This SaaS Services Agreement (“Agreement”) is entered into as of the date you accept (either via an online process or in writing) the Order Form (defined below) (the “Effective Date”) between Return Logic, Inc. with a place of business at 395 Saint Johns Church Road, Camp Hill PA 17011 (“Company”), and the you (“Client”). This Agreement includes and incorporates the Order Form, as well as these attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different or additional terms of any related purchase order or similar form even if signed by the parties after the date hereof.
This Agreement governs Client’s use of Return Logic’s Application Services as well as Return Logic’s provision of the Application Services.
1.1. “Affiliate(s)” means any entity which directly or indirectly, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Application Services” means the generally available Web-based, on-line, hosted software listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Return Logic. If selected by Client, the Labelling Services shall also be considered Application Services.
1.3. “Client Content” means all electronic data or information submitted by Client to the Application Service.
1.4. “Documentation” means Return Logic’s then current guides and manuals published by Return Logic and made generally available by Return Logic for the Application Service.
1.5. “Generated Data” means all data generated in connection with Client’s use of the Application Services which may include, but is not limited to, statistical information based on Client’s use of the Application Services.
1.6. “Labelling Services” means Return Logic’s API which enables Client to purchase and print shipping labels from one or more third party shipping services.
1.7. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.8. “Order Form” means the ordering documents for Client’s purchases from Return Logic that are executed hereunder by the parties from time to time. The initial Order Form memorializing Client’s first purchase is set forth in the first section of this Agreement. All Order Forms shall be deemed incorporated herein.
1.9. “Start Date” means the date on which the Application Service specified in an Order Form is first made available to Client.
1.10. “Subscription Term” means the period of time that Client may use and access the Application Service beginning on the Start Date and as set forth in the applicable Order Form. The Application Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Client shall not be entitled to access the Application Services unless the Subscription Term is renewed.
1.11. “Users” means individuals who are authorized by Client to use the Application Services, for whom subscriptions to the Application Service have been purchased, and who have been supplied user identifications and passwords by Client (or by Return Logic at Client’s request). Users may include but are not limited to employees, consultants, contractors and agents of Client, Affiliates, or third parties with whom Client transacts business. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Application Services.
2.1. Grant. Subject to the terms and conditions of this Agreement, Return Logic hereby grants to Client a non-exclusive and nontransferable license, during any Subscription Term, to (a) access and use the Application Services via the Internet, and (b) use the Documentation provided by Return Logic.
2.2. Restrictions. The license granted in Section 2.1 above is conditioned upon Client’s compliance with the terms and conditions of this Agreement. Client may use the Application Services solely for its own internal business purposes, in compliance with applicable law, and shall not: (a) permit any third party to access the Application Services except as permitted herein or in an Order Form; (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Application Services for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services, other than on Client’s own intranets or otherwise for its own internal business purposes; (f) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services; and (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation.
2.3. Reserved Rights. Return Logic hereby reserves all rights in and to the Application Services not expressly granted in this Agreement. Nothing in this Agreement shall limit in any way Return Logic’ right to develop, use, license, create derivative works of, or otherwise exploit the Application Service or to permit third parties to do so.
3.1. Return Logic Responsibilities. Return Logic will provide Client with access to the latest supported version of the Application Services via the Internet on the Start Date and will thereafter automatically provide updates to the latest version of the Application Services, at which point it will no longer provide support for any earlier version. Additionally, Return Logic will routinely backup (not less frequently than once-per-day) all Client Content and use industry standard security measures to maintain Client’s Users’ login information (e.g., User IDs and passwords) for the Application Services in confidence. All storage, backup and archival media, containing Client Content shall be logically separated from any other customer’s data, and protected by industry standard encryption methods.
3.2. Client Responsibilities. Client shall be responsible for Users’ compliance with this Agreement and be responsible for the Client Content. Client shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the Application Services or third party data contained therein, or (iv) attempt to gain unauthorized access to the Application Service or its related systems or networks. Any conduct by Client that in Return Logic’s discretion restricts or inhibits any other Return Logic customer from using or enjoying the Application Services is expressly prohibited. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Return Logic promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto.
