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TERMS OF SERVICE
1. Description of Services and Fees. See Exhibit “A.” Fees are based upon the business description provided by Client. A material change in the business may result in additional or different Fees.
2. Implementation. The Parties will use their best efforts to enable the commencement of Services on the Services Start Date.
3. Term of Agreement. The term of this Agreement begins on the “Effective Date” and will continue until Client’s account is closed and all sums due are paid as provided in Section 9.
4. Invoices and Prepayment. em3 Commerce will invoice weekly, in arrears, for its Fees and apply sums held on account for Client to such invoices on the invoice date. Storage charges, if any, are invoiced monthly in arrears. Client is responsible for maintaining an account balance sufficient to pay for Services on an ongoing basis. em3 Commerce may send the invoices via email to the Client’s email address in the Client Information section of the Agreement. All amounts are stated and payable in U.S. dollars only and will be paid by Client in full, without set-off or deduction of any kind. em3 Commerce may suspend Services if there is an insufficient balance on account to pay for them. Sales, use, customs, and other similar taxes (excluding taxes on em3 Commerce’s net income) arising from the Services, Costs or other amounts payable hereunder are the responsibility of the Client.
5. Delinquency. Invoices are deemed due seven (7) days after the invoice date. All amounts not paid on or before the due date are delinquent. Any invoice not disputed in writing before it is due shall be deemed undisputed. em3 Commerce may assess a delinquency charge equal to the greater of $50.00 or 5% of the delinquent amount. All delinquent amounts will accrue interest at the lower of 1.5% per month or the legal rate then allowable under Florida law. em3 Commerce may suspend performance of Services until all delinquent payments are received. A delinquent payment will not cure a nonpayment breach of this Agreement unless it includes all accrued interest. Client agrees to pay the reasonable expenses, including attorney’s fees and collection costs, incurred by em3 Commerce to collect sums owed by Client.
6. Use of Services.
DESCRIPTION OF CLIENT TRANSACTIONS AND INVENTORY. Client will use the Services and em3 Commerce Systems exclusively in connection with Client Transactions and Inventory that has been described by Client in em3 Commerce’s discovery process or otherwise prior to the Effective Date.
CHANGES IN CLIENT’S BUSINESS. Client acknowledges that em3 Commerce’s preparation to provide Services is based upon Client’s description of the Client Transactions. To the extent that the Client has knowledge of events likely to significantly impact the number of Client Transactions and the level of needed Services (e.g., special sales, promotions, price changes, etc.), or if there is a significant change in the nature of Client’s business, Client will give prompt prior Written Notice thereof to em3 Commerce. em3 Commerce will not be responsible for a failure to provide Services if such failure is a result of a significant and material change in the Client Transactions and Client failed to adequately notify em3 Commerce in advance.
SET UP. em3 Commerce will provide Client with a template and related information necessary to set up Client’s account in the em3 Commerce Systems. Services are dependent upon Client’s accuracy and timely completion of the setup process.
DELIVERIES. Client will contact em3 Commerce to schedule all deliveries to em3 Commerce’s facility. Reasonable advance notice is required.
INDEPENDENT CONTRACTOR. The relationship between the Parties will be solely that of independent contractors. This Agreement will not create any employment, agency, joint venture, partnership, or fiduciary relationship between em3 Commerce and Client. Neither Party will have the authority to, nor will either Party attempt to create, any obligation on behalf of the other Party.
7. Use of em3 Commerce Systems.
USE OF INTERFACES. em3 Commerce hereby grants to Client a revocable, limited, non- exclusive, non-transferable license to use the Interfaces for entering and viewing Client data in, and obtaining reports from, em3 Commerce Systems with respect to Client Transactions and Services. Client will not use the Interfaces for any other purpose. Client is solely responsible for the accuracy and completeness of any information that is input by (or on behalf of) Client into the em3 Commerce Systems.
REPORTS. All Data and reports related to Client Transactions and Services will be made available to Client through the Interfaces. Client will be solely responsible for accessing and retaining all such Data and information necessary for the operation of Client’s business and as may be required by Applicable Laws.
DATA AND OTHER PROPRIETARY RIGHTS. Except for the limited access right granted to Customer in the Agreement, all right, title and interest in and to the em3 Commerce Systems are and will remain the exclusive property of em3 Commerce and its licensors. em3 Commerce acknowledges and agrees that the Data arising from the Client Transactions are the property of Client. Notwithstanding the foregoing, em3 Commerce may access and disclose the Data arising from the Client Transactions solely as necessary to provide the Services, to operate and maintain the em3 Commerce Systems, to comply with Applicable Laws and to protect itself, its clients and their customers. Subject only to its nondisclosure obligations under this Agreement, em3 Commerce will have no further responsibility to deliver, maintain, store or protect the integrity of the Data arising from Client Transactions after expiration or termination of this Agreement.
