ENTITY

DESCRIPTION

SCOPE

Identifies the Legal Entity names of the partners entering into the agreement as well as the agreement start and stop dates.

PURPOSE

Enterprise and Trading Partner will facilitate commerce by electronically transmitting and receiving data in preference to exchanging paper documents. Enterprise and Trading Partner intend that contracts formed by electronically transmitting data will be as enforceable as contracts formed by any other means.

Nothing in the Agreement precludes Enterprise and Trading Partner from entering into contracts by any other means.

DEFINITIONS

"Acknowledgment" means an electronic indicator verifying receipt or access of the Data.

"Authorized Representative" means an individual or individuals delegated the authority to legally represent the Enterprise and Trading Partner.

"Data" means any information transmitted/accessed electronically between Enterprise and the Trading Partner.

"Data Records" means in computer data processing, a record is a collection of data items arrange for processing by a program. Multiple records are contained in a file or data set.

"Electronic" means or relates to information created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and has a corresponding meaning.

"Electronic-Trading" means an electronic communication involving an electronic exchange of data for commerce purposes.

"Exhibit" means a supplement to this Agreement.

"Offices In" may be either the Enterprise or Trading Partner Legal Entity, or the location of Electronic Commerce Operations.

"Original" means the first instantiation of the transmission of data from the originating source application.

"Parties" Means the Enterprise and the Trading Partner.

"Personal Data" shall mean any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, psychological, mental, economic, cultural or social identity.

"Prompt and Promptly" means done quickly and without delay, or (of a person) acting quickly.

"Properly" means received in a usable format.

"Service Provider" or "Provider" shall mean a Third Partner that provides enabling technologies and services for the purpose of conducting electronic commerce

"Third Parties" means the Subcontractor to the Enterprise and, or the Trading Partner. Separate contractual obligations are established between the Enterprise and or the Trading Partner and the Third Partner, and are not subject to this agreement.

"Underlying Agreement" means the document containing the Terms and Conditions of the business relationship between the two contracting parties.

SYSTEM OPERATIONS

Each partner, at its own expense, will provide and maintain the equipment, software, and services necessary to reliably and securely, transmit, receive, access and control Data. Each partner will periodically test and monitor such equipment, software, and services to ensure that they are adequate to reliably and securely, transmit, receive, access and control Data.

DATA EXCHANGE

When one partner electronically transmits Data to the other partner in accordance with the applicable Exhibit, the other partner shall receive the Data.

In General: Return receipts shall be evidence that the transmission was received. Acknowledgement of receipt of Data exchange is required. Data must be received in a useable format within the parameters of the protocols defined for receiving transmissions and acceptance of data defined herein. Should a return receipt not be received within the mutually agreed time frame, it shall be the responsibility of the transmitting partner to investigate and remedy the failed transmission.

Garbled/Lost Transmissions/Service Outages: If a partner receives unintelligible Data, that partner will promptly notify the sending partner (if identifiable from the received Data). If the sending partner is identifiable from the Data but the receiving partner fails to give prompt notice that the Data is unintelligible, the records of the sending partner will govern. If the sending partner is not identifiable from the Data, the records of the partner receiving the unintelligible Data will govern. Widespread denial of service or service outages may require contingency operations.

System Changes: Either partner must give ninety (90) days notice of intent to upgrade to a new standard or implementation convention. Either Partner may select, or may change a standard, upon ninety (90) days notice to the other partner, provided that Exhibits are subsequently modified to reflect such changes. All changes in format require mutual amendment of applicable Exhibits to ensure both parties are capable of transmitting/receiving such formats.

MEANS OF TRANSMISSION

Either partner will transmit Data directly to one another or through a Service Provider. Either partner may select or modify the transmission protocol or the selection of a Service Provider upon thirty (30) days written notice to the other partner. Proposed changes in Service Providers, having material impact to the contract, shall be subject to mutual agreement and subsequent amendment of applicable Exhibits.

Each partner will be solely responsible for the costs of any Service Provider with which it contracts.

Each partner warrants that its Service Provider has been placed under a contractual obligation stipulating that in performing its services, the Service Provider shall make no change to Data and shall not disclose such Data to any Third Partner without prior written approval.

Each partner will be liable to the other for the acts or omissions of its Provider while transmitting, receiving, storing or handling Data. If both parties use the same Provider, the Transmitting partner will be liable to the other for acts or omissions of the Service Provider, as related to that Data.

Exhibit (A) defines the protocols used and categories of Data exchanged that will be subject to this agreement.

DIGITAL SIGNATURES

Each authorized representative of a partner should (as appropriate) adopt a unique, verifiable electronic digital identification consisting of symbols or codes to be logically associated with each transmission. The parties will define those transmissions subject to a digital signature; and incorporate said list as an Exhibit (B) hereto. The Third Partner security services authority shall be defined within an Exhibit to this Trading Partner Agreement. Use of the electronic digital identification will be deemed for all purposes to constitute a "signature" and will have the same effect as a signature on a written document. Neither partner shall contest the validity of a transmission of a document transmitted electronically on the basis that a transmission contains an electronic signature. Each representative of a partner authorized to transmit transactions electronically will maintain sole control of the use of his or her digital identification and electronic signature. Each partner shall have policies and procedures in place to ensure the security of digital signatures.

TRANSACTION SECURITY

Each partner will provide appropriate security measures to ensure that all transmission of Data is authorized and to protect Data from unauthorized access, alteration, or loss. Each partner will use appropriate care to maintain the confidentiality of transactions and the Data therein in the same secured manner as it would maintain for paper documents of like kind and importance.

If the Underlying Agreement does not provide for the protection of confidential or proprietary data, Data containing confidential or proprietary information must be conspicuously stated to be confidential or proprietary by the partner sending the Data, and must not be disclosed to any Third Partner (other than a Provider of a transmission service for such Data in so far as the Provider needs to have Data disclosed to it for the purposes of transmission) without the prior consent of the transmitting partner or used by the receiving partner other than for the purposes of the business transaction to which it relates, provided that no such obligations of confidentiality shall apply in respect of information which:

Is in the public domain (other than by breach of the recipient partner of its confidentiality obligations hereunder); or

Is in the receiving partner's possession without restriction; or

Has been lawfully received by the receiving partner without notice of confidentiality obligations from a Third Partner entitled to disclose it; or

Has been developed independently by the receiving partner.

No right beyond what is specified within the Underlying Agreement for use of Data is granted by this agreement. All rights of use shall be granted within the Underlying Agreement.

Unless otherwise agreed in the Underlying Agreement, the period of confidentiality shall be five (5) years from the date the confidential data was received by either the Enterprise or the Trading Partner. The periods of confidentiality contained in the Agreement are subject to the exclusions and other provisions under the heading "Confidentiality" in the underlying terms and conditions.

Where permitted by law, the Parties may apply special protection to Data by encryption or by other agreed means including those set out in the Exhibit. Unless the Parties otherwise agree, the recipient of Data so protected shall use at least the same level of protection for any further permitted onward transmission of such Data. Further protection may be needed if the messages contain Personal Data, and should be in compliance with the law of the governing jurisdiction of the transmitting partner. The use and disclosure of personal data is subject to the laws of the governing jurisdiction of the receiving partner.

ENFORCEABILITY AND ADMISSIBILITY

The Parties agree that any Data properly transmitted pursuant to this Agreement will be deemed for all purposes: (1) to be a "writing" or "in writing;" and (2) to constitute an "original" in the ordinary course of the Trading partners' business. The Parties agree that to the extent permitted by law the Data Records maintained by the Parties shall be admissible in adversarial proceedings and may be used as evidence of the information contained in them.

Any Data digitally signed pursuant to Section 7 and electronically transmitted pursuant to this Agreement will be as legally sufficient as written, signed, paper documents exchanged between the parties, notwithstanding any legal requirement that the Data be in writing or signed. Unsigned transmitted data will be deemed legally equivalent to unsigned transmitted paper documents.

The conduct of the parties pursuant to the Underlying Agreement, including the use of Data properly transmitted hereunder, shall, for all legal purposes, evidence a course of dealing and a course of performance accepted by the parties in furtherance of the purpose of these Agreement terms.

INCIDENTAL AND CONSEQUENTIAL DAMAGES

Except for a breach of clause 21. NEITHER PARTNER WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THE DELAY, OMISSION OR ERROR IN AN ELECTRONIC TRANSMISSION OR SENT OR RECEIVED PURSUANT TO THESE AGREEMENT TERMS.

LIMITATION OF LIABILITY

If the Underlying Agreement contains a Limitation of Liability clause, the Limitation of Liability clause in the Underlying Agreement will also apply to transmissions sent pursuant to this Agreement.

TERMS AND TERMINATION

This Agreement shall take effect from the last date of signature of this Agreement.

Either partner may terminate this Agreement by giving the other partner at least thirty (30) days prior written notice specifying the effective date of termination. Any termination will not alter the rights or duties of the parties with respect to Data transmitted before the effective date of the termination.

In the event that either partner shall at any time during the term of this Agreement:

Be in breach of its obligations hereunder where such breach is irremediable or (if capable of remedy) is not remedied within thirty (30) days of notice from the other partner requiring its remedy; or

Be or become bankrupt or insolvent or make any compensation with its creditors or have a receiver or manager appointed for the whole or any part of its undertaking or assets or (otherwise than as a solvent enterprise for the purpose of and followed by an amalgamation or reconstruction where under its successor shall be bound by its obligations hereunder) commence to be wound up;

The other partner may forthwith by notice in writing terminate this Agreement. Survival, all identities, warranties and representations made under the agreement and all accrued obligations under the agreement will survive cancellation or termination of the agreement.

