Scanmarket Master Subscription Agreement
TERMS AND CONDITIONS FOR USE OF THE SCANMARKET STRATEGIC SOURCING PLATFORM
Terms of a Scanmarket eSourcing Subscription Agreement incorporated in an Order Form are set forth below.
THIS SCANMARKET MASTER SUBSCRIPTION AGREEMENT (the “Master Subscription Agreement”) is made by and between Scanmarket North America Inc., 12600 Deerfield Parkway, Suite 100, Alpharetta, GA 30004, (hereinafter "Scanmarket"), and the company or other legal entity (“You”, “Your”). You hereby agree to the terms and conditions set forth herein governing your use of the Scanmarket Platform “Service,” (defined below).
1.0 Legal Agreement Construct
This Master Subscription Agreement will govern all legal terms and conditions. An Order Form for Service (the “Order Form”) will govern all commercial terms and conditions. Any additional or future Order Forms will be set as an attachment to this Master Subscription Agreement, unless agreed upon in writing by both parties.
2.0 Terminology and Definitions
As used in this Master Subscription Agreement and in any Order Forms now or hereafter associated herewith:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity;
“Confidential Information” means all confidential information (however recorded or preserved) that is disclosed or made available (in any form or by any method) by either party to the other, including:
a) the existence of this agreement and its terms;
b) all confidential or proprietary information relating to the business or affairs, financial or trading position, assets, intellectual property rights, customers, clients, suppliers, employees, plans, operations, processes, products, intentions or market opportunities of the parties;
c) the know-how, designs, trade secrets, technical information or software of the parties;
d) any other information that is identified as being of a confidential or proprietary nature.
"Control," for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
“Agreement” means this Scanmarket Master Subscription Agreement (including all exhibits and attachments thereto), any Order Forms, and any materials available on the Scanmarket website specifically incorporated by reference herein, as such materials may be updated by Scanmarket from time to time;
“Customer Data” means any data, information, or material provided or submitted by You to the Service in the course of using the Service;
“Effective Date” means the subscription start date set forth in the Order Form;
“Tenderers” or “Bidders” means the Parties invited by You to an eSourcing event (eRFx or eAuction). This also includes tenderers taking part in the Strategic Sourcing Platform Request for quotation. Scanmarket's Strategic Sourcing Platform include, unless otherwise specifically indicated, Scanmarket’s Strategic Sourcing modules made available to the User as cloud-based solution.
“Service” means Scanmarket’s online Strategic Sourcing platform or other services and associated content, as identified on an Order Form, developed, operated, and maintained by Scanmarket, and made accessible via http://www.scanmarket.com or another web site or IP address designated by Scanmarket, or ancillary online or offline products and services provided to You by Scanmarket, to which You are being granted access under an Order Form;
“Subscription” means a license to access the Scanmarket Strategic Sourcing platform, as governed by the corresponding Order Form;
“Upgrade” means a new version of the Services released by Scanmarket that may add new and different functions to or increases the capacity of its Services, and include revisions to documentation and new training as a result of such upgrades. An Upgrade does not include additional functionality that Scanmarket makes available through the Service after the Effective Date for which Scanmarket requires a separate charge;
“Users” means Your employees, representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by Scanmarket at Your request). All Users in the Scanmarket application with status flag set to “active” are Users and You are responsible for all Users’ compliance with this Agreement.
3.0 Scope, Duration and Expiry of License
Any license to use and/or use of Scanmarket Strategic Sourcing platform made available to You as a cloud-based solution shall be subject to these terms and conditions. Any indication by You of special or general terms shall not be deemed deviations from these terms and conditions, unless expressly accepted by Scanmarket in writing.
The subscription entitles a set number of enabled users, established by a signed corresponding Order Form, which will govern the functionality on the Strategic Sourcing Platform that You have a subscription to use.
Once this Master Subscription Agreement and Order Form have been signed between You and Scanmarket, You will receive a User specific password to gain access to Scanmarket’s Strategic Sourcing Platform. You will also receive an invoice, corresponding to the agreed upon terms. The Order Form will specify the initial term of Your Subscription (the “Initial Subscription Term”).
The license agreement may be terminated with 30 days’ prior written notice to end at the expiration of the current Subscription Term by sending an email to the address firstname.lastname@example.org. The license fee will be charged prior to the beginning of each 12-month Subscription Term. The Subscription will automatically be renewed to cover for a subsequent corresponding Term as the Initial Subscription Term (each, a “Renewal Subscription Term”) if notice is not provided. Upon renewal of a Subscription Term, Scanmarket may increase the subscription cost by the greater of CPI (The U.S. Consumer Price Index for All Urban Consumers, as published by the United States Department of Labor Bureau of Labor Statistics) or 5%.
Scanmarket grants You a limited, personal, non-transferable, non-assignable, non-sublicense able, revocable worldwide license to access and make personal use or non-commercial use within its organization, of the Strategic Sourcing Platform. This license does not include any resale or commercial use of the Strategic Sourcing Platform; any derivative use of the Strategic Sourcing Platform or its contents. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or forms) of Scanmarket.
5.0 Your Obligations
You agree that You will use the Service in a manner that complies with all applicable, international, federal, state and local laws and regulations. You acknowledge and agree that any information You send to Scanmarket will be true and correct, and that You will have received the required consents for posting any information of third parties. You shall keep intact all proprietary notices, including copyright notices, contained on any materials and shall comply with any applicable end user license agreements.
You shall be entitled to hold eSourcing events of the version covered by license agreement between You and Scanmarket and for which the license fee has been paid, as set forth in the Order Form. You may only use the licensed Strategic Sourcing Platform regarding goods/services, which You are prepared to purchase on the terms indicated in the specific event.
Upgrades are included as part of Your Service during the Subscription Term.
7.0 User Reassignment
User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Service by providing prior written notice to Scanmarket.
8.0 Additional Users
Unless otherwise specified in the relevant Order Form, the Subscription Term of additional Users shall be coterminous with the expiration of the Subscription Term in effect at the time the additional Users are added. The number of users, and/or registered suppliers in the SBM module, and/or number of contracts in the Contract Management module, exceeds the number specified in the Order Form at renewal date, the additional users, suppliers, and/or contracts will be invoiced according to Order Form pricing for extra users, suppliers, and/or contracts.
Your Affiliates may purchase and use User subscriptions subject to the terms of this Agreement by executing an Order Form hereunder.
10.0 Restricted Activities
Your activities on the Strategic Sourcing Platform shall not: (a) be fraudulent or misleading; (b) involve the sale of counterfeit or stolen items; (c) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libellous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography ; (g) contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) create liability for Scanmarket or cause Scanmarket to lose (in whole or in part) the services of our ISPs or other suppliers. If Scanmarket reasonably determines that there has been any breach of these restricted activities by a User, Scanmarket may immediately suspend or terminate access to the Services for that User.
11.0 Provision of Service
Subject to the terms and conditions of this Agreement, Scanmarket will make the Service available to You pursuant to this Agreement and all Order Forms during a Subscription Term. You agree that Your purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Scanmarket with respect to future functionality or features. Scanmarket shall: (i) use commercially reasonable efforts to provide to You support for the Service as described on each Order Form, (ii) use commercially reasonable efforts to make the Service available in accordance with the Service Levels set forth herein.
YOU ARE SOLELY RESPONSIBLE FOR THE CUSTOMER DATA. Scanmarket does not endorse any item or product found on the Service. Scanmarket is not involved with the information exchanged on the Service; moreover, Scanmarket is not involved in any actual transaction between buyers and sellers. As a result, Scanmarket has no control over and disclaims any liability for the quality, safety or legality of the items advertised, the truth or accuracy of the Customer Data or the listings, the ability of sellers to sell items or the ability of buyers to buy items. Scanmarket cannot and will not ensure that a buyer or seller will actually complete a transaction.
13.0 Intellectual Property Ownership
This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service. The Scanmarket name, the Scanmarket logo, and the product names associated with the Service are trademarks of Scanmarket or third parties, and no right or license is granted to use them. All rights not expressly granted to You are reserved by Scanmarket (and its licensors).
Any and all intellectual property rights associated with the Service including without limitation, any inventive concepts, know-how, publicity rights, trademarks, trade dress, trade secrets, copyrights and patents are the sole and exclusive property of Scanmarket. Scanmarket alone shall own all right, title and interest in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. Except as otherwise expressly authorized by this Agreement, You may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the intellectual property rights associated with the Service in any way without Scanmarket’s prior written permission.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, disclose, or otherwise commercially exploit or make available to any third party in any manner the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to the Service or “frame” or “mirror” the Service on any other server or wireless or Internet-based device; (iv) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, or (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent that applicable law prohibits reverse engineering restrictions), or (except as expressly permitted herein) access the Service, or copy any ideas, features, functions or graphics of the Service (vi) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (viii) use the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ix) modify, interfere with or disrupt the integrity or performance of the Service (including the data contained therein); (x) attempt to create a substitute or similar service through use of, or access to, the Service; (xi) use the Service to store or transfer any Customer Data that is controlled for export under export control laws or (xii) attempt to gain or permit unauthorized access to the Service or its related systems or networks. You may not access the Service if You are a direct competitor of Scanmarket, except if You disclose such to Scanmarket and thereafter obtain Scanmarket’s prior written consent. If Scanmarket reasonably determines that there has been any breach of these restricted activities, Scanmarket may immediately terminate your license, in addition to any other remedies Scanmarket may have at law or in equity.
15.0 Account Information and Customer Data Ownership
As between Scanmarket and You, You exclusively own all rights, title, and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data.
16.0 Protected Information
You expressly acknowledge and agree that Scanmarket shall have no liability to You or Your suppliers for any data submitted by You or Your suppliers that is Personal Information (as defined below), Payment Card Information subject to the Payment Card Industry Data Security Standards (“PCI-DSS”) (where Payment Card Information has the meaning set forth in PCI-DSS; provided, however that You may provide Scanmarket with Payment Card Information to pay for the Services through a system that is separate from the Services) or any Protected Health Information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) (where “Protected Health Information” has the meaning set forth in HIPAA). As used herein, “Personal Information” means information pertaining to an identified or identifiable individual, including without limitation an individual’s first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such individual: (i) Social Security number; (ii) driver’s license number or state-issued identification card number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account. You agree not to upload and shall cause your suppliers not to upload any Protected Health Information, Payment Card Information or Personal Information to the Service. Scanmarket may immediately and upon notice suspend all or portion of Your or Your supplier’s access to the Service (without any liability to You or Your supplier in connection with such suspension) if Scanmarket has a good faith belief that You or Your supplier has breached the restrictions in this subsection. Scanmarket shall provide You with prompt notice for the reasons for any suspension under this section.
17.0 Privacy Disclosure
Notwithstanding the foregoing, Scanmarket will not materially diminish Your privacy during the term.
18.0 Service Levels
In the event of service outages that result in a failure of the Service to meet an uptime availability requirement of 99.7% during a three consecutive month measurement period, Your sole and exclusive remedy shall be a refund equal to the greater of (i) ten percent (10%) of the subscription fees for that measurement period or (ii) the unavailability rate for that measurement period, e.g., if the Service has an uptime available of 85% during the measurement period then the refund shall be fifteen percent (15%) of the subscription fees for that measurement period. Scanmarket will credit the refund to You during the next billing cycle.
The following events shall be included in calculating whether a serviced outage has occurred: (i) planned downtime as detailed in Planned Downtime, (ii) unavailability of the Service due to You or Your Users negligence or acts, or (iii) Your Internet/telecommunications providers failure or malfunction of equipment or systems not belonging to or controlled by Scanmarket; or (iv) unavailability of the service caused by circumstances beyond Scanmarket’s reasonable control including, without limitation, acts of God, acts of government, natural disasters, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Scanmarket’s employees), Internet service provider or telecommunications provider failures or delays or other similar circumstances.
19.0 Planned Downtime
Scanmarket shall be entitled to disconnect the access to the Strategic Sourcing Platform every Saturday between 3:00AM until Sunday 11:59 PM Eastern Time for the purpose of making adjustments, updates, error corrections, etc. in the Strategic Sourcing Platform, hardware, etc.
In addition, Scanmarket may temporarily be entitled to interrupt access to the Service for necessary, urgent error correction or security purposes. Scanmarket aims to make any interruption as brief as possible and strives to place such interruptions outside normal working hours whenever possible.
20.0 Late Payment
Where the agreed upon term for payment is exceeded, as set forth in an Order Form, You shall pay interest in the amount of 1.5% for each month or fraction thereof or the maximum interest allowable by law, whichever is less, until the amount has been paid to Scanmarket.
21.0 Scanmarket’s Legal Status
Scanmarket solely grants You a subscription for the Service for the purpose of purchase and sale of services and/or products. Consequently, Scanmarket cannot be considered a dealer, agent or department of a potential Bidder or in any other way bind or be bound by such a Bidder. All agreements to purchase and/or sell goods and/or services are made explicitly and directly between the You and the Bidder.
Each party shall ensure that any and all Confidential Information of the other party of which the receiving party becomes aware of or is provided with during the performance of this Agreement shall be kept strictly confidential and shall not be disclosed to any third party without the prior written consent of the other party. The above duty of confidentiality shall not apply to any information, which is lawfully within the public domain or was provided to a party by any third party without breach of any obligation of confidentiality or such disclosure is required by law or instruction from a governmental or competent authority. This provision shall also apply upon expiry or termination of this Agreement: (i) with respect to Confidential Information for a period of one (1) year; and (ii) with respect to Confidential Information that rises to the level of a “trade secret,” at all times thereafter during which that information retains its status as a “trade secret” under applicable law.
23.0 License Termination
In the event You materially breach this Master Subscription Agreement or an Order Form, Scanmarket shall be entitled to terminate Your license without notice. A material breach of contract includes, but is not limited to, misuse of the Service and non-payment of fees fallen due and non-observance of the guidelines in force at any time regarding the use of the Service. In the event of termination, Scanmarket shall be entitled to receive damages in accordance with Georgia law. The User shall not be entitled to be reimbursed for license fees already paid, in full or in part.
Subject to this Agreement, Scanmarket shall defend, indemnify and hold You harmless against any expense, liability, loss, damage or costs (including reasonable attorneys' fees), each to the extent payable to a third party, incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against You by a third party alleging that the Service as provided hereunder infringes any issued U.S. patent, U.S. copyright, or other intellectual property right of such third party. Notwithstanding the foregoing if Scanmarket reasonably believes that Your use of any portion of the Service is likely to be enjoined by reason of any Claims then Scanmarket may, at its expense and in its sole discretion: (i) procure for You the right to continue using the Service; (ii) replace the same with other services of equivalent functions and efficiency that is not subject to any Claims of infringement; or (iii) modify the applicable Service so that there is no longer any infringement, provided that such modification does not adversely affect the functional capabilities of the Service as set out herein or the applicable Order Form. If, in Scanmarket’s opinion, (i), (ii), and (iii) above are infeasible or commercially impracticable, Scanmarket may, in its reasonable discretion, terminate the applicable Service and refund to You the fees paid by You for the portion of the Services period that was paid by You but not rendered by Scanmarket. The foregoing indemnification obligation of Scanmarket shall not apply: (1) if the Service is modified by any party other than Scanmarket, but solely to the extent the alleged infringement is caused by such modification; (2) the Scanmarket Services are combined with other non-Scanmarket products, applications, or processes not authorized by Scanmarket, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Scanmarket Services; (4) to any action arising as a result of the Customer Data. THIS SECTION SETS FORTH Scanmarket’s SOLE LIABILITY AND your SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
You shall defend, indemnify and hold Scanmarket, its officers, agents, employees, and affiliates harmless against any expense, liability, loss, damage or costs (including reasonable attorneys' fees), each to the extent payable to a third party, incurred in connection with claims made or brought against Scanmarket by a third party or public authorities arising from or relating to: (i) Your use of the Customer Data, (ii) Your use of the Services in violation of this Agreement, (iii) Your User-initiated events, including claims for damages irrespective of the grounds for the claim for damages, also as a result of concluded or possibly not concluded agreements.
