Business Xchange WebDI

THIS WEBDI SERVICE AGREEMENT (THE “AGREEMENT”) GOVERNS ALL USE OF THE SERVICE PROVIDED BY PERVASIVE SOFTWARE, INC. (“PERVASIVE”) THROUGH THE WEBSITE LOCATED AT WWW.WEBDI.COM OR SUCH OTHER WEBSITE DESIGNATED BY PERVASIVE (“WEBDI SERVICE”) PURSUANT TO YOUR ORDERS PLACED WITH PERVASIVE.

YOU MUST HAVE WRITTEN CONFIRMATION OF YOUR ORDER FROM PERVASIVE (“ORDER FORM”) IN ORDER TO USE THE WEBDI SERVICE. THE ORDER FORM IS INCORPORATED INTO AND MADE PART OF THIS AGREEMENT. IF YOU DO NOT HAVE AN ORDER FORM, YOU MAY NOT ACCESS AND USE THE WEBDI SERVICE UNLESS YOU ARE USING A TRIAL VERSION.

YOU ARE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO ACCESS AND USE THE WEBDI SERVICE. BY CLICKING ON THE “PURCHASE” BUTTON, AND ACCESSING AND USING THE WEBDI SERVICE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT WITH PERVASIVE GOVERNING YOUR USE OF THE WEBDI SERVICE, TO THE EXTENT OF A CONFLICT, THE SEPARATE SIGNED AGREEMENT OR ORDER WILL GOVERN.

1. Trial or Beta Versions. If you are registering to use the WebDI Service for a trial period or are registering to use a beta version of the WebDI Service, you may only use the WebDI Service for internal evaluation purposes, and this Agreement will be in effect from the date that you click the “PURCHASE” button and will automatically terminate at the end of the applicable trial or beta period, unless earlier terminated by you or Pervasive as provided below in Section 10. Provisions in this Agreement regarding support do not apply to trials or beta versions of the WebDI Service.
 
2. WebDI Service. Subject to your compliance with the terms and conditions of this Agreement, including without limitation your payment of the applicable fees for the use of the WebDI Service (“Fees”), Pervasive grants you a nonexclusive, nontransferable, revocable, limited license during the Term to access and use the WebDI Service. Unless otherwise indicated on the Order Form or expressly authorized in writing by Pervasive, you may only use the WebDI Service for your internal business purposes and may not allow third parties to access the WebDI Service.

3. Pervasive Tools. From time to time, Pervasive may make available to you certain software, tools, and other materials for download and use in connection with your use of the WebDI Service (“Pervasive Tools”). Subject to your compliance with the terms and conditions of this Agreement, including without limitation your payment of all applicable Fees, Pervasive grants you a nonexclusive, nontransferable, revocable, limited license during the Term to download, install, copy, and use the Pervasive Tools solely in connection with and as necessary for your use of the WebDI Service.

4. Restrictions. You agree not to: (i) use the WebDI Service or Pervasive Tools except as expressly authorized in this Agreement and your Order Form; (ii) use any device, software, or routine that (a) interferes with any application, function, or use of the WebDI Service or Pervasive Tools, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) resell, sublicense, time-share, or otherwise use or share the WebDI Service with or for the benefit of any third party, except as otherwise expressly permitted in this Agreement or authorized by Pervasive in writing; (iv) frame or mirror the Site; (v) decompile, disassemble or reverse-engineer the Pervasive Tools or the underlying software that is part of the WebDI Service or otherwise attempt to derive the source code for the foregoing; (vi) use the WebDI Service or Pervasive Tools either directly or indirectly to support any activity that is illegal; (vi) access the WebDI Service for purposes of monitoring its availability, performance or functionality (other than for trial purposes), or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above.

5. Ownership. Pervasive and/or its licensors own all worldwide right, title and interest in and to the WebDI Service and the Pervasive Tools, including all worldwide intellectual property rights therein. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing in or on the WebDI Service as provided. You may from time to time provide suggestions, comments, or other feedback to Pervasive with respect to the improvement, correction, or modification of the WebDI Service or Pervasive Tools (collectively, “Feedback”). You agree that Pervasive shall be free to use, disclose, reproduce, license, distribute, and otherwise commercially exploit the Feedback provided to it with respect to the WebDI Service or Pervasive Tools as it sees fit, entirely without obligation or restriction of any kind.