DATA INTEGRITY. em3 Commerce is not responsible for any errors in or failures of the Services to the extent caused by Client or Client’s trading partners, or by any events beyond the reasonable control of em3 Commerce. em3 Commerce is not responsible for the (i) loss or corruption of Data during transmission; (ii) failure of Client or Client’s trading partners to provide accurate Data to em3 Commerce; (iii) Client’s or any third party’s equipment or software errors or failures; (iv) failure of Client or any third party to act on any communication transmitted to or by Client in accordance with this Agreement; or (v) creditworthiness or performance of any of Client’s trading partners.
DEVELOPMENT. Unless the Parties otherwise agree in writing, any property or materials (including, without limitation, additions, modifications or enhancements to em3 Commerce Systems, Confidential Information, and anything that may give rise to Intellectual Property Rights), directly or indirectly developed by or on behalf of em3 Commerce in connection with or related to the delivery of Services pursuant to this Agreement or otherwise, and all rights with respect thereto, are and will remain the property of em3 Commerce notwithstanding any resulting benefit to, payment by or request of Client. The Parties agree that such property and materials will not be “works made for hire” and em3 Commerce will have the right, at its own expense, to obtain and hold any copyright, registrations or such other protections as may be appropriate, and any extensions or renewals thereof. In the event any such property or materials will be deemed to be “works made for hire” within the meaning of the Copyright Act, Client agrees to assign and hereby does assign its copyrights related thereto to em3 Commerce, and will give em3 Commerce such information and execute any documents required to vest all such copyrights in em3 Commerce.
8. Insurance and Risk of Loss. Inventory is not insured by em3 Commerce against loss, damage or injury however caused. The risk of loss with respect to the Inventory will at all times be born by Client. Client will be solely responsible for maintaining adequate insurance on Inventory. EM3 Commerce will exercise such care in regard to the Inventory as a reasonably careful person would exercise under like circumstance and will not intentionally damage the Inventory or convert same to its own use. Marlin will not be responsible for any loss of or damage to any Inventory except as provided in Section 12.
9. Closure of Client’s Account and Termination of Services.9.1 Client Closure of its Account. Client may close its account at any time by ordering out all of its Inventory from the warehouse and paying all sums due under this Agreement. Client’s account balance must be sufficient to pay all Fees associated with the final order(s).
9.2 em3 Commerce Closure of Client’s Account. em3 Commerce may terminate this Agreement (a) upon 30 days prior Written Notice, with or without cause, or (b) upon 30 days prior Written Notice in the event of a breach of this Agreement by Client that remains uncured for 10 days.
9.2. Effect of Termination.
Upon termination of the Agreement, Client will immediately pay all sums due hereunder and return all materials and Confidential Information provided by em3 Commerce pursuant to this Agreement. All sums due must be received by em3 Commerce (in readily available funds) prior to the final delivery of any remaining Inventory, including all charges for Services related to such final delivery. Charges will be calculated based on the final Inventory Item Report from the em3 Commerce Systems. If flat rate pricing is in effect, per order charges will be calculated based upon the order limitations stated in Exhibit A. If Client fails to pay the final statement and pick up the Inventory as provided herein within sixty (60) days after termination of this Agreement, the Inventory shall be deemed abandoned, whereupon title thereto shall pass to em3 Commerce as a bona fide purchaser for value equal to sixty (60) days storage charges, without set-off as to other sums that may be owed by Client.
10. Indemnification. Client will indemnify, defend and hold harmless em3 Commerce and its Related Indemnitees from and against any Losses that arise out of or result from (a) Client’s breach of this Agreement; (b) any personal injury, death, property damage caused by the Inventory or Client’s use of the Services, (c) any products liability claim or action based on goods or products provided to third parties by or on behalf of Client and (d) any Losses that arise out of or result from any claim that any software, data, or any other material (“Protected Material”) used or supplied by Client violates the claimant’s Intellectual Property Rights. Promptly after receipt by an indemnified Party of notice of any claim, allegation or facts that may result in a claim for indemnification hereunder, an indemnified Party will give the indemnifying Party prompt notice thereof. The failure to give such notice will not affect the indemnified Party’s ability to seek reimbursement unless such failure has materially and adversely affected the indemnifying Party’s ability to defend the claims.
11. Representations and Warranties.
11.1 Representations and Warranties of Client.
SELECTION. Client is solely responsible for the selection of Services, has made an independent determination with regard to the suitability of the Services for Client’s operations, and disclaims any reliance upon statements made by em3 Commerce other than as set forth herein.
CONTEMPLATED TRANSACTIONS. Client has full and legal authority to engage in the Client Transactions and to deliver any Inventory to em3 Commerce without violating or unlawfully infringing the rights of any third party. Client has described the Inventory to em3 Commerce. em3 Commerce reserves the right to refuse Inventory that it deems unsafe or offensive. Client represents and warrants that Client Transactions will comply with Applicable Laws and that all representations made to third parties by Client, or by em3 Commerce at Client’s direction, will be true, not misleading and otherwise in compliance with Applicable Laws
NO SPECIAL HANDLING. No Inventory will contain a hazardous substance or require any special handling unless expressly set forth in the Exhibit(s). em3 Commerce reserves the right to suspend any or all services and/or terminate the Agreement immediately upon notice to Client if, in em3 Commerce’s sole discretion, shipment(s) of Client’s inventory would violate or threatens to violate Applicable Law.
SERVICES AND EM3 COMMERCE SYSTEMS. Client will not:
(a) Allow any third party to use the Services or access em3 Commerce Systems;
(b) Use the Services or access em3 Commerce System for the benefit of third parties
or otherwise operate a service bureau;(c) Access or attempt to obtain access to any other client information or data in em3 Commerce Systems;
(d) Access or attempt to obtain access to any programming code within em3
(e) Introduce any software virus or other data intended to impair the operation of
em3 Commerce Systems;
(f) Reverse engineer, disassemble or decompile em3 Commerce Systems or any part
(g) Allow any third party to do any of the acts prohibited herein.
USE OF PASSWORDS. If given access to the em3 Commerce Systems, Client will take all commercially reasonable steps to protect the em3 Commerce Systems’ design, content and functionality from unauthorized use or access by third parties. Client is solely responsible for the use of Passwords, including assignment, access, restrictions and use monitoring. Client will notify em3 Commerce immediately in writing if any Password is compromised. Client will pay em3 Commerce for any Services provided as a result of any unauthorized use of the Passwords, and will be liable for any damages caused by such unauthorized use, before em3 Commerce receives actual notice of unauthorized use.
FURTHER ASSURANCES. Client will promptly secure, execute, and/or deliver to em3 Commerce such further documents, and take such further actions, as em3 Commerce deems necessary or desirable for em3 Commerce to carry out its performance under the Agreement and to ensure Client’s compliance with all Applicable Laws.
11.2 Representations and Warranties of Both Parties. Each Party makes the following representations and warranties to the other Party:
DUE ORGANIZATION AND AUTHORITY. This Party is a duly organized and validly existing business entity as described herein. Execution and performance of the Agreement have been authorized by all necessary corporate action on its part.
COMPLIANCE WITH LAWS. This Party will comply with all Applicable Laws governing the performance of the Agreement.
NECESSARY AGREEMENTS. This Party has entered into all necessary contracts with third parties, and has otherwise obtained all licenses and permissions, as may be required for its performance of the Agreement.
INTELLECTUAL PROPERTY RIGHTS. This Party will not use, or permit its employees, agents and subcontractors to use the other Party’s name or Intellectual Property Rights without such other Party’s prior written consent.
NO PROCEEDINGS. There are no actions, suits, proceedings or patent claims pending or, to its knowledge, threatened against or affecting this Party in any court or before any governmental authority which, if adversely determined, will have a material adverse effect on its ability to perform its obligations under the Agreement.
CONFIDENTIAL INFORMATION. Pursuant to the Agreement and the transactions contemplated hereby, the Parties may acquire each other’s Confidential Information. Each Party will hold the other Party’s Confidential Information in strict confidence and will not use it or disclose it to any other person except as reasonably necessary to perform the Agreement. Upon termination of the Agreement, this Party will return the other Party’s Confidential Information.