Each party's indemnity obligations are subject to the following: (i) the indemnified party shall promptly notify the indemnifier in writing of any Claims; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that requires the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and (iii) the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement.
25.0 DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH HEREIN, SCANMARKET AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE SECURITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL ASSOCIATED CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SCANMARKET AND ITS LICENSORS.
26.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICE, INCLUDING THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, IN THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Scanmarket shall not be liable for: misprints on Scanmarket’s homepage, third party information, erroneous information or errors in specifications, invitations or other information generated by the Service, missing functionality in the Service as a result of technical errors, computer virus or sickness at Scanmarket; liability to pay damages and any other liability in relation to User, Bidders, third party or public authorities as a consequence of User-initiated events, including claims for damages as a result of concluded or possibly not concluded agreements; and any liability and claims that You may incur towards public authorities, including regarding taxes and duties, etc., or as a result of Your failure to comply with applicable law.
Except as provided elsewhere in this document, either party may give notice by written communication sent by next-day mail delivered by a nationally recognized delivery service to: (i) if to You, to Your address on record in Scanmarket’s account information or (ii) if to Scanmarket, to 12600 Deerfield Parkway, Suite 100, Alpharetta, GA 30004, addressed to the attention of: Legal. Such notice shall be deemed to have been given upon the expiration of twenty-four (24) hours after mailing.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by You, Scanmarket shall refund to You any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of such termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
29.0 Force Majeure
Neither party shall be liable to the other for any breach of its obligations or termination under the license agreement arising from causes beyond its reasonable control, inclusive of but not limited to, fires, earthquakes and other acts of God, strikes, delay caused by transport disputes, hosting and server malfunctions, terrorist acts or threats, any legal enactment or regulation, blockades, boycotts or other similar circumstances.
30.0 Joint Venture
No joint venture, partnership, employment, or agency relationship exists between You and Scanmarket as a result of the Agreement or use of the Service.
31.0 Venue and Choice of Law
Any dispute arising out of or in connection with these terms or in connection with any breach, termination or invalidity thereof shall be settled by arbitration in accordance with the rules of procedure of the American Arbitration Association (AAA). The place of arbitration shall be Atlanta, Georgia, United States of America. The language of arbitration shall be the English language. The prevailing party in any dispute arising under this Agreement shall be awarded its reasonable attorney fees and costs.
32.0 Complete Agreement
This Agreement comprises the entire agreement between You and Scanmarket and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event of any conflict between this Master Subscription Agreement and the Order Form, the Order Form shall govern to the extent of such conflict. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
Should one or more provisions contained in these terms be or become invalid, all other terms shall remain valid between the Parties. In this case, the Parties shall replace the invalid provision(s) with a valid one, which shall as far as possible pursue the objective and legal position contained in the invalid provision(s). The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.
The following terms shall survive the termination or expiration of this Agreement: Terminology and Definitions, Intellectual Property Ownership, Protected Information, Scanmarket’s Legal Structure, Confidentiality, Indemnification, Disclaimer of Warranties, Limitation of Liability, Notices, Venue and Choice of Law, Complete Agreement, and Invalidity.