These Terms of Service Sana Commerce (“the Terms”) apply to the Sana Proposal and Order Confirmation issued to Customer by Sana Commerce (“the Order”). In case of any inconsistencies between the Terms and the Order, the terms of the Order take precedence. Sana Commerce as used in these Terms means Sana Software USA, Inc.
1. Prices and Taxes
1.1 Configurations and prices of software, services, and licenses are subject to change at any time, and Sana Commerce shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents. Customer agrees to any such changes of prices or configurations if it does not object in writing to Sana Commerce within seven (7) business days of when Customer receives an invoice incorporating said changes.
1.2 Pricing is based on the specific service level package and Customer’s gross merchandise value (“GMV”) agreed upon in the Order. If Customer exceeds the agreed upon GMV threshold, Customer will be charged additional fees for the excess GMV, as set forth in the Order. If the GMV threshold has been exceeded during three consecutive months or during three months within a six-month period of time, Sana Commerce may amend the agreed upon GMV threshold at its sole discretion, taking into account the increased GMV. Consequently, the pricing and monthly charges will be amended as well for the remainder of the term of the Order, including any renewals.
1.3 All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Sana Commerce or Customer by any taxing authority (other than taxes imposed on Sana Commerce’s income), related to Customer’s order, unless Customer has provided Sana Commerce with an appropriate resale or exemption certificate for the delivery location, which is the location where products and/or software are used, or services are performed. In case of changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to Sana Commerce of delivering the products, software and/or services, Sana Commerce is entitled to increase its prices accordingly and retro-actively.
1.4 The prices or fees quoted are in U.S. dollars, or in another currency if stated by Sana Commerce in writing.
2. Payment
2.1 Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within fourteen (14) days of the invoice date, unless stated otherwise in the Order. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
2.2 Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
2.3 Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Order which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
2.4 Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged disturbance of, defect or Error in the products, software and/or services or on any other account whatsoever.
2.5 If Sana Commerce believes that Customer’s financial position and/or payment performance justifies such action, Sana Commerce has the right to demand that Customer immediately furnish security in a form to be determined by Sana Commerce and/or make an advance payment. If Customer fails to furnish the desired security, Sana Commerce has the right without prejudice to its other rights, to immediately suspend its performance under the Order, and that which Customer owes to Sana Commerce for whatever reason will become immediately due and payable.
2.6 Customer shall be liable for amounts which Sana Commerce incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
3. Lead Times, Implementation, Support Services
3.1 Sana Commerce shall deliver the products, software and/or services in accordance with the Order. Delivery and/or development times and dates are merely estimates, as well as lead times or any other deadlines, and Sana Commerce cannot be held liable for any damages as a result of delay in delivery of the products, software and/or services. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall not be entitled to cancel or terminate the Order, or to claim any damages.
3.2 If any delivery period or lead time risks to be exceeded, Sana Commerce will inform Customer as soon as reasonably possible and the parties will enter into consultations in order to determine a new delivery period.
3.3 Sana Commerce is entitled to engage the services of third parties for the execution of an Order. Sana Commerce is entitled to make partial deliveries.
3.4 Support services are not included in any Order unless explicitly stated and accepted by Sana Commerce in writing. If installation and/or maintenance is provided for in the Order, Customer shall provide Sana Commerce access to all materials relevant to the installation of the products, software and/or services and must provide for adequate working space and facilities, and access to and use of information, and Customer’s resources and facilities as reasonably determined necessary by Sana Commerce. If Customer fails to provide such access, resulting in Sana Commerce’s inability to install or maintain or service the products, software and/or services, Sana Commerce shall be entitled to charge Customer its standard rates for all related travel time and time Sana Commerce personnel is present at the Customer’s premises. Customer must notify Sana Commerce in advance if Customer’s premises, or parts thereof, might pose a health or safety hazard to Sana Commerce’s employees or subcontractors. Sana Commerce may postpone installation, service or maintenance until Customer remedies such hazards, without being liable to Customer for any damages. Customer will always have a representative present when Sana Commerce provides services or maintenance or installation at Customer’s physical location
4. Delivery and Completion
4.1 Delivery of the software and/or services will be completed the moment it is made available to Customer, or if agreed, upon installation of the software at the Customer’s premises. In no event, shall Sana Commerce be responsible for the purchase and/or correct functioning of the Customer’s infrastructure or that of third parties. The software and /or services is deemed to be accepted, if it materially meets the written specifications agreed by the parties.
4.2 Sana Commerce shall provide software and/or services on the basis of a best efforts obligation, unless and in so far as Sana Commerce has explicitly undertaken in writing to achieve a specific result and the result in question is sufficiently determined.
4.3 Unless explicitly agreed in writing, Sana Commerce shall not be obliged to install any software on Customer’s premise, or set up, install, parameterize, tune or adapt the software and/or services, or to provide any data conversion related thereto, or to achieve any interoperability desired by Customer.
4.4 Under no circumstances shall Sana Commerce be obliged to provide Customer with a physical data carrier containing the software to be made and kept available to the Customer within the context of the services, or the software to be used by Sana Commerce in connection to the services.
4.5 Unless explicitly agreed in writing, Customer shall solely be responsible for training given to and use by users of the software and/or services.
4.6 Customer understands and agrees that downtime or inaccessibility may result from Sana Commerce’s implementation of updates, upgrades, or other maintenance activities related to the software and/or services, and Sana Commerce shall not be liable for any damages relating to such downtime or inaccessibility.
5. Testing, Acceptance and Backup
5.1 In the event that the parties agreed in writing that Customer be entitled to test the software before accepting it, acceptance shall be deemed to be made fourteen (14) days from the delivery or installation of the software and no written complaint specifically detailing purported Errors has been received by Sana Commerce. If a written complaint detailing purported Errors has been received by Sana Commerce, acceptance shall be deemed to be made fourteen (14) days from completion of repairs of items specifically detailed in the written complaint. Notwithstanding the above, software and or services shall be deemed accepted upon Customer making any use of the software for any purpose related to its business operations, or accesses the services for any reason.
5.2 In the event Customer reports any purported Errors in the software within fourteen (14) days after delivery or installation, such written report shall provide a detailed description of the Customer’s testing, and the nature of any purported Errors. In the event the software is found to contain Errors by Sana Commerce, Sana Commerce will make reasonable repair or replace the software, in Sana Commerce’s sole discretion, within a reasonable period of time.
5.3 If software and/or services are delivered and tested in stages and/or parts, the non-acceptance of a specific stage and/or part shall not affect the acceptance of a previous stage and/or other part, where appropriate.
5.4 If the Order or another agreement in writing between the parties provides so, Sana Commerce will examine the functionality of Services and will address material Errors and substantiated requests for support within a reasonable period of time, in no event less than three (3) business days, upon written notice from Customer. Sana Commerce does not guarantee the accuracy, completeness or timeliness of any responses or support provided.
5.5 If the agreement provides that Services provided to Customer shall also include the creation of backups of Customer’s data, Sana Commerce shall create a full backup of the Customer data that it has in its possession with due observance of the periods agreed between the parties in writing. If no periods have been agreed, a backup shall be created once a week. Sana Commerce shall retain the backup for a period of time to be agreed by the parties and if no agreement has been reached in this regard, for Sana Commerce’s standard period of time. Sana Commerce shall handle and store the backup with due care and diligence. Sana Commerce shall not be obliged to have a backup center or other backup facilities, unless otherwise explicitly agreed in writing.
5.6 Under no circumstances shall Sana Commerce be responsible for the recovery of scrambled or lost data.
5.7 THE SOLE AND EXCLUSIVE REMEDY FOR ALLEGED ERRORS OR ANY DEFECT IN THE SOFTWARE AND/OR SERVICES IS THE REPAIR OR THE DELIVERY OF REPLACEMENT SOFTWARE AND/OR SERVICES, IN SANA COMMERCE’S SOLE DISCRETION, AT NO COSTS FOR CUSTOMER.
6. Intellectual Property Ownership, Right of Use, and Privacy
6.1 All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, tools, documentations, etc., in relation to the products, software and/or services, including modifications thereto, delivered and/or used by Sana Commerce, are owned by Sana Commerce or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in writing. This applies even if products, software and/or services have been specifically designed, developed or compiled for Customer.
6.2 Unless otherwise agreed in writing, Customer may not make repairs or modifications to the software, nor allow or enable any third parties to do so. Customer may not, nor may enable and/or allow third parties to copy, translate, or reverse engineer any products, software and/or services.
6.3 Sana Commerce, in its sole discretion, may implement technical measures aimed at protecting the products, software and/or services, and Customer is prohibited from attempting to remove or circumvent such protections.
6.4 Customer shall not be permitted to affix any other trademark to the products, software and/or products, or to remove any copyright, trademark or other proprietary rights notices on same, or to use the relevant mark in any other way, or to register it in Customer’s own name, and specifically Customer shall not be permitted to register any copyright or patent involving, based upon, or for any of the products, software and/or services.
6.5 Customers understands, accepts and agrees that Customer will have to properly execute the Sana License Agreement, if referred to in the Order, lack of which will give Sana Commerce the right to postpone and/or suspend any performance under the Order, without any liability.
6.6 The Sana License Agreement will provide Customer with a personal non-exclusive, non-transferable and non-sub-licensable license to use the software set forth in the Order, solely for Customer’s personal use while the Customer complies with the terms of the Order and these Terms.
6.7 Customer understands and hereby accepts that the source code related to the software and/or services shall not be made available to the Customer. Unless otherwise agreed in writing, Sana Commerce shall not be required to provide Customer any program or data libraries, even if these are required for the use and/or maintenance of the software and/or services.
6.8 Sana Commerce may implement upgrades and/or updates available from time to time with regard to the software and/or services, but is under no obligation to do so.
6.9 All hardware, software and items used by Sana Commerce in providing the services shall remain the property or the intellectual property of Sana Commerce or its own suppliers, even if the Customer pays a fee in respect of the development or purchase of these by Sana Commerce.
6.10 To gain access to the software or the services, Customer’s users may be required to have a user ID and a password. Customer shall instruct its users to take all measures that may reasonably be required from them to prevent unauthorized use of the user ID/password. If and to the extent that Customer’s user suspects a case of unauthorized use, it must be reported to Sana Commerce immediately.
6.11 Customer shall comply with prevailing regulations related to the protection or privacy and processing of personal information.
6.12 Customer shall observe any restrictions of use of the software and/or services as provided in writing by Sana Commerce, including without limitation (i) the kind or type of hardware that the software and/or services are designed for, (ii) the maximum number of processing units that the software and/or services are designed for, (iii) specific individuals who may use the software and/or services within Customer’s organization, (iv) the maximum number of users who may use the software and/or services, simultaneously or otherwise, within Customer’s organization, (v) the location at which the software and/or services may be used or (vi) specific forms and purposes of use (e.g. for commercial or private purposes). Customer understands that the violation of an agreed restriction of use shall constitute both breach of contract with Sana Commerce and an infringement of the intellectual property rights in the software and/or services.
6.13 Customer is strictly prohibited from selling, multiplying, or otherwise exploiting or assigning its right of use, or encumbering same, or otherwise putting the software and/or services in the possession or use of a third party in any way, and Customer specifically shall not use any of the software and/or services to process data on behalf of third parties, e.g., for services such as “time-sharing,” “application service provision,” “software as a service” and “outsourcing.”
6.14 Sana Commerce shall always be permitted to install technical provisions for the purpose of protecting the software and/or services, hardware, data files, websites and such in relation to an agreed restriction on the content or use of the software and/or services, and Customer shall under no circumstances be permitted to remove or circumvent such technical provisions or allow third parties to do so.
6.15 Customer undertakes to take its own precautions to prevent unauthorized access by third parties to the software and/or services. Customer shall notify its employees of the necessity to observe copyright law.
6.16 If and when requested by Sana Commerce, Customer shall provide all cooperation and information that Sana Commerce may reasonably request to fulfill any of its obligations towards Customer.