6. Fees and Billing. In order to access and use the WebDI Service, you are required to pay to Pervasive the applicable Fees for the WebDI Service that you ordered. Depending on the WebDI Service and payment options made available by Pervasive and selected by you, Fees may include one-time charges, recurring charges (monthly, quarterly, or annually), and usage-based charges. One-time charges will be billed at the time that the applicable WebDI Service is ordered. Recurring charges will be billed automatically at the beginning of each applicable period. Usage-based charges will be automatically billed on the first date of each month based on the WebDI Service used in the prior month. All Fees will be charged against the credit card on record in your account. Invoices will be sent directly to the billing contact as identified on the Order Form. Delinquent invoices are subject to late payment fees equivalent to 1.5% of the overdue balance per month (or the maximum permitted by law, whichever is lower), plus any expenses associated with collections. Payments must be made in US dollars. Fees are exclusive of all taxes, levies, and duties imposed by taxing authorities, and you are responsible for all such taxes, excluding taxes based solely on Pervasive's income. Any billing disputes must be reported to Pervasive in writing within thirty (30) days of the date of the invoice. All Fees are nonrefundable. Pervasive reserves the right to charge a reconnection fee if your WebDI Service are suspended or if you terminate this Agreement and re-order WebDI Service within three months from the termination date.

7. Your Responsibilities. You are responsible for all activity occurring under your user accounts and will: (i) maintain the accuracy, completeness, and timeliness (within 30 days of any change) of the information you provide in your account registration and Order Form; and (ii) notify Pervasive immediately of any unauthorized use of any password or account or any other known or suspected breach of security. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for access to the WebDI Service. All data provided by you in connection with your use of the WebDI Service (“Customer Data”) may be stored on Pervasive's servers. You own all Customer Data. You are solely responsible and liable for the Customer Data and you will control access to and the management of the Customer Data through your account and authorized users. You must abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the WebDI Service, including those related to export regulations, data privacy, international communications and the transmission of technical or personal data. The WebDI Service may not be exported or re-exported directly or indirectly in violation of any applicable export laws or used for any purposes prohibited by such export laws.

8. Pervasive Responsibilities. Pervasive shall use commercially reasonable efforts to:

(i) protect Customer Data in accordance with Pervasive's privacy policy (available at http://www.pervasive.com/Privacy.aspx), and not use, edit or disclose the Customer Data except as reasonably necessary in connection with providing the WebDI Service. Notwithstanding the foregoing, Pervasive may disclose Customer Data if Pervasive determines that such action is reasonably necessary: (a) to comply with the law, regulatory requirements, or legal or regulatory process; (b) to enforce this Agreement; or (c) to respond to claims that you are using the WebDI Service to perform or support activities that violate the law or the rights of third parties. Unless prohibited by law or legal process, Pervasive will use its commercially reasonable efforts to not disclose Customer Data without giving you notice of the request for such disclosure and a reasonable period of time to respond to such request.

(ii) maintain the security and integrity of the WebDI Service at a level that meets the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules and the Health Information Technology for Economic and Clinical Health Act (HITECH).

(iii) provide basic support for the WebDI Service to up to two of your authorized contact persons consisting of telephone help desk or online support services during Pervasive's business hours. Pervasive will use commercially reasonable efforts to respond to your support requests within one business day. If you have been authorized by Pervasive to enable third parties to use the WebDI Service you will not refer such third parties to Pervasive for support unless expressly agreed with Pervasive.

(iv) ensure that the WebDI Service is available to you and performing substantially in accordance with the applicable online Pervasive help documentation with an Available Access Time of 99.9% over each monthly period during the Term. “Available Access Time” means twenty-four (24) hours per day, seven (7) days per week, except for: (1) planned down time and (2) down time caused by circumstances beyond Pervasive's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strike or labor problems, problems with software, hardware, telecommunications lines, network connections, or other equipment not within Pervasive's possession or reasonable control, or denial of service attacks. In the event Customer cannot access the WebDI Service for four (4) or more hours of the 99.9% Available Access Time in any one (1) calendar month, Pervasive will issue a credit to you in an amount equal to one (1) day of WebDI Service for each increment of four (4) hours of such unavailable time in that month (“Service Credit”). To qualify for a Service Credit, you must request such Service Credit from Pervasive via a FAX or e-mail within three (3) days after the end of the applicable month using a form supplied by Pervasive. The maximum number of Service Credits that may be credited for any reason to you will be seven (7) Service Credits in any one month. Your sole remedy, and Pervasive's sole liability, for Pervasive's failure to provide the WebDI Service or to meet the Available Access Time shall be the provision of Service Credits to you as described herein.

9. Professional Services. During the term of this Agreement, Pervasive may provide certain professional services to you in connection with your use of the WebDI Service (“Professional Services”). All such Professional Services will be described in statements of work mutually agreed upon by you and Pervasive and attached to this Agreement (“Statement(s) of Work”). Unless otherwise provided for in a Statement of Work, (i) Pervasive will invoice you on a monthly basis for the Professional Services rendered plus all expenses incurred during the previous month or as otherwise specified in the invoice and (ii) you will pay such invoices within thirty (30) days after the date of the invoice.

     9.1 The parties' respective project contacts will be designated in the Statement of Work ("Project Contacts"). The Project Contacts are responsible for signature on all authorization and approval forms, for facilitating communication between Pervasive and Partner regarding all technical and business matters, and for coordinating the scheduling, development, and testing of the Work Product.

     9.2 You acknowledge that the timely provision of and access to cooperation, complete and accurate information and data are essential to the performance of any Professional Services under this Agreement and that Pervasive's obligation to complete any Professional Services is dependent upon same. If the relevant requirement(s), project plan(s), schedule, scope, specification(s), design(s), software, hardware product(s), or related system environment(s) or architecture are changed by you or any other person, Pervasive will not be responsible for the change unless you and Pervasive specifically consent to the change, scheduling, and additional charges, if any, in writing.
 
     9.3 If, at any time, you desire to modify an applicable Statement of Work, you will present a written request to Pervasive describing such modifications using Pervasive's standard project change request form (each such request is a "Change Order"). Pervasive will promptly review each such Change Order and determine and advise you, in Pervasive's reasonable discretion, whether such Change Order can be accomplished by Pervasive, and whether the performance of such Change Order will increase the costs and/or delay the original schedule for performing the Professional Services. If Pervasive approves such Change Order (including without limitation any such increased costs and/or delays), the Change Order, upon execution by the parties, will be deemed to amend and become part of the applicable Statement of Work and Pervasive will perform the Professional Services in accordance with such amended Statement of Work.

     9.4 As used in this Agreement, “Work Product” means any deliverables created by Pervasive under Statements of Work. Work Product does not include the WebDI Service or Pervasive Tools or Your Resources (as defined below). Subject to the terms and conditions of this Agreement, Pervasive hereby grants to you a nonexclusive, nontransferable, revocable, limited license during the Term to use the Work Product solely in connection with your use of the WebDI Service. Pervasive shall own all right, title and interest in and to any Work Product and all intellectual property rights associated therewith. You hereby assign and agree to assign all right, title and interest in and to the Work Product and any intellectual property associated therewith to Pervasive and fully cooperate with Pervasive in perfecting such rights at Pervasive's expense. Your rights in the Work Product are limited to those expressly granted in this Section. Pervasive reserves all rights and licenses not expressly and unambiguously granted to you in this Agreement. You shall retain ownership of all right, title, and interest in and to the Your Resources and intellectual property rights embodied therein. You have or will secure all necessary third-party consents, permissions, clearances, authorizations and waivers required for the use of Your Resources by Pervasive. As used herein, “Your Resources” means any pre-existing or preparatory materials, including, without limitation, data, content, software, protocols, interfaces, templates, specifications, related documentation, and other materials and resources, that are provided to Pervasive by you to facilitate the provision of Professional Services by Pervasive hereunder. You hereby grant to Pervasive a non-exclusive and non-transferable license to use, modify, reproduce and create derivative works of the Your Resources solely for use in connection with the Professional Services being provided to you hereunder.

     9.5 Notwithstanding anything to the contrary in this Agreement, Pervasive will not be prohibited or enjoined at any time by you from utilizing any "skills or knowledge of a general nature" acquired during the course of performing Professional Services. For purposes of this Agreement, "skills or knowledge of a general nature" will include, without limitation, information publicly known or that could reasonably have been acquired in the conduct of similar work performed for another customer.

