Vendor Portal Terms of Service

Subscription Terms of Use Agreement (“Agreement”) between MaxProcure LLC (“MaxProcure”) and Customer (“Customer”) for use of the MaxProcure Vendor Portal (“Portal”).

MAXPROCURE’S OBLIGATIONS

1. Provision of the Portal During the Subscription term, MaxProcure will make the Portal available to Customer’s supplier contacts (“Users”) to whom Customer has addressed records (“Customer Data”) retrieved by the Portal, and will transmit user entered records and responses back to Customer’s system.
2. Uptime & Updates. MaxProcure may add or revise functionality from time to time at no additional charge during the Subscription period. Except in the event of emergency updates, such as to restore service, updates will be performed after standard U.S. business hours.
3. Data. MaxProcure will store copies of Customer Data which Customer has marked for retrieval by the Portal in order to present these records to Users on behalf of Customer. MaxProcure is not intended to be the owner of record for these records or used for permanent or long-term data storage, and may delete closed or completed records after a period of time. MaxProcure will also retrieve and store User information associated to Customer Data, namely supplier contact name and email address. This User contact information will not be shared or used for marketing purposes.
4. Security. MaxProcure shall follow industry standard practices designed to protect Customer Data from unauthorized access, acquisition, use, disclosure, or destruction, such as user password controls, email verification, SSL encryption, data encryption, server isolation, threat monitoring, and vulnerability scanning. MaxProcure may periodically review and update its security practices to address new and evolving security technologies, changes to industry standard practices, and changing security threats.
5. Breach Notification. MaxProcure shall report to Customer the accidental or unlawful alteration, unauthorized disclosure of, or access to Customer Data (“Breach“) within 24 hours after MaxProcure determines that a Breach has occurred, unless restricted by law. MaxProcure shall share information about the nature of the Breach that is reasonably requested by Customer. Customer has sole control over the content of Customer Data and is solely responsible for determining whether to notify impacted individuals or other organizations and for providing such notice.
6. Insurance Program. MaxProcure has in place and shall maintain during the Agreement an insurance program to help manage risk that contains Professional Liability (Errors & Omissions) Insurance and Cyber Security Insurance for financial losses arising from destruction or corruption of data, data security breaches, virus transmission, unauthorized access, and denial of service.
CUSTOMER’S USE OF THE PORTAL
1. Restrictions. Except as otherwise permitted under this Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose, or otherwise commercially exploit the Portal; (ii) copy, modify or make derivative works based upon the Portal; (iii) “frame” or “mirror” the Portal on any other server or device; (iv) access the Portal for competitive purposes or use the Portal for any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Portal.
2. Restricted Information. Unless otherwise agreed by the parties, Customer shall not upload or provide any sensitive personal information or personal health information (meaning health or medical condition of an individual), or sensitive financial information such as Customer or User (supplier) bank information or credit card data to the Portal.
3. Third Party Interactions.
  - No Supplier Fees. Except as otherwise agreed on an Order Form, each party agrees that it shall not charge Customer’s suppliers for the right to interact with Customer through the Portal.
  - Supplier Interactions. When using the Portal, Customer may enter into correspondence with and purchase goods and/or services from suppliers. Any such activities and associated terms are solely between Customer and the applicable third-party supplier and MaxProcure shall have no obligation or responsibility for such correspondence or purchase between Customer and such third-party supplier.
ORDERING
1. Billing and Payment of Fees. MaxProcure shall issue invoices and Customer shall pay subscription fees annually in advance as further specified (including amount, currency, and payment terms) in the Order Form. MaxProcure may check or audit usage levels to determine if Customer is exceeding current subscription level, and Customer agrees to pay overages if applicable, and to adjust subscription level and/or usage if necessary.
2. Taxes. MaxProcure’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“) and Customer shall be responsible for payment of all Taxes associated with this Agreement as it deems necessary.
PROPRIETARY AND OTHER RIGHTS
1. MaxProcure’s Intellectual Property Rights. All right, title, and interest in and to the Portal (including all rights therein, and all derivatives, translations, modifications, and enhancements thereof) are, and shall remain, owned exclusively by MaxProcure. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Portal. MaxProcure alone shall own all rights, title, and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by Customer or any third party relating thereto.
2. Customer Data. Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will continue to have all rights and consents necessary to allow MaxProcure to use all such data as contemplated by this Agreement. Customer warrants that MaxProcure may use the API of its third party system to send and receive data as contemplated by this Agreement.
3. Use of Aggregate Data. Customer agrees that as part of providing the Portal, MaxProcure may collect, use, and disclose quantitative data derived from the use of the Portal. Any data disclosed will be in aggregate and anonymous form only, without personally identifying information.
CONFIDENTIAL INFORMATION
1. Obligations. Except with the disclosing party’s prior written permission, the receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement to anyone other than to its and its Affiliates’ directors, officers, employees, representatives, and advisors (collectively “Representatives“) who have a need-to-know such Confidential Information and are bound by obligations of confidentiality at least as stringent as those herein, and provided the receiving party shall remain liable to the disclosing party for any breach of the confidentiality and non-use obligations by any such Representatives. 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).
WARRANTIES
1. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MAXPROCURE DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PORTAL, MAXPROCURE PLATFORM, UPDATES, DOCUMENTATION, SUPPORT AND/OR ANY OTHER MAXPROCURE SERVICES PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
INDEMNIFICATION
1. MaxProcure’s Obligations. MaxProcure shall defend and indemnify Customer, its officers, directors, and employees against any third party suit or claim (each a “Claim“) that (i) alleges the Portal used in accordance with this Agreement infringe any issued patent, copyright or trademark of such third party; or that (ii) arises from errors or omissions of MaxProcure, its employees, subcontractors or agents in the performance of providing the Portal service. The foregoing indemnification obligations of MaxProcure shall not apply to the extent the Claim arises in connection with any unauthorized use of the Portal, or use that is not in compliance with any applicable laws or regulations.
2. Customer’s Obligations. Customer shall defend, indemnify, and hold harmless MaxProcure, its officers, and employees against any third party Claim that arises (i) from Customer Data or relates to a dispute between Customer and its supplier; or (ii) from Customer’s use of the Portal in violation of this Agreement or applicable law.
3. Process. Each party’s indemnity obligations are subject to the following: (i) the indemnified party shall promptly notify the indemnifier of any Claims (ii) the indemnifier shall have sole control of the defense and settlement of such claim; and (iii) the indemnified party shall cooperate fully to the extent necessary in such defense and settlement.
LIMITATIONS OF LIABILITY
1. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES LEGALLY OWED UNDER THIS AGREEMENT.
2. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
3. LIMITATION OF LIABILITY EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR ITS (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, (C) DEATH OR BODILY INJURY CAUSED BY NEGLIGENCE, (D) OBLIGATIONS EXPRESSLY STATED UNDER SECTION 7 (INDEMNIFICATION), OR (E) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
TERM; TERMINATION
1. Term. The Agreement commences on the Effective Date and continues until all Order Forms subject to this Agreement have expired or terminated unless this Agreement is earlier terminated in accordance with this Section.
2. Termination. A party may immediately terminate this Agreement upon 30 days written notice to the other party.
3. Survival. Upon expiration or termination of the Agreement, Sections 2.1 (Restrictions), 3.1 (Billing and Payment of Fees), 4 (Proprietary and Other Rights), 5 (Confidential Information), 6 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitations of Liability), 9 (Term; Termination), and 10 (General Provisions) of this Agreement shall survive.
GENERAL PROVISIONS
1. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (a “Force Majeure Event“).
2. 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, without consent of the other party, to its Affiliate 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.
3. Entirety. The Agreement comprises the entire agreement between Customer and MaxProcure and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
4. Governing Law, Jurisdiction and Dispute Resolution. ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE DETERMINATION APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE RESOLVED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR, RATHER THAN IN COURT. The arbitration shall be administered by Judicial Arbitration and Mediation Services (JAMS) pursuant to its Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The arbitration will be conducted in San Francisco County, California, and judgment may be entered in any court having jurisdiction. Payment of all fees will be governed by JAMS rules.