5.1 TradeWing’s Responsibilities. TradeWing shall: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: any interruption or suspension, any unavailability caused by circumstances beyond its reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or Internet service provider failures or delays; and (ii) use commercially reasonable efforts to respond to Customer’s telephone, website, and email inquiries (including requests for technical and support assistance) regarding Customer’s use of the Services.
5.2 Customer’s Responsibilities. Customer shall: (i) be responsible for each of its user’s compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data (as defined in Section 6.2) and of the means by which Customer Data was acquired; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify TradeWing promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with applicable laws and government regulations.
5.3 Third Party Materials. From time to time, TradeWing may make available (through the Services or otherwise) certain third-party services, data, content, products, applications, tools and other materials (collectively, "Third Party Materials"). Any acquisition by Customer of any Third Party Materials, and any exchange of data between Customer and any third party or Third Party Materials, is solely between Customer and the applicable non-TradeWing provider. TradeWing shall not be liable or responsible for any third party or any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. TradeWing does not warrant or support Third Party Materials or their interoperation with the Services, whether or not they are designated by TradeWing as “certified,” “approved,” or any similar status. TradeWing is not responsible for any disclosure, modification, or deletion of data resulting from access by any non TradeWing provider. Customer shall use any such Third Party Materials solely in accordance with the independent rights Customer has directly secured. If any terms associated with any Third Party Materials are required by the applicable non-TradeWing provider and are posted in the Platform (or otherwise made available to Customer), Customer shall carefully review and agree to any such terms before accessing or using such Third Party Materials. Customer hereby grants to TradeWing permission to allow the non-TradeWing provider to access Customer-related data and information as relevant for the interoperation of Third Party Materials.
6.1 Customer acknowledges that, as between TradeWing and Customer, all right, title and interest in and to the Services and any other TradeWing materials furnished or made available under this Agreement, and all modifications and enhancements thereof, including, without limitation, all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by TradeWing or TradeWing’s licensors and providers, as applicable. TradeWing reserves all rights not expressly granted under this Agreement.
6.2 “Customer Data” means data that is provided by Customer, and is processed, via the Services. Customer represents, warrants, and covenants to TradeWing that (i) the Customer Data shall at all times be current, accurate, true, lawful, lawfully obtained and complete, shall not infringe or violate any third party rights, and shall, as applicable, be updated by Customer as soon as practicable; and (ii) Customer has all rights, consents and authority necessary to (a) provide to TradeWing, and for TradeWing to use as permitted under this Agreement, the Customer Data and to otherwise facilitate TradeWing’s performance of the Services, and (b) obtain or access any data, materials or other content that Customer requests or orders through or in connection with any Services. Customer understands that TradeWing requires access to certain data in order to provide the Services. Customer hereby grants to TradeWing the non-exclusive right to use (and for TradeWing’s subcontractors to use on its behalf) Customer Data to offer, provide or improve the Services or to provide Customer with information (including with respect to third parties or Third Party Materials) that might be relevant in connection with the Services.
6.3 Customer acknowledges and agrees that TradeWing shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Customer identifiable data or information resulting from Customer’s use of the Services (“Statistical Data”). Statistical Data may be collected by TradeWing for any lawful business purpose without a duty of accounting to Customer, provided that the Statistical Data is used only in an aggregated form, without specifically identifying the source of the Statistical Data.
6.4 Except for the limited rights granted in this Agreement, at no time shall TradeWing acquire any ownership, license, rights or other interest in or to the Customer Data, all of which shall, as between Customer and TradeWing, be and remain the confidential and proprietary information of Customer. Notwithstanding the foregoing, each party shall own the data it collects.
6.5 Customer hereby grants TradeWing a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services (or any other TradeWing products, applications or services) any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or any of its users) relating to the Services.
7.1 Warranties by TradeWing. TradeWing represents and warrants to Customer that: (i) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) it will not violate any applicable law or regulation in the performance of its obligations under this Agreement; and (iii) the Services will be provided in substantial accordance with their published specifications.
7.2 Warranties by Customer. Customer represents and warrants to TradeWing that: (i) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) it will not violate any applicable law or regulation in connection with its use of the Services or its performance under this Agreement; (iii) it has all rights, consents and approvals necessary to provide the Customer Content (as defined in Section 13.1) to TradeWing (and for TradeWing to use the Customer Content as contemplated under this Agreement), and the Customer Content does not and will not violate any law, regulation or third party rights.
8.1 Fees. Customer shall pay TradeWing the amounts described in any Proposal in accordance with the terms of this Agreement (collectively, “Fees”). Billing will occur annually. All Fees are quoted in United States currency. Except as otherwise provided in this Agreement, all Fees are non-refundable.
