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LIAISON TECHNOLOGIES, INC.
EXCHANGE NETWORK AGREEMENT
Please read carefully this Exchange Network Agreement (the “Agreement”) of Liaison Technologies, Inc. with principal offices at 3157 Royal Drive, Suite 200, Alpharetta, GA 30022 (“Liaison”), with respect to the access and use of the Liaison Exchange Network, which enables customers to exchange formatted documents electronically with business partners (the “Network Services”). Customers may subscribe to the service by completing the on-line enrollment process for access and use of the Liaison Exchange Network (the “Web Enrollment Process”). By completing the Web Enrollment process and by clicking the "Submit" button at the end of the Final Confirmation section of the Web Enrollment process, you agree to subscribe to the Network Services and to become a Liaison Customer. Customer acknowledges and agrees that Liaison may refuse to accept this Agreement if Liaison believes that the Customer may be unable to perform, in whole or in part, its obligations hereunder. WHEN YOU CLICK THE SUBMIT BUTTON AT THE END OF THE WEB ENROLLMENT PROCESS, YOU WILL BE A CUSTOMER OF LIAISON FOR THE TERM AND AT THE RATE SPECIFIED ON THE WEB ORDER FORM. YOU UNDERSTAND AND AGREE THAT LIAISON WILL INVOICE YOU ON A MONTHLY BASIS FOR YOUR ACCESS TO THE NETWORK SERVICES, AND YOU AGREE TO PAY THE INVOICES YOU RECEIVE FROM LIAISON.
The initial term of this Agreement is (1) one year (the “Term”). Thereafter, the Term shall automatically renew for additional one (1) year terms unless one party has given notice of termination to the other party at least sixty (60) days before the end of the then current term. If either party breaches any material term or condition of this Agreement and the breach is not cured within thirty (30) days from the date when the non-breaching party provides written notice to the other party of the breach, the non-breaching party may immediately discontinue its performance hereunder and terminate this Agreement upon written notice to the breaching party.
GUARANTEE. If the Customer is dissatisfied with the Network Services, the Customer may terminate this Agreement upon sixty (60) days written notice to Liaison. Customer shall only be responsible for the Network Services Fees (as defined herein) through the date of termination.+
The Network Services fees are set forth on the Web Order Form (the “Network Services Fees”). Customer will be responsible for paying all Network Services Fees, together with all taxes or other charges levied on the Network Services by any governmental or regulatory entity, including but not limited to sales, use, value-added or similar taxes. Invoices are due and payable upon receipt by Customer. If Customer disputes any portion of an invoice in good faith, Customer must provide Liaison written notice of the basis for and the amount of the disputed fees within thirty days from receipt of the applicable invoice and will timely pay any undisputed sums. All payments are in U.S. Dollars, unless otherwise specified in the invoice. Payments must be made at the address designated on the invoice or other such place as Liaison may designate. The Network Services Fees are based on the actual KC usage times the rate specified on the Web Order Form, which shall be invoiced monthly in arrears. KC’s are calculated in whole increments; partial KC’s are rounded up to the next full KC for each message.
Each party hereto agrees not to disclose, copy or use for any purpose other than the performance of this Agreement, and to treat as confidential and as proprietary to each other, such information of other party that may be reasonably understood from legends, nature of such information itself and/or the circumstances of such information’s disclosure, to be confidential and/or proprietary to the other party or to third parties to which the other party owes a duty of non-disclosure, including all information which relates to the other party’s technology, research and development, business affairs, pricing or the terms of this Agreement (collectively, the “Confidential Information”). In no event, however, will less than a reasonable standard of care be used. The foregoing obligations will not apply to information that is: (i) publicly available; (ii) rightfully obtained from a third party; or (iii) required to be disclosed by a regulatory or governmental authority or action, provided that the recipient of the information promptly provides advance notice to the other party of any such disclosure requirement.
Customer agrees to indemnify Liaison, its affiliates and successors and its or their respective officers, directors, employees, agents or subcontractors from all costs, expenses, liabilities, losses, damages, suits, fines, penalties, claims, and demands of every kind or nature, including reasonable attorneys’ fees, asserted by or on behalf of any person or entity arising out of or related to the use or misuse of the Network Services by Customer, its agents, accounts, clients, partners or any other third party using the Network Services through Customer.
6.1. Customer will be solely responsible for protection of its transmission facilities premises equipment; its data entered on the Exchange Network system, and its identification number(s) ID(s), password(s), user names and the like, from all unauthorized access or use. All Customer requests for Liaison to assign additional ID(s), password(s) or user name(s), or to make changes to or delete any of Customer's assigned ID(s), password(s) or user name(s), must be made in writing to Liaison. Customer will use the Network Services for their own internal use only. 6.2. Customer will be responsible for the content of any document transmitted via the Network Services. Customer’s use of the Network Services will comply with all applicable rules and regulations and such use will not be for improper or illegal purpose.
WARRANTIES AND DISCLAIMER. EXCEPT AS SET MAY BE OTHERWISE SET FORTH IN THIS AGREEMENT, LIAISON PROVIDES THE NETWORK SERVICES ON AN “AS IS” BASIS AND MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK SERVICES AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES OF USE OR PERFORMANCE. LIAISON DOES NOT WARRANT THAT THE NETWORK SERVICES WILL MEET ANY OF YOUR PARTICULAR REQUIREMENTS OR THAT THE NETWORK SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE OR ERROR-FREE.
