These Terms of Service (the "Terms") apply to Client's license of UL's WERCSmart software as outlined in the signed Statement of Work between UL and Client ("SOW"). All services described hereunder constitute Services as defined in the master agreement governing the subject matter hereof entered into between UL and Client ("Agreement"), or as defined herein. In the event of a conflict between the Agreement and these Terms concerning the subject matter herein, these Terms prevail. Capitalized terms used herein and not otherwise defined herein have the meaning set forth in the Agreement or applicable SOW.
1. Services.
a. Implementation. UL will implement technology to allow Client to access WERCSmart data generated by the WERCSmart platform as described in Appendix A. The WERCSmart platform consists of a website (the “Site”) through which suppliers (“Suppliers”) enter product ingredient data (the “Supplier Data”), which is then processed by UL to provide Client certain regulatory data (the “Results”).
b. Support and Service Level Agreement. Following implementation, the Support and Service Level to be provided by UL is as set forth on Appendix B (Maintenance Services and Service Level Agreement), which is subject to change. UL agrees, however, that there will be no material reduction in Services, without prior written notice to Client, specifying the details of the change, and specifying whether there is to be an adjustment in the price.
c. Technology to Access Results. Via UL’s API ItemSync™, UL will provide Client access to Results delivered through:
i. an XML data feed,
ii. UL ItemScan Mobile Application (“Item Scan”), and
iii. UL ItemSearch (a web-based search tool).
2. Client Responsibilities.
a. Through the Site, Suppliers grant UL the right to use Supplier submitted data in accordance with the WERCSmart Terms of Use (as amended from time to time, the “Terms of Use”). In connection with Services, Client agrees that it will:
i. comply with any restrictions on the use of any Supplier Data, including any related derived data, in accordance with the Terms of Use;
ii. ensure Supplier Data, including any related derived data, are used for internal business purposes only absent applicable Data Use Tier Consent (as defined in Terms of Use); and
iii. not use Supplier Data in connection with the manufacturing of its own private label products.
b. Client is solely responsible for:
i. communicating to its Suppliers the obligation that Suppliers of applicable products register each product in the Site.
ii. addressing any Non-Compliant Suppliers. A “Non-Compliant Supplier” means a Supplier that fails to use the Site following notification of Client’s request to do so or that does not use the Site in accordance with its requirements, which include the obligation to enter and maintain accurate Supplier Data. In cases involving Results that stem from Non-Compliant Suppliers, Client agrees that it will look to Supplier and not to UL. UL will have no obligation to any individual Supplier or group of Suppliers to change WERCSmart processes.
iii. appointing a dedicated internal project manager and communicating with its impacted departments and personnel, including coordinating with its internal IT Department to receive the Results.
iv. establishing the required electronic feed (e.g. SFTP) for implementation.
v. selecting available Results.
3. UL’s Responsibilities
a. If the WERCSmart database does not contain a Supplier’s product and Client has requested that such Supplier register its product(s), UL will complete a new product assessment and make such Results available to Client promptly following submission by Supplier of (a) specified data that is properly entered, (b) Supplier certified compliant SDS and (c) Supplier’s payment of applicable fees. UL disclaims all liability for Supplier Data that is incorrectly entered.
b. UL performs quality assurance and control measures when performing a product assessment. If WERCSmart Participant (as defined in Appendix A) notifies UL, in writing and in reasonable detail, of the nature and extent of an error, UL will in a commercially reasonable manner re-perform an assessment and correct any errors.
APPENDIX A
SUMMARY DESCRIPTION OF WERCSMART
1. General. WERCSmart was designed to improve the communication between a retailer and its Suppliers. UL’s proprietary system provides retailers and other participants that store, transport and dispose of products (collectively, “WERCSmart Participants”) information about chemical products. WERCSmart consists of a growing database and the Site Suppliers may utilize the Site to satisfy the requirements of multiple WERCSmart Participants.
2. Data Entry: The Site requires Suppliers to disclose 100% of a product’s chemical composition, submit a safety data sheet (“SDS”), and pay annual subscription fees. Suppliers enter data by choosing from drop down or filtered fields with respect to ingredients in a product. UL offers SDS authoring services (as discussed below) to assist Suppliers.
3. Authoring SDS: Suppliers may request that UL create a draft SDS for any product. A retailer may mandate that certain of its Suppliers utilize this service, particularly with respect to private label products or in instances where Supplier has previously provided unacceptable SDSs. In such instances, UL drafts SDS based on the data entered by Supplier. Such Supplier (not UL) is deemed the author and will be responsible for the accuracy of its SDS.
4. Processing: Following data submission by Supplier, UL utilizes internal processes involving its software products, regulatory databases and regulatory specialists to produce the following:
a. SDS (either drafted by UL and approved by Supplier or provided by Supplier).
b. Results. Available Results are subject to change and are available for delivery to a WERCSmart Participant via UL’s ItemSync, ItemSearch and ItemScan.
5. Retailer Requested Modification of WERCSmart: In the rare instance where a WERCSmart Participant requests changes to WERCSmart that are approved by UL, such requests will result in additional charges to the WERCSmart Participant. Any such modification to WERCSmart will only be activated upon written approval by WERCSmart Participant.
6. Site Operation: UL will operate and maintain the Site in accordance with standard industry practices. UL will also provide support to the Site in accordance with the standards set forth in Appendix B (Maintenance Service and Service Level Agreement). After WERCSmart is implemented for a WERCSmart Participant, UL may change the Site for upgrades and improvements.
APPENDIX B
MAINTENANCE SERVICES AND SERVICE LEVEL AGREEMENT
1. Maintenance Services
a. General. During the Initial Term and any term of the applicable SOW, UL will provide the following Maintenance Services for WERCSmart in accordance with this Appendix.
b. Telephone Support. UL will, at no additional cost, provide to Client reasonable telephone support (via a toll-free telephone number) relating to the installation, implementation, configuration, use and operation of WERCSmart or any problems therewith. Telephone support will be available during standard business hours Monday through Friday 8:00 A.M. through 5:00 P.M ET.
c. Product Assistance. In addition, UL will answer questions by Client regarding the day-to-day operation of WERCSmart (“Know-How”). Know-How may include any of the following:
i. data files, file and data definitions and relationships, data definition specifications, data models, interfaces, program architecture, program structure, sequence and organization, screen displays, reference and user manuals, design and functional specifications relating to WERCSmart;
ii. maintenance, support utilities and tools relating to WERCSmart;
iii. security requirements and methodologies relating to WERCSmart; and
iv. such other material as Client may reasonably request.
d. Enhancements. UL will provide to Client, without additional charge, copies of the documentation revised to reflect any and all enhancements to WERCSmart made by UL, as soon as such documentation are offered to any other WERCSmart users.
2. Service Level Agreement
a. The performance standard for Availability (as defined below) shall be ninety-nine percent (99%). Availability shall be calculated as follows:
i. Potential Available Hours. Means the total number of hours per month less the hours per month of scheduled maintenance. Excluding emergency incidents, any scheduled maintenance that may be required will be communicated to Client at least 48 hours in advance and conducted during non-business hours. For example, for a 30-day month with 16 hours of monthly scheduled maintenance, “Potential Available Hours” will be 704. [(30 * 24) -16 = 704].
ii. Actual Available Hours. The total unscheduled outage hours for that month, as recorded in the UL Problem Management System and other system information logs, shall be subtracted from the “Potential Available Hours” to derive the “Actual Available Hours,” and
iii. Availability. The “Actual Available Hours” shall be divided by the “Potential Available Hours” to yield the “Availability.”
iv. Exceptions: In calculating Availability, the following shall be excepted:
1. Circumstances beyond UL reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike, or other labor disturbance, interruption or delay in telecommunications, virus attacks or hackers;
2. Failure of access circuits to WERCSmart, unless such failure is caused by UL;
3. Scheduled maintenance;
4. Supplier’s acts or omissions (or acts or omissions of others engaged or authorized by customer) including, without limitation, custom scripting or coding, any negligence, willful misconduct or use of the Service in breach of the terms and conditions set forth herein;
5. Outages elsewhere on the Internet that hinder access to WERCSmart.