Terms and Conditions of Service
THE FOLLOWING AGREEMENT (THE “TERMS”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN THE END USER CUSTOMER (“CUSTOMER”) AND HOFFMAN TECHNOLOGIES, INC. DBA VENDORFUEL (“VENDORFUEL”), A CALIFORNIA CORPORATION, WITH ITS PRINCIPLE PLACE OF BUSINESS LOCATED AT 3835 ATHERTON ROAD, STE 1, ROCKLIN, CA 95765. THESE TERMS GOVERN VENDORFUEL’S PROVISION OF SERVICES AND CONTENT TO CUSTOMER AND CUSTOMER’S USE OF THOSE SERVICES AND CONTENT. VENDORFUEL MAY MODIFY THESE TERMS IN ITS SOLE DISCRETION ON 60 DAYS ADVANCE NOTICE (BY WEBSITE POSTING OR OTHERWISE), AND CUSTOMER’S CONTINUED USE OF THE SERVICES AND CONTENT AFTER ANY SUCH MODIFICATIONS CONSTITUTES CUSTOMER’S ACCEPTANCE OF THEM.
Grant of License
VendorFuel hereby grants to Customer a limited, non-exclusive, non-transferable, right and license to use the Services and the Content solely for Customer’s own internal business purposes, subject to all of these Terms and the provisions. All rights in and to the Services and Content that are not expressly granted to Customer in these Terms are hereby reserved by VendorFuel and its licensors. The term “Services” means the VendorFuel services that Customer has ordered from VendorFuel (the “Services”). The term “Content” means any and all audio and/or visual information, documents, software, and other products that VendorFuel makes available to Customer for use in the course of using the Services. VendorFuel may in its sole discretion provide Customer access to additional Content that customizes the Services for Customer. Such customized Content and Services shall be owned exclusively by VendorFuel and shall be governed by these Terms. Customer understands and agrees that VendorFuel and any authorized reseller are separate, independent contractors.
No Sublicensing
Customer shall not (a) license, sublicense, sell, resell, rent, timeshare, transfer, assign, distribute, or otherwise commercially exploit or make available in any way to any third party any service or software or other materials or information included with the Services or the Content; (b) make derivative works of, or otherwise modify, any Services or Content; (c) create Internet “links” to any Services or Content or “frame” or “mirror” any Services or Content on any server or wireless or Internet-based device; or (d) reverse engineer or access any Services or Content in order to (i) build a competitive product or service, (ii) build a product using ideas, features, functions, or graphics similar to any Services or Content, or (iii) copy any ideas, features, functions, or graphics of the Services or Content. Customer shall not use any Services or Content in any way that infringes upon the intellectual property rights of any person, including without limitation VendorFuel.
Customer Use
Customer is responsible for all activities relating to Customer’s access and use of the Services and Content and for compliance with all Laws associated therewith, including without limitation those relating to data privacy, international communications, and transmission of technical or personal data. Customer agrees not to disclose or provide access to any Services or Content to any person or entity except on a need-to-know basis to employees and other persons or entities not direct competitors of VendorFuel who have contracted to provide related services to Customer and who have agreed in writing to abide by these Terms and not to use any Services or Content to compete with VendorFuel. Customer agrees to use its best efforts to ensure that all persons having access to any Services or Content protect them from unauthorized use and disclosure. Customer shall notify VendorFuel immediately of any unauthorized access or use of any Services or Content.
Payment of Fees and Charges
Customer shall timely pay to VendorFuel all fees, charges, and other amounts obligated to. All fees are due monthly. All other fees and charges, such as late fees or charges for excess or additional usage beyond the usage specified will be charged on or around the 10th of the subsequent month if paying by credit card, and, if paying by check or wire, must be received by VendorFuel within thirty (30) days from the date of Company’s invoice to Customer. All amounts that Customer does not pay when due shall bear interest at the rate of 1½ percent per month or the maximum legal rate, whichever is less. Customer will be responsible for all costs of collection. VendorFuel shall have the right to suspend Customer’s access to the Services and Content for non-payment of fees or any other amounts due from Customer to VendorFuel or the reseller, in addition to any other remedies VendorFuel may have, including without limitation terminating the parties’ agreement. In addition to any other remedies, VendorFuel shall have the right to charge Customer a reconnection fee if its access to the Services and Content are suspended for non-payment. All prices are exclusive of any and all taxes. Customer agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and Content, but excluding any taxes on VendorFuel’s net income or gross receipts. Once Customer begins using the Services, any and all fees and charges shall become non-refundable, except as provided in Section 9. All pricing information is confidential information of VendorFuel or the authorized reseller, and Customer shall not disclose it to any third party unless required by law, after giving notice to VendorFuel or the authorized reseller.