8.2 Payments. Unless otherwise stated in the applicable Proposal, all Fees are due and payable by Customer within thirty (30) days following the receipt of the invoice by Customer. The outstanding balance of any payment not received from Customer by the due date shall accrue interest (except with respect to charges then under reasonable and good faith dispute) at one and a half percent (1.5%) per month (or, if lower, the maximum rate permitted by applicable law) from the date such payment is due until the date paid. Customer shall also pay all costs incurred (including, without limitation, reasonable legal fees) in collecting overdue payments.
8.3 Taxes. All Fees are exclusive of all taxes and similar fees. Customer shall be responsible for and shall pay in full all sales, use, excise or similar governmental taxes imposed by any federal, state, or local governmental entity in connection with any Fees, exclusive, however, of taxes based on TradeWing’s income, which taxes shall be paid by TradeWing. If any taxes for which Customer is responsible hereunder are paid by TradeWing, Company shall promptly reimburse TradeWing upon Company’s receipt of proof of payment.
10.1 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
10.2 Insolvency. Either party shall have the right to terminate this Agreement if: (i) the other party has a receiver appointed for it or its property; (ii) the other party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law (which proceedings, if involuntary, are not dismissed within 30 days); or (iv) the other party is liquidated or dissolved.
10.3 Failure to Pay/Customer Conduct. TradeWing shall have the right to suspend or terminate access to the Services, at its sole option, with or without notice to Customer if: (i) any undisputed payment is delinquent by more than thirty (30) days; or (ii) TradeWing reasonably determines that continued access would, or is reasonably likely to, result in a violation of security, applicable law or any intellectual property, privacy or other rights.
10.4 Immediate Termination. Either party may immediately terminate this Agreement for any breach of Sections 2., 4. or 11. by the other party.
10.5 Effect of Termination. TradeWing shall not be liable to Customer or any third party for suspension or termination of Customer’s access to, or right to use, the Services. Customer shall pay the balance due for the Services up to the date of termination. Upon the effective date of termination of this Agreement for any reason, Customers’ access to and use of the Services (and all then- effective Proposals) shall automatically and immediately terminate. Sections 4., 5.3, 8., 10.5 and 11. - 15. of this Agreement shall survive termination for any reason.
11.1 Obligations. Each of the parties agrees to maintain in confidence any proprietary or non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree to the terms and conditions of this Agreement, and any discussions related to the Services, shall be considered Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform and who agreed to be bound by these obligations of confidentiality and non disclosure. Upon termination of this Agreement for any reason, and at the request of the disclosing party, the receiving party shall promptly return or destroy (at the disclosing party’s option), all copies of the other party’s Confidential Information.
11.2 Exclusions. Confidential Information shall not include any information that is: (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
13.1 By Customer. Customer shall indemnify, defend, and hold harmless TradeWing, its affiliates, directors, officers, employees, and agents against any third-party claim or suit arising from any data, materials, access, credentials, content or instructions provided by Customer (collectively, “Customer Content”) or from any breach by Customer of this Agreement, and Customer shall pay any final judgment entered against TradeWing in any such proceeding or agreed to in settlement. TradeWing will promptly notify Customer in writing of such claim or suit and give all information and assistance reasonably requested by Customer or such designee.
13.2 By TradeWing. TradeWing shall indemnify, defend, and hold harmless Customer against any third-party claim or suit to the extent based on a claim that the Platform (excluding any Third Party Materials) violates, infringes or misappropriates any United States patent, copyright, trademark or trade secret and TradeWing shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement provided: (i) TradeWing is promptly notified in writing of such claim or suit; (ii) TradeWing or its designee has sole control of such defense or settlement; (iii) Customer gives all information and assistance requested by TradeWing or such designee; and (iv) such claim does not result from any Customer Content or any unauthorized access, use, modification or combination of any Services. To the extent that use of the Platform is enjoined, TradeWing may at its option either: (a) procure for Customer the right to use the Platform; (b) replace the Platform with a similar service; or (c) refund the prepaid, unused portion, if any, of the Fee(s) paid by Customer for the Platform or the affected part thereof. TradeWing shall have no liability under this Section 13.2 or otherwise to the extent a claim or suit results from any negligence or willful misconduct by or on behalf of Customer or is covered by Customer’s indemnification obligations under Section 13.1.
THIS SECTION 13.2 STATES TRADEWING’S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIMS RELATED TO THE SERVICES.
14.1 Limitation on Direct Damages. IN NO EVENT SHALL TRADEWING’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES FOR THE PERIOD OF SIX (6) MONTHS PRIOR TO THE EVENT THAT FIRST DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE.
14.2 Waiver of Consequential Damages. EXCEPT FOR ANY BREACH OF SECTIONS 4. OR 11., IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE OR PROFITS, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE.