Updated 5 November 2021
This Blend ERP License Agreement (“Agreement”) is between Starling Solutions Inc. (“the Company”), and the entity which has accepted this Agreement (“the Customer”). Capitalized terms not otherwise defined herein will have the meaning given to them in Section 15. This Agreement is effective as of the date accepted by the Customer (“Effective Date”).
1. Product License. Subject to the terms and conditions of this Agreement and during the Term, the Company will make the Product available to the Customer solely for the Customer’s and its Affiliates’ internal business operations. The terms of this Agreement will also apply to updates and upgrades subsequently provided by the Company to the Customer for the Product. The Company may make available updates to the functionality and user interface of the Product from time to time in its sole discretion.
2. Ordering. Unless provided free of charge, the Product may be ordered by the Customer or its Affiliates pursuant to an Order Form or other sales process identified by the Company. Each Order Form will include at a minimum a listing of the Product. Except as otherwise provided on the Order Form, each order will be subject to the terms and conditions of this Agreement. For any order by the Customer or its Affiliate for the benefit of the Customer’s Affiliate(s), the term “Customer” will refer to the Customer and such Affiliate(s).
3. Restrictions. The Customer is responsible for all activities conducted by its Users, including through User logins if applicable. Unless authorized by the Company in writing, The Customer’s use of the Product will not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use (use of one login by more than one individual), or time-sharing of the Product. The Customer will not and will not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Product or any part thereof or otherwise attempt to discover any source code or modify the Product in any manner or form unless expressly allowed in the documentation; (b) use unauthorized modified versions of the Product; (c) use the Product in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) knowingly publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Product without prior written consent of the Company.
4. License Term, Fee, Payment & Taxes.
4.1. Term of Agreement. The term of this Agreement will be for one (1) year commencing on the Effective Date (“Initial Term”), unless otherwise agreed by the Company and the Customer or earlier terminated pursuant to Section 8.2, and the Term will be extended as set forth in subsequent purchase order (each successive renewal term, a “Renewal Term”) (collectively “Term”). If the Customer has not delivered an Order Form to the Company regarding the upcoming Renewal Term prior to the expiration of the then current term, the Term will be automatically extended for successive Renewal Terms of one (1) year each unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.
4.2. Fees and Payment. The Customer will pay the fees as specified in the Order Form and in future Order Forms. In the event that the Company provides certain professional services to the Customer, the parties will negotiate a separate agreement. Additional Users and other items purchased during a term will co-terminate with and be prorated through the then current end date. Fees for the Product on all subsequent order forms and renewals will be set at then current Company pricing, unless otherwise agreed to by the parties.
4.3. Taxes. The fees listed on the Order Form do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). The Customer is responsible for paying all Taxes, excluding only taxes based on the Company's income. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Agreement, the appropriate amount will be invoiced to and paid by the Customer unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4. Late Payments. Any late payments will be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.
5. Proprietary Rights.
5.1. Ownership of Customer Data. As between the Company and the Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by the Customer.
5.2. The Company’s Intellectual Property Rights. The Customer agrees that all rights, title and interest in and to all intellectual property rights in the Product are owned exclusively by the Company or its licensors. Except as provided in this Agreement, the license granted to the Customer does not convey any rights in the Product, express or implied, or ownership in the Product or any intellectual property rights thereto. In addition, the Company will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including Users, relating to the operation of the Product. Any rights not expressly granted herein are reserved by the Company. The Company marks, logos and product and Product names are marks of the Company, respectively (the "Company Marks"). The Customer agrees not to display or use the Company Marks in any manner without the Company’s express prior written permission. The trademarks, logos and Product marks of Third Party Application providers ("Marks") are the property of such third parties. The Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
5.3. Federal Government End User Provisions. If User is the US Federal Government, the Company provides the Product, including related software and technology, in accordance with the following: Government technical data and software rights related to the Product include only those rights customarily provided to the public as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with the Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6. Terms of Product. The Customer agrees to the following terms of Product.
6.1. Internet Access, NetSuite Inc. Account. High speed Internet connection and an active NetSuite Inc. account is required to use the Product. The Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Product, including, but not limited to, "browser" software that supports protocols used by the Company, including Secure Socket Layer (SSL) protocol or other protocols accepted by Company, and to follow logon procedures for Products that support such protocols. The Company is not responsible for notifying the Customer of any upgrades, fixes or enhancements to any such software. The Company is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by the Company.
6.2. Email and Notices. The Customer’s email address for communication and notice purposes relating to this Agreement will be set forth in the Order Form.
6.3. Users: Passwords, Access and Notification. The Customer will be responsible for all content and data, including, but not limited to, the Customer’s Data, entered electronically through the Product. The Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Product and will promptly notify the Company of any unauthorized access or use of the Product and any loss or theft or unauthorized use of any User’s password or name and/or Product account numbers.
6.4. Customer’s Lawful Conduct. The Customer will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Product, including without limitation those related to privacy, electronic communications and anti-spam legislation. If applicable, the Customer is responsible for ensuring that its use of the Product to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will store credit card data only in the designated fields for such data. The Customer will comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Product and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) the Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) the Customer will not permit Users to access or use the Product in violation of any U.S. export embargo, prohibition or restriction, and (iii) the Customer will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. the Customer will not use the Product in any manner that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Product may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. The Customer agrees not to access the Product by any means other than through the interfaces that are provided by the Company. The Customer will not do any "mirroring" or "framing" of any part of the Product, or create Internet links to the Product which include log-in information, user names, passwords, and/or secure cookies. The Customer will ensure that all access and use of the Product by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users of the Customer’s contractors, agents, and Affiliates.
6.5. Third Party Applications. The Company may offer links to other websites, resources, third party applications or services, including implementation, customization and other consulting services related to Customer’s use of the Product. The Company does not warrant any such third party content, third party applications, or services except as set otherwise agreed between the Company and the Customer. Any purchase by the Customer of any third party applications or services is solely between the Customer and the applicable third party provider.
6.6. Support. If included on an Order Form, the Company will provide the Customer with technical support to assist the Customer in its use of the Product.
6.7. Modifications; Discontinuation of Product. The Company may make modifications to the Product or particular components of the Product from time to time and will use commercially reasonable efforts to notify the Customer of any material modifications. The Company reserves the right to discontinue offering the Product at the conclusion of the Customer’s then current Term. The Company will not be liable to the Customer nor to any third party for any modification of the Product as described in this Section 6.7.
7. Warranties. Company hereby represents and warrants that the Product (i) will perform the tasks as set forth in the Implementation Proposal; and (ii) will not infringe on the intellectual property rights of any third party.
8.1. Suspension for Ongoing Harm. The Customer agrees that the Company may suspend access to the Product if the Company reasonably concludes that the Customer’s Product is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Product is causing immediate, material and ongoing harm to the Company or others. The Company will use commercially reasonable efforts to limit the suspension to the offending portion of the Product and resolve the issues causing the suspension of Product. The Customer agrees that the Company will not be liable to the Customer nor to any third party for any suspension of the Product under such circumstances as described in this Section 8.1.
8.2. Termination for Cause/Expiration. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party will expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and will be sent to the address specified in the Order Form (or such other address that may be provided pursuant to this Agreement). Upon termination or expiration of this Agreement, the Customer will have no rights to continue use of the Product. If this Agreement is terminated by the Customer for any reason other than a termination expressly permitted by this Agreement, the Customer agrees that the Company will be entitled to all of the fees due under this Agreement for the entire Term.
9.1. For purposes of this Agreement, “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 clearly identified in writing or verbally at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall include Customer Data and the terms of this Agreement including the pricing and other terms reflected in all Order Forms, and Company technology and technical information, product designs, issues, and the Company support cases will be considered Confidential Information of the Company. Confidential Information will not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate statistical data regarding Customer’s use of the Company’s products and services that does not contain any personally identifiable or Customer-specific information.
9.2. Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the Disclosing Party; (b) not to use or disclose the Confidential Information of the Disclosing Party except to the extent necessary to perform its obligations or exercise rights under this Agreement, except with the Disclosing Party’s prior written consent; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
10. Disclaimer of Warranties.
10.1. The Company does not represent that Customer’s use of the Product will be secure, timely, uninterrupted or error-free or that the Product will meet Customer’s requirements or that all errors in the Product or documentation will be corrected or that the overall system that makes the Product available (including but not limited to the internet, other transmission networks, and Customer’s local network and equipment) will be free of viruses or other harmful components. Except for the warranties set forth in Section 7, there are no warranties or conditions, express or implied, including without limitation, those of merchantability, fitness for a particular purpose or non-infringement of third party rights. The Customer assumes all responsibility for determining whether the Product or the information generated thereby is accurate or sufficient for the Customer’s purposes.