12. Limitation of Liability and Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED ELSEWHERE IN THIS AGREEMENT, EM3 COMMERCE, EM3 COMMERCE’S AFFILIATES AND/OR THEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTY TO CLIENT OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, SUITABILITY, RELIABILITY, QUALITY, MERCHANTABILITY, COMPLETENESS, FITNESS FOR ANY PURPOSE, TITLE, OR NON-INFRINGEMENT OF ANY INFORMATION, ADVICE, OPINIONS, SOFTWARE, PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER. EM3 COMMERCE, EM3 COMMERCE’S AFFILIATES AND/OR THEIR RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES NOT EXPRESSLY STATED IN SECTION 11.2 OF THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT. IN NO EVENT WILL EM3 COMMERCE, EM3 COMMERCE’S AFFILIATES AND/OR THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR LOST PROFITS, LOST BUSINESS OR DATA, LOST REVENUES; FOR ANY DIRECT DAMAGES EXCEPT AS PROVIDED BELOW; OR FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUSTAINED BY CLIENT OR ANY OTHER PERSON OR ENTITY, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STATUTE, STRICT LIABILITY OR OTHERWISE, EVEN IF EM3 COMMERCE HAS KNOWLEDGE OF OR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO INVENTORY FOR WHICH EM3 COMMERCE IS LEGALLY LIABLE, CLIENT DECLARES THAT EM3 COMMERCE’S LIABILITY WILL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO STORER OF REPLACING, OR REPRODUCING THE LOST, DAMAGED, AND/OR DESTROYED GOODS TOGETHER WITH TRANSPORTATION COSTS TO THE WAREHOUSE, (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND/OR DESTROYED GOODS ON THE DATE CLIENT IS NOTIFIED OF SUCH LOSS, DAMAGE AND/OR DESTRUCTION, OR (3) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGED AND/OR DESTROYED INVENTORY.
THE SOLE AND EXCLUSIVE REMEDY OF CLIENT, OR ANY ENTITY OR PERSON CLAIMING THROUGH CLIENT, IS TERMINATION OF THIS AGREEMENT AND RECOVERY OF DAMAGES FOR BREACH OF CONTRACT WHICH WILL, IN ANY EVENT BE LIMITED TO THE GREATER OF ANY DAMAGES FOR WHICH EM3 COMMERCE IS LEGALLY LIABLE UNDER THIS SECTION AND THE AGGREGATE AMOUNT ACTUALLY PAID BY CLIENT TO EM3 COMMERCE FOR THE SERVICES (EXCLUSIVE OF REIMBURSEMENTS AND PASS-THROUGHS OF THIRD PARTY COSTS AND EXPENSES).
NOTWITHSTANDING THE FOREGOING, EXHIBIT “C” CONTAINS CERTAIN LIMITATIONS REGARDING LIABILITY AND DAMAGES THAT APPLY TO EM3 COMMERCE’S SERVICES AS A WAREHOUSEPERSON. TO THE EXTENT THAT EXHIBIT “C” IS INCONSISTENT WITH THE LIMITATIONS STATED ABOVE, OR AS REQUIRED BY LAW TO ENFORCE EM3 COMMERCE’S RIGHTS AS A WAREHOUSEPERSON, THE TERMS OF EXHIBIT “C” WILL PREVAIL WITH RESPECT TO THE STORAGE OF GOODS AND EM3 COMMERCE’S ACTIONS AS A WAREHOUSEPERSON.
13. Mandatory Mediation and Waiver of Other Dispute Processes. If a dispute other than collection of an undisputed invoice arises out of or relates to this Agreement, or its breach, and the Parties have not been successful in resolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through mediation before resorting to any other legal remedy. The Parties will submit the dispute to a sole mediator selected by the Parties or, at any time at the option of a Party, to mediation by the American Arbitration Association (“AAA”). Each Party will bear its own expenses and an equal share of the expenses of the mediator and the fees of the AAA. The Parties, their representatives, other participants and the mediator will hold the existence, content and result of the mediation in confidence.
If such dispute is not resolved by such mediation, the Parties will have the right to resort to any remedies permitted by law. All defenses based on passage of time will be tolled pending the termination of the mediation. Notwithstanding the foregoing, nothing in this paragraph will be construed to preclude any Party from seeking injunctive relief in order to protect its rights pending mediation. Such a request for injunctive relief will not be deemed a waiver of the obligation to mediate. Client expressly waives any other dispute resolution rules and procedures which may be available pursuant to agreements with credit card companies, Paypal or other third parties used to facilitate Client’s payment to em3 Commerce. Client’s violation of this provision, including any chargebacks, shall entitle em3 Commerce to impose an additional penalty fee equal to the greater of $500 or the amount of the disputed amount charged back.
14. Illegality or Breach. In addition to any other remedy, if em3 Commerce believes that em3 Commerce’s further performance of the Agreement would cause em3 Commerce to violate any Applicable Laws, or if Client breaches this Agreement, em3 Commerce may immediately suspend Services until such time as em3 Commerce determines that em3 Commerce may resume performance of the Agreement without violating any Applicable Laws or Client has cured its breach.
15. Notices. All notices required or permitted to be given by Client must be in writing and will, unless specifically provided otherwise herein, be provided (1) via certified or registered mail or (2) or via FedEx, UPS, or USPS overnight delivery to “em3 Commerce Legal Department, 3600 Commerce Boulevard, Kissimmee, Florida, 34741” with a confirmation copy sent by email to: Notice@em3 Commerce.com. Any notices permitted or required to be given by em3 Commerce may be provided via email, with or without a confirming copy sent via regular mail. Client is solely responsible for ensuring that all of Client’s contact information on file with em3 Commerce is current at all times.
16. Other Provisions.
WAREHOUSE RECEIPT. em3 Commerce may, but will not be required to, issue a warehouse receipt for Inventory. em3 Commerce will provide all warehouse and fulfillment services subject to the additional terms and conditions in its standard Non-Negotiable Warehouse Receipt, an example of which is Exhibit “C.” In the event that em3 Commerce does not issue its own warehouse receipt, but instead signs a carrier’s bill of lading, such bill of lading will be deemed to be em3 Commerce’s warehouse receipt and will be deemed to contain the terms and conditions set forth in its standard warehouse receipt. Any terms, conditions or provisions in such bill of lading are subordinate to the terms of the Agreement and, in the event of a conflict, the terms of the Agreement shall govern.
FORCE MAJEURE. Except for Client’s payment obligations pursuant to the Agreement, neither Party will be liable for failure to fulfill any obligation under the Agreement so long as and to the extent to which fulfillment of such obligation is prevented, frustrated, hindered or delayed by a Force Majeure.
GOVERNING LAW. This Agreement will be construed in accordance with and governed by the substantive internal laws of the State of Florida without giving effect to the conflict of laws provisions thereof.
JURISDICTION AND VENUE. Client hereby submits to the personal jurisdiction of the courts of Florida in connection with any action, claim, or controversy arising from or relating to this Agreement. Any action, claim, or controversy arising from or relating to this Agreement will be properly filed exclusively in the courts of competent jurisdiction in or for Osceola County, Florida. Client expressly waives any objection to jurisdiction or venue with respect to any proceeding brought in accordance with this paragraph.
WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SEVERABILITY. If any provision of this Agreement is determined to be invalid or otherwise unenforceable, in whole or in part, that provision will be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable or, as the case may require, will be deemed severed from the Agreement, and the Agreement will remain in full force and effect.
DESCRIPTIVE HEADINGS. Headings used herein are for convenience only and will not affect the interpretation of this Agreement.
COUNTERPARTS AND SIGNATURES. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which, taken together, will constitute one and the same agreement. Facsimile and electronic signatures (as authorized by applicable state, federal and international law) will be considered original in all respects.
INTEGRATION. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements and representations, whether written or verbal.
BINDING EFFECT. This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs, representatives, successors and permissible assigns.
ASSIGNMENT. Client will not assign or otherwise transfer this Agreement, in whole or in part, without em3 Commerce’s prior written consent. Any such prohibited assignment is void. Without limiting the generality of the foregoing, Client will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Agreement or any of Client’s rights or licenses to access or use any part of the Services or em3 Commerce Systems. em3 Commerce may assign any rights under this Agreement to any affiliate listed on any Exhibit.
AMENDMENT AND WAIVER. These Terms of Service and Exhibit “A” may be amended by em3 Commerce upon 90 days prior Written Notice. Client’s continued use of Services thereafter constitutes consent. No waiver will be effective unless in writing (other than email) and signed by the Party to be charged. The waiver of any right or election of any remedy in one instance does not affect any rights or remedies in another instance.
SURVIVAL. The provisions of this Agreement concerning payment, liability, waiver, representations and warranties, confidentiality, intellectual property, indemnification and further assurances will survive any termination or expiration of this Agreement. Other terms and conditions will survive to the full extent necessary for their enforcement and for the protection of the Parties’ rights.
17. Definitions. Capitalized terms not defined in the main text of this Agreement are defined as follows:
“Agreement” refers to the agreement for services, signed by the Client and em3 Commerce, that incorporates these terms of service by reference.
“Applicable Laws” means all applicable federal, state, international and local laws, orders, requirements, treaties, regulations and ordinances, including, without limitation, U.S. Export Administration Regulations, Executive Orders and foreign government regulations relating to the exportation and/or importation of products, services or data.
“Client Documentation” means Client business rules, procedures, specifications, technical information, descriptions, product catalogs, graphics, scripts, customer information, marketing materials, vendor information, telephone numbers, do-not-call lists, equipment requirements, staffing projections, delivery notifications, and third party agreements.
“Client Transactions” means the business transactions of the Client directly or indirectly with its customers, vendors or other persons in the normal course of Client’s business that are intended to be facilitated by the Services provided by em3 Commerce. Client Transactions include any actions or representations made by em3 Commerce in reliance on and pursuant to Client Documentation.
“Confidential Information” means any information and data of a confidential nature, including, but not limited to, business, proprietary, technical, programming, systems, equipment, process, developmental, marketing, sales, customer, operating, performance or cost information, data, lists, know- how, techniques and secrets in any format. Confidential Information does not include information that is (a) known to the receiving party without restriction when received; (b) obtained from a source other than the originating party without breach of another confidentiality agreement; (c) in the public domain when received or thereafter enters the public domain through no fault of the receiving party; (d) disclosed by the originating party without restriction; or (e) disclosed by the receiving party pursuant to statute, regulation of the order of a court of competent jurisdiction, provided that the receiving party has notified the originating party in order to permit the taking of appropriate protective measures.
“Data” means all information transmitted to or produced by em3 Commerce Systems in connection with Client Transactions, Services or otherwise related to em3 Commerce’s performance of this Agreement, including transaction sets, messages, and other data.
“Day” and all references to days mean actual calendar days. Any payment or performance under this Agreement, excluding the giving of notice, which is due on a Saturday, Sunday or legal holiday shall be deemed timely if performed on the next day that is not a Saturday, Sunday or legal holiday.
“Force Majeure” means a cause or causes beyond a Party’s reasonable control (other than the payment of money), including without limitation, acts of God, fire, third-party criminal acts, explosion, cable cut, weather conditions, terrorism, national emergency, insurrection, riot; war, strike, lockouts, nationwide or regional failure of Internet services, mechanical, electrical, communication, or third-party supplier failure, or other similar catastrophe; or due to any law, order, or regulation or the United States government or of any governmental, judiciary, regulatory, or civil or military authority having jurisdiction over the Parties.
“Intellectual Property Rights” means intellectual property and/or property rights, including, without limitation, copyrights, all other rights in works of authorship, patent applications and disclosures, patents, patent rights, publicity rights, trade secret rights, registered or otherwise protected trademarks, service marks, and protections from trademark dilution; to the extent that any of the foregoing are recognized in any country or jurisdiction in the world.
“Interfaces” means the Internet browser-based access to em3 Commerce”s order management system.
“Inventory” means all goods, merchandise, products, and other personal property delivered to em3 Commerce’s warehouse facility or facilities, by or on behalf of Client, whether Client holds title or merely possessory rights thereto, including, without limitation, personal property held for sale, lease or to be furnished under contracts of service; raw materials; work in process; materials used or consumed in Client’s business; materials or supplies used or usable in manufacturing or processing, packaging, packing and shipping materials; and returned merchandise. “Losses” means all losses, claims, damages, liabilities, whether joint or several, expenses (including reasonable legal, accounting, investigative and witness fees and expenses), judgments, penalties, fines and amounts paid or to be paid in settlement, as well as any interest, assessments or other charges imposed thereon.
“em3 Commerce Systems” means all computer and other electronic data processing hardware, integrated computer systems, memory units, display terminals, printers, computer elements, peripheral devices, disk drives, cables, and other related computer hardware; all software programs (including both source code, object code and all related applications and data files), whether now owned, licensed or leased or hereafter acquired, and all firmware associated therewith; and all documentation with respect to such hardware, software and firmware; and all processes, procedures, technology and know how related to the above, that em3 Commerce uses or intends to use to provide the Services.
“Passwords” means user identification names and or numbers, passwords related thereto and any or other security-related identifiers or security measures that are established as a means of providing Client authorized access to the em3 Commerce System.
“Related Indemnitees” means a Party’s affiliates, partners, officers, employees, directors, managers, agents, successors and assigns.
“Services Start Date” means the date so designated on the first page of this Agreement in the Initial Services Summary.
“Written Notice” means (with regard to default, termination, non-renewal, payment default, or price adjustment) a written notification that states with reasonable particularity its purpose related to this Agreement.