4.1. Payment. Client agrees to pay Return Logic fees in accordance with the amounts and dates specified on the applicable Order Form. Except as otherwise provided: (i) the subscription fees set forth in each Order Form hereunder shall be fixed during the Subscription Term of such Order Form, including for purchases of additional Users; (ii) the Subscription Term and services fees set forth in each Order Form hereunder will be invoiced upon execution of such Order Form. Except as otherwise specified herein, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of invoice and fees paid are non-refundable. Any payment not received from Client by the due date may accrue, at Return Logic’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Client acknowledges that fees for Labelling Services may be billed at the end of the month and fees for other Application Services may be billed at the beginning of the month. If Client utilizes the Labelling Services, Client shall be solely responsible for all shipping charges, and shall be solely responsible for ensuring the correct weight of returned products and also for any billbacks or shipping charge adjustments. Return Logic will charge Client for all Labelling Services pursuant to Return Logic’s standard labeling rate schedule, as the same shall exist from time to time.
4.2. Taxes. If Return Logic has the legal obligation to pay or collect taxes for which Client is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of Return Logic under this Agreement, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Return Logic with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.3. Suspension of Services. If any amount owed by Client is 30 days or more overdue, Return Logic may, with 7 days’ prior notice to Client, without limiting its other rights and remedies, suspend Application Services until such amounts are paid in full. Return Logic shall not exercise its rights under this Section 4.3 if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute.
5.1. General. All right, title, and interest in and to the Application Services, Return Logic’s Confidential Information and Documentation, including, without limitation, all modifications, enhancements and intellectual property rights thereto shall belong solely to Return Logic and/or its applicable suppliers.
5.2. Ownership of Client Content. Client exclusively owns all right, title and interest in and to the Client Content and Client Confidential Information. In the event of termination or expiration of this Agreement or any applicable Order Form, and if legally permissible and requested by Client within thirty (30) days of such termination or expiration, Return Logic agrees to: (a) return to the Client the Client Content; or (b) destroy or permanently erase the Client Content. After such 30-day period, Return Logic will have no other further obligation to maintain or provide access to Client Content. Client acknowledges and agrees that the Client Content may contribute to the creation of Generated Data.
5.3. Suggestions; Use of Data for Marketing Purposes. Return Logic shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to (i) use or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Application Services and (ii) to copy, transmit, modify, create derivative works of or otherwise use the Client Content for any external business purposes including dissemination of the aforementioned data to Return Logic’s business partners. The parties agree that Return Logic’s permitted use of the Client Content as described in this Paragraph 5.3 shall not be a breach of Return Logic’s confidentiality obligations imposed by this Agreement.
5.4. Generated Data. Return Logic shall own all right, title and interest in all Generated Data. Client shall have no right to any use or possession of Generated Data unless such use/possession is provided by the authorized use of the Application Services or otherwise licensed by Return Logic.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Client Content, the Generated Data, the Application Services, business and marketing plans, technology, financial and technical information, product designs, and business processes. Confidential Information (except for Client Content) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In the event that Return Logic receives a facially-legitimate, written request for access to information of Client (confidential or otherwise) from a federal or state government entity with responsibility for law enforcement, homeland security or national defense, Company will comply with the request to the extent that appears reasonable to Company, provided that Company complies with the notice requirements of this paragraph. Except as expressly set forth in this paragraph, nothing herein shall be interpreted to alter the obligations of confidentiality set forth in this Section 6.
6.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.1. Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) this Agreement has been authorized by all required corporate / entity action.
7.2. Return Logic Warranty. Return Logic warrants during the Subscription Term that the Application Services will be free of material defects and will function in substantial conformance to its Documentation. Return Logic does not make any representations or warranties that the functions performed by the Application Services will meet Client’s requirements, that the operation of the Application Services will be uninterrupted or error free, or that all defects in the Application Services will be corrected. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND RETURN LOGIC DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT RETURN LOGIC KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, RETURN LOGIC FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. No action for breach of the limited warranty set forth in this Section 7.2 may be commenced more than one (1) year following the expiration of the applicable Subscription Term.
7.3. Client Warranty. Client represents and warrants that it has all right, title and interest necessary to utilize the Client Content with the Application Services and, with respect to the Client Content, to grant Return Logic the license for the use of the Client Content to Return Logic pursuant to the terms of this Agreement.
8.1. Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE APPLICATION SERVICES, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Limitation of Liability. IN ALL EVENTS, RETURN LOGIC’S AGGREGATE LIABILITY TO CLIENT FOR CLAIMS RELATING TO THIS AGREEMENT OR THE APPLICATION SERVICES, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY CLIENT TO RETURN LOGIC HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR (B) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1. Indemnification by Return Logic. Subject to this Agreement, Return Logic shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the use of the Application Services as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Client (a) promptly gives written notice of the Claim to Return Logic; (b) gives Return Logic sole control of the defense and settlement of the Claim (provided that Return Logic may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (c) provides to Return Logic, at Return Logic’s cost, all reasonable assistance.
9.2. Indemnification by Client. Subject to this Agreement, Client shall defend, indemnify and hold Return Logic harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Return Logic by a third party alleging that the Client Content, or Client’s use of the Application Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Return Logic (a) promptly gives written notice of the Claim to Client; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle or defend any Claim unless it unconditionally releases Return Logic of all liability); and (c) provides to Client, at Client’s cost, all reasonable assistance.
9.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
Return Logic may access Client’s account and Client Content as necessary to identify or resolve technical problems or respond to complaints about the Application Services. Return Logic shall also have the right, but not the obligation, to monitor the Application Services to determine Client’s compliance with this Agreement. Without limiting the foregoing and with two (2) days prior notice, Return Logic shall have the right to remove any material submitted to the Application Services that Return Logic finds to be in violation of the provisions hereof.
11.1. Term of Agreement. The term of this Agreement commences on the Effective Date and continues until all Subscription Terms expire or are otherwise terminated.
11.2. Subscription Term and Renewal. Client may use and access the Application Services during the Subscription Term. Subscription Terms shall automatically renew at the time of renewal unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term.
11.3. Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein.
11.4. Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Client does not renew in accordance with Section 11.2, the rights and licenses granted hereunder will automatically terminate, and Client may not continue to use the Application Services. If the Agreement is terminated based upon Return Logic’s uncured material breach, Return Logic shall refund to Client any prepaid fees covering the remainder of its Subscription Term after the date of such termination. If the Agreement is terminated based on Client’s uncured material breach, Client shall pay any unpaid fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of such termination. Termination of this Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.
Return Logic will provide Client with professional services, in accordance with Exhibit A - Professional Services Addendum attached hereto, if such professional services are to be provided hereunder.
13.1. General. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Headings in this Agreement are for the convenience of the parties only. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement.
13.2. Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
13.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.4. Entire Agreement; Breach and Waiver; Amendment. This Agreement, including all exhibits and addenda hereto and Order Forms constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void. No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.
13.5. Force Majeure. Subject to the further provisions of this Section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. The period of excused performance pursuant to the foregoing shall be (and only shall be) the actual period during which such an occurrence continues. Accordingly, neither party hereto shall have the right to terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.
13.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal actions or proceeding arising under this Agreement will be brought exclusively in the federal or state courts serving Cumberland County and the parties hereby consent to personal jurisdiction and venue therein.
13.7. Client Reference and Case Study. Either party may include the other’s name and logo in customer or vendor lists including those customer or vendor lists used in press releases. Client also agrees to consider the following upon reasonable request and with the help of the Return Logic team: (i) serving as a reference and/or for hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship and (iii) collaborating on case studies, business impact white papers or other marketing collateral.
13.8. Survival. The parties’ rights and obligations under Sections 4 (Fees), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), 11 (Term and Termination) and 13 (Other) shall survive the termination of this Agreement for any reason.
13.9. Notices. All notices required or contemplated by this Agreement shall be in writing. Notices from Client to Return Logic shall be delivered or mailed to Return Logic, Inc., 395 Saint Johns Church Road, Suite 100, Camp Hill, PA 17011, or emailed to psobotta@ReturnLogic.com and notices from Return Logic to Client shall be delivered or mailed to Client at the address given above. Any notice to be given or served hereunder by either party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed certified mail, postage prepaid, to Client or Return Logic in accordance with this Section.
13.10. Counterparts. This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.