LIMITATION OF LIABILITY. If data furnished by the Customer is lost, destroyed or impaired (“Loss”) through the sole negligence of Liaison, then Liaison’s liability and Customer's sole and exclusive remedy will be that Liaison will either: (i) to the extent commercially reasonable, restore Customer data from Liaison archives after receiving written notice of said Loss, provided that Liaison is notified in writing of the Loss within sixty (60) days of the Loss, or (ii) if Liaison is notified of the Loss beyond said sixty (60) day period or it is not commercially reasonable for Liaison to restore Customer’s data pursuant to subsection (i), then Liaison will provide to Customer a credit for charges paid in connection with the transmission of the lost data.
IN NO EVENT WILL LIAISON BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HEREUNDER. FURTHER, IN NO EVENT WILL ANY DIRECT DAMAGES WHICH MAY BE ASSESSED AGAINST LIAISON FOR ANY REASON EXCEED THE PRICE PAID TO LIAISON BY CUSTOMER FOR THE SPECIFIC NETWORK SERVICES RENDERED UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
NETWORK SERVICES AVAILABILITY. Liaison shall make commercially reasonable efforts to have the Network Services operational consistent with the applicable Documentation, to the extent within its control and consistent with industry standards, for not less than 99.99% (“Availability Percentage”) of each calendar month, excluding downtime for maintenance and upgrades of the Exchange Network, which shall occur at scheduled intervals and shall be published to Customer consistent with the general notice to other similar customers to the Exchange Network, or downtimes caused by parties other than Liaison (such as third party communication services providers). The parties agree that the limited remedies set forth in this Section 8 are liquidated damages, and not penalties, and are based on the reasonable determination by the parties of the damages that might be incurred. Additionally, the limited remedies set forth herein are Customer’s sole and exclusive remedies, and Liaison's entire liability, for the failure of the Availability Percentage to meet any specified percentage set forth herein.
OTHER IMPORTANT PROVISIONS.
10.1. Customer may not assign this Agreement without Liaison’s prior written consent. Notwithstanding the foregoing, Customer may assign this Agreement, upon prior written notice to Liaison: (i) to an affiliate, or (ii) to the surviving entity pursuant to a corporate reorganization, merger, or a sale of assets. No modification or amendment to this Agreement, nor any waiver or consent to any departure from any of its provisions, will be valid or effective unless in writing and signed by both parties hereto. No waiver of any breach of any provisions hereof will be construed to be a waiver of any succeeding breach of such provision or any other provision hereof. Delay or failure to exercise any right or remedy will not be deemed a waiver of that right or remedy. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute the same instrument. Each party agrees to be bound by its own facsimiled signature, and agrees that it accepts the facsimiled signature of the other party. 10.2. Any notice under this Agreement will be in writing and will be deemed delivered on the date service is made personally, or by facsimile transmission and confirmed received, the day following delivery if sent by overnight courier, or five (5) days after the date of mailing if sent registered mail, postage prepaid, return receipt requested, and addressed to the parties at their respective designated addresses. The designated address for Liaison is as follows: Liaison Technologies, Inc. Attn: Legal Dept. 3157 Royal Drive, Suite 200 Alpharetta, GA 30022 To Customer: to the address listed on the Web Order Form. 10.3. The obligations of the parties under this Agreement will be suspended to the extent and for the period of time that a party hereto is hindered or prevented from fulfilling its obligations because of any cause beyond its reasonable control, including without limitation, utility or communication failures or delays, failure of vendors and suppliers, labor disturbances, explosions or governmental action (each “Force Majeure Event”); provided, however, that Customer will remain obligated to make any payments due and payable to Liaison through the date a Force Majeure Event precluded performance by either party. The party affected by a Force Majeure Event will not be liable to the other party for any damages resulting therefrom. 10.4. Other sections of this Agreement notwithstanding, Liaison reserve the right to discontinue Services to Customer in the event of bankruptcy (voluntary or involuntary), insolvency or non-payment for Services on the part of Customer. Customer agrees to reimburse Liaison for reasonable collection expenses on delinquent accounts, including attorneys’ fees. Liaison expressly reserves the right to modify or adjust the Network Services from time to time; provided that such substituted Network Services are functionally equivalent to the original Network Services. 10.5. Nothing herein contained will be construed as constituting a partnership, joint venture, or agency between the parties hereto. 10.6. Those sections of the Agreement that by their nature survive the termination or expiration of this Agreement will continue in full force and effect until discharged. 10.7. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without giving effect to Georgia's conflict or choice of law principles. The parties agree that exclusive venue for any dispute relating to this Agreement or the Services shall be in a court of competent jurisdiction located in Fulton County, Georgia. The parties waive any defenses inconsistent with this Section. 10.8. This Agreement (and any exhibit and other documents incorporated herein by reference) constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other representations, understandings or agreements that are not expressed herein, whether oral or written. If any provision(s) of this Agreement is held illegal, invalid or unenforceable, the validity of the remaining provisions shall not be affected and this Agreement shall be construed as if the illegal, invalid or unenforceable provision were omitted. Except as otherwise set forth herein, no amendment to this Agreement shall be valid unless in writing and signed by both parties. Notwithstanding the content of any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
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