10. Term and Termination. This Agreement will commence on the date that you click on the “PURCHASE” button (unless a different start date is specified in the Order Form in which case the start date in the Order Form will apply) and will remain in effect until terminated by you or Pervasive as provided below in this Section 9. You may terminate this Agreement at any time with at least thirty (30) days prior written notice. Such termination by you shall not relieve you of your obligation to pay any Fees accrued or payable to Pervasive relating to the WebDI Service prior to the effective date of termination, and you shall immediately pay to Pervasive all such Fees upon the effective date of termination. Without limiting any other remedies available to it, Pervasive may immediately suspend access to the WebDI Service and/or terminate this Agreement if: (a) you fail to pay any Fees when due (including, without limitation, if the credit card provided by you to pay Fees is declined); (b) you breach any other material provision of this Agreement that (if it is capable of being cured) is not cured within fifteen (15) days from written notice to you; or (c) Pervasive determines that your actions are likely to cause legal liability for Pervasive or its suppliers and other customers.

11. Effects of Termination. Upon any expiration or termination of this Agreement, the rights and licenses granted hereunder will automatically terminate, and you may not continue to use the WebDI Service. Pervasive will have no liability for any costs, losses, damages, or liabilities arising out of or related to Pervasive's termination of this Agreement. The provisions of Sections 4, 5, 6, and 10 through 17 will survive termination of this Agreement.

12. Indemnity. You will defend, indemnify and hold Pervasive and its licensors harmless from and against any loss, damage, liability or cost (including reasonable attorneys' fees) resulting from any third party claim based on: (i) your use of Customer Data that infringes the rights of, or has caused harm to, a third party; (ii) a violation by you of your representations and warranties; or (iii) a breach by you or your authorized users of this Agreement; provided that Pervasive promptly notifies you in writing of any and all such claims. In the event of any loss, damage, liability or cost for which you are obligated to indemnify Pervasive hereunder, you shall have sole control of the defense and all related settlement negotiations, and Pervasive shall reasonably cooperate with you in the defense and/or settlement thereof at your expense; provided that Pervasive may participate in such defense using its own counsel, at its own expense.

13. Disclaimer. The WebDI Service, Pervasive Tools, Professional Services, and Work Product are provided “AS IS” and the entire risk as to satisfactory performance, accuracy, and effort is with you. Pervasive does not warrant that the operation of the WebDI Service or Pervasive Tools will be error free or uninterrupted. PERVASIVE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OFTRADE.

14. Limitation of Liability. IN NO EVENT SHALL PERVASIVE'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL PERVASIVE AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBDI SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBDI SERVICE, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE WEBDISERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT (OR SUCH PARTY'S LICENSORS) HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15. Usage Data. In addition to certain information about you, including your account information, authorized user information, and support information, that is needed to provide you with the WebDI Service, Pervasive may maintain other information about you, including the duration and frequency of your use of the WebDI Service and other usage data (collectively “Usage Data”). Pervasive uses the Usage Data for internal business purposes only, including improving, testing and providing the WebDI Service and additional services. Pervasive may disclose Usage Data in aggregate form (e.g., data aggregated from your and other customers' use of the WebDI Service, but does not identify you or any other customer) for promotion, statistical analysis, market analysis, financial analysis, and other such purposes.

16. Amendments. Pervasive may modify the terms of this Agreement or WebDI Service at any time. You will be given notice of any amendments to this Agreement or the WebDI Service. Pervasive may provide notice to you by means of (i) posting information or a link to it on the Pervasive website applicable to the WebDI Service, (ii) a general notice on your account login screen, or (iii) by email to your e-mail address on record under your account. Such notice shall be deemed to have been given upon the expiration of three days after posting, immediately upon display on your account login screen, or one day after emailing.

17. 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. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Austin, Texas and the parties hereby consent to personal jurisdiction and venue therein. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Pervasive as a result of this Agreement or use of the WebDI Service. You may not assign, transfer, or otherwise delegate any of your rights, duties, or obligations under this Agreement in whole or in party to any individual, firm or corporation without the prior written consent of Pervasive. Any attempt to assign, transfer or otherwise delegate any of your rights, duties, or obligations under this Agreement without the prior written consent of Pervasive shall be void. This Agreement and any 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. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by duly authorized representative of the party against whom the waiver is to be asserted. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.