6.17 Customer agrees and warrants that all of its users agrees as well, not to: (i) copy, modify, translate, or reverse engineer any portion of the software and/or services; (ii) use any robot, spider, other automated device, or manual process to monitor or copy the software and/or services, or parts thereof; (iii) reformat or frame any portion of the software and/or services; (iv) interfere with the access of any other users of the software and/or services to it; (v) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature through the software and/or services; (vi) use the software and/or services to violate the security of any computer network, crack passwords or security encryption codes; or (vii) use any device, software or routine that interferes with the proper working of the software and/or services.
6.18 Notwithstanding any other provision of the Order or these Terms, Customer shall be fully responsible for the data processed through the use of the software and/or services. Customer also understands and ensures that the data that Customer processes through the software and/or services is not illegal and does not infringe the rights of third parties.
Customer’s Cooperation
7.1 Customer shall timely provide Sana Commerce with all details and information required by Sana Commerce for the development and/or implementation of products or software and/or the delivery of services set forth in the Order.
7.2 Customer understands that the development of products or software and/or the delivery of service shall be done by Sana Commerce based on details, information, specifications and requirements supplied by the Customer, and Sana Commerce shall rely thereon, and Customer shall guarantee that they are accurate and comprehensive.
8. Confidential Information
8.1 Confidential Information means (i) the existence and terms of any agreement between the parties and (ii) any non-public, confidential or proprietary information relating to a disclosing party, whether or not technical in nature, including any that is designated by the disclosing party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving party at the time of disclosure by the disclosing party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing party; or (v) is developed independently and separately by either party without use of the disclosing party’s Confidential Information.
8.2 Each party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing party’s prior written consent, which consent may be granted or withheld in such party’s sole and absolute discretion.
8.3 Each party agrees that it will restrict the circle of employees or third parties it retains who have access to the other party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
8.4 Immediately following the receipt of a written request to this effect by the disclosing party the receiving party will return any and all Confidential Information received from the disclosing party or destroy such Confidential Information, if the disclosing party so requests.
9. Duration, Termination and Suspension of Performance
9.1 The duration of the agreement for a recurring, subscription or periodic products and/or services is three (3) years, unless otherwise agreed in the Order or separately agreed upon in writing by the parties. Such an agreement shall automatically renew for subsequent one (1) year periods unless one party notifies the other party in writing, with a notification period of three (3) months before the expiration date of the initial or extended period that it will terminate the agreement.
9.2 Any Order or agreement for a certain project will end after completion of such project.
9.3 Customer cannot terminate the Order or an agreement for convenience, exception in accordance with the provisions above.
9.4 If Customer believes that Sana Commerce has failed to perform under an Order or an agreement, it must notify Sana Commerce in writing and allow thirty (30) days for Sana Commerce to cure if it has failed to perform.
9.5 If Customer fails to make payment of any amount due on the due date or Customer otherwise fails to perform its obligations under the Order or another agreement between the parties, or if Sana Commerce reasonably expects that Customer will not fulfill its obligations, Sana Commerce may in its sole and absolute discretion suspend performance under the Order or the agreement and/or terminate the Order or the agreement (in whole or part), with immediate effect, without being liable for any damages to Customer.
9.6 Notwithstanding the above and without any obligation to return any service fee or prepaid expenses, Sana Commerce may terminate its relationship with Customer, or may terminate or suspend Sana Commerce’s delivery of products, software and/or services at any time, or terminate or suspend Customer’s use of the software and/or services at any time: (i) if Customer is in breach of the Order and or another agreement between the parties; (ii) if Sana Commerce reasonably suspects that Customer is using products, software and/or services to breach the law or infringe third party rights; (iii) if Sana Commerce reasonably suspects that Customer is using products, software and/or services fraudulently, or that products, software and/or services provided to Customer are being used by a third party fraudulently; (iv) for a force majeure event that continues for more than sixty (60) days upon notice; (v) if Customer fails to pay any amounts due to Sana Commerce or due under the Sana License Agreement; (vi) if required due to change in laws/regulation by a regulator or authority with a lawful mandate, or by any of Sana Commerce’s partners; (vii) in respect to a particular Sana Commerce product, software and/or service, upon thirty (30) days’ notice if Sana Commerce decides to cease offering that product, software and/or service; (ix) the bankruptcy of the Customer has been applied for; (x) an attachment is levied on the goods of Customer; (xi) Customer is liquidated or discontinued; and/or (xii) Customer is in violation of any applicable laws or regulations.
9.7 Upon suspension and/or termination, all invoiced sums will become immediately due and payable.
10. Warranty
10.1 Sana Commerce warrants its products and/or services against Errors in materials and workmanship for one (1) year and its software against errors and defects in materials and workmanship for three (3) months from the date of delivery, during which time it will use its best efforts to repair any Errors as may be found during such period. However, any such problems encountered in the use of the products, software and/or services as arise out of user errors or inexpert use on the part of Customer and any problems involving any such Errors as could have been brought to light in the context of any acceptance test being performed pursuant to the Order, or out of any other causes that are not attributable to Sana Commerce, shall be for Customer’s risk and account.
10.2 For the purpose of these Terms, an Error shall mean any substantive failure of the products, software and/or services to comply with functional or technical specifications mutually agreed upon by the parties in writing.
10.3 At its sole discretion, Sana Commerce will repair or replace any Errors and/or defective Product during the warranty period.
10.4 The warranties hereunder do not cover faults or damages arising from faulty, careless, or improper treatment, faulty and unauthorized commission, improper storage or unloading and unauthorized use or misuse of products, software and/or services, and improper or defective environmental circumstances, or a failure caused by a product for which Sana Commerce is not responsible.
10.5 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SANA COMMERCE, ITS LICENSORS, THIRD PARTY SUPPLIERS, AND AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SANA COMMERCE PRODUCTS, SOFTWARE AND/OR SERVICES WHETHER EXPRESS, IMPLIED OR STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, COMPATIBILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SANA COMMERCE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
11. Liability, Limitation of Damages and Indemnification
11.1 SANA COMMERCE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO SANA COMMERCE’S PRODUCTS, SOFTWARE AND/OR SERVICES. NEITHER SANA COMMERCE NOR ITS OFFICERS OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO ALL SUCH PRODUCTS, SOFTWARE AND/OR SERVICES.
11.2 CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL ACTIVITIES CONDUCTED THROUGH SANA COMMERCE’S PRODUCTS AND/OR SOFTWARE BY CUSTOMER’S USERS, EVEN IF SUCH ACTIVITIES WERE TO OCCUR WITHOUT CUSTOMER’S PERMISSION. SANA COMMERCE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE ACTS AND OMISSIONS OF CUSTOMER’S USERS THROUGH SANA COMMERCE’S PRODUCTS AND/OR SOFTWARE. NEITHER SANA COMMERCE NOR ITS OFFICERS OR EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING OR RELATING TO ALL SUCH ACTS AND OMISSIONS.
11.3 IN NO EVENT SHALL SANA COMMERCE, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
11.4 SUBJECT TO THESE TERMS, SANA COMMERCE ACCEPTS RESPONSIBILITY AND LIABILITY FOR CORRECT PERFORMANCE OF THE SANA GROUP COMPANY UNDER THE SANA LICENSE AGREEMENT.
11.5 NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS TO THE CONTRARY, SANA COMMERCE’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL PAID BY CUSTOMER FOR THE PRODUCTS, SOFTWARE AND/OR SERVICES IN CONNECTION TO WHICH THE DAMAGING EVENT OCCURRED.
11.6 THE LIMITATIONS ON SANA COMMERCE’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT SANA COMMERCE, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
12. Indemnification
12.1 CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD SANA COMMERCE, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE SANA COMMERCE PRODUCTS, SOFTWARE AND/OR SERVICES OR BREACH OF THE ORDER OR THESE TERMS, BY CUSTOMER OR ITS USERS.
