MercuryGate’s End User License Agreement
1. Grant of License to Access and Use Software.
B. Access and Use by Licensee. Licensee, solely in its capacity as (i) a logistics service provider and in its capacity as a third-party logistics provider for the management of transport of freight for the shipments of its direct customers, including without limitation the planning, the execution, and the settlement process for its customers’ freight, or (ii) or as shipper, may, through its employees, agents (representatives of Licensee who is authorized by Licensee to enter into contracts on its behalf), and then actively-employed contractors, access and use the Software solely to process Data (as defined in Section 3.A.) of Licensee for its internal business purposes only. Except as specifically permitted by Exhibit A, Licensee may not allow access to or use of the Software by or for the benefit of any other third party or for any other purpose. Each third-party user specified in Exhibit A, when meeting the qualifications specified therein, shall be referred to as a “Permitted User.” The limited uses for access to the Software are specified in Exhibit A and are referred to as “Permitted Uses,” as each such Permitted Use is applied to the specific Permitted User. Licensee shall not permit access to or use of the Software by any person other than its employees, contractors and Permitted Users, nor use by a Permitted User for any purpose other than the respective Permitted Use, and Licensee shall be responsible for compliance with this Agreement by all its Permitted Users.
C. Administrator Account. Licensor shall provide Licensee with a reasonable number of administrator accounts which allows Licensee to generate an unlimited number of users and passwords to enable access to and use of the Software by Licensee and its Permitted Users. Administrator accounts may be used by Licensee only and may not be assigned to any Permitted User. Licensee is solely responsible for maintaining the security of any passwords or other account or user information in its possession to access the Software, and shall be responsible for any use of or liability from the access and use of the Software through passwords generated by a Licensee administrator.
D. Restrictions. Without limiting the restrictions set forth in Exhibit A, Licensee shall not, and shall ensure that its Permitted Users do not: (i) access or use the Software in violation of any applicable law or regulation; (ii) outsource, resell, lend, lease, sublicense, assign, transfer, disclose, publish, distribute, redistribute, broadcast, transmit, display publicly or to third parties, have multiple user or concurrent use of a single user login, or timeshare the Software; (iii) copy, reproduce, modify, adapt, edit, abstract, archive, frame or mirror any part or content of the Software; (iv) copy any features, functions, or graphics of the Software; (v) translate any portion of the Software; (vi) attempt to discover the Software source code; (vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Software, or in any other way attempt to circumvent, penetrate or disable any Licensor’s security features; or (viii) remove any proprietary notices within the Software; (ix) combine, merge or otherwise permit the Software (or any part of it) to become incorporated in any other program or service, or arrange or create derivative works based on it (in whole or in part); or (x) in any way commercially exploit any part of the Software or Documentation. For the avoidance of confusion, (i), (ii) (iii), (iv) and (ix) do not restrict the copying of any information generated using the Software.
E. Restrictions on Documentation. Licensee may reproduce and use the standard user and training documentation (including electronic documentation) generally made available to Licensee (collectively the “Documentation”) solely as necessary to support its use of the Software. Licensee shall ensure its Permitted Users similarly limit use of the Documentation. Under no circumstances may the Documentation be made available, by or through Licensee, to anyone other than its employees, contractors and Permitted Users for Permitted Uses; provided, however, Licensee may use the Documentation for its marketing and sales activities.
F. Third-Party Products. Should Licensee elect to use third-party products that may be enabled in the Software, Licensee shall be responsible for (i) entering the appropriate agreement with each applicable third party to allow use of its product connected to Licensor’s API, (ii) compliance with all obligations of such agreements, and (iii) the payment of any applicable third-party fees and Licensor connection fees. Third-party products are not part of the Software. All use, support and maintenance issues must be resolved exclusively with the third-party product owner. Agreements between Licensor and third-party product providers may terminate at any time; Licensor shall have no liability to Licensee in connection with such termination and Licensee’s inability to continue to use the third-party product in connection with the Software. Licensee acknowledges that the continued availability, compatibility with the Software, and performance of any third-party products is outside the control of Licensor and Licensor has no responsibility for any unavailability of or degradation in the Software to the extent resulting from the availability, incompatibility or performance of any of the third-party products.
G. Hosting. Licensor will provide hosting for the Software in accordance with the terms set forth in Exhibit B.
2. Software Updates.
A. Updates to the Software and Documentation. Licensor shall periodically update the Software and Documentation to include modifications and improvements. Such updates are at the sole discretion of Licensor. Updates will not include a license to a third-party product, but may require Licensee to obtain a license to the third party-product to be able to utilize certain features of the update, in which case such use shall be as set forth in Section 1(F). Licensor may develop new products that are not modifications or improvements, that are offered to Licensee as optional new products at an additional price.
B. Timing of Updates. If Licensee is hosted in a multi-tenant environment, updates will be added to the Software at a time designated by Licensor, in accordance with the Licensor’s standard release schedule. If Licensee is hosted in a dedicated environment, Licensee may elect to have updates installed at approximately the same time as installation for customers in a multi-tenant environment or at a later time agreed upon with Licensor. If Licensee is using a dedicated environment, Licensee understands if it elects not to have the updates installed in the normal installation cycle: (a) there may be bugs or other fixes that will not be available; and (b) installation may fail to operate correctly with all aspects of the upgraded Software and/or with third party applications. Licensor will automatically upgrade Licensee on the next upgrade date six (6) months after the initial upgrade date if Licensee has not previously agreed to the applicable upgrade.
3. Data.
A. Definition of Data. “Data” means data in electronic form input into or collected through the Software by or on behalf of Licensee, or its Permitted Users, or generated by the Software in response to such input of collected Data.
B. Ownership of Data. Licensor disclaims any ownership in the Data and shall not assert any property interest in, any lien, or other right against or to any Data. The parties agree that as between Licensor and Licensee, Licensee is the owner of the Data.
C. Delivery of Data to Licensee. Upon request of Licensee, and provided that at the time of such request Licensee is not in breach of this Agreement, at any time until ninety (90) days after termination of this Agreement, Licensor will deliver the Data (or any part thereof) to Licensee in a form and format reasonably requested by Licensee. Licensor may charge its then-current services rate for the collection and delivery of the Data.
D. Use of Data by Licensor. Licensor shall protect the Data in the same way as it protects its own Confidential Information (defined below). Unless it receives Licensee’s prior written consent, Licensor: (i) shall not access, process, or otherwise use or disclose Data except as necessary to facilitate operation of the Software; and (ii) shall not provide Data to any third parties, except for subcontractors subject to a nondisclosure agreement meeting the requirements of Section 8(E.) Notwithstanding the foregoing, Licensor may disclose Data as required by applicable law or by proper legal or governmental authority, provided that Licensor shall give Licensee prompt notice of any such legal or governmental demand and reasonably cooperate with Licensee in any effort to seek a protective order or otherwise to contest such required disclosure, at Licensee’s expense. Licensor may also use Data: (w) to create invoices and validate billing; (x) to improve its services and products; (y) to ensure compliance with applicable laws; and (z) to use and reproduce, the Data in a reasonable manner, in its sole discretion, when such Data has removed from it Licensee’s name, address, and the name and address of any of its Permitted Users. RateFriend requires Licensee to provide Licensee’s shipment Data for all shipments for all modes to be included in the rate indexing (such Licensee Data will have all identifiable information removed).
E. Personally Identifiable Information. Licensee shall not upload and shall not permit any Permitted User to upload any Data which includes personally identifiable information, including without limitation: (i) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers; or (ii) financial or bank account information, including without limitation, credit or debit card numbers, or any related security codes or passwords. Licensee recognizes and agrees that: (y) Licensor has no liability for any failure to provide protections set forth in laws related to personally identifiable information or otherwise provide protections for personally identifiable information; and (z) the Software is not intended for management or protection of personally identifiable information and may not provide adequate or legally required security for personally identifiable information.
