Master Services Agreement
Updated: September 23, 2016
Please note that you may NOT access the Services (1) if you are not our Client, or are a third-party and do not have our written permission, (2) if you are a competitor, (3) for purposes of monitoring performance or functionality or, (4) for any competitive purpose.
"Credit2B", "we", "us" or "our" refers to Credit2B LLC and its affiliates.
"Client", "you" or "your" means the entity or person using the Subscription or other Services for which you are accepting this Agreement, and affiliates of that entity or person, and its Users.
"Fees" includes "Subscription Fees", which is the amount you pay for Subscription Services, which includes fees for "Core Credit Reporting", and "Professional Services Fees", which is the amount you pay for Professional Services, as further described on the Order Forms.
"Information" includes business information, credit reports, receivables trade payment data, opinions, scores, results, calculations, and all other content displayed in or provided through the Services and our websites, including any ancillary products and services.
"Information Sources" refer to the sources that provide Information to us, including, but not limited to, (1) our affiliates, (2) our Clients and their Users, and (3) other third-party Information sources, including credit bureaus.
"Order Form", means the Credit2B order form entered into between Client and Credit2b, including the exhibits thereto, by which the Client agrees to the purchase and/or subscription for certain Services.
"Professional Services" include, but are not limited to. consulting, data management, custom programming, white-labeled site hosting and outsourcing, either on a one-time basis or as a continuing service as provided on an Order Form.
"Services" means any services we provide to you, including Subscription Services and Professional Services.
"Subscription Services" include the (i) core credit reporting subscription services and also (ii) ancillary services, such as monitoring, scoring, trade payments, analyst advice, etc., which are provided on a Subscription Term basis with User and Usage Limits. These services are accessible via http://www.Credit2B.com, and other designated URLs, or by personal, telephone or written communication.
"Subscription Term" means the term specified on the Order Forms.
"Term" means the initial Subscription Term provided on an Order Form and all Renewal Subscription Terms or, if there is no applicable Order Form, means the period for which Client uses the Services covered by this Agreement.
"Third-Party Sites" means third-party websites linked from within the Services and/or our websites.
"Usage Limits" mean the scope of work or number of reports or accounts covered by the Service as provided on the Order Form.
"Users" mean the Client's employees, representatives, consultants, contractors or agents who are authorized to use the Services for Client, as provided on the Order Form.
2. ORDER FORMS AND PRECEDENCE Credit2B Order Forms shall be deemed incorporated herein by reference and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and an applicable Order Form, the terms of the Order Form shall prevail, but only as to that Order Form. Credit2B is under no obligation to furnish a particular Service until Credit2B accepts the applicable Order Form in writing, either by signature of a Credit2B representative or delivery of a Credit2B invoice to Client in connection with such Order Form.
3. THE SERVICES
a. Subscription Services. During the Term, we will provide you access to use Subscription Services as described on the Order Forms and in this Agreement. Additional features or services, including increased Users or Usage Limits, will require the provision of an additional Order Form.
b. Professional Services. During the Term, we will provide those additional services, including consulting, data cleansing, data management, analyst oversight, outsourcing, support, etc., as described on the Order Forms and in this Agreement or in the Statement of Work for those services. If they are ongoing (vs. one-time) projects or services, they will have the same term and renewal basis as Subscription Services.
c. Passwords. You are responsible for maintaining the confidentiality of User passwords and account details. You will advise Credit2B immediately if a password has been disclosed to or used by an unauthorized person or entity. Credit2B will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your User name, password and/or account.
d. Usage Limits. The number of Users and Usage Limits that apply to your Services will be specified in your Order Forms.
e. Modifications. We modify the Services from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Services that materially reduce the functionality provided to you during the Term.
