WHEREAS, Customer wishes to procure from Provider the software Services as set forth on Schedule A (the “Services”) herein, and Provider wishes to provide such Services to Customer, each on the terms and conditions set forth in this Agreement.
THIS SOFTWARE SERVICES AGREEMENT (this “Agreement”) is entered into between Customer and Ship.Cars USA, LLC, a Delaware limited liability company (“Provider”). Customer and Provider shall be referred to individually herein as a “Party” and collectively, the “Parties.”
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.
“Action” has the meaning set forth in Section 13.1.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized to use the Services pursuant to Section 3.1.
“Availability Requirement” has the meaning set forth in Section 5.1.
“Available” has the meaning set forth in Section 5.1.
“Backup Policy” has the meaning set forth in Section 6.
“Confidential Information” has the meaning set forth in Section 10.1.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Indemnitee” has the meaning set forth in Section 13.1.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 10.1.
“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“End User License Agreement” has the meaning set forth in Exhibit 3.
“Exceptions” has the meaning set forth in Section 5.1.
“Fees” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 15.1.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Hosted Services” has the meaning set forth in Section 2.1.
“Indemnitee” has the meaning set forth in Section 13.3.
“Indemnitor” has the meaning set forth in Section 13.3.
“Initial Term” has the meaning set forth in Section 11.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s automobile shipping brokerage business.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Platform” has the meaning set forth in Schedule A.
“Platform Services” has the meaning set forth in Schedule A.
“Privacy and Security Policy” has the meaning set forth in Section 7.1.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in Section 13.2.
“Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Receiving Party” has the meaning set forth in Section 10.1.
“Reimbursable Expenses” has the meaning set forth in Section 8.3.
“Renewal Term” has the meaning set forth in Section 11.2.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Scheduled Downtime” has the meaning set forth in Section 5.3.
“Service Allocation” has the meaning set forth in Section 3.4.
“Service Credit” has the meaning set forth in Section 5.2.
“Service Level Failure” has the meaning set forth in Section 5.1.
“Service Period” has the meaning set forth in Section 5.1.
“Service Software“, can also be called “Software Service” has the meaning set forth in Schedule A.
“Services” has the meaning set forth in Schedule A and Section 2.1.
“SOW” means statement of work, can also be called “Subscription agreement“
“Specifications” means the specifications for the Services set forth in ‘Subscription Agreement’ and, to the extent consistent with and not limiting of the foregoing, the Documentation.
“Subcontractor” has the meaning set forth in Section 2.5.
“Support Schedule” has the meaning set forth in Schedule B.
“Support Services” has the meaning set forth in Section 5.4.
“Term” has the meaning set forth in Section 11.2.
“Territory” means the United States of America.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service for remote electronic access and use by Customer and its Authorized Users (the “Hosted Services”) in substantial conformity with the Specifications twenty-four (24) hours per day, seven (7) days per week every day of the year, except for:
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
2.3 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.4 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services to its customers, (ii) the competitive strength of or market for the Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with Provider’s change procedure set forth in Schedule D. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.4.
2.5 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).
2.6 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement.
3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement in Schedule A, section (d), Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement and Provider’s End User License Agreement, a current copy of which is attached as Exhibit 3. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
3.4 Service Use and Data Storage. The Parties’ SOW sets forth a schedule of Fees for designated levels of Hosted Service usage and data storage (each a “Service Allocation“), beginning with the Fees payable by Customer for the levels of Hosted Service usage and data storage in effect as of the Effective Date. Provider will use commercially reasonable efforts to promptly notify Customer in writing if Customer has reached 90 percent of its then current Service Allocation and Customer may increase its Service Allocation and corresponding Fee obligations in accordance with the SOW. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees set forth in the SOW. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that:
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure“).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for one (1) year after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement, except with the prior written consent of the Provider (which consent shall not be unreasonably withheld or delayed). In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine and eight-tenths percent (99.8%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period“), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement“). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Hosted Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.6.
5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of five (5) percent of the monthly Fees for the Hosted Services due for the Service Period the Service Level Failure occurred (each a “Service Credit“), subject to the following:
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
5.3 Scheduled Downtime. Provider will use commercially reasonable efforts to:
5.4 Service Support. The Services include Provider’s standard customer support services (“Support Services“) at the support levels Customer purchases in accordance with the Provider service support schedule, a current copy of which is attached as Schedule B (the “Support Schedule“). Provider may amend the Support Schedule from time to time in its sole discretion. Customer may purchase enhanced support services separately at Provider’s then current rates.
The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
The Provider Systems are programmed to perform routine data backups as set out in Provider’s backup policy in effect from time to time, a current version of which is attached as Exhibit 3 (the “Backup Policy“). Provider will, as its sole obligation and liability and as Customer’s sole remedy, [use commercially reasonable efforts to restore the Customer Data from Provider’s then most current backup of such Customer Data in accordance with the then current Backup Policy.]]]
7.1v Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable industry practice/Provider’s data privacy and security policy as amended from time to time, a current copy of which is set forth in Exhibit 2.
7.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
7.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data“). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
7.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems“); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
7.5 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
8.1 Fees. Customer shall pay Provider the fees set forth in the SOW between the Parties (“Fees“) in accordance with this Section 8.
8.2 Fee Increases. Provider may increase Fees at any time by providing written notice to Customer at least Thirty (30) calendar days prior to the effective date of such increase.
8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“Reimbursable Expenses“).
8.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
8.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth in an SOW. Customer shall make all payments hereunder in US dollars by wire transfer or automated clearing house (“ACH”). Customer shall make payments to the address or account specified in the SOW or such other address or account as Provider may specify in writing from time to time.
8.6v Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
8.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
9.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder; and (c) Provider shall be entitled to use all aggregated, non-identifiable Customer Data collected or otherwise captured in performance of the Services under this Agreement.
10.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms and existence of this Agreement are the Confidential information of each of the parties.
10.2 Exclusions. Confidential Information does not include information that:
the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who:
safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:
promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and
If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
11.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for one (1) year from such date (the “Initial Term“).
11.2 Renewal. This Agreement will automatically renew for successive one year periods unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term“).
11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach:
either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: 1. becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; 2. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; 3. makes or seeks to make a general assignment for the benefit of its creditors; or 4. applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
if Customer requests in writing at least thirty (30) days prior to the effective date of expiration or termination, subject to Section 11.4(d), Provider shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Provider, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Provider’s services in transferring such Customer Data.
11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
12.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee“) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action“) by a third party (other than an Affiliate of a Customer Indemnitee) alleging/to the extent that such Losses arise from any allegation in such Action that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
act, omission or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee“) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that/to the extent that such Losses arises out of or relates to any:
Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
obtain the right for Customer to continue to use the Services and Provider Materials as contemplated by this Agreement;
THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE VALUE OF THE SERVICES OF THIS AGREEMENT IN THE MOST RECENT SIX (6) MONTH PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.3 Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to Provider’s obligations under Section 13 (Indemnification) or liability for Provider’s gross negligence or willful misconduct.
15.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer’s consent, include Customer’s name and/or other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
16.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4):
If to Provider:
Refer to ‘Address for Notice’ in ‘Subscription Agreement’
If to Customer:
Refer to ‘Address for Notice’ in ‘Subscription Agreement’
Notices sent in accordance with this Section 16.4 will be deemed effectively given:
on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement:
the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”;
Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs:
third, any other documents incorporated herein by reference.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent Provider shall not unreasonably withhold or delay/may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
16.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section 3.3, Section 4.3 or Section 7.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
16.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
SERVICES AND FEES
I. Summary of Services. The “Services” are comprised of the Platform, Platform Services, and Software Services.
Support schedule is available between 8 am until 5 pm central standard time. Support is available over the phone, email and live chat on Ship.Cars website. In addition, Ship.Cars platform services are available 99.8% of the time. Availability requirement excludes any 3rd party system downtime.
The following Persons are Authorized Users:
An authorized user is:
Below steps shall be followed to process change orders: