THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN EACH AUTHORIZED USER (“YOU”) AND VERTEX, INC., (“VERTEX”) AND GOVERN ALL USE OF THE SERVICES REQUESTED BY YOU AND AGREED UPON BY VERTEX (“SERVICES”).
IF YOU ARE USING THE SERVICES ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS AND CONDITIONS, AS WELL AS THE TERMS OF SERVICE AND ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO THE SERVICES WHICH ARE HEREBY INCLUDED BY REFERENCE (ALL OF THE FOREGOING BEING COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”), ON YOUR EMPLOYER’S BEHALF. FURTHER, YOU 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.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE YOU PRESS THE "I AGREE" BUTTON. BY PRESSING "I AGREE," YOU ARE AGREEING TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT WISH TO AGREE TO ANY PART OF THE AGREEMENT, PLEASE EXIT IMMEDIATELY (WITHOUT PRESSING “I AGREE”). VERTEX MAY CHANGE THE TERMS OF THE AGREEMENT FROM TIME TO TIME. IF YOU CONTINUE TO USE ANY PART OF THE SERVICES FOLLOWING ANY SUCH CHANGE(S), YOU AGREE TO BE BOUND BY SUCH CHANGE(S).
TERMS AND CONDITIONS
Section 1. Services. During the term of this Agreement and subject to the terms and conditions set forth herein, Vertex will provide to You the Services as described in the proposal sent to You via email, which, upon your acceptance of that proposal shall become the statement of work (“SOW”) governing Vertex’s engagement with You. Each SOW shall be governed by this Agreement and made a part hereto.
Section 2. Fees for Services. The fees for the Services shall be the flat fee quoted to You by Vertex at the time Vertex agrees to provide the Service you have requested. Vertex shall invoice You for the Services once a month in arrears while such Services are being performed.
Section 3. Term. The term of the Agreement and Your right to use the Services will begin upon your acceptance these terms and conditions and continue in effect on a month to month basis for so long as You use the Services (“Term”).
Section 4. Termination
a. Termination for Convenience. A party may terminate this Agreement at any time by providing the other party with thirty (30) days’ written notice. Any Services still being performed at the time of termination of this Agreement shall cease and You shall be required to pay the fees associated with the Services which had been performed up to and including the date of termination.
b. Termination for Cause. This Agreement may be terminated for cause by a party if the other party is in material breach of the terms of this Agreement and has not cured the breach within ten (10) days’ of written notice specifying the breach. VCONLINE 0217
Section 5. Confidential Information. 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, Services or a component of a Vertex software product, Services, including Proprietary Items and Ancillary Materials; (ii) are Your Data; (iii) 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; (iv) relates to the pricing or other business information or terms of any product or service offering of either party or its suppliers or of any agreement between the parties; or (iv) 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. 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.
Section 6. Title and Intellectual Property Rights. You shall retain all right, title and interest in Your Confidential Information provided to Vertex as part of the Services. Vertex shall retain all right, title and interest in and to: (i) any tangible items that Vertex provides to You in performance or as a result of the Services (“Deliverables”), including, but not limited to, all patent, copyright, trademark and other intellectual property rights therein except to the extent that Your Confidential Information is contained therein; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how embodied in Deliverables or that Vertex may supply in connection with the Services (“the Vertex Knowledge”). Vertex may use Deliverables, subject to removal of Your Confidential Information that may be contained therein, and the Vertex Knowledge for any purpose. Vertex grants You a perpetual, non-exclusive, royalty-free license to use any Deliverables provided to You for your internal business purposes. All copyrights, patent rights and other intellectual property rights in such Deliverables are retained by Vertex.
Section 7. Limited Warranties and Disclaimers; Limitations of Liability
a. Vertex warrants (i) it will perform the Services consistently with generally-accepted industry practices and (ii) the Services will conform to the descriptions of such Services published by Vertex or delivered to You for such purpose. You must report any deficiencies in the Services to Vertex in writing within ninety (90) days of completion of the Services in order to receive warranty remedies. For any breach of the above warranty, Your exclusive remedy, and Vertex’s entire liability, shall be the re-performance of the Services, and, if Vertex fails to re-perform the Services as warranted, You shall be entitled to recover the fees paid to Vertex for the deficient Services.
b. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 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 SERVICES TO BE PROVIDED PURSUANT TO THE AGREEMENT OR TO VERTEX’S PERFORMANCE OF ANY SERVICES. THE SERVICES AND ALL RELATED 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 NONINFRINGEMENT).
c. 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.
d. Except for Vertex’s infringement indemnification obligations, Vertex’s maximum liability for all damages arising out of or related to the Services, whether in contract or tort, or otherwise, will in no event exceed the amount of Services Fees paid to Vertex by You for the Services under the Agreement giving rise to such damages for the most-recent twelve (12)-month period.