Customer System
Customer is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Customer to access and use the Services and the Content. If Customer fails to do so, Customer’s access to or ability to use the Services and the Content may be negatively affected or non-existent.
Intellectual Property
Subject to the license granted in these Terms, VendorFuel (and its licensors, where applicable) shall own all right, title, and interest, including any and all copyrights, trade secrets, patents, trademarks, and other intellectual property rights, in and to the Services and Content and any suggestions, ideas, enhancement requests, feedback, recommendations, and other information Customer provides about any Services or Content (“Feedback”). Execution of this agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Content, or any intellectual property rights owned by or licensed to VendorFuel. The VendorFuel name and logo and the product names associated with the Services and Content are trademarks of VendorFuel, and no right or license is granted to Customer to use or reproduce them.
Customer Data
VendorFuel will not own any data, information, or material that Customer submits in the course of using the Services (“Customer Data”), except for any Feedback that Customer provides through any channel. Customer agrees not to provide any Feedback that is covered by any third-party intellectual property rights. Customer, not VendorFuel, shall have the sole responsibility for all aspects of the Customer Data, including, without limitation, its accuracy, legality, ownership, transmission, and use. VendorFuel shall have no obligation to retain any copy of Customer Data for longer than ninety (90) days after termination of this agreement.
System Maintenance: Downtime
The Services and Content will be inaccessible at certain times for scheduled system maintenance (“Maintenance Time”). While VendorFuel seeks to schedule Maintenance Time during non-peak hours and to provide 24 hours advance notice to customers, those practices cannot be guaranteed. In addition, the Services and Content may be subject to limitations, interruptions, outages, and other problems inherent in the use of the Internet and electronic communications (“Outages”). VendorFuel is not responsible for any such Outages or any damage(s) resulting from any such Outages or any Maintenance Time. If the Services and Content become inaccessible for reasons within VendorFuel’s control, other than for Maintenance Time, and excluding any time associated with Outages, VendorFuel will provide Customer, upon Customer’s written request, the following monthly service fee credit for any such downtime in excess of a total of 45 minutes during a calendar month (“Downtime”): VendorFuel will provide Customer a credit of five percent (5%) of Customer’s monthly service fee for each 30 minutes of Downtime (i.e., downtime beyond a monthly total of 45 minutes) up to a maximum credit of twenty-five percent (25%) of Customer’s monthly service fee. THIS CREDIT SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DOWNTIME. If VendorFuel’s performance is otherwise delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facilities, material or labor, delay or lack of communication, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond VendorFuel’s control, VendorFuel shall have such additional time to perform its obligations as may be reasonably necessary under the circumstances. However, Customer’s obligation to pay for the Services and Content shall not be suspended.
Term and Termination
These Terms will take effect on the acceptance date and will remain effective until terminated as provided herein. The term of the agreement between VendorFuel and Customer shall be monthly. Customer may terminate its agreement with VendorFuel upon 30 days advance notice to VendorFuel, except that Customer shall remain responsible for payment of all unpaid fees and other charges. VendorFuel may terminate its agreement with Customer by written notice to Customer (a) if Customer breaches these Terms, or (b) for convenience, upon sixty (30) days advance written notice to Customer. Any and all claims and payment obligations that arose before termination shall survive such termination. The following Sections shall also survive termination: 4, 6, 7, 9, and 12-17. Upon termination of the agreement between VendorFuel and Customer, all payment obligations of Customer shall be accelerated and become immediately due and payable, and Customer shall promptly cease accessing and using the Services and Content. If VendorFuel terminates this agreement solely for its convenience, Customer shall be entitled to a refund of all unused fees, after deduction of any and all other fees and charges that are then due and owing from Customer.