4. Confidentiality.
A. Confidential Information. “Confidential Information” shall include the following: (a) the contents of any document the party disclosing the information (the “Disclosing Party”) marks “Confidential;” and (b) any other nonpublic, sensitive information disclosed by Disclosing Party to the other Party (“Receiving Party”), which it can be reasonably understood the Disclosing Party would not want disclosed to third parties, whether marked or designated “Confidential.” As to Licensor, the following shall be within the definition of its Confidential Information, whether or not marked: the Software Documentation, specifications, designs and design requirements, roadmaps, drawings, models, spreadsheets, flowcharts and workflows, diagrams, processes, concepts, techniques, know-how, rule sets, programming logic, screen shots, software code, database structures, software architecture, financial and other data, project management and staffing, forecasts and projections, business plans, prospective and current products, technology, products and services under development, market information, contracts, prices and pricing, distribution, customers, responses to requests for information, the contents of all proposals and requests for proposals, and the terms and conditions of this Agreement and its Exhibits (as may be amended from time to time). As to Licensee, the following shall be within the definition of its Confidential Information, whether or not marked: all information about its shipping volumes and revenues, business, and Permitted Users.
B. Exceptions. Notwithstanding anything herein to the contrary, Confidential Information shall not be deemed to include any information which: (a) was already lawfully known to the Receiving Party without obligation of confidence at the time of disclosure by the Disclosing Party as reflected in the written records of Receiving Party; (b) was or becomes lawfully known to the general public without breach of this Agreement; (c) is independently developed by the Receiving Party without access to, or use of, the Confidential Information of the Disclosing Party; or (d) is approved in writing by the Disclosing Party for disclosure. Any combination of Confidential Information (whether or not combined with non-confidential information) shall not be deemed to be within the above exclusions merely because one (1) or more individual items of Confidential Information are within the above exceptions. In furtherance, but not limitation of the preceding sentence, any combination of items of Confidential Information shall not be deemed to fall within the above exclusions merely because any or all the items are published or otherwise in the rightful possession of the Receiving Party unless, the combination itself and the principle of its use are published or otherwise in the rightful possession of the Receiving Party.
C. Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information for the following reason, but such disclosure shall not change the status of the information from being Confidential Information: it is required to be disclosed by law or by the order of a court or similar judicial or administrative body; provided, however, the Receiving Party shall notify the Disclosing Party of such requirement immediately in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in any attempt to obtain a protective or similar order with respect thereto. In no event shall Licensee file this Agreement, any Exhibit to this Agreement or any amendments, with any court unless it is under seal.
D. Nonuse and Nondisclosure. Except as expressly permitted by this Agreement, the Receiving Party shall not use or disclose the Disclosing Party’s Confidential Information for any purpose not expressly permitted or contemplated by this Agreement, and shall limit disclosure to its employees and contractors who have a need to know for purposes of this Agreement, and who are bound in writing by confidentiality terms no less restrictive than those contained herein.
E. Licensor Confidential Information. Without limiting the terms of Section 4.E., Licensee shall not use Licensor’s Confidential Information for any purpose other than to access and use the Software or for the addition of other products. Licensee: (a) shall not disclose Licensor’s Confidential Information to Licensee’s employees, contractors, or Permitted User unless such person needs access to facilitate the Permitted Uses, and is subject to a nondisclosure agreement with terms no less restrictive than those of this Article 8; and (b) shall not disclose Licensor’s Confidential Information to any other third party without Licensor’s prior written consent.
F. Return of Confidential Information. Upon written request of the Disclosing Party, Receiving Party shall return to Disclosing Party the Disclosing Party’s Confidential Information, except that Receiving Party shall not be required to remove or destroy any Confidential Information contained on backup media due to systematic backups of Receiving Party’s computer system, provided that Receiving Party shall not access such backup media for the purpose of recovering the Confidential Information. Disclosing Party shall pay the reasonably incurred costs of the Receiving Party for the collection and delivery of the Confidential Information to Disclosing Party.
G. Feedback. Any suggestion, enhancement request, recommendation, correction, or other feedback provided by Licensee or its Permitted Users relating to the Software shall not be Confidential Information. Licensor may incorporate such feedback into the Software or use it in any other way it deems appropriate.
5. Title and Intellectual Property Rights.
A. Licensor retains all right, title, and interest in and to the Software and all graphics and user interfaces, including but not limited to, all modifications and derivative works made thereto, and all intellectual property rights therein. Licensor further retains all right, title, and interest in and to the Documentation for the Software, and the logos and trademarks related to the Software. This Agreement does not grant Licensee any intellectual property license or rights in or to the Software or any of its components, and any modifications or derivative works made thereto.
6. Mutual Indemnification.
A. Indemnification by Licensor. Licensor will defend Licensee against any claim, demand, suit or proceeding made or brought it by a third party alleging the Software infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify Licensee from any damages, attorney fees and costs finally awarded against Licensee as a result of, or for amounts paid by Licensee under a settlement approved by Licensor in writing of a Claim Against Licensee, provided that Licensee: (i) promptly gives Licensor written notice of the Claim Against Licensee; (ii) gives Licensor sole control of the defense and settlement of the Claim Against Licensee (except that Licensor may not settle any Claim Against Licensee unless it (a) does not require any admission by Licensee of any liability or wrongful action, and (b) unconditionally releases Licensee of all liability); and (iii) gives Licensor all reasonable assistance, at Licensor’s expense. If Licensor receives information about an infringement or misappropriation claim related to the Software, Licensor may, in its sole discretion and at no cost to Licensee (x) modify the Software so that is no longer claimed to infringe or misappropriate, without breaching Licensor warranties under Article 11; (y) obtain a license or other agreement permitting Licensee’s continued use of the Software in accordance with this Agreement; or (z) terminate Licensee’s subscriptions for the Software upon thirty (30) days written notice and refund to Licensee any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Licensee arises from Data, a non-Licensor application, or Licensee’s use of the Software in violation of this Agreement or its Exhibits and Documentation, as may be amended from time to time.
B. Indemnification by Licensee. Licensee will defend Licensor against any claim, demand, suit or proceeding made or brought against Licensor by a third party alleging that any of Licensee’s Data infringes or misappropriates such third party’s intellectual property rights, or arising from Licensee’s use of the Software in violation of the Agreement or its Exhibits and Documentation, as may be amended from time to time, or applicable law (each a “Claim Against Licensor”), and Licensee will indemnify Licensor from any damages, attorney fees and costs finally awarded against Licensor as a result of, or for any amounts paid by Licensor under a settlement approved by Licensee in writing of, a Claim Against Licensor, provided Licensor (i) promptly gives Licensee written notice of the Claim Against Licensor, (ii) gives Licensee sole control of the defense and settlement of the Claim Against Licensor (except that Licensee may not settle any Claim Against Licensor unless it (a) does not require any admission by Licensor of any liability or wrongful action, and (b) unconditionally releases Licensor of all liability), and (iii) gives Licensee all reasonable assistance, at Licensee’s expense.
C. Exclusive Remedy. This Article 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Article 10.
7. Warranty.
A. Specific Warranty. Licensor warrants that (i) this Agreement, and its Exhibits, as either may be amended from time to time, and the Documentation, as it may be updated from time to time, will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Data, (ii) Licensor will not materially decrease the overall security of the Software, (iii) the Software will perform materially in accordance with the applicable Documentation, and (iv) subject to the terms of Section 1.F. related to third party products, Licensor will not materially decrease the overall functionality of the Software.
B. Licensee Warranty. Licensee warrants that it, and all Permitted Users and all others acting on its or their behalf (including systems administrators) shall (i) keep confidential and not share with any third party (or with other individuals except those with administration rights at the Licensee and its Affiliated Companies’ organization(s) as necessary for use of the Software) their password or access details for any Software, and (ii) at all times comply with the provisions in this Agreement and exhibits.
C. Limitations on Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 11, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SOFTWARE IS PROVIDED “AS IS.” EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
D. Laws and Regulations. Each party warrants that it will (and Licensee shall ensure that all Affiliated Companies and Permitted Users will) comply with all applicable laws, rules, and regulations with respect to undertaking its obligations hereunder. Licensee understands that should it export any information from the Software outside the United States, it is solely responsible for its compliance with all export laws and regulations.
E. Limitations on Licensor Warranty. The warranties in Section 7.A. are subject to the limitations set out in Article 12 and shall not apply to the extent that any error in the Software arises as a result of: (i) incorrect operation of the Software by Licensee, any Affiliated Company or any Permitted User (including any failure to follow the Documentation or failure to meet minimum specifications); (ii) use of any of the Software other than for the purpose for which it is intended; (iii) use of any Software with other software or services or on equipment with which it is incompatible (unless the Licensor recommended or required the use of that other software or service or equipment); (iv) any act by any third party (including hacking or the introduction of any virus or malicious code); (v) any modification of Software (other than that undertaken by the Licensor or at its direction); or (vi) any breach of this Agreement by Licensee (or by any Affiliated Company or Permitted User).
8. Limitations of Liability.
A. No Liability. Licensor shall have no liability for (i) the inaccuracy of Data uploaded to the Software by Licensee or any person entering data by or through Licensee, including but not limited to its Permitted Users; (ii) the way Licensee or its Permitted Users access or use the results generated by the Software; or (iii) the actions Licensee or its Permitted Users take based on interpretation of those results.
B. Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER FOR THE SOFTWARE GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
C. Applicability. Licensor’s liability limits and other rights set forth in this Article 12 apply to Licensor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives. Licensee agrees that Licensee’s sole remedy and Licensor’s sole obligation with respect to any claims made related to or arising out of this Agreement shall be governed by this Article 12.
9. General.
A. Compliance with Laws. Each party agrees to comply with applicable law in connection with the provision and use of the Software. Licensee agrees not to use the Software to undertake, originate, or facilitate transactions with any person, entity, or organization with which U.S. sanctions would prohibit Licensor from engaging directly; this includes transactions conducted without U.S. government authorization involving entities listed on the U.S. Treasury Department’s Office of Foreign Assets Control’s Specially Designated Nationals, Executive Order 13599, or Foreign Sanctions Evader lists which can all be searched at https://sanctionssearch.ofac.treas.gov; nor may , without U.S. government authorization, use the Software to undertake, originate, or facilitate transactions with any person, entity or organization ordinarily resident in a jurisdiction under comprehensive OFAC sanctions—which currently includes the Republic of Cuba, the Islamic Republic of Iran, the Republic of the Sudan, the Syrian Arab Republic, the Democratic People’s Republic of Korea (North Korea), and the Crimea Region of Ukraine.
B. Reasonableness. Notwithstanding anything to the contrary, in any circumstances in which Licensor may exercise its judgment, right of consent, opinion or discretion under this Agreement in determining any matter, Licensor shall act reasonably in the exercise of such judgment, right of consent, opinion or discretion.
C. Waiver. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
D. Contract Interpretation and Dispute Resolution. This Agreement has been prepared following arm’s-length negotiations in which each party had the opportunity to consult with legal counsel regarding the provisions hereof. Every covenant, term and provision of this Agreement shall be construed according to its fair meaning and not strictly for or against any party or parties. Article and Section headings are for convenience only and form no part of the Agreement. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of North Carolina without regard to any conflicts of laws provisions, and any controversy, claim or dispute arising out of, in connection with or relating to this Agreement shall be first submitted to mediation, which mediation shall take place in Wake County, North Carolina, unless another location is agreed upon by the parties. In the event mediation is not successful, then the dispute shall be resolved by binding arbitration, to be held in Wake County, North Carolina by one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect the day the arbitration demand is made. For the avoidance of confusion, any arbitrator or arbitration organization agreed upon by the parties may be used and AAA is not required as the arbitrator.