Section 8. Infringement Indemnification. Vertex will defend, indemnify and hold You, its officers, directors, agents and employees (collectively, the “Indemnitees”) harmless from and against all claims, damages, losses, liabilities, judgments, awards, costs and expenses (including reasonable attorneys’ fees) and court costs arising from any third party claim that a Deliverable, information or other material furnished by Vertex (“Material”) and used by You infringes or misappropriates a United States patent, copyright, trade secret, trademark or other proprietary right (a “Claim”). Promptly after receipt by You of a threat of any action based on a Claim or a notice of the commencement of filing of an action based on a Claim against You or any Indemnitee, You will give prompt notice thereof to Vertex, and Vertex will have sole control of the defense and of all negotiations for settlement of such action. Notwithstanding the foregoing, Vertex’s indemnification obligations will not apply, and Vertex assumes no liability for, any claim to the extent the Claim arises out of: (i) Your use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which Vertex provides to You; or (ii) any information, design, specification, instruction, software, data, or material not furnished by Vertex. In the event that Vertex is enjoined from licensing any Material or such Material is adjudged, in any final order of a court of competent jurisdiction, to be infringing or misappropriating any patent, copyright, trade secret, trademark, or other proprietary right, then Vertex will, at its expense: (i) obtain for You the right to continue using such Material; or (ii) replace or modify such Material so that it does not infringe upon or misappropriate such proprietary right and is free to be used by You. In the event that Vertex is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, then Vertex may require from You return of the infringing Material and all rights thereto. Upon return of the infringing Material to Vertex, You may terminate the SOW with written notice to Vertex and You shall be entitled to a refund of the fees paid for the infringing Material. The remedies set forth in this Clause 8 are the sole remedies for infringement.
Section 9. General.
a. Governing Law. 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.
b. Dispute Resolution. Initially, in the event of a dispute, You and Vertex's account services or product support representatives will attempt to resolve the dispute. If the parties are unable to resolve the dispute within five (5) business days, or as otherwise mutually agreed, either party will have the right to submit the dispute to the parties’ senior leadership team representatives. The senior leadership representatives may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) days following initiation of negotiations as set forth in this Section or as otherwise mutually agreed by the parties in writing. The provisions of this Subsection 21(b) will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.
c. Compliance With Laws. In connection with the provision or receipt of the Services, both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
d. Force Majeure. Neither party will be liable for delays or any failure to provide the Services or obligations under the Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay will last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party will use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control.
e. Advertising and Publicity. Neither party will refer to the other party directly or indirectly in any advertisement, news release, or other publication without prior written approval of the other party, except that You agree to allow Vertex to list Your company name and logo in a list of Vertex customers on Vertex's website or other printed promotional material without such consent unless You provide written notice to Vertex that You do not agree to such usage of Your company name and logo. Vertex agrees to abide by Your guidelines regarding the use of Your logo.
f. No Waiver. 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.
g. Survival. Section 2 and Sections 5 through 9 will survive the termination of the Agreement.
h. Notices. Except as otherwise explicitly stated in the Agreement, any formal notice given pursuant to the Agreement will be in writing and will be given by courier service, with proof of delivery, or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of the Agreement, or as changed through written notice to the other party. Notice given by courier service will be deemed effective on the date it is delivered to the addressee, and notice mailed will be deemed effective on the third day following its placement in the mail addressed to the addressee.
i. Assignment of Agreement. NEITHER PARTY MAY ASSIGN THE AGREEMENT, OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, WHICH WILL NOT BE UNREASONABLY WITHHELD, except pursuant to a transfer of all or substantially all of the business and assets of a party, whether by merger, sale of assets, sale of stock, or other similar transaction; provided that such assignment to a third party is not to a competitor of the non-assigning party. Any assignment made in contravention of this provision shall be void and unenforceable. The Agreement will bind, benefit and be enforceable by and against both parties and their respective successors and permissible assigns.
j. Entire Agreement. The Agreement, Terms of Service and any additional terms and conditions applicable to Your use of the Services constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between You and Vertex as to the subject matter hereof.
k. No Third Party Beneficiaries. The warranties made by and obligations of Vertex in the Agreement run only to You and not to any third parties or any other entity, including Your affiliates. Under no circumstances will any entity associated with You or any other entity or third party be considered a third party beneficiary of the Agreement or otherwise entitled to any rights or remedies under the Agreement, even if such entity or other third party are provided access to the Services or data maintained through the Services, Internet or other networked environment.
l. Independent Contractors. The relationship of the parties is that of independent contractors and neither party has the authority to bind the other party in any transaction or make any representation on behalf of the other party.