Terms of Service
C1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, B2B Ninja will use commercially reasonable efforts to provide Customer the Services as part of the registration process, Customer will identify an administrative user name and password for Customer’s B2B Ninja account. B2B Ninja reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, B2B Ninja will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A.
2. ACCEPTING THE TERMS
2.1 In order to use the Services, Customer must first agree to the Terms. Customer may not use the Services if Customer does not accept the Terms of Service.
2.2 Customer can accept the Terms of Service by:
(A) Clicking to accept or agree to the Terms of Service, where this option is made available to Customer by B2B Ninja in the user interface of any Service;
(B) By actually using the Services. In this case, Customer understands and agrees that B2B Ninja will treat Customer’s use of the Services as acceptance of the Terms of Service from that point onwards.
3. PROVISION OF THE SERVICES BY B2B NINJA
3.1 B2B Ninja is constantly innovating in order to provide the best possible experience for its users. Customer acknowledges and agrees that the form and nature of the Services which B2B Ninja provides may change from time to time without prior notice to Customer. 3.2 As part of this continuing innovation, Customer acknowledges and agrees that B2B Ninja may stop (permanently or temporarily) providing the Services (or any features within the Services) to Customer or to users generally at B2B Ninja’s sole discretion, without prior notice to Customer. Customer may stop using the Services at any time. Customer do not need to specifically inform B2B Ninja when Customer stop using the Services. 3.3 Customer acknowledges and agrees that if B2B Ninja disables access to Customer’s account, Customer may be prevented from accessing the Services, Customer’s account details or any files or other content which is contained in Customer’s account.
4. USE OF THE SERVICES BY CUSTOMER
4.1 Customer agrees to use the Services only for purposes that are permitted by (a) the Terms of Service and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.2 Customer agrees that Customer will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
4.3 Unless Customer has been specifically permitted to do so in a separate agreement with B2B Ninja, Customer agrees that Customer will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
4.4 Customer agrees that Customer is solely responsible for (and that B2B Ninja has no responsibility to Customer or to any third party for) any breach of Customer’s obligations under the Terms of Service and for the consequences (including any loss or damage which B2B Ninja may suffer) of any such breach.
5. SOFTWARE UPDATES
5.1 The Services which you use may automatically download and install updates from time to time from B2B Ninja. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit B2B Ninja to deliver these to you) as part of your use of the Services.
6. RESTRICTIONS AND RESPONSIBILITIES
6.1 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Terms of Service and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless B2B Ninja against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although B2B Ninja has no obligation to monitor Customer’s use of the Services, B2B Ninja may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 6.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. 6.3 This is an Agreement for Services, and Customer is not granted a license to any software by this Agreement. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (“Software”); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
7. CONFIDENTIALITY; PROPRIETARY RIGHTS
7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of B2B Ninja includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to B2B Ninja to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
7.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. B2B Ninja shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. 7.3 Notwithstanding anything to the contrary, B2B Ninja shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and B2B Ninja will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other B2B Ninja offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. 7.4 All rights not expressly granted by B2B Ninja to Customer in these Terms are hereby reserved by B2B Ninja. There are no implied rights. Customer may not use, imitate, or copy, in whole or in part, any B2B Ninja’s trademark, service mark, trade dress, logo, or other branding (collectively, “Marks”) without, in each instance, B2B Ninja’s prior written consent, in B2B Ninja’s discretion. All permitted use of B2B Ninja’s Marks will inure to the benefit of B2B Ninja. 7.5 As between the parties, the Services, including, without limitation, any and all APIs, Software, documentation, images, video, content, logos, page headers, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and updates thereto, as well as all IP Rights associated with any of these materials (collectively, "B2B Ninja IP") are owned by B2B Ninja and/or its third party sponsors, partners, and suppliers. Customer have no right or license in or to B2B Ninja IP other than the right to use the Services, in compliance with the Terms of Service, during the applicable subscription period.
8. PAYMENT OF FEES
8.1 Customer will pay B2B Ninja the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. B2B Ninja reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon notice to Customer (which may be sent by email). If Customer believes that B2B Ninja has billed Customer incorrectly, Customer must contact B2B Ninja no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to B2B Ninja’s customer support department.
