THESE TERMS OF SERVICE CONSTITUTE AN AGREEMENT BETWEEN VERTEX, INC, (“VERTEX”) AND EACH AUTHORIZED USER (“YOU”) AND GOVERNS YOUR USE OF THE MAGENTO CONNECTOR (“CONNECTOR”) IN CONJUNCTION WITH ANY VERTEX PRODUCT(S). YOU ACKNOWLEDGE THAT YOU MAY NOT USE THE CONNECTOR UNLESS AND UNTIL YOU HAVE AN AGREEMENT IN PLACE WITH VERTEX FOR THE VERTEX PRODUCT AND THE CONNECTOR (EXCEPT IN THE CASE OF A VERTEX CLOUD LICENSE WHERE THE CONNECTOR IS LICENSED AS PART OF THE VERTEX PRODUCT) AS THE CONNECTOR PROVIDES CONNECTIVITY BETWEEN THE MAGENTO APPLICATION AND THE VERTEX PRODUCT, AND YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE, AS WELL AS THE OTHER TERMS OF ANY AGREEMENT IN WHICH THESE TERMS OF SERVICE ARE INCLUDED BY REFERENCE (COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”), ON YOUR EMPLOYER’S BEHALF AND AGREE THAT YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF YOUR EMPLOYER AS WELL AS ON YOUR OWN BEHALF AND THAT YOU AND YOUR EMPLOYER ARE BOTH BOUND BY THE AGREEMENT.
Rights Granted. Subject to the terms and conditions of the Agreement, You have a personal, non-transferable, non-exclusive, royalty free, limited right to download and use the Connector and any related documentation made available by Vertex (“Documentation”), solely (a) during the term, and within the scope, of the Agreement, and (b) for Your internal business purposes in the ordinary course of Your business operations. Vertex retains all ownership and intellectual property rights to the Connector and Documentation, as well as anything developed or delivered by or on behalf of Vertex under the Agreement, including, without limitation, all object code, source code, content, design features, visual expressions, screen formats, report formats, ideas, methods, and concepts, and all modifications of the foregoing (collectively referred to as “Proprietary Items”). The Agreement does not grant you any intellectual property rights in the Proprietary Items.
Use Restrictions. Vertex represents and You acknowledge that the Proprietary Items are Vertex’s valuable, confidential, intellectual property. You shall not attempt to, or permit any third party to: (a) sell, license, distribute, transfer, communicate or disclose any Proprietary Items to any third party; (b) copy any Proprietary Items in violation of the Agreement; (c) modify or create derivative works of any Proprietary Items; (d) decompile, reverse engineer, create or recreate any source code for any Proprietary Item; (e) use Proprietary Items to provide services to, or to otherwise benefit, any third party, other than as expressly permitted hereunder; (f) use any Proprietary Items to create a program having features or functions substantially similar to those of the Connector or any product used to provide the Connector; (g) remove or modify any copyright or other proprietary notice contained in any Proprietary Item; (h) use or possess any Proprietary Item in any foreign jurisdiction in violation of any trade laws or regulations or (i) resell, lease, timeshare, rent, sell or otherwise provide any third party with the benefit of any Proprietary Item.
Support will be available Monday through Friday, 8am to 8pm ET, exclusive of Vertex holidays. You may report, via telephone, a system down or system failure error without additional charge. Vertex will make available to You standard support and updates during the term of the Agreement, as applicable. However, Vertex may suspend such support and updates if Vertex has reason to believe You have violated any provision of the Agreement, in addition to all other rights and remedies available to Vertex for breach under the Agreement.
You may terminate the Agreement at any time for any reason upon notice to Vertex. Vertex may terminate the Agreement for cause based upon the Your breach of a material term or condition if such breach is either not reasonably capable of cure or You have failed to cure such breach within fifteen (15) days following receipt of written notice thereof. The Agreement will automatically terminate immediately upon the termination of any agreement between You and Vertex. Upon termination of this Agreement, You will destroy all Vertex Confidential Information and Proprietary Items in Your possession or under your control, certifying to Vertex that the destruction has been completed.
For the purposes of the Agreement “Confidential Information” means any technical or business information disclosed by one party to the other party that: (i) is a Vertex software product or services or a component of a Vertex software product or services, including Proprietary Items; (ii) is marked or identified as “confidential” or “proprietary” at the time of such disclosure, and if identified orally is summarized in a writing sent to the receiving party within thirty (30) days after disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. A party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and without having been obtained either directly or indirectly from the disclosing party; (iii) is disclosed to the receiving party by a third party not known by the receiving party to be subject to restriction on disclosure; or (iv) is independently developed by the receiving party. The parties agree to hold each other’s Confidential Information in confidence while the Agreement is in force and effect, and for a period of five (5) years thereafter; subject to the obligations set forth above in the “Termination” section with respect to the destruction of such information. Each party will disclose the other’s Confidential Information only to those employees or agents who need to know such information for the purposes of the Agreement and are subject to similar obligations of confidentiality. Nothing in the Agreement will, however, prevent either party from disclosing the other’s Confidential Information to any federal, state, or local governmental entity as may be required by law.
Limited Warranties and Disclaimers; Limitations of Liability
Vertex warrants that the Connector will conform to the descriptions of such Connector set forth in the applicable Documentation, published by Vertex for general use or delivered to You for the purpose of providing a warranty and identified in writing by Vertex accordingly.
THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF, AND VERTEX EXPRESSLY DISCLAIMS, ALL OTHER REPRESENTATIONS AND WARRANTIES, STATUTORY OR OTHERWISE, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH RESPECT TO THE CONNECTOR AND THE DOCUMENTATION. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE CONNECTOR AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT).
In no event will either party be liable hereunder for any indirect, incidental, special, punitive, or consequential damages, or for any loss of profits, revenue, data, or data use, even if previously advised of the possibility of such damages.
The Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania and the federal laws of the United States of America. You hereby consent and submit to the jurisdiction and forum of the state and federal courts in the Commonwealth of Pennsylvania in all questions and controversies arising out of the Agreement. Notwithstanding the foregoing, the parties agree that the Uniform Computer Information Transactions Act (“UCITA”) will not apply to the Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to the Agreement. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable. The failure of either party at any time to require performance by the other party of any provision of the Agreement will in no way affect that party’s right to enforce such provisions, nor will the waiver by either party of any breach of any provision of the Agreement be taken or held to be a waiver of any further breach of the same provision. If any part of the Agreement is found void and unenforceable, it will not affect the balance of the Agreement which will remain in full force and effect.