4. CLIENT SUPPORT
a. Support. Phone or email support for the Services is available 8:30AM to 5PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We attempt to respond to support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
b. Services. We try to make the Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
5. PERMITTED AND PROHIBITED USE
a. Permitted Use. Client understands and certifies to Credit2B that the Services are licensed for Client's exclusive use and only in compliance with this Agreement, solely in connection with commercial credit or financial transactions or for other legitimate commercial purposes. The information generated from the Services should be maintained in confidence and disclosed only to employees whose duties relate to the business purposes for which the Services are requested, and should only be used in compliance with all applicable laws, regulations and ordinances, and all special use restrictions set forth in this Agreement.
b. Prohibited Use.
i. You will not access the Services (a) if you are a third-party and not our Client and do not have our written permission, (b) if you are a competitor, (c) for purposes of monitoring availability, performance or functionality, or (d) for any competitive purpose.
ii. You will not use the Services as a factor in establishing an individual's eligibility for credit or insurance to be used for personal, family or household purposes, or for employment; or to engage in unfair or deceptive practices; or for direct marketing purposes.
iii. You will not provide a copy of a credit report or other information or deliverable obtained from the Services to a credit applicant/ debtor, and you will refer such entity to Credit2B in case of any dispute of the information from the Services.
iv. You agree that you will not (a) modify, copy, rent, sell, distribute or create derivative works based on the Services; or (b) frame or mirror any content forming part of the Services; or (c) reverse engineer the Services; or (d) access or permit access to any party to build a competitive product or Services, or copy any ideas, features, functions or graphics of the Services, or (e) use or launch any automated system including "scrapers", "robots," "spiders," or "offline readers" to access the Services; or (f) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Services; or (g) attempt to gain unauthorized access to the Services; or (h) access the Services other than through our interface; or (i) use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement, or (j) allow a third-party to access, use or store the Services or the information obtained therefrom without our written approval.
v. Any violation of Section 5 may cause immediate, irreparable harm, injury, and loss to Credit2B and its Information Sources and damages may not be a sufficient remedy, in which case Credit2B may immediately (i) terminate Client's use of the Services, (ii) be entitled to seek a court order to restrain further violations, and (iii) pursue all other lawful remedies, including the recovery of damages from Client.
6. PROPRIETARY AND CONFIDENTIAL WORKS
This is an Agreement to access the Services, and you are not granted a license to any software by this Agreement. All Services are protected by intellectual property laws, and they belong to and are the property of us, our affiliates, or our licensors (if any) (collectively "Protected Parties"), and we retain all ownership rights in them. You acknowledge and agree that the Services are proprietary to the Protected Parties and comprise: (a) works of original authorship, including compiled information containing selection, arrangement and coordination and expression of such information or pre-existing material they have created, gathered or assembled; (b) confidential and trade secret information; and (c) information that has been created, developed and maintained by the Protected Parties at great expense of time and money, such that misappropriation or unauthorized use by others for commercial gain would unfairly or irreparably harm the Protected Parties.
a. Client shall implement and maintain security measures with respect to the Information and Software in Client's possession that effectively restrict access to Information and Software only to authorized users with a need to know, and protect Information and Software from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Client employs to safeguard its most confidential information. Client shall supply Credit2B with a description of such security measures at Credit2B's request. In the event of an actual or suspected breach of such security measures, Client shall provide Credit2B prompt, but in no event later than (2) days after becoming aware, written notice of any security incident that involves, or which the Client reasonably believes involves, the unauthorized access, use or disclosure of Information.
b. We encourage all Clients to comment on the Services, and provide suggestions for improvement. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Services, without payment or attribution to you.
c. Our trademarks include, but aren't limited to Credit2B, Snap, CreditB2B, Bernard Sands, RATIONALi, RationalScore, and PQI (which list we may update at any time without notice to you) and you may not use any of these without our prior written permission.
7. SUBSCRIBER CONTENT.
By submitting Information to the Services, including credit references, comments, trade receivables data, or any Information that Client inputs, posts, uploads, or transmits (collectively, "Content"), Client is granting Credit2B a royalty-free perpetual, worldwide license to use, display, distribute, reproduce, and reformat such Content in the products and services that Credit2B provides to other Clients, without source attribution. If Client participates in industry credit networks within Credit2B, Client agrees its identity can be revealed within its chosen networks.
a. You are responsible for any Content you submit to the Services. We retain the right, in our sole discretion, to review, edit or delete any material that we deem to be illegal, offensive or otherwise inappropriate. Your Blog postings should not be deemed private.