Export Restrictions
No Services or Content may be accessed, used, exported, or redistributed in any form in or to any country prohibited by U.S. export laws, rules, and regulations (“Laws”) or to residents or nationals of any such countries. Customer agrees to comply with all applicable national and international Laws that apply to the Services and Content, including without limitation U.S. export Laws. By accessing the Services and Content, Customer (a) represents and warrants to VendorFuel that Customer not restricted from receiving or using U.S. products and agrees to comply with all applicable U.S. export Laws and all host country import Laws; and (b) agrees that Customer will not export, redistribute, or re-export any Services or Content, or any process or service that is a direct product of any Services or Content, in violation of any applicable Laws of the U.S. or the country in which Customer accessed or used such Services or Content.
U.S. Government Restricted Rights
Any software associated with the Services and the Content is commercial computer software developed at private expense and is provided with Restricted Rights. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be governed by these Terms and FAR § 52-227-14 Alternative III(g)(3) (June 1987), as applicable, subject to FAR § 52.227.19(c) (June 1987). Use, duplication, and disclosure by agencies of the U.S. Department of Defense shall be governed by these Terms, as provided in DFARS § 227.7202 (10/14/98). The Contractor/Licensor is Hoffman Technologies, Inc. dba VendorFuel, a California corporation, 3835 Atherton Road, STE 1, Rocklin, CA 95765. Waiver. Any waiver by VendorFuel of any breach of these Terms shall not be construed as a waiver of any other or future breach. No failure by VendorFuel to insist upon the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of any other covenant, agreement, term, or condition.
Limited Warranty, Disclaimers, and Limitations of Liability
The Services and Content are made available subject to the Limited Warranty, disclaimers, and limitations of liability that are set forth below, which Limited Warranty, disclaimers, and limitations are hereby incorporated into these Terms by this reference. Governing Law. These Terms shall be governed by and interpreted in accordance with the Laws of California, excluding conflicts of law rules. You agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to the Services or Content. In any legal proceeding instituted with respect to these Terms, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees, including but not limited to those incurred in any and all appeals, review proceedings, and collection proceedings. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law. The Parties consent to the exclusive jurisdiction of and venue in the State and Federal Courts of Placer County, in the State of California, and agree that venue in such courts is appropriate. Customer hereby irrevocably submits to the personal jurisdiction of such court(s).
THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY TRIAL FOR ANY DISPUTE RELATING TO THEIR AGREEMENT, AND EACH PARTY EXPRESSLY WAIVES ANY AND ALL SUCH RIGHTS TO A JURY TRIAL THAT MAY EXIST UNDER STATE, FEDERAL, CONSTITUTIONAL, OR OTHER LAW.
Indemnification
Customer agrees to indemnify, defend and hold VendorFuel and our partners, employees, and affiliates, harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of this Agreement or use of the Site.
Rights and Remedies
No right or remedy herein conferred upon or reserved to VendorFuel is exclusive of any other right or remedy, at law or in equity, but each such right or remedy shall be cumulative. Customer shall defend, indemnify, and save harmless VendorFuel and all it’s officers, directors, employees, agents, successors, and assigns from and against any and all third-party claims, demands, actions, suits, losses, liabilities, damages, and all related costs and expenses, including without limitation reasonable attorneys’ fees and expenses, arising from or otherwise relating to any breach by Customer of these Terms. VendorFuel agrees, at Customer’s request and sole expense, to cooperate in the defense of any such indemnified claims.
Notices
All notices to VendorFuel must be delivered to the address and contact person listed below. Delivery made by certified U.S. mail with a receipt shall be deemed to satisfy delivery requirements. A courtesy copy delivered by email to the email addresses listed also shall be made to expedite the Parties awareness. Each Party agrees to timely updates to the other Party in writing about any changes to the names, titles, addresses or email contacts known to each other.
Hoffman Technologies, Inc. dba VendorFuel
Attention: Legal Department
3835 Atherton Road, STE 1
Rocklin, CA 95765
Assignment
Neither party shall transfer or assign this Agreement except as expressly allowed below without the prior written consent of the other party and any purported assignment in violation of the foregoing shall be null and void. Either party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, to any successor in interest to all or substantially all of such party’s business or assets related to this Agreement or to a wholly owned subsidiary. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
Severability
If any provision of these Terms is determined by a court in accordance with Section 14 to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified, or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability, or illegality, and all remaining provisions shall remain unaffected and continue in full force and effect.
Electronic Signature
This Agreement will be signed by the Parties utilizing an electronic signature in accordance with State and Federal law. The binding effect of an electronic signature is the same as a hand signature. If Client would like to opt out of signing this Agreement electronically Client must contact VendorFuel immediately to request a paper copy of this agreement for hand signature.
Entire Agreement
These Terms contain the entire understanding and agreement between Customer and VendorFuel and supersede all prior communications, proposals, representations, and agreements, whether written or oral, express or implied, with respect to the Services and the Content and any other subject matter covered by these Terms. VendorFuel objects to and rejects all additional or different terms proposed by Customer, whether contained in any purchase order or any other Customer document. VendorFuel reserves the right to modify these Terms or its policies relating to the Services and Content at any time, effective upon posting of an updated version of these Terms. Continued use of any Services or Content after any such modifications shall constitute Customer’s consent to such modifications. These Terms otherwise may not be modified except by mutual written agreement of the Parties. Customer’s rights and obligations under these Terms may not be assigned or otherwise transferred, by operation of law or otherwise, without the prior written consent of VendorFuel. VendorFuel may assign any of its rights and obligations.
NO SALESPERSON, RESELLER, OR SIMILAR PERSON IS AUTHORIZED TO MODIFY THESE TERMS OR MAKE ANY REPRESENTATION, WARRANTY, OR PROMISE WITH RESPECT TO ANY SERVICES OR CONTENT THAT IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND LIMITED WARRANTY THAT ARE EXPRESSLY SET FORTH IN THESE TERMS.
LIMITED WARRANTY
Subject to the Terms and Conditions of this agreement, VendorFuel warrants to Customer that the Services provided will substantially conform to VendorFuel’s online training information about them, which VendorFuel may modify in its discretion. This limited warranty does not cover Internet or power outages, however, or any other events or conditions beyond VendorFuel’s control. Customer must notify VendorFuel in writing of any nonconformity with the foregoing warranty within thirty (30) days from the date Customer first receives access to the Services or any major revision of the Services. If Customer gives such notice to VendorFuel, VendorFuel, at its sole discretion and expense, will either (1) use reasonable efforts to remedy the nonconformity or (2) refund the unused fees for the affected Services. If VendorFuel (or the authorized reseller) provides such a refund, all of VendorFuel’s and the reseller’s obligations with respect to the affected Services shall promptly terminate, and Customer shall have no further right to access or use them.
THIS REMEDY SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THIS LIMITED WARRANTY. This Limited Warranty is also subject to the Disclaimers and Limitations of Liability set forth below.
DISCLAIMERS AND LIMITATIONS OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY STATED ABOVE, VendorFuel MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF ANY SERVICE OR CONTENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, VendorFuel DOES NOT REPRESENT OR WARRANT THAT (1) USE OF ANY SERVICES OR CONTENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (2) THE SERVICES OR CONTENT WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (4) ANY ERRORS OR DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR (5) THE SERVICES OR THE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVDED IN THE LIMITED WARRANTY SET FORTH ABOVE, ALL SERVICES AND CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. VendorFuel HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, QUIET ENJOYMENT, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
VendorFuel’S AGGREGATE LIABILITY ARISING OUT OF AND RELATING TO THESE TERMS AND THE SERVICES AND CONTENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OR NATURE OF THE CLAIMS OR CAUSES OF ACTION (WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY), SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO VendorFuel, OR RECEIVED BY VendorFuel FROM AN AUTHORIZED RESELLER, FOR THE SERVICES AND CONTENT PROVIDED TO CUSTOMER THAT ARE THE SUBJECT OF THE CLAIMS OR CAUSES OF ACTION. IN NO EVENT SHALL VendorFuel BE LIABLE FOR ANY LOSS, THEFT, OR CORRUPTION OF DATA, COST OF COVER, LOST PROFITS, LOSS OF USE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY SERVICES OR CONTENT, WHETHER OR NOT VendorFuel HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES AND ARE REFLECTED IN THE PRICING OF THE SERVICES, WHICH DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISKS AND BENEFITS. ALL OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IN WITNESS WHEREOF, this Agreement has been executed by electronic signature by authorized individuals on behalf of the Parties hereto as of the Effective Date first indicated above.