9. TERM AND TERMINATION
9.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
9.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, B2B Ninja will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter B2B Ninja may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 9.3 The Terms will continue to apply until terminated by either Customer or B2B Ninja as set out below. 9.4 B2B Ninja may at any time, terminate its legal agreement with Customer if:
(A) Customer breached any provision of the Terms of Service (or have acted in manner which clearly shows that Customer does not intend to, or are unable to comply with the provisions of the Terms of Service); or (B) B2B Ninja is required to do so by law (for example, where the provision of the Services to Customer is, or becomes, unlawful); or (C) B2B Ninja is transitioning to no longer providing the Services to users in the country in which Customer are resident or from which Customer use the service; or (D) the provision of the Services to Customer by B2B Ninja is, in B2B Ninja’s opinion, no longer commercially viable. 9.5 Nothing in this Section shall affect B2B Ninja’s rights regarding provision of Services under Section 6 & 7 of the Terms of Service.
9.6 When these Terms of Service come to an end, all of the legal rights, obligations and liabilities that Customer and by B2B Ninja have benefited from, been subject to (or which have accrued over time whilst the Terms of Service have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, shall continue to apply to such rights, obligations and liabilities indefinitely.
10. WARRANTY AND DISCLAIMER
10.1 B2B Ninja shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by B2B Ninja or by third-party providers, or because of other causes beyond B2B Ninja’s reasonable control, but B2B Ninja shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 10.2 HOWEVER, B2B NINJA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND B2B NINJA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.3 B2B NINJA MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (a) THE ABILITY OF THE WEBSITE, SERVICES, OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (b) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE, SERVICES, OR SOFTWARE, (c) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY LINKED SITES (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE), AND/OR (d) THIRD-PARTY PRODUCTS, AND B2B NINJA ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH.
11.1 Customer will defend, indemnify, and hold B2B Ninja and its suppliers and affiliates, and the respective directors, officers, employees and agents of each, harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Customer’s breach of any of these Terms or use by Customer or any third party (authorized, permitted or enabled by Customer) of the Services, except to the extent the foregoing directly result from B2B Ninja’s own gross negligence or willful misconduct. B2B Ninja reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer. This Indemnification Section will survive any termination or expiration or these Terms.
12. LIMITATION OF LIABILITY
12.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, B2B NINJA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND B2B NINJA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO B2B NINJA FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT B2B HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.1 The law that will govern the validity and construction of these Terms of Service and apply in any dispute or lawsuit arising out of or relating to these Terms of Services is the State of Texas. Customer hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue of the federal and state courts located in Harris County, Texas (USA). The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.
13.2 Customer and B2B Ninja waive any right to assert any claim against one another by means of any class action or representative action, whether as a class representative or as a member of a class. If, notwithstanding the foregoing waiver, a court or law permits a party to this Agreement to participate in a class or representative action, then the prevailing party will not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action, and the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
13.3 Customer may not export or re-export the Services, or any direct product thereof, including, without limitation, technical data, in violation of any laws of the United States and/or the laws of the jurisdiction in which Customer are using the Services. Without limitation by the laws of Customer’s jurisdiction, the Services may not be exported or re-exported: (a) into any embargoed country; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. Customer will not provide the Services, or any direct product thereof, including, without limitation, technical data, to a person or entity located in, under control of, or a national or resident of any such country or on any such list.
13.4 If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
13.5 Customer may not assign Customer’s rights or obligations under these Terms without the prior written consent of B2B Ninja, which B2B Ninja may refuse in its sole discretion. Any attempted assignment without prior written consent from B2B Ninja will be deemed null and void. B2B Ninja may assign its right and/or obligations under these Terms at any time. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.6 No waiver of any provision of these Terms, nor consent by B2B Ninja to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against B2B Ninja unless it be in writing and signed by a duly authorized representative of B2B Ninja, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.
13.7 These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and any modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.8 The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against Customer or B2B Ninja.
13.9 No agency, partnership, joint venture or employment relationship is created by these Terms or Customer use of the Services, and Customer do not have any authority of any kind to bind B2B Ninja in any respect whatsoever.
13.10 B2B Ninja will have no liability to Customer, Customer users, or any third party for any failure by B2B Ninja to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of B2B Ninja, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other force majeure event.
13.11 B2B Ninja has entered into arrangements with one or more third parties for hosting services that are essential to the Services, incorporated within the Services and without which the Services could not be provided to Customer.