TRANSPORT PRO END USER
LICENSE AND SUBSCRIPTION AGREEMENT (EULA)
IMPORTANT-READ CAREFULLY: This EULA Agreement ("Agreement") is a legal agreement governing access to and use of the Web Applications, Software, and/or Services (as defined below). By signing this agreement or clicking "I Agree" below, accessing, or using the Web Applications, Software, and/or Services, You and any organization that You represent agree to be bound by the terms of this Agreement. If you do not agree to the terms of this AGREEMENT, do not access or use the Web APPLICATIONS, software, and/or services.
(a) This Agreement is between Orange Sphere, LLC ( "OS" or "Us" or "We" or "Our"), and you and any organization ("Organization") you represent (collectively referred to as "You" or "Your" or "Customer"). Customer represents and warrants to Us that Customer possesses the legal right and ability to enter into this Agreement. IF CUSTOMER IS NOT LEGALLY AUTHORIZED TO ASSENT TO BE BOUND TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE PRODUCTS.
(b) This Agreement governs access to any and all services (collectively "Services") provided by Us and use of Our Web Applications and/or Software and all features thereof, including without limitation, all computer code or programming, content, data, pricing, freight information, text, documents, files, surveys, databases, reports, graphics, photos, images, software, HTML, source code, object code, xml code, and any other code in any language or format, associated media, print media, print or electronic documentation, and script forming a part thereof all goods and transactions offered via the Web Applications (collectively "Web Apps"), the Software (collectively "Software"), by Us. The Web Apps, Software, and the Services are collectively referred to as the "Products".
(d) The Products are offered as available and are subject to change. We may, at any time and in our sole discretion, modify, revise, update, or otherwise change the Products, or any portion thereof (including without limitation adding to or discontinuing the same), in whole or in part, without notice or liability to Customer.
(e) We may also unilaterally, and in our sole discretion make changes to this Agreement from time to time. The most current version of this Agreement is posted at http://www.transportpro.net/terms.html. Customer has no right to amend, modify, revise, update, or otherwise change this Agreement without a written agreement signed by both Parties. Customer agrees that each use made of the Products shall be subject to the then current Agreement. It is Customer's responsibility to check the terms page to view the most current Agreement. By accessing and/or using the Products, Customer accepts without limitation or qualification this Agreement. For any changes which materially adversely impact Customer (other than pricing increases authorized herein), changes will be effective thirty days after notice to you via your User Account email address or via the Admin Console, unless You notify the Help Desk via email within thirty (30) days of receiving notice that You disagree, in which case Customer shall continue to be governed by existing version of the Agreement through the end of the then-current Term. All renewal terms shall be subject to the version of this Agreement in effect at the time of renewal.
2. Proper Use of PRODUCTS.
(a) Subject to the terms and conditions of this Agreement, We grant You access with a limited right to use the Products during the term of this Agreement and only for the permitted purposes and not for commercial reproduction, distribution, publication, or any other activity in contravention of this Agreement, applicable law, or our rights or any third party's rights. The rights granted herein are a license and shall not be deemed a sale. Any rights not expressly granted herein are reserved by Us. Access to and use of the Products is limited to use under an authorized User Account (as defined below), provided by Us. Access to and use of the Products is granted to Customer only as provided for herein, Customer is NOT allowed to authorize or permit third-party access to or use of the Products and/or Services except as expressly permitted in this Agreement. Customer's access to or use of the Products must cease immediately upon revocation or termination of the User Account provided by Us, or in the event this Agreement expires or is terminated for any reason.
(b) The Products may only be accessed by authorized users(s) ("User , Users") who have purchased required individual licenses and have active subscriptions, and Customer's representatives may only use the number of logins or subscriptions for which payments are up to date. Software component parts may not be separated for use on more than one computer. Any web sites associated with the Products may not be taken apart, modified, used or published with other means.
(c) Except as allowed by applicable law and notwithstanding contrary terms, Customer may not copy, modify, adapt, disassemble, reverse engineer, decompile, distribute, sell, lease, perform, display, transmit, create derivate works, translate, circumvent any anti-piracy technology or features that enforce limitations on use of, or otherwise alter or attempt to discover the source code, object code, or other portion of the Products except as expressly permitted herein.
(d) Customer may not use the Products in any manner: (i) not authorized by this Agreement; (ii) in contradiction with any additional restrictions set forth in this Agreement; (iii) in violation of any law or governmental regulation; (iv) in violation of any fiduciary or confidential relationship; (v) or in violation of the rights of any third party.
(e) Customer shall not use the Products in any way that impairs the functioning or operation of the Products or related equipment, or the use and enjoyment of the Products by other Users, as determined by Us in Our sole discretion. The Products and associated servers are not an archive, and We shall have no liability to Customer or any other person for loss, damage, or destruction of any data. It is Customer's sole responsibility to maintain adequate business records including shipping, ordering, freight, driver data, financial, or other information.
(f) Customer shall not and shall not attempt to use the Products to: (i) engage in any illegal or unauthorized use; (ii) impersonate any person or entity; (iii) "stalk" or harass any other person; (iv) harm minors in any way; (v) falsely state or misrepresent your affiliation with another person or entity; (vi) provide any false or misleading data; (vii) infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person; (viii) access or use the account of another user without permission; (ix) distribute unsolicited or unauthorized advertising, surveys, contests, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or other messages for any purposes; (x) distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (xi) "hack" or access without permission Our proprietary or confidential records or those of any other third party; or (xii) deploy or use bots, robots, web crawlers, or other similar electronics or computer code to scrub, copy, or capture data.
3. Customer Obligations.
(a) We provide user accounts to an Organization ("User Account") with login access. As provided for by this Agreement and related documents, Organization and/or You may be permitted to administer said User Accounts so as to grant access to Organization staff and/or varying levels of access as appropriate to different Organizational staff ("User Account Administration"). Customer is entirely responsible for the accuracy, appropriateness, maintenance, and effects of User Account Administration, including, but not limited to, the identification of staff, levels of access assigned to same, and all activity occurring under User Account, all computer hardware as well as the visibility or disclosure of any information viewable from any Facility computer terminal or monitor.
(b) Customer may be permitted to provide, release, transmit, access, receive, or use various types of data in connection with, to, or through the Products ("User Activity") which may include, without limitation, the following non-mutually exclusive types of data: (i) driver data; (ii) mileage, fuel, and pricing information; (iii) fuel card or other credit card or ACH transfer information; (iv) freight information; or (v) bills of lading, specifications, or SKU information (hereinafter collectively referred to as "Data").
(c) Customer represents and warrants that Customer has the full right, title, and authority to permit the use of such Data Customer provides as contemplated herein, that such Data does not infringe or violate the rights of any party, and that the submission and use of such Data is otherwise permitted as provided for by this Agreement and under applicable laws and regulations, and Customer grants Us a limited license to use the Data for Customer's account or for archival, training, or administrative purposes.
(d) Customer's User Activity shall be limited to Data that is specific to Organization's ongoing business. In the event Data non-specific to Organization is accessible or made available to Customer in connection with, to, or through the Products, Customer shall immediately notify Us in writing of same and shall treat the information of any other party as confidential and shall by no means provide, release, transmit access, receive, or use such data for any purposes whatsoever.
(e) Customer shall promptly notify Us at the address provided below of any mistakes or errors with respect to the Products and all Data contained therein.
(f) Customer warrants that Customer is solely responsible for all acts, omissions, and use under Customer's User Account by any user whatsoever. Customer warrants that User Account Administration and User Activity (i) does not violate or infringe the rights of any persons, including without limitation, privacy rights, intellectual property rights, and other personal or proprietary rights; (ii) is not libelous, threatening, defamatory, obscene, indecent, pornographic, nor gives rise to any civil or criminal liability under U.S. or international law; (iii) does not include any bugs, bots, robots, web crawler, data scrubber, viruses, worms, trap doors, Trojan horses, or other harmful code or properties; and (iv) is otherwise permitted under this Agreement.
(g) Customer is entirely responsible for maintaining and monitoring the confidentiality of password and account login information associated with User Accounts. Customer is solely responsible for: (i) error in or damage from delivery or disclosure of Data resulting from User Account Administration or User Activity; (ii) preventing any loss or damage to or from Data through User Account Administration or User Activity; (iii) ensuring the security and integrity of Data Customer receives in connection with or through the Products; (iv) ensuring the confidentiality of Customer's password and account information; and (v) terminating or changing any login information which has been compromised or for which an assigned user has been terminated or has resigned from the employment of Customer, for which Customer shall promptly notify Us. We are not responsible for the privacy, integrity, security, or misuse of Data, or any information or part(s) contained therein, except as expressly stated herein, and in no event shall We be responsible for the privacy, integrity, security, or misuse of Data, or any information or part(s) contained therein, once received by Customer or the acts or omissions of Customer with respect to same.
(h) We specifically reserve the right to remove any Data, or parts thereof, in our sole discretion, for any reason and without notice. Customer acknowledges and agrees that pursuant to this Agreement, We have the right to terminate Customer's access to or use of the Products, and disable, remove, or delete Data, temporarily or permanently for any reason and without notice to Customer. In the event Customer's account, use, or access is removed or terminated, We are under no obligation to transfer or manage Data for You and any rights granted to Us with regard to Data shall survive. Customer acknowledges that termination, interruption or loss of use of the Products and the effects thereof shall not impair Customer's ability to continue Customer's operations.
(a) We acknowledge that any information being provided to Us by Customer and identified in writing as being confidential in nature shall be safeguarded by Us as Customer's confidential Data, and We shall take reasonable steps, in good faith, to prevent unauthorized access to Customer's confidential data and to allow it to be viewed only by its proper representatives and permitted business partners and vendors. Furthermore, Customer acknowledges and agrees that the Products, or portions thereof may be provided over a third party cloud environment through software, servers or other hardware located elsewhere, subject to separate terms and conditions, including disclosure to, the cloud provider or its designees, and to which you also agree.
(b) Upon the termination of this Agreement by either party, We shall return any confidential information submitted to Us by Customer if requested to do so in writing within thirty (30) days. However, while We will take reasonable steps to prevent further use of Customer's confidential Data following termination, Customer acknowledges that archival or other back-up copies of said information or Data may continue to reside in Our environment and/or the cloud.
(c) Client acknowledges that the programs utilized by Us in its Products are proprietary to Us or our licensors. Client acknowledges that it is not entitled to obtain copies of or otherwise access the source code to any programs and if it obtains same, it shall safeguard the information and not allow it to be used internally or externally for any purposes. Client shall immediately return Products information to Us.
(d) The Software, source code, object code, xml code, scripts, processes and non-public information about the functionality and features of the Products are confidential information, along with the terms of this Agreement but not the existence thereof. The Products may also include Data supplied by third parties and other users that may include or comprise protected and/or confidential information. Accordingly, Customer agrees, represents, and warrants, Customer shall use and disclose such Data solely for Customer's own internal business purposes as intended under this Agreement and shall make no further disclosure or use of confidential Data or other confidential information concerning the Web Apps or Software, or portions thereof. Customer shall not use or disclose any confidential information except as expressly permitted herein, and shall safeguard all confidential information with at least the same level of care Customer affords its own confidential information and in no event less than a reasonable degree of care.
(e) Notwithstanding the foregoing, a Party's rights of confidentiality hereunder shall not apply to information that is: (i) in the public domain other than by reason of a wrongful disclosure by the other Party, or (ii) shown by documentary evidence to have been independently developed or obtained by the other Party without use of any confidential information of the first party and without breach of any duty owed to the first Party. A Party may disclose confidential information of the other Party when required to do so by law provided that the disclosing Party first gives the other Party notice of its intent to disclose and an opportunity to object to the disclosure.
(f) Customer grants to Us, our licensors, designees and assigns, the non-exclusive, worldwide, right and license to use your name, trademark, logo, photographs, graphic or video images, text or other information that is not reasonably determined to be confidential or proprietary, in any format or medium, now or hereafter known. Said license shall include the right to copy, display, transmit, translate, modify or format the Data, or portions thereof for use internally by Us for training and other purposes and/or externally for marketing activities. You further consent to our use of your name, trademark and/or logo in verbal, print, online, or other marketing or promotional activities designating you as one of our customers.
5. Fees and Billing
(a) Customer's use of the Products shall be subject to the fees and details described herein, including your responsibility to pay periodic invoices, or periodic maintenance fees, or monthly and/or annual subscription fee(s). All charges and payments shall be in U.S. Dollars. Failure to make a required payment may result in suspension of services and/or termination of your account. You shall be responsible for all amounts, including reasonable attorneys' fees and costs that we incur to collect amounts due under this Agreement.
(b) Unless otherwise stated in a written Order Form, signed by both parties, initial pricing and payment terms for Products will be those which are listed on an Order Form incorporated herein by reference and applicable to the purchased Product(s) together with any additional implementