwork to Customer (including a statement of work or work order)
2. “Professional Services” means implementation, integration, education, value acceleration, consulting or other services that iTradeNetwork provides as described in any SOW or other Order Form.
3. “Project Maintenance” means the support of Subscription Services for additional agreed to software functionality to a Subscription Service provided by iTradeNetwork to Customer under an Order Form solely for Customer’s internal business operations. Project Maintenance is sometimes also known as AMF or Annual Maintenance Fee.
4. “Related Materials” means all manuals, instructions, documents, files, and tangible and intangible items that are provided to Customer by iTradeNetwork for use in connection with a Subscription Service.
5. “SOW” or “Statement of Work” means statement of work or work order describing the Professional Services to be provided by iTradeNetwork for Customer.
6. “Subscription Service” means the service provided to the iTradeNetwork software module(s) functionality as a hosted service by iTradeNetwork or its third-party provider and to which Customer has subscribed in the applicable Order, including any associated downloadable components to the extent applicable. It includes all ideas, concepts, inventions, and software developed by iTradeNetwork relating to or developed in conjunction with the Subscription Service and all related Intellectual Property Rights.
7. “Trading Partner” means third parties with which Customer transacts business.
8. “User ID” means a multi-character alpha, numeric or alphanumeric set of characters required by an Authorized User to access and use the iTradeNetwork Solution.

Subscription Service(s).

1. Orders. iTradeNetwork agrees to provide Customer access to Subscription Services as set forth and for the purposes described in the applicable Order. Subject to the terms and conditions of this Agreement and applicable Order(s), iTradeNetwork grants Customer a nonexclusive, nontransferable, domestic, limited right to access and use the Subscription Service(s), Related Materials and any Customer-specific Enhanced Data (if applicable) during the term in the Order solely for its internal business operations. iTradeNetwork’s obligation to provide access to Subscription Services is expressly subject to: (1) Customer and Trading Partners providing iTradeNetwork with all necessary data, order guides, purchase orders, account, product and transaction details and other information reasonably required and requested by iTradeNetwork to provide each Subscription Service hereunder (“Customer Information”) in the manner and format reasonably required and requested by iTradeNetwork, and (2) the possession and/or installation by Customer and Trading Partners of the technology required for iTradeNetwork to provide the Subscription Services and that meets the minimum system requirements specified in the applicable Order. Customer represents that it has all necessary rights to the Customer Information provided to iTradeNetwork hereunder.
2. Proprietary Rights. Ownership of and all right, title and interest to each Subscription Service and Related Materials (including but not limited to, originals, translations, compilations and partial copies, if any), and any enhancements or derivative works thereof and all related Intellectual Property Rights, shall remain solely in iTradeNetwork and its licensors. Except as specifically authorized in writing by iTradeNetwork, Customer may not, nor allow others to, copy or otherwise reproduce any Subscription Service or Related Materials in whole or in part or attempt to unlock, download, reverse assemble, reverse compile, run third-party software applications other than approved integrated applications or browsers upon, or disrupt operation of any Subscription Service. Customer will not, and will ensure that any agent of Customer does not, delete or in any manner alter the copyright, trademark, and any other proprietary rights notices of iTradeNetwork, if any, appearing on a Subscription Service or Related Materials as delivered to Customer. Customer will reproduce such notices on all authorized copies it makes of any Related Materials. Customer’s use of any Subscription Service or Related Materials will be limited to the use described in the applicable Order and only in connection with and only so long as, Customer is entitled to use a Subscription Service in accordance with this Agreement.
3. Access and Use Rights. Any access granted to the Subscription Services shall be non-exclusive, non-transferable, limited access to utilize the Subscription Service or Site solely for the purposes of and in accordance with the terms and conditions of this Agreement. Upon termination of a Subscription Service term or Order the right of access and use of any Subscription Service, and to the extent applicable any related access grants, shall end. Authorized User seats cannot be shared by more than one (1) individual but may be assigned to new users who are replacing Authorized Users. The number of Authorized Users shall be defined in an Exhibit. Customer agrees not to: (a) provide access to any Subscription Service to any third party or person who is not an Authorized User of such, and Customer shall ensure that the Authorized Links shall only be used by Customer and its Authorized Users solely in accordance with the terms of this Agreement; (b) directly, or through any third party, sell, license, barter, trade, transfer, or otherwise make or allow access to a Subscription Service to any third party without iTradeNetwork’s prior written consent; (c) allow any further processing or analysis of Enhanced Data (other than mere reformatting for presentation purposes) or Confidential Information through any outsourced service or application competitive with iTradeNetwork and not approved by iTradeNetwork; or (d) attempt to derive any of iTradeNetwork’s product naming conventions or methods for deriving any iTradeNetwork product codes or iTradeNetwork product names.
4. Support. iTradeNetwork Support, when provided for Subscription shall be as described in at Support Guidelines, as such may be updated from time to time. Project Maintenance (if applicable) is excluded from iTradeNetwork Support, and if provided, will require a SOW.

Professional Services.

1. SOWs. iTradeNetwork will implement Subscription Services in accordance with the terms set forth in the applicable SOW or Order Form. Customer may seek additional Professional Services by providing iTradeNetwork with a reasonably detailed written request. Customer has no obligation to request, and iTradeNetwork has no obligation to perform Professional Services. An iTradeNetwork project manager will schedule a time to discuss Customer’s request, and to begin assessing and scoping the Project with Customer. Following the initial meeting(s), iTradeNetwork will assess and scope the proposed engagement (each a “Project”), and then prepare a SOW that specifies, among other things: (1) scope (i.e., “what is being provided”), (2) contact information, (3) logistics, (4) work estimate, including milestones/deliverables, expected resource requirements and estimated time, (5) Customer resources and responsibilities, (6) deliverable schedule, and (7) fees. A separate SOW will be required for each Project. No services will commence until the Parties have an executed SOW. be subject to this Agreement. Any changes to any of the elements of an SOW that have a material impact on the fees will be subject to a Change Request (“CR”). Fees do not include taxes (if applicable), or out-of-pocket costs incurred by iTradeNetwork for materials, or travel and living expenses, content, or other materials or charges from third parties on behalf of Customer. Customer agrees to reimburse iTradeNetwork for any travel or living expenses incurred by iTradeNetwork within thirty (30) days from invoice date in accordance with the terms of the applicable SOW. At Customer’s request, iTradeNetwork will provide receipts and documentation supporting such costs.
2. SOW Termination. Either Party may request to terminate a SOW upon thirty (30) days prior written notice. Any such termination shall be subject to a specifying the termination date and executed by the Parties. In the event Customer terminates a SOW, Customer shall be obligated to pay in full without deduction or offset all unbilled or unpaid fees incurred by iTradeNetwork for the Professional Services provided up to the date of termination plus any non-cancellable commitments that have been incurred by iTradeNetwork. On the termination date, iTradeNetwork will immediately cease performing the Professional Services. Any unbilled or unpaid fees set forth in an SOW shall be non-refundable and non-cancelable.

Fees and Payment Terms.

1. Fees. Customer shall pay iTradeNetwork the fees in US dollars in the amounts and on the terms set forth in the Order. Customer will pay and be liable for any taxes associated with Subscription Services and/or Professional Services, including sales, use, excise and VAT, but excluding taxes on iTradeNetwork’s income, capital or gross receipts. iTradeNetwork may adjust its fees due to any requested changes to, or usage exceeding, the parameters noted in the applicable Order Form (e.g. trading volume and/or Authorized Users). Additionally, iTradeNetwork will automatically adjust its annual fees on an annual basis at the start of each Renewal Term by five percent (5%) or the then current CPI-U (consumer price index Urban city average), whichever is greater, or as otherwise specified in an Order.
2. Payment Terms. Fees shall be due and payable in accordance with the terms in the Order. Except as otherwise specified in an Order, iTradeNetwork invoices on an annual basis in advance. All invoices and payments are non-refundable and non-cancellable. If Customer account is active with iTradeNetwork any day during the term service period being billed, Customer will be charged for services for the entire period. Payments made after their due date will incur a daily simple interest from the original invoice due date at a rate equal to 1.5% per month or the maximum rate permitted by applicable law, whichever is higher. Customer shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorneys’ fees and court costs. If Customer does not pay iTradeNetwork within fifteen (15) days after the due date of any invoice, iTradeNetwork may, with prior written notice at its sole discretion, in addition to pursuing any of its other remedies, either suspend Subscription Services and/or performance of Professional Services until all outstanding payments are made, or terminate the applicable Order and/or this Agreement. No suspension shall affect iTradeNetwork’s rights or Customer’s accrued obligations hereunder, and iTradeNetwork shall not be liable for any business interruption or other damages customer may suffer if any services

Term and Termination.

