McLane Intelligent Solutions, LLC
Individual License / CONSTANTCONNECT Terms of Service
TOGETHER WITH THE SIGNED CONSTANTCONNECT CUSTOMER ORDER, THIS SUBSCRIPTION AGREEMENT FORMS A BINDING LEGAL AGREEMENT BETWEEN MCLANE INTELLIGENT SOLUTIONS, LLC (“MCLANE”) AND YOU, the Client, FOR A SUBSCRIPTION TO THE MCLANE CONSTANTCONNECT SERVICE (“CONSTANTCONNECT SERVICE”), PLUS ANY IMPLEMENTATION, TRAINING OR OTHER PROFESSIONAL SERVICES SPECIFIED ON THE CUSTOMER ORDER. IN ORDER TO USE THE CONSTANTCONNECT SERVICE, YOU WILL NEED TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE AGREEING TO BE BOUND BY IT.
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 LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE CONSTANTCONNECT SERVICE OR RECEIVE THE OTHER SERVICES. THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND MCLANE AS OF THE DATE YOU ACCEPT IT OR USE THE CONSTANTCONNECT SERVICE (THE “EFFECTIVE DATE”).
- General. This Agreement sets forth the terms and conditions pursuant to which You may use the CONSTANTCONNECT SERVICE, as it may be corrected, updated, modified, enhanced or replaced by MCLANE from time to time. You shall only permit Your employees and contractors to access the CONSTANTCONNECT SERVICE through Your account and You shall ensure that the number of employees and contractors (collectively, the “subscribers”) permitted to access the CONSTANTCONNECT SERVICE through Your account does not exceed the number of subscriptions purchased by You if applicable. If You wish to increase the number of Your subscribers, You shall follow the procedure required by MCLANE. You are responsible for all acts and omissions of any subscriber whom You permit to access the CONSTANTCONNECT SERVICE and You agree to indemnify and hold MCLANE harmless from all costs, losses and damages suffered by MCLANE as a result of such acts or omissions. You acknowledge and agree that MCLANE may amend this Agreement at any time by posting the relevant amended and restated terms and conditions on the MCLANE website and such amendments to the Agreement are effective as of their date of posting. Your continued use of the CONSTANTCONNECT SERVICE after the amended Agreement’s terms and conditions are posted to the MCLANE website constitutes Your agreement to and acceptance of the amended Agreement. If You do not agree to any changes to this Agreement, do not continue to use the CONSTANTCONNECT SERVICE.
- Subscription Rights. Subject to the terms and conditions of this Agreement and for so long as You continue to pay the applicable subscription fees for the CONSTANTCONNECT SERVICE, You have the right to access and use the CONSTANTCONNECT SERVICE, modify specifically designated portions of the data provided as part of the CONSTANTCONNECT SERVICE (collectively, the “Data”). If Your subscription is a trial subscription or proof of concept, You agree that at the end of the thirty (30) day trial period You will no longer be able to use the CONSTANTCONNECT SERVICE unless You purchase a paid subscription. You further agree that any data You store in the MCLANE DataStores as part of the CONSTANTCONNECT SERVICE during the trial period may not be accessible after the end of the trial period.
- Proprietary Rights and Restrictions. Subject to the limited rights expressly granted in this Agreement, MCLANE reserves all rights, title and interest in and to the CONSTANTCONNECT SERVICE and any software or services used to provide the CONSTANTCONNECT SERVICE, including all intellectual property rights therein. No rights are granted to You other than as expressly set forth in this Agreement. The CONSTANTCONNECT SERVICE and all software used to provide the CONSTANTCONNECT SERVICE is the property of MCLANE and/or its licensors, and is protected by copyright and other intellectual property laws. Except as expressly permitted in this Agreement, You shall not: (a) permit any third party to access the CONSTANTCONNECT SERVICE or any software used to provide the CONSTANTCONNECT SERVICE; (b) create derivative works of any software used to provide the CONSTANTCONNECT SERVICE; (c) access the CONSTANTCONNECT SERVICE to (i) build a competitive product or service or (ii) copy any feature, functions or graphics of the CONSTANTCONNECT SERVICE; (d) sell, rent, lease, license, transfer or distribute the CONSTANTCONNECT SERVICE to any third party; (e) alter, remove, or cover trademarks, copyright, or other proprietary notices or legends in or on the CONSTANTCONNECT SERVICE; (f) use the CONSTANTCONNECT SERVICE for service bureau purposes, software as a service offering or otherwise to provide services to any third party; (g) use the CONSTANTCONNECT SERVICE in the operation of critical data systems, such as those used for the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, patient data systems, life support machines or other equipment in which the failure of the CONSTANTCONNECT SERVICE could lead to death, personal injury, or severe physical or environmental damage; (h) except for the purpose of interoperability or as permitted by any third party license, reverse engineer the CONSTANTCONNECT SERVICE or any software used to provide the CONSTANTCONNECT SERVICE. MCLANE does not claim any intellectual property rights in or to the data You store in the MCLANE DataStores.
- Professional Services. MCLANE offers a variety of professional services, including implementation services, training services and customization services. You agree to pay MCLANE the fees applicable to the professional services selected by You, as specified on the Customer Order. If You are required to complete certain tasks in order for MCLANE to provide the professional services selected by You, You agree to complete them promptly. Any failure by You to do so gives MCLANE the right to require reimbursement from You for any incremental costs to MCLANE arising from Your delay. Unless otherwise specified on the ESTIMATE or in the applicable Statement of Work or Services Agreement, You agree to reimburse MCLANE for reasonable travel and out-of-pocket expenses incurred by MCLANE representatives when traveling to perform any professional services for You. For clarity, MCLANE acknowledges and agrees that no travel or out-of-pocket expenses shall be incurred other than in accordance with this Agreement and/or an executed Customer Order .
- Payment of Fees. You agree to pay any and all fees specified on the Customer Order . All monthly or annual subscription fees are payable in advance on the first day of each month (or year, if applicable) that You subscribe to the CONSTANTCONNECT SERVICE. Monthly fees for the first month of service commencing on the Effective Date will be pro-rated for the number of calendar days between the Effective Date and the last calendar day in the first month of service and will be billed together with the fees for the first full calendar month that You subscribe to the CONSTANTCONNECT SERVICE. If You request additional subscribers and/or services at any time during the term of this Agreement, the fees for such additional subscribers and/or services: (i) shall commence on the date that You request the additional subscribers and/or services be added, regardless of when such subscribers actually begin using the CONSTANTCONNECT SERVICE; and (ii) unless otherwise specified on the Customer Order , shall be calculated in accordance with MCLANE’s then-current price list. If the CONSTANTCONNECT SERVICE for the additional subscribers and/or services commences during a month (or year, if applicable), the fees for the additional subscribers and/or services will be prorated for that month (or year, if applicable) and billed with the fees for all subscribers (both new and existing) at the beginning of the following month. Unless otherwise specified on the Customer Order, all fees are due and payable upon Your receipt of the McLane invoice. All fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes that arise from or as a result of Your (i) subscription to the CONSTANTCONNECT SERVICE; and/or (ii) purchase of the OTHER SERVICES. These Taxes are based on the billing address that You provide to MCLANE. If You are exempt from payment of such Taxes, You must provide MCLANE with an original certificate that satisfies applicable legal requirements attesting to Your tax-exempt status. Tax exemption will only apply from and after the date that You provide such a certificate to MCLANE. If You dispute the correctness of any part of the MCLANE invoiced fees or expenses, You shall advise MCLANE within thirty (30) days of Your receipt of the applicable invoice, failing which such invoice must be paid in full in accordance with the terms of this Agreement. MCLANE does not provide refunds.
- Export and Territorial Restrictions. The CONSTANTCONNECT SERVICE contains encryption technology that is controlled for export by the U.S. and Canadian governments, and may be subject to import and/or use regulations in other jurisdictions. It is Your responsibility to comply with laws and regulations relating to the export, import and use of the CONSTANTCONNECT SERVICE. You represent, warrant and covenant that the CONSTANTCONNECT SERVICE is not and will not be made available to (i) a national of or resident of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, and any other country or territory which may be added to the list of restricted countries from time to time by the U.S or Canadian government or to persons or entities prohibited from receiving U.S. exports; (ii) anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or Entity List; or (iii) a resident of any jurisdiction to which export or re-export of the CONSTANTCONNECT SERVICE is prohibited, including, without limitation, jurisdictions included under the Area Control List of the Exports and Imports Permit Act of Canada. You will not, in any manner whatsoever, remove, convey, export, re-export or transmit the CONSTANTCONNECT SERVICE in a manner that would contravene the spirit or the letter of any export law, regulations or policies in any country, including any international treaties or agreements, and You will not permit, encourage, assist or facilitate such activities by any other person or entity.
- Term and Termination. If Your Customer Order indicates that you have a monthly subscription to the CONSTANTCONNECT SERVICE: (i) You will be billed in monthly intervals, in accordance with Section 5 (Payment of Fees); and, (ii) at the end of each month, the term of this Agreement will automatically renew for a successive one month period, absent a minimum of thirty (30) days notice from either party that it does not wish to renew this Agreement. If Your Customer Order indicates that you have an annual or multi-year subscription to the CONSTANTCONNECT SERVICE: (i) You will be billed in annual intervals, in accordance with Section 5 (Payment of Fees); and, (iii) at the end of each year, the term of this Agreement will automatically renew for a successive one year period, absent a minimum of thirty (30) days notice from either party that it does not wish to renew this Agreement. This Agreement may be terminated immediately by MCLANE without notice to You: (a) upon termination or expiration of the agreement between MCLANE and the Service Provider, provided that the Service Provider assumes the right to provide the CONSTANTCONNECT SERVICE to You; (b) upon the termination of Your agreement with the Service Provider relating to the CONSTANTCONNECT SERVICE; or (c) if the Service Provider ceases to offer the CONSTANTCONNECT SERVICE. MCLANE may terminate this Agreement if You are in breach of this Agreement (including without limitation, Your failure to pay any undisputed fee or other amount due) and upon a minimum of five (5) days notice to You of such breach by MCLANE, you fail to remedy such breach. For the purposes of this Agreement ”Service Provider” shall mean the telecommunications service provider or the provider of the other transmission service over which the CONSTANTCONNECT SERVICE is made available to you.
- Effect of Termination. Upon any termination (including non-renewal) of Your subscription to the CONSTANTCONNECT SERVICE: (i) You agree to immediately cease all use of the CONSTANTCONNECT SERVICE; (ii) MCLANE or the Service Provider may immediately take such technical steps as may be necessary to prevent Your further use of the CONSTANTCONNECT SERVICE; and (iii) all payments that would otherwise have been payable to MCLANE for the CONSTANTCONNECT SERVICE and/or the OTHER SERVICES during the term (to the extent not already paid by You) shall become immediately due and payable.
- United States Government. In the event that MCLANE provides the CONSTANTCONNECT SERVICE, including related software and technology, for ultimate federal government end use such use shall be solely in accordance with the following: Government technical data and software rights related to the CONSTANTCONNECT SERVICE include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211(Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.277-7015 (Technical Data) and FAR 12.212 (Software) 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 in this Agreement, it must negotiate with MCLANE 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.
- Warranty. MCLANE warrants that it (i) has taken and will take commercially reasonable measures designed to ensure that the CONSTANTCONNECT SERVICE does not contain any viruses, malicious code or undisclosed features capable of deleting, disabling, deactivating, interfering with or otherwise harming Your data; and (ii) owns (or has the authority by license to) all right, title and interest in the CONSTANTCONNECT SERVICE, sufficient to fulfill MCLANE’s obligations under this Agreement. EXCEPT AS EXPRESSLY PROVIDED ABOVE, MCLANE DOES NOT WARRANT THAT: (A) THE CONSTANTCONNECT SERVICE AND/OR THE OTHER SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE CONSTANTCONNECT SERVICE WILL BE FREE FROM ANY DISABLING CODE; (C) OPERATION OF THE CONSTANTCONNECT SERVICE WILL BE UNINTERRUPTED; (D) THE CONSTANTCONNECT SERVICE AND/OR THE OTHER SERVICES WILL BE ERROR-FREE; (E) YOU WILL ENJOY USE OF THE CONSTANTCONNECT SERVICE WITHOUT INTERFERENCE; (F) ERRORS OR OTHER DEFECTS IN THE CONSTANTCONNECT SERVICE WILL BE CORRECTED OR WILL BE CORRECTED WITHIN A SPECIFIC PERIOD OF TIME; OR (G) UNAUTHORIZED THIRD PARTIES WILL BE RESTRICTED FROM ACCESSING OR INTERFERING WITH DATA SENT OR RECEIVED USING THE CONSTANTCONNECT SERVICE. MCLANE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. AGAIN, EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND ACCURACY OF THE CONSTANTCONNECT SERVICE AND THE OTHER SERVICES IS BORNE BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Maintenance/Upgrades Occasionally the CONSTANTCONNECT SERVICE may be temporarily unavailable due to service maintenance and upgrades. In an effort to minimize the impact to You, scheduled maintenance typically occurs on between 9:00 PM Saturday and 12:00 Noon Sunday CST. MCLANE will make commercially reasonable efforts to notify You of scheduled maintenance (other than maintenance scheduled during the foregoing maintenance window) at least seventy-two (72) hours in advance. During scheduled and unscheduled downtime, real-time access to the CONSTANTCONNECT SERVICE will be unavailable; however, offline activities can continue during this period and data can be synchronized later, when access to the MCLANE server(s) is restored.
- Data Archival You are responsible to develop, implement and maintain procedures to archive Your data. MCLANE recommends that You retrieve and locally save Your data (including without limitation, Form records) on a daily, or at minimum weekly, basis. MCLANE may maintain Your data on the MCLANE server(s) for up to a period of forty-five (45) days from record creation. Unless required, no data will be maintained by MCLANE for more than forty-five (45) days from the date of record creation.
- Limitation of Liability. MCLANE’ LIABILITY TO YOU WILL, IN ALL CIRCUMSTANCES, BE LIMITED TO DIRECT DAMAGES ONLY AND MCLANE’s TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE CONSTANTCONNECT SERVICE OR ANY OR ALL OF THE OTHER SERVICES WILL NOT EXCEED THE AMOUNT PAID BY YOU TO MCLANE FOR THE CONSTANTCONNECT SERVICE OR THE OTHER SERVICES GIVING RISE TO THE CLAIM DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM. THE FOREGOING LIMITATION OF LIABILITY IN RESPECT OF DIRECT DAMAGES SHALL NOT APPLY TO DAMAGES CAUSED BY THE GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD OF MCLANE. IN NO EVENT WILL MCLANE BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA OR OTHER ECONOMIC LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM A BREACH OF SECURITY), OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE CONSTANTCONNECT SERVICE OR ANY OR ALL OF THE OTHER SERVICES, EVEN IF MCLANE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE TO YOU. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY OR ANY OTHER LEGAL THEORY (INCLUDING FUNDAMENTAL BREACH AND FAILURE OF ESSENTIAL PURPOSE). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Texas and the federal laws of United States of America applicable therein, without giving effect to the principles of conflicts of law, and excluding the body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Texas for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof. Each of the parties hereby waive: (a) the right to trial by jury of any such suit, action or proceeding; (b) any right, claim or entitlement to any punitive or exemplary damages whatsoever; and (c) any right, claim or entitlement to participate in a class action relating to this Agreement.
- Entire Agreement; Amendment; Waiver; Severability; Assignment; Survival. This Agreement is the entire agreement between MCLANE and You with respect to both the CONSTANTCONNECT SERVICE and supersedes all prior or contemporaneous oral or written agreements, communications, proposals, representations and warranties, and prevails over any conflicting or additional terms of any quote, order, acknowledgment, purchase order or other communication between the parties relating to its subject matter. No waiver of this Agreement will be binding unless in writing and signed by a duly authorized representative of the party or parties hereto that will be bound by it. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be severed from this Agreement and the remaining provisions will remain in full force and effect. Either party may assign this Agreement in its entirety without consent of the other party to its successor in interest in connection with a sale of all or substantially all assets or equity not involving a direct competitor of the other party. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Sections 1, 3, 6, 7, 8, 9, 10, 11, 12, and 15 of this Agreement, and such other provisions as are necessary for the interpretation thereof will survive expiration or termination of this Agreement.