12.2 CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD SANA COMMERCE, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND THREATENED CLAIMS BY ANY THIRD PARTY, INCLUDING EMPLOYEES OF CUSTOMER ARISING OUT OF, UNDER OR IN CONNECTION WITH (1) THE DEATH OR BODILY INJURY OF ANY THIRD PARTY, INCLUDING ANY AGENT, EMPLOYEE, CUSTOMER, BUSINESS INVITEE OR BUSINESS VISITOR OF CUSTOMER, OR, (2) THE DAMAGE, LOSS OR DESTRIBUTION OF ANY TANGIBLE PERSONAL OR REAL PROPERTY AT CUSTOMER’S PREMISES, BOTH ONLY TO THE EXTENT THAT SUCH WAS NOT A RESULT OF GROSS NEGLIGENCE BY SANA COMMERCE OR ITS PERSONNEL.
13. Insurance
Sana Commerce and Customer shall pay all necessary costs to maintain sufficient insurance policies to cover its personnel and premises for activities contemplated by or performed in connection with the products, software and/or services.
14. Severability
If any provision of the Order, these Terms, or any other agreement between the parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
15. Force Majeure
Sana Commerce will not be liable for any delay in performing or failure to perform any of its obligations under the Order or any other agreement between the parties caused by events beyond its reasonable control. Sana Commerce will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
16. Assignment
Customer is not permitted to assign, delegate or otherwise transfer the Order or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. Sana Commerce is permitted at its sole discretion to assign the Order, or an agreement between the parties, or any rights or obligations hereunder to any third party, without giving prior notice.
17. Entire Agreement
Except if parties have entered into written other agreements on the date of the Order or thereafter, the Order and these Terms contain the entire agreement between Sana Commerce and Customer regarding Customer’s purchase of the products and/or services, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
18. No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Order or these Terms or by law shall not constitute a waiver of that right, power or remedy. If Sana Commerce waives a breach of any provision of the Order or these Terms, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
19. No Beneficiaries
Any agreement between the parties is for the sole benefit of the parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the parties thereto, any legal or equitable rights thereunder.
20. No Partnership
Nothing contained in any agreement between the parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the parties. Neither of the parties may pledge or purport to pledge the credit of the other party or make or purport to make any representations, warranties, or undertakings for the other party.
21. Injunctive Relief
Customer acknowledges that Sana Commerce shall suffer irreparable injury in case of breach of the obligations under Articles 4 and 6. Accordingly, in the event of such breach, Customer acknowledges that Sana Commerce will be entitled to injunctive relief in any state or federal court of competent jurisdiction within the State of New York, or the state in which Customer has an office, at Sana Commerce’s sole discretion. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.
22. Governing Law and Arbitration
Unless stated otherwise in writing, the Order, these Terms, and any and all agreements between the parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to the Order, any other agreement between the parties, and these Terms or the relationship of the parties shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST SANA COMMERCE, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23. APPENDIX: SaaS Candidate Track Terms
• If there are any inconsistencies between other terms and the SaaS Candidate Terms (“Candidate Terms”) the Candidate Terms will prevail.
• The Sana Commerce Cloud SaaS environment (“Sana SaaS”) is a SaaS environment with auto upgrade features developed by Sana.
• The SaaS Candidate Track term (“Initial Term”) is eighteen (18) months. During the Initial Term Customer will be subject to the fees as stated in the Order Confirmation. At the end of the Initial Term and each term thereafter the License Agreement will be automatically renewed for a period of one (1) year, unless either party gives the other party written notice at least three (3) months prior to the end of the current term.
• The agreed upon features (“Agreed Scope”) in the requirements study (“RQS”) and this Order Confirmation are features Sana expects to be implemented as a standard feature in Sana SaaS within a period of 18 months after signature date. Customer chooses to customize the Agreed Scope within the current Sana version.
• Sana commits itself to integrate a generic productized version of Agreed Scope into Sana SaaS during the Initial Term. Once the Agreed Scope has been made available on Sana SaaS, Sana will migrate Customers environment to Sana SaaS at no additional costs. Upon Sana’s first request Customer will provide reasonable cooperation during migration.
• In the event the Agreed Scope has not been productized within the Initial Term 50% of the initial investment for customizing the Agreed Scope will be credited to Customer.
• No later than at the end of the Initial Term, Sana will offer Customer to migrate to Sana SaaS at no additional cost.