8. FEES, TAXES AND CHARGES.
The Order Form specifies Subscription Fees that are billed and payable for the term in advance, as well as other fees for Professional Services and other services. Payment terms are "net" and in US dollars. If you exceed the User or Usage Limits provided for on an Order Form during a Term, your Subscription Fees will be increased pro-rata and you will be billed accordingly. All Services are non-cancellable and all fees and charges are non-refundable. Any unused Services will expire without value at the end of a Term.
a. In the event that payment is not received within 30 days, in addition to any amounts due, Client may be charged a service charge of 1.5% per month from the due date, plus costs of collection including reasonable attorney fees.
b. All fees are exclusive of applicable taxes. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. This provision shall survive termination of this Agreement.
9. TERM AND TERMINATION. This Agreement will remain in effect for the Term specified on the applicable Order Form.
a. Initial Subscription Term. The initial subscription term shall begin on the effective date as specified on the Order Form and expire at the end of the term selected on the Order Form ("Initial Subscription Term") and cannot be canceled before its expiration.
b. AUTOMATIC RENEWAL SUBSCRIPTION TERM. UNLESS ONE OF US GIVES THE OTHER WRITTEN NOTICE THAT IT DOES NOT INTEND TO RENEW THE SUBSCRIPTION, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR THE SHORTER OF THE INITIAL SUBSCRIPTION TERM OR ONE YEAR ("RENEWAL SUBSCRIPTION TERM"). WRITTEN NOTICE OF NON-RENEWAL MUST BE SENT NO LESS THAN SIXTY (60) DAYS IN ADVANCE OF THE END OF THE TERM, UNLESS OTHERWISE SET FORTH IN OUR ORDER FORM. THE RENEWAL SUBSCRIPTION TERM WILL BE ON THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SUBJECT TO THE USAGE LIMITS AND RENEWAL PRICING PROVIDED FOR IN YOUR ORDER FORM.
c. Termination, Suspension and Expiration. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days' notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.
i. Suspension for Non-Payment. We may suspend access to all or any part of the Services at any time for non-payment of any amount past due. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
ii. Suspension for Prohibited Acts. We may suspend any Client's access to the Services for: (a) use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, or (b) posting or uploading material (i) that infringes on the intellectual property rights of another, or (ii) is deemed by Credit2B to be inappropriate, misleading or objectionable, or (iii) in an excessive manner that negatively impacts other Client's use and enjoyment of the Services.
iii. Suspension for Present Harm. If the Services are: (i) being subjected to denial of service attacks or other disruptive activity, (ii) being used to engage in denial of service attacks or other disruptive activity, (iii) creating a security vulnerability for the Services or others, or (iv) causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Services. We will try to limit the suspension to the affected portion of the Services and work to resolve the issues causing the suspension of the Services.
d. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Services.
Upon our written request, Client shall certify in a signed writing that your use of the Services is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). Credit2B, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Services to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use and for unpaid license fees.
11. DISCLAIMERS; LIMITATIONS OF LIABILITY
a. BECAUSE THE SERVICES INVOLVE CONVEYING INFORMATION PROVIDED TO US BY OTHER SOURCES, CREDIT2B CANNOT AND WILL NOT, FOR THE FEE CHARGED FOR THE SERVICES, BE AN INSURER OR GUARANTOR OF THE ACCURACY OR RELIABILITY OF THE SERVICES, DATA CONTAINED IN ITS DATABASE, OR INFORMATION CONTAINED IN THE SERVICES. CLIENT RECOGNIZES THAT EVERY BUSINESS DECISION REPRESENTS AN ASSUMPTION OF RISK AND THAT NEITHER CREDIT2B NOR ITS INFORMATION SOURCES, IN FURNISHING SERVICES UNDERWRITE OR ASSUME CLIENT'S RISK IN ANY MANNER WHATSOEVER.
b. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES AND THE DATA MADE AVAILABLE FROM THE SERVICES, FOR ANY PURPOSE. THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CREDIT2B DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE, OR CREDIT2B'S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING INFORMATION. NEITHER WE NOR OUR INFORMATION SOURCES WILL BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE BASED ON ANY ERRORS OR OMISSIONS THEREFROM, WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE DATA OR SERVICES.
c. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES OR LOST BUSINESS OPPORTUNITIES, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
d. THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF CREDIT2B AND ITS AFFILIATES, INFORMATION SOURCES, AGENTS, LICENSORS, DISTRIBUTORS, AND ANY OF THEIR AFFILIATED PERSONS AND ENTITIES, AND THEIR RESPECTIVE SUCCESSOR AND ASSIGNS (COLLECTIVELY, THE "CREDIT2B PARTIES"), FOR ANY REASON WHATSOEVER RELATED TO THE PURCHASE OR USE OF ANY SERVICES SHALL NOT EXCEED THE AGGREGATE OF US$1,000.00, AND SUBSCRIBER AGREES NOT TO SUE FOR A GREATER AMOUNT. SUBSCRIBER RELEASES AND DISCHARGES THE CREDIT2B PARTIES FROM ALL LIABILITY IN EXCESS OF US$1,000.00, INCLUDING LIABILITY FOR ITS OR THEIR NEGLIGENCE.
e. NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO OR SHALL CONFER UPON ANY THIRD PARTY PERSON OR ENTITY ANY RIGHT, BENEFIT OR REMEDY OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
f. THESE LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW BUT DO NOT APPLY TO VIOLATIONS OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, OR A PARTY'S INDEMNIFICATION OBLIGATIONS. THIRD PARTIES THAT PROVIDE INFORMATION, SOFTWARE OR SERVICES TO CREDIT2B FOR USE IN PROVIDING THE SERVICES ARE ENTITLED TO ASSERT DEFENSES UNDER THIS SECTION 11 TO THE SAME EXTENT AS CREDIT2B.
CLIENT WILL INDEMNIFY AND HOLD HARMLESS THE CREDIT2B PARTIES FROM AND AGAINST ANY AND ALL LOSSES, EXPENSES (INCLUDING ATTORNEY'S FEES, PREJUDGMENT AND POSTJUDGMENT INTEREST, AND APPEAL BONDS), LIABILITIES, FINES, COSTS, AND DAMAGES INCURRED BY ANY OF THE INDEMNIFIED PARTIES THAT RESULT FROM CLIENT'S CONTENT, BREACH OF THIS AGREEMENT, OR USE OF THE SERVICES.
13. GOVERNING LAW; JURISDICTION FOR DISPUTES; ARBITRATION
The Services are based in South Plainfield, New Jersey, USA and all questions with respect to the construction of this Agreement and the rights and liabilities of the parties shall be construed in accordance with the substantive law of the State of New Jersey, without regard to conflict of laws principles.
Venue as to any action arising out of the subject matter hereof shall be in any state court located in Mercer County, New Jersey or the United States District Court for the District of New Jersey in Trenton, New Jersey. In the event of legal action, both parties waive trial by jury. Notwithstanding the foregoing, Credit2B may seek preliminary injunctive relief from any court of law if in its judgment such action is necessary to avoid irreparable harm.
14. THIRD-PARTY SITES AND PRODUCTS
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism, or sabotage; act of God; electrical, internet, or telecommunication outage; government restrictions; or other events outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. Otherwise, such cause of action is permanently barred.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Assignment. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Credit2B may assign this Agreement to any of its affiliated companies or in connection with a merger or consolidation involving Credit2B or the sale of substantially all of Credit2B's assets, in each case to the other party or its successor in such transaction.
f. Publicity. Neither party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party, provided that Client grants Credit2B the right to use such names and marks on Credit2B's Client list and on its website for advertising purposes, which right shall survive termination or expiration of this Agreement. Client shall not disclose the negotiated pricing or terms of this Agreement, or any Order, to any third party.
g. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
16. ENTIRE AGREEMENT
This, with any applicable Order Forms, is the entire agreement between us for the Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Services. There are no representations or warranties other than those set forth in writing in this Agreement.
17. SURVIVING TERMS
The obligations under Sections 1, 2, 5, 6, 7, 8c,10, 11, 12, 13, 15 and 16 survive termination or expiration of this Agreement.