11. Limitations of Liability.
11.1. Exclusion of Consequential Damages. The Customer agrees that the consideration which company is charging hereunder does not include consideration for assumption by the Company of the risk of customer’s incidental or consequential damages. In no event will either party be liable to anyone for lost profits or revenue or for incidental, consequential, punitive, cover, special or exemplary damages, or indirect damages of any type or kind however caused, whether from breach of warranty, breach of contract, negligence, or any other legal cause of action and whether or not the party has been advised of the possibility of such damages to the maximum extent permitted by law. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply.
11.2. Limitations on Direct Damages. Except with regard to amounts due under this Agreement, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Product, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, will in no case exceed the greater of: (i) US$50.00; or (ii) the amounts paid or payable by the Customer hereunder in the twelve months preceding the incident giving rise to liability. The Company will not be liable to the extent such liability would not have occurred but for unauthorized access or disclosure of credit card or social security numbers stored by Users in the Product other than in the designated fields for such numbers or User-transmission email in unencrypted form. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of the Product and that, were the Company to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
12.1. Customer’s Indemnity. The Customer will, at its own expense and subject to the limitations set forth in this Section 12, defend the Company from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) (i) alleging that the Customer Data or any trademarks or Product marks other than the Company Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of the Customer’s breach of Section 9 above and will hold the Company harmless from and against liability for any Losses to the extent based upon such Claim.
12.2. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 12, the indemnified party will: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 12 are expressly conditioned upon the indemnified party’s compliance with this Section 12.2 except that failure to notify the indemnifying party of such Claim will not relieve that party of its obligations under this Section 12 but such Claim will be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 12 will survive termination of this Agreement for one year.
13. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a court, tribunal, agency, or other public forum, it will provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties will meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
14. General Provisions.This Agreement will inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates.
14.1. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although the Company reserves the right to name the Customer as a user of the Product.
14.2. This Agreement, including all Order Forms, will constitute the entire understanding between the Customer and the Company, with respect to the use of Blend ERP and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, request-for-proposals, or agreements between the parties, regarding Blend ERP. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties, with respect to Blend ERP. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by the Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the Company to object to such terms, provisions, or conditions. In the event of a conflict between the terms of any Order Form and the terms of this Agreement, the terms of this Agreement shall control.
14.3. The Agreement will not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form.
14.4. This Agreement will be governed in accordance with the laws of the jurisdiction of Nova Scotia, Canada. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Product) will be subject to the exclusive jurisdiction of Nova Scotia, Canada. relating to this Agreement are governed by, and construed in accordance with, the laws of the Province of Nova Scotia and the federal laws of Canada applicable in that Province and the parties agree and attorn to the jurisdiction of the courts of the Province of Nova Scotia in relation to the interpretation and enforcement of this Agreement.
14.5. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party will be awarded reasonable attorneys’ fees and/or costs. The Customer will compensate the Company (including reimbursement of costs) for responding to any request from a third party for records relating to the Customer or a User’s use of the Product. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure.
14.6. If any provision is held by a court of the Province of Nova Scotia or a federal court of Canada, to be contrary to law, such provision will be eliminated or limited to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
14.7. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party will be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving the Company employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Product date will be extended to the extent of any delay resulting from any force majeure event.
14.8. The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with the Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of the Customer.
“Customer Data” means all electronic data or information submitted to the Product by the Customer or its Affiliates.
“Order Form” means a Company ordering document in the name of and executed by the Customer or its Affiliate and accepted by Company which specifies the Product to be provided by the Company subject to the terms of this Agreement.
“Product” means, collectively, the Company’s product(s) set forth on an Order Form.
“Users” means individuals who are authorized by the Customer to use the Product. Users may include but are not limited to the Customer’s and the Customer’s Affiliates’ employees, consultants, contractors, and agents.