E. Force Majeure and Delays. In the event either party shall be delayed in, hindered in, or prevented from the performance of any act required under this Agreement by reason of strike, lockout, labor problems, restrictions of government, judicial orders or decrees, riots, insurrection, terrorism, war, pandemic, acts of God, inclement weather, or other causes that are beyond the reasonable control of such party, then performance of such act shall be excused until the cause is remedied. The delayed party shall use commercially reasonable efforts to resume performance as soon as possible. Notwithstanding the foregoing, this Section 9.E. shall not apply to or excuse any failure to make payments when due.
F. Severability. If any provisions of this Agreement are determined to be invalid or unenforceable, those provisions shall be reformed to the extent necessary to comply with law and the parties’ intent, or struck if necessary, and the validity and effect of the other provisions of this Agreement shall not be affected.
G. Notice. Any notices given hereunder shall be in writing and shall be deemed to have been given on the earlier of personal receipt by an authorized representative of the party, or receipt at the party’s notice address. Notice may be given by registered mail/return receipt requested, overnight courier, personal delivery, or e-mail. All notices shall be sent to a party at its address set forth in the signature block, or to such other address as is given by notice to the other party. Notices are deemed given on receipt or attempted delivery.
H. Acquisitions and Assignment. Except as otherwise set forth in this Section 9.H., this Agreement may not be assigned by either party without the prior written consent of the other party, which shall not be unreasonably withheld.
(i) Licensor may assign this Agreement in connection with a merger or the sale of all or substantially all of its assets or equity if: (a) the assignment is to the acquirer or purchaser; and (b) the acquirer or purchaser assumes Licensor’s obligations hereunder.
(ii) Subject to Subsection 13(I)(iii), Licensee may assign this Agreement in connection with a merger or the sale of all or substantially all of its assets or equity if: (a) the assignment is to the acquirer or purchaser; (b) the acquirer or purchaser assumes Licensee’s obligations hereunder; (c) the acquirer or purchaser is not a competitor of Licensor.
(iii) In the event Licensee is acquired by an entity which also has an agreement with Licensor to access and use the Software (regardless of the form or title of such agreement), unless otherwise agreed in writing by Licensor, access to and use of the Software by Licensee shall remain under this Agreement and shall not be combined with any agreement Licensor has with the acquirer. Similarly, in the event Licensee acquires an entity which also has an agreement with Licensor to access and use the Software (regardless of the form or title of such agreement), unless otherwise agreed in writing by Licensor, (a) access to and use of the Software by Licensee with respect to the acquired entity shall remain under the agreement with the acquired entity; and (b) this Agreement shall not be expanded to include access to and use by the acquired entity.
I. Survival. The rights and obligations of the parties set forth in Articles 3, 4, 5, 6, 7, 8 and Sections 9.D., 9.F., and 13.I. shall survive termination of this Agreement.
J. Entire Agreement. This Agreement (together with all Exhibits hereto and all amendments hereunder, which are incorporated by reference) sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, except as specifically provided herein, supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. The entry into this Agreement is not contingent on the delivery of any future functionality or features in a general release. Changes, modifications, and amendments shall be valid only if made in writing and signed by both parties. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract.
K. Licensor Audit Right. Licensor shall have a right to audit Licensee to confirm that Licensee is using the Software in accordance with this Agreement and is complying with all obligations on the terms set out in this Section 9.K.
(i) During the Term and for seven (7) years following termination of this Agreement, Licensee shall maintain full and accurate records relating to Licensee’s, Permitted Users’, and Affiliated Companies’ use of the Software under this Agreement.
(ii) Licensee shall allow and procure for Licensor (and any representative of Licensor) not more than twice a year access to its premises and the premises of Affiliated Companies on reasonable advance notice to: (i) inspect use of the Software; and (ii) audit (and take copies of) the relevant records of Licensee and Affiliated Companies, in each case to the extent necessary to verify Licensee is in compliance with its obligations under this Agreement.
(iii) At Licensor’s request from time to time Licensee shall promptly (and in any event within two (2) business days of such request) provide Licensor with copies of the records referred to in Section 9.K.(i).
(iv) Licensor may monitor, collect, store and use information on the use and performance of the Software to detect threats or errors to the Software and/or Licensor’s operations and for the purposes of the further development and improvement of the Software.
PERMITTED USERS AND USES
2. Licensee may permit carriers to access and use the Software solely for the purposes of posting capacity, bidding on loads, accepting and rejecting tenders, providing tracking information, reporting, communicating with Licensee, and submitting invoices related to Licensee’s customers’ freight, but only if both: (a) it is through a carrier portal set up by Licensee; and (b) it is during the process of Licensee’s management of the transport of its customers’ freight.
3. Licensee may permit its vendors to access and use the Software solely for the purposes of supporting inbound transportation, but only if both: (a) it is through a vendor portal set up by Licensee; and (b) it is during the process of Licensee’s management of the transport of its customers’ freight.
6. Licensee may permit an Affiliated Company (as defined below), its employees and then actively-employed consultants, to access and use the Software on the same terms as Licensee’s employees, and in accordance with the following:
(a) “Affiliated Companies” are defined as any company directly or indirectly controlling, controlled by or under common control with Licensee, provided that the Affiliated Company is: (i) not competitive with Licensor; (ii) not located in a country or jurisdiction under comprehensive sanctions by the U.S. Office of Asset Controls (OFAC), which currently includes the Republic of Cuba, the Islamic Republic of Iran, the Republic of the Sudan, the Syrian Arab Republic, the Democratic People’s Republic of Korea (North Korea), and the Crimea Region of Ukraine, nor owned in any part, directly or indirectly, by a person or entity on the OFAC list of Specially Designated Nations/Denied Parties; and (iii) not a logistics service provider.
(b) Licensee and its Affiliated Companies shall be treated as one (1) entity, and not separate companies, for the purposes of calculating any of the subscription fees and/or appropriate pricing, and amounts due. Licensee shall be responsible for payment of all amounts due, including amounts due as a result of use by Affiliated Companies. By way of example and not limitation, amounts due include costs of an Affiliated Company’s internal fleet when used in connection with the Software.
(c) Licensee shall be liable for any breach by any of the Affiliated Companies.
(d) In addition to the rights to access and use the Software granted to Affiliated Companies, the following terms also apply: (i) access and use any of the software products listed are under identical terms and conditions as Licensee; (ii) limits of liability are combined for Licensee and all its Affiliated Companies; and (iii) no rights under the agreement may be assigned in connection with the merger or sale of any Affiliated Company.
HOSTING SERVICES – MULTI-TENANT
1. Hosting Environment. The Software is hosted in a multi-tenant environment.
2. Data Hosting Centers. Licensor has engaged third-party data centers to provide Internet hosting services and system, application, and mission-critical data management for its Licensees. The parties understand and agree that Licensee has not entered into any agreement directly with any third-party data center contracted by Licensor with respect to the hosting of the Software, and all costs or agreements for such Software are the responsibility of Licensor. All data centers are SSAE 18, SOC1 Type II and SOC2 Type II compliant. The data centers all meet the following requirements:
- Fully redundant electrical power system with backup generators and parallel, uninterruptible power systems (“UPS”); multiple UPS systems maintain constant electrical current during the time it takes for the generator to stabilize
- Power supplied to every server by two completely separate paths back to the building Software. Separate fuel vendors are contracted to deliver energy supplies around the clock
- Multiple HVAC systems for maximum cooling time and backup
- Fiber brought in through SONET rings from a minimum of two different providers over separate fiber systems in such a way that the systems do not come together until they are at a customer’s system
- Multiple highly reputable Internet carriers provide bandwidth up to 1Gbps, provided dynamically as needed. Each network connection provider has diverse routing into the facilities and separate fiber paths to customers
- Multi-core processor application and database servers
- Two clustered firewall servers with automatic failover
- Specialized software monitors the complex hardware/software environment of the application and notifies appropriate personnel of problems as needed
- Remotely access to manage the Software and on-site access to the hardware
- Three levels of security: proximity cards, access codes and biometric hand scanners. Video surveillance and stringent data center escort requirements
3. Software Availability. Except as may be set forth in the Order Form(s), Licensor will make commercially reasonable efforts to provide access to the hosted Software 99.9% of 24 hours a day, 7 days a week, pursuant to the following terms:
- “Scheduled Uptime” means twenty-four (24) hours per day, seven (7) days per week, minus Scheduled Downtime.
- “Scheduled Downtime” means the periods of time during which the Software is scheduled to be not Available. Notice of to Customer of Scheduled Downtime is normally given to Customer at least fifteen (15) days in advance, but notice shall in all events be reasonable under the circumstances. Scheduled downtime is outside of core hours (defined as 7:00 AM EST to 7:00 PM EST, Monday through Friday), and lasting no longer than sixty (60) minutes for each scheduled period; provided that database and operating system upgrades, conducted no more frequently than once every 12 months on average, may last up to eight (8) hours.
- “Available” means the Software is accessible to Customer to perform the functions for which it is designed.
- “Actual Uptime” means the aggregate amount of time within Scheduled Uptime when the Software is actually Available. Licensor is not responsible for inoperability or other unavailability of the Software caused by circumstances beyond its reasonable control such as inoperability caused by Customer or its Permitted Users, acts of God, flood, fire, earthquake, civil unrest, terrorism, denial of Software attacks, and third-party ISP and other communication failures and delays, and any such period of unavailability shall not be deducted from Actual Uptime.
- “Software Availability Percentage” means, for any calendar month, the percentage determined by dividing Actual Uptime by Scheduled Uptime.
If the Software Availability Percentage for a calendar month for any software product that is included in the Software drops below 99.9%, then Licensee will be entitled, as its sole remedy, to a reduction of its monthly subscription fee for such software product for the month in which the failure occurs, with the reduction equal to 99.9% minus the Software Availability Percentage during the month multiplied by the monthly charges. Such reduction shall be reflected as a credit to the next monthly invoice. For the avoidance of confusion, such reductions are for the impacted products only and not the Software as a whole; there is no reduction made with respect to any third-party products. In the event subscription fees are on an annual basis, then the calculation shall be done using 1/12 of the annual subscription fee for each applicable software product, and any credit shall be made to the subscription fee for the next year.
4. Data Storage. The Data will reside on a high-availability, clustered storage area network. The storage infrastructure will be isolated with no outside connection from any other network, including the public Internet, and secured on its own encrypted storage volume with no access available from any other customer.
5. Data Backup and Retention. Licensor will perform logistical data backups of all Data, on a daily, monthly and annual basis. Backups will be transmitted to an alternate data center for storage and available in the event the recovery of data is required. Data shall be retained on-line for 35 days for parcel and 18 months for truckload and LTL, and archived thereafter, provided that Licensor may permanently delete Data which was hosted in a multi-tenant environment as allowed by applicable law.
6. Failover and Disaster Recovery. Failover is the recovery process when a physical node or server fails and another node or server takes over. This is different for disaster recovery, which is when the data center fails and an alternative location is required to provide Software. For the standard multi-tenant disaster recovery, the recovery time objective to restore the server is 72 hours, and the recovery point objective is 24 hours. For enhanced disaster recovery, when the data center fails and an alternative location is required, Licensor provides disaster recovery options at an additional fee.
7. Inbound API Calls. Inbound API calls of up to five thousand (5,000) per day and up to five hundred (500) per hour are included in the Software.
8. Document Storage. 30GB for document storage is in included in the Software.
9. Reporting. Up to thirty (30) scheduled reports, each with a maximum of five thousand (5,000) rows, no more frequent than every half hour, and up to one hundred (100) saved reports is included in the Software.
10. Extracts. Up to thirty (30) extracts per Transaction is included in the Software.
11. E-mail. E-mail utilizing Licensee’s SMTP relay is included in the Software subscription. If Licensee does not use Licensee’s SMTP relay, support for e-mail functionality shall be limited.