NATURE OF AGREEMENT

This Agreement does not express or imply any commitment to purchase or sell goods or services or to conduct any business transaction.

WAIVER

No exercise or failure to exercise or any delay in exercising any right power or remedy vested in either partner under or pursuant to this Agreement shall constitute a waiver by that partner of that or any other right power or remedy.

ASSIGNMENT

Neither partner shall assign, subcontract charge or otherwise deal with or dispose in any way of its rights or obligations hereunder without the prior consent of the other partner, save that no such consent is required in the event of the internal reconstruction or reorganization of a partner.

SEVERABILITY

Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision shall remain in full force and effect.

Unless otherwise agreed by the parties, the provisions of this Agreement are not intended to govern the contractual obligations arising from the underlying transactions effected by the use of electronic commerce except as provided at clauses 5 and 7 hereto.

FORCE MAJEURE

Parties shall not be liable line for any failure to perform their obligations required by any transaction or any Data, where such failure results from any act of God or other cause beyond these partner's reasonable control including, without limitation, any mechanical, electronic or communications failure which prevents such parties from transmitting or receiving any documents.

CONFLICT RESOLUTION

Alternative dispute resolution is encouraged, however, either partner may litigate any dispute arising under or relating to this Agreement: 

Pending resolution of any such dispute by settlement or final judgment, the parties shall proceed diligently with the terms of this Agreement.

Disputes, controversies or claims arising out of this Agreement that involve parties based within the same national boundary shall be brought and jurisdiction and venue shall be proper only in (specify court and country (insert pull down menu here). replace with blank fill in line

Disputes, controversies or claims arising out of this Agreement that involve parties residing in different countries shall be finally settled under the rules of arbitration of the International Chamber of Commerce by three (3) arbitrators, unless otherwise decided, appointed in accordance with the said rules. The language of the arbitration shall be English (unless otherwise agreed to) and the place of arbitration shall be ____________________________. Another jurisdiction may apply to give effect to the findings of the arbitration.

NOTE: The blank filed will be pre-populated by the prime.

ORDER OF PRECEDENCE

In the event of a conflict between the Underlying Agreement and the Trading Partner Agreement, the Underlying Agreement shall take precedence.

NOTICES

All notices required to be given under this Agreement, except for those communications forming a part of transactions, shall be in writing and shall be sent by written or electronic means, return receipt requested, to the parties as follows: [at the offices detailed in clause 1 of this Agreement.]

If delivered by hand, notice will be deemed delivered on the day of delivery if it is the recipient's business day and otherwise on the recipient's first business day immediately following delivery;

If delivered by hand by a Commercial Express Delivery Service, notice will be deemed delivered to the receiving partner on the third business day (or on the tenth business day, in the case of airmail) after collection by the Commercial Express Delivery Service;

If sent by facsimile, telex or other electronic means;

i) If transmitted between 09:00 and 17:00 hours on a business day (recipient's time) on completion of receipt by the sender of verification of the transmission from the receiving instrument; or

ii) If transmitted at any other time, at 09:00 on the first business day (recipient's time) following the completion of receipt by the sender of verification of the transmission from the receiving instrument.

EXPORT

Where the Data is being transmitted from one country to another, the transmitting partner warrants that it has obtained all necessary approvals that comply with the export control and economic sanction laws applicable to the export of such Data to the receiving partner.

Where the Data is being transmitted from one country to another, the transmitting partner warrants that it complies with all encryption-related regulatory requirements of the transmitting partner's country, which apply to the transmission of such data to the receiving partner. The receiving partner warrants that it has obtained all necessary authorizations for the use of encryption technology.

There is an obligation on the receiving partner not to transmit data on to another country, except by prior approval of the transmitting partner and any applicable laws and regulations of the transmitting partner.

RECORDS MANAGEMENT AND RECORDS RETENTION

For a period of three (3) years after final payment or as defined under the Underlying Agreement, Trading Partner and Enterprise shall maintain all related books, records, and documents generated as a result of this agreement.

GOVERNING LAW

The agreement shall be construed under and governed by the law of the (insert appropriate country/state) without regard to conflict of law provisions.

ENTIRE AGREEMENT

This Agreement and the Exhibits constitutes the complete agreement of the parties relating to the electronic transmission of Data as specified within this Agreement and supersedes all prior representations or agreements, whether oral or written, with respect to such matters.

Enterprise: (pre-loaded by the prime)

Trading Partner: (completed when accepted by the supplier)

Enterprise

Any entity engaging in business, such as a proprietorship, partnership, or corporation. May also be termed company.

Contract Administrator

Enterprise representative with the authority to sign contracts, on behalf of the enterprise with an external party which would commit the enterprise to perform work, incur obligations or accept liability.

Execution, Execute, Executed

Validation of a legal document by the performance of all necessary formalities.

Trading Partner

Any entity conducting electronic transactions with another entity.