Testing Systems Terms of Service ("Agreement")
Revised September 19, 2023
By accessing or using any website, system, or solution for the purposes of testing only ("Services") provided by True Commerce, Inc., or any of its Affiliates (collectively, "TrueCommerce"), you, the Client, agrees to be bound by this Agreement. "Client" means the legal entity accessing or using the Services. Production or live systems are governed by their own terms and conditions, generally the contract between Client and TrueCommerce.
The Services are provided AS IS and without any warranties. See full terms below for details.
1. DEFINITIONS:
"Affiliates" means affiliated companies and or the respective officers, directors, employees, agents or subcontractors of the referenced company.
"Trading Partner(s)" means those parties who transact electronically with the Client by or through TrueCommerce’s servers or systems.
"User" means individual(s) authorized by Client to use the Services, for whom subscriptions to a Service have been purchased or otherwise authorized, and who have been supplied user identifications and passwords by Client or by TrueCommerce at Client’s request.
2. SERVICES: The Services include various testing functions for TrueCommerce production service, such as the testing of structured data sent by Client to certain of its Trading Partners where the data is verified against test criteria determined by the Trading Partner. The Services will provide automated feedback, such as reporting errors or success. Client is solely responsible for ensuring its data complies with Trading Partner or other third-party requirements. Access to Testing Services is limited Users. Client may only access the Testing Services solely through means approved by TrueCommerce. Client will keep the login and passwords of User accounts confidential and restricted to those in its organization who require use of the Testing Services. Client will keep the contact information related to User accounts up to date. Client is solely responsible for all activity under its user accounts. TrueCommerce will provide technical support as part of the Services. With or without notice to Client, TrueCommerce may modify its Services. These Services are for testing purposes only and only test data should be submitted – no TrueCommerce security or resiliency terms apply to the Services.
3. TERM and TERMINATION. This Agreement is effective on the date the Services are used by Client and terminate on the date that Client stops using the Services. Notwithstanding any language to the contrary, TrueCommerce may, at its sole discretion, without notice or warning, suspend or stop providing Services if (i) Client’s use of the Testing Service are detrimental to other subscribers or impair TrueCommerce’s systems, (ii) the Testing Service infringes the rights of a third party, or (iii) Client does not use the Testing Services for two consecutive months. TrueCommerce may terminate or suspend the Services if, three days after written or e-mail notice, Client has failed to pay any amounts as and when due to TrueCommerce. Either party may terminate this Agreement for cause by providing the breaching party notice of a material breach. If within 30 days, the breach is not cured, then the non-breaching party may terminate this Agreement.
4. PAYMENTS. Fees for Services are specified in the registration process or on an order form provided by TrueCommerce to Client. Client is responsible for all charges resulting from its uses of the Services, including any unauthorized use. Client will pay all applicable taxes (other than taxes on TrueCommerce’s net income). TrueCommerce may require prepayments. Prices are subject to change upon 30 days prior written notice to Client. All fees are not refundable. Invoices are due upon receipt by Client. TrueCommerce may assess a late fee of 1.5% per month if payment is not received within 30 days after the date of invoice. Any question or dispute concerning invoices must be submitted in writing within thirty 30 of the date of invoice; otherwise, such fees are deemed correct absent contrary prima facie evidence.
5. INDEMNIFICATION. Client will indemnify TrueCommerce from all costs, expenses, liabilities, losses, damages, fines, penalties, claims, and demands of every kind or nature, including reasonable attorney’s fees, arising out of: (a) the unauthorized access to Client’s account by any third party, when such access results arises from Client’s negligence, (b) errors or omissions in data supplied by Client to the Services, (c) intellectual property infringement or claims arising from information provided through the Testing Services, (d) tortuous interference with contract or prospective business advantage, unfair competition, defamation or injury to business reputation arising from Client’s negligence or actions, or (e) use, negligent use, or fraudulent use of the Services by Client.
6. CONFIDENTIALITY. During the Term of this Agreement, each Party may come into possession of the other Party’s Confidential Information. "Confidential Information" means any information that a Party designates as confidential or which the receiving Party knows or has reason to know is confidential. Without limiting the foregoing, Confidential Information includes financial, business and technical plans and strategies, inventions, new products, services and technology and operational and marketing procedures of each Party. Confidential Information does not include information which is: (a) already known by the receiving Party at time of disclosure; (b) or becomes, through no act or fault of the receiving Party, publicly known; (c) received by the receiving Party from a third Party without a restriction on disclosure or use; or (d) independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information. Each Party shall hold the disclosing Party’s Confidential Information in confidence and shall not use such information except as permitted under this Agreement. Each Party shall use the same precautions to prevent disclosure to third parties of such information as it uses with its own confidential information, but in no case less than reasonable efforts.
7. LIMITED WARRANTY. TRUECOMMERCE DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. SERVICES ARE MADE AVAILABLE "AS-IS" WITHOUT WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. TRUECOMMERCE’S LIABILITY FOR ANY DAMAGES IS LIMITED TO THE AMOUTN PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE MONTHS PRECEEDING THE DATE THE OF THE EVENT THAT CAUSED DAMAGES. NOTWITHSTANDING THE FORGOING, IN NO EVENT WILL TRUECOME BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, COST OF CAPITAL, CHARGEBACKS, PENALTIES, FINES, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, OR THIRD PARTY CLAIMS, IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR ANY OTHER SERVICES UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORIES, EVEN IF TRUECOMMERCE HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS.
9.1. Assignment. Neither party may assign this Agreement, except to an affiliated company or a successor in interest, without the other party’s prior written consent, which consent will not be unreasonably withheld.
9.2. Notices. Notices must be in writing and are deemed delivered on (i) the date service is made personally, (ii) the date confirmed received if by facsimile transmission, e-mail, or other electronic means (iii) the day following delivery if sent by overnight courier, or (iv) 5 days after the date of mailing if sent registered mail, postage prepaid, return receipt requested, and addressed to the parties at their respective addresses set forth below their signatures in this Agreement or, at the e-mail address provided by Client to TrueCommerce.
9.3. Force Majeure. The obligations of the parties under this Agreement are suspended for the period of time that a party is hindered from fulfilling its obligations because of any cause beyond its reasonable control, including without limitation, utility or communication failures, failure of vendors, labor disturbances, natural disasters, explosions, or governmental action. However, Client must make payments to TrueCommerce through the date a Force Majeure event precluded performance. The party affected by a Force Majeure event shall not be liable to the other party for any damages resulting therefrom.
9.4. No Partnership. This Agreement does not create a partnership or agency relationship between the parties.
9.5. Running Obligations. After termination of this Agreement, Sections 5 through 9 shall continue in full force and effect.
9.6. Severability. The provisions of this Agreement are severable, so that if any provisions are held unenforceable, the remaining provisions shall remain enforceable.
9.7. Venue and Jurisdiction. This Agreement will be construed in accordance with the laws of the State of Delaware and the jurisdiction of the state courts in the state of Delaware.
9.8. Entire Agreement. This Agreement and the attached appendices constitute the entire understanding between the parties as to the subject matter covered in the Agreement. The Agreement supersedes any other representations, agreements, or promises between the parties. This Agreement shall not be amended except in writing executed by both parties.