1. Term. The term of each Subscription Service is set forth in the Order Form subject to these terms. Termination of one Order shall not affect any other Order.
2. Termination for Breach. After complying with Section 12.5, either Party may terminate all Orders in effect at the time, effective sixty (60) days after written notice to the other Party describing in reasonable detail the other Party’s material breach of this Agreement and demanding a cure, but only if such breach is curable, and it is not cured within such sixty (60) day period. This right to cure does not apply to payment obligations for which the cure period is ten (10) days. iTrade reserves the right to suspend or terminate all Subscription Services if payment obligations for any undisputed Order Form are not paid.
3. Termination in the Event of Bankruptcy or Insolvency. Either Party may terminate any and all Orders in effect at the time, in the event the other Party has entered into a bankruptcy proceeding for sixty (60) days without dismissal.
4. Effect. Upon termination or expiration of an Order for a Subscription Service, Customer shall cease all access, license rights and use of the iTradeNetwork Subscription Service(s), provided for hereunder, and without further notice or demand by iTradeNetwork, Customer shall take reasonable steps to destroy all iTradeNetwork Confidential Information and such other iTradeNetwork property or certify that it shall not use the same except for archival reasons, legal or other similar recordkeeping reasons. In such event Customer acknowledges and agrees that it shall continue to be bound by its confidentiality obligations hereunder so long as Customer retains possession of iTradeNetwork’s Confidential Information or other iTradeNetwork property.
5. Survival. Accrued payment obligations and the rights and obligations of the Parties under Sections 2.2, and 4 through 11 shall survive termination of this Agreement.

Warranties and Remedies.

1. Compliance with Laws. Each Party represents and warrants that it shall perform its obligations in a manner that complies with applicable laws, rules, regulations, ordinances and codes in the applicable jurisdiction where business is being conducted. Customer will be responsible for the identification and interpretation of any applicable laws, regulations, and statutes that affect Customer’s application systems, programs, or data to which iTradeNetwork will have access to during the provision of any Professional Services. It is Customer’s responsibility to ensure the systems, programs, and data meet the requirements of those laws, regulations and statutes.
2. Limited Warranties.6.2.1 Subscription Services. For Subscription Services with a term equal to or greater than one (1) year iTradeNetwork warrants that, during the term, it will provide the Subscription Services in material conformance with the applicable Order Form.6.2.2 Professional Services. Professional Services will be provided in a professional manner in performing services under an SOW.6.2.3 Remedies. Upon notification of breach of this warranty during the term, iTradeNetwork, at its sole expense, will use commercially reasonable efforts to correct any material non-conformance within sixty (60) days after iTradeNetwork receives written notice from Customer that includes information sufficient to permit iTradeNetwork to recreate the non-conformance. If iTradeNetwork is unable to correct such non-conformance after using commercially reasonable efforts, iTradeNetwork’s sole liability, and Customer’s sole remedy, is to terminate the relevant Order and obtain a refund of the amount only that Customer paid to iTradeNetwork for the Professional Services iTradeNetwork is unable to correct, or for Subscription Services, fees paid for the then-current term. Customer acknowledges that the Subscription Services are complex with a variety of dependencies, and as such, iTradeNetwork cannot guarantee that any Subscription Services will be provided without error or interruption or accepted by any third party.
3. Disclaimer. EXCEPT AS PROVIDED IN SECTION 6.2, ITRADENETWORK AND EACH OF ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SOLUTION, THE PERFORMANCE OF THE SUBSCRIPTION SERVICES, OR ANY OTHER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS OR SUFFICIENCY FOR CUSTOMER’S PARTICULAR PURPOSE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. ITRADENETWORK DOES NOT WARRANT THAT THE SOLUTION, SERVICES OR ANY OF THE DELIVERABLES WILL BE PROVIDED WITHOUT DEFECT OR ERROR.
4. Limitations and Exceptions. iTradeNetwork’s warranty obligations are expressly subject to: (a) the Subscription Services being used in accordance with this Agreement; and (b) Customer providing written notice to iTradeNetwork of any alleged breach of such warranty promptly after Customer becomes aware of such breach. iTradeNetwork shall have no liability under this Agreement, pursuant to the warranty in this Section 6 or otherwise, arising out of or relating to: (1) any use, re-transmission or reliance on inaccurate or incomplete Customer Information or other information from Customer or an Trading Partner, vendor, agent or other third-party; (2) the failure of Customer, a Trading Partner, vendor or agent to provide the necessary information to iTradeNetwork in a timely manner and specified delivery method and formats according to the established schedule; or (3) non-iTradeNetwork errors, modifications or omissions in use of, or input of any information or data in connection with, a Subscription Service.
5. Customer Warranties. Customer on behalf of itself and each Authorized User, represents and warrants to iTradeNetwork that any and all Customer Data required for any Subscription Service will not materially: (i) violate any applicable law, rule, regulation, code or ordinance; (ii) infringe the Intellectual Property Rights of any third party; (iii) in any way violate or infringe upon any third party’s privacy right, right of publicity or any other right of any person or entity; (iv) be false, inaccurate, obscene or misleading; (v) contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory. Customer acknowledges that iTradeNetwork has no obligation to monitor the Customer Data, but, in the event that iTradeNetwork becomes aware that any item of Customer Data does or may violate the warranty and representation set forth in this Agreement, Customer agrees that iTradeNetwork shall have the right to remove, and either return to Customer (if permitted to do so) or store at Customer expense and exercise reasonable commercial efforts to safeguard such item pending resolution, and the Parties agree to work together promptly and in good faith to remedy any such Customer Data issues.

Indemnification.

1. By iTradeNetwork. iTradeNetwork at its own expense, shall defend Customer and its officers, directors, employees and contractors against any third-party action to the extent it is based upon a claim that use of a Subscription Service in accordance with this Agreement infringes a valid United States trade secret, copyright, or patent issued as of the date of this Agreement, and shall pay all settlements entered into and damages awarded against Customer. As a condition to such indemnification, Customer shall: (a) provide iTradeNetwork with prompt written notice of any claim; (b) permit iTradeNetwork to assume and control the defense of any action; (c) not enter into any settlement or compromise of any claim without iTradeNetwork’s prior written consent; and (d) provide iTradeNetwork with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of iTradeNetwork under this Agreement.
2. By Customer. Customer at its own expense, shall defend iTradeNetwork and its officers, directors, employees and contractors against any action based upon (a) any use of a Subscription Service other than as permitted in this Agreement or Customer, Customer Personnel’s or an Authorized User’s misuse of the Site, (including without limitation the negligence of any Authorized User which causes a third party to obtain unauthorized access to a User ID, password and/or security authentication measure, (b) iTradeNetwork’s use of Customer Information as permitted in this Agreement, (c) breach of section 2.2 or (d) any dispute or legal proceeding between Customer and a Trading Partner or other third party, and Customer shall pay all settlements entered into and damages awarded against iTradeNetwork (including reasonable attorneys’ fees) to the extent based on such action, and all costs of iTradeNetwork associated with complying with any court order, discovery, or Customer request concerning any legal proceedings under (c) above. As a condition to such indemnification, iTradeNetwork shall: (i) provide Customer with prompt written notice of any claim; (ii) permit Customer to assume and control the defense of any action; (iii) not enter into any settlement or compromise of any claim without Customer’s prior written consent; and (iv) provide Customer with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of Customer under this Agreement.

Limitation of Liability.

THE PARTIES HAVE NEGOTIATED THE TERMS OF THIS AGREEMENT WITH DIRECT CONSIDERATION OF THE BUSINESS RISKS ASSOCIATED WITH THIS AGREEMENT AND CUSTOMER’S USE OF THE SOLUTIONS. NEITHER PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL BE LIABLE TO THE OTHER PARTY, ANY TRADING PARTNER, OR TO ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OR BREACH HEREOF SHALL BE LIMITED TO THE MONTHLY FEES ACTUALLY RECEIVED BY ITRADENETWORK FROM CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. THE LIMITATION IN THIS SECTION 8 SHALL NOT APPLY TO LIABILITIES TO THIRD PARTIES FOR INDEMNIFICATION CLAIMS UNDER SECTION 7 OF THIS AGREEMENT OR BREACH OF SECTION 2.2.

Confidentiality.

1. Confidential Information. Pursuant to this Agreement and the provision of the Subscription Services, the Parties may disclose to each other confidential and proprietary information, including, but not limited to: (a) Customer Information of a confidential nature, (b) confidential and proprietary aspects of the Subscription Services and the Related Materials, and (c) any information or analyses performed or transmitted by iTradeNetwork in connection with its provision of the Subscription Services (collectively, “Confidential Information”). The existence of this Agreement shall not be considered Confidential Information. The terms of this Agreement shall be treated as Confidential Information. Neither Party may disclose Confidential Information to any third party, except as may be required: (1) to implement, perform and enforce the terms of this Agreement; (2) by law; or (3) under appropriate nondisclosure terms to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction. Notwithstanding the foregoing, any information or data submitted by Customer on the Site solely for the purposes of utilizing the Subscription Service, including transactions entered into via the iTradeNetwork Subscription Service (collectively “Data”) shall be Customer’s confidential information. iTradeNetwork shall have the right to disclose or publish without Customer’s consent any Data collected and/or generated from the Site if such Data is disclosed or published in aggregated form, not directly attributable to Customer or any other individual user. Any comments, feedback, suggestions or ideas disclosed, submitted or offered to iTradeNetwork in connection with Customer’s use of Subscription Service or Professional Services, may be used, re-published, or otherwise exploited by iTradeNetwork for any purpose, including for the purposes of advertising and promotion of a Subscription Service and/or its website without any remuneration to Customer.
2. Use. Except as otherwise expressly provided in this Section, neither Party receiving Confidential Information of the other may disclose it to any third party without the prior written consent of the original disclosing Party, except to the receiving Party’s own employees, consultants or agents to whom disclosure is necessary to fulfill the purposes set forth in this Agreement and who are advised about, and agree to be bound by, this confidentiality provision and the confidential nature of the information. Nothing in this Agreement shall be construed as a representation that the receiving Party will not develop or acquire information that is the same as or similar to the other Party’s Confidential Information, provided that the receiving Party does not do so in breach of this Agreement. The Parties acknowledge that they may have in development similar solutions and that nothing in this Agreement is intended to prevent either Party from independently developing, offering, supporting and providing similar solutions, provided it is done without use of or reference to the other Party’s Confidential Information.
3. Exceptions. This Agreement imposes no obligation on the receiving Party with respect to information that the receiving Party can establish: (a) was in the possession of or was known by the receiving Party prior to its receipt from the disclosing Party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving Party from a third party without an obligation to keep such information confidential; or (d) is independently developed or created by the receiving Party. If the receiving Party is compelled pursuant to a legal proceeding or otherwise required by law to disclose the other Party’s Confidential Information, then before any such disclosure the receiving Party will promptly notify the disclosing Party so the disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with this Agreement and the receiving Party shall use its best efforts to obtain confidential treatment for such Confidential Information. In any such legally compelled disclosure, only that portion of the disclosing Party’s Confidential Information that is legally required to be disclosed may be disclosed.

Agreements and Transactions Between Customer and Trading Partners.

Nothing in this Agreement shall affect any existing service levels or agreements or their terms between Customer and any Trading Partner. iTradeNetwork accepts no responsibility for maintaining or enforcing any such service levels, agreements or terms between Customer and any Trading Partner. Nothing in this Agreement shall affect the determination of whether, or when, a binding agreement has been reached between Customer and any Trading Partner, and such determination shall be made in accordance with the terms of, and circumstances surrounding, such agreements. iTradeNetwork assumes no responsibility for any agreement occurring, or failing to occur, between Customer and any Trading Partners, and iTradeNetwork shall have no liability for any breach of any such agreement.

iTradeNetwork is not a party to the transactions between buyers, sellers and transporters of goods being conducted though the Subscription Services. Customer acknowledges and agrees that iTradeNetwork has no control over the quality, safety or legality of the goods advertised the truth or accuracy of the listings, the ability of sellers to sell goods, the ability of buyers to buy goods, or the ability of transporters of goods to transport goods. iTradeNetwork cannot and does not ensure that a seller, buyer or transporter of goods will complete a transaction.

Security

1. iTradeNetwork shall provide all reasonable physical, anti-virus and password related security for the Subscription Services and/or Professional Services.
2. As part of iTradeNetwork’s security measures, iTradeNetwork will assign or allow Customer and the Authorized Users, one or more User IDs, passwords (limited to one unique login ID and password per Authorized User) and/or security authentication measures which will enable Customer and Authorized Users to access and use the Subscription Service. Customer shall accept responsibility for the use of all Customer User IDs, passwords and/or security authentication measures by Authorized Users and shall restrict the disclosure and disbursement of such Customer User IDs, passwords and/or security authentication measures to Customer personnel on a need-to-know/have basis. Customer shall take all reasonable precautions to protect against the theft, loss or fraudulent use of such Customer User IDs, passwords and/or security authentication measures, and immediately notify iTradeNetwork of any suspected theft, loss or fraudulent use of such Customer User IDs, passwords and/or security authentication measures. Customer agrees to comply with the reasonable procedures specified by iTradeNetwork from time to time regarding obtaining and updating Customer User IDs, passwords and security authentication measures to the Site, iTradeNetwork Subscription Service and/or iTradeNetwork Services. Customer User IDs, passwords and/or security authentication measures are subject to cancellation or suspension by iTradeNetwork upon any misuse by Customer or any Authorized User, and the reissuance or reactivation of Customer User IDs, passwords and/or security authentication measures so cancelled shall be subject to iTradeNetwork’s standard fees therefore.
3. Customer agrees that neither it nor Customer personnel will attempt to gain or allow access to any data, files or programs of iTradeNetwork to which they are not entitled under an Order From, and that if such access is obtained, Customer will immediately return such materials to iTradeNetwork and will safeguard the same as iTradeNetwork’s Confidential Information.
4. Customer will, and will ensure that its Authorized Users comply with and adhere to all technical specifications, security procedures, rules of operation, terms and conditions of use and other procedures and protocols established by iTradeNetwork related to the provision of the Subscription Services hereunder.
5. Customer shall be solely responsible for maintaining adequate controls over its processing and data transmissions; for monitoring the input and output of such processing and transmissions; and for notifying iTradeNetwork of any non-conforming processing and/or transmissions. Customer acknowledges and agrees that iTradeNetwork is not responsible for checking, verifying or editing message content or completeness or for detecting errors or anomalies, or for recreating or re-transmitting data beyond iTradeNetwork’s obligations as set forth herein.
6. SSAE 18 Compliance. iTradeNetwork agrees that for the tern for a Subscription Service that it will be SSAE 18 compliant. For the purposes of this Agreement, SSAE 18 compliance shall mean iTradeNetwork will obtain an attestation via either an SSAE 18 Type 1 or Type 2 Report reporting on the design of controls and their operating effectiveness related to the iTradeNetwork on-demand collaborative workflow software for the retail and foodservice industries. Upon the request of Customer and at least ten (10) business days
   ’ written notice, but not more than once per year, iTradeNetwork will provide to Customer a copy of its most recent SSAE18 Report.

Miscellaneous.

1. Assignment. This Agreement shall inure to the benefit of and be binding on the Parties and their respective successors and assigns, but may not be assigned by either Party without the prior written consent of the other, except that each Party may assign its rights and obligations without prior written consent in connection with any acquisition that results in a change of control of the majority of shares of the Party.
2. Independent Parties. Each Party is independent of the other, and nothing contained herein shall be deemed or construed to create any partnership, joint venture, agency, fiduciary or other similar relationship.
3. Entire Agreement; Amendment and Waiver; Conflicts. This Agreement and each Order contains the complete understanding between the Parties regarding its subject matter, superseding and merging all prior or contemporaneous oral or written inducements, course of dealing, communications, conditions, representations, warranties or agreements relating thereto, and the Agreement and its provisions may not be accepted, modified or waived by the Parties except in a writing in any form permitted for notice executed by an authorized officer of each Party. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by either Party will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify this Agreement or an Order regardless of any failure of either Party to object to such terms, provisions or conditions. No waiver by either Party of any breach by the other shall be deemed a waiver of any preceding or subsequent breach. The terms and conditions of this Agreement and each Order shall be construed as much as possible in a manner that is consistent with one another and to enforce the Parties’ intent; provided, the terms and conditions of an Order shall control and/or supersede any conflicting or inconsistent terms and conditions of this Agreement. Notwithstanding the foregoing, if this Agreement represents a renewal or a restated agreement for continuation of a Subscription Service under a previous agreement, nothing herein extinguishes any remaining balance due on Subscription Services or Professional Services provided under a prior agreement.
4. Notices. All legal notices, requests, consents and other communications which are required or permitted hereunder shall be in writing, and shall be delivered personally or by courier (effective upon receipt), by registered or certified/return receipt U.S. mail, postage prepaid (effective three (3) business days after mailing), or sent by facsimile or electronic mail (effective upon receipt, if evidenced by acknowledgement or confirmation of receipt, including acknowledgement by counsel to a Party), to the representative on the Order Form. Notice of change of address shall be given in the same manner as other communications. For Notices to iTradeNetwork, a copy must be sent to legal@iTradenetwork.com, attn: General Counsel.
5. Dispute Resolution.
6. Executive Meetings. If a dispute arises out of or relates to this Agreement, an Exhibit, or an SOW, or the interpretation, breach or enforcement thereof, the Parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each Party.
7. Venue/Governing Law. If the Parties cannot resolve the dispute through executive negotiation after sixty (60) days, each Party consents to litigation and trial without a jury in the United States District Court for the Northern District of California and/or the appropriate California state court in Alameda County. Notwithstanding, either Party may, without waving any remedy under this Agreement, seek temporary or permanent injunctive relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, and Intellectual Property Rights. Each Party acknowledges that this provision constitutes a material inducement upon which the other Party has relied in entering into this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles.
8. Audit. iTradeNetwork may audit your use of the Subscription Service(s). Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees applicable to the use of the Subscription Service in excess of any rights granted. iTradeNetwork reserves the right to suspend the provision of a Subscription Service or terminate an Order if all fees are not paid.
9. Force Majeure. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement (except any payment obligations) if such failure or delay is due to acts of God, natural disaster, fire, flood, strike, war (declared or undeclared), terrorism, embargo, blockade, legal prohibition, governmental action, riot, insurrection, or non-iTradeNetwork-specific network or telecommunications failure or congestion that affects a Subscription Service, or any other cause beyond the reasonable control of such Party.
10. Construction. The language of this Agreement has been negotiated by the Parties with each Party having the opportunity to be advised by counsel; accordingly, such language shall be construed as a whole according to its fair meaning and not strictly for or against either Party. The subject headings herein are for convenience only and are not to be considered in interpreting or construing this Agreement.
11. Severability. If any provision(s) or portion(s) of this Agreement is determined to be invalid or unenforceable, the other provisions will remain in full force and effect and the Parties agree to promptly substitute, for the invalid or unenforceable provision(s), new provision(s) which are enforceable and which most closely approximate the intent and economic effect of the invalid provision(s).
12. No Third Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of iTradeNetwork and Customer, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.
13. Export Control. Customer agrees to comply with all applicable export and re-export control laws and regulations, including trade and economic sanctions regulations maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”) and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Customer will be responsible for obtaining any license required under Export Administration Regulations (“EAR”), OFAC regulations, or ITAR. Customer agrees to indemnify iTradeNetwork for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses and liabilities that may arise as a result of Customer’s breach of this Section.
14. Equal Employment Opportunity Compliance. Customer shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
15. Press Release and Acknowledgement by Customer as Customer of iTradeNetwork. iTradeNetwork may issue a new Customer press release once Customer signs an Order for a Subscription Service, describing the relationship and Customer’s use of the Subscription Service. Customer may, if desired, approve the press release prior to any dissemination by iTradeNetwork, such approval not to be unreasonably withheld and provided in a timely manner. Alternatively, Customer and iTradeNetwork may choose to do a joint press release. iTradeNetwork may include Customer’s name and logo in general marketing materials and on iTradeNetwork’s website to identify Customer as an iTradeNetwork customer.
16. Counterparts. This Agreement may be executed in two counterparts, both of which taken together shall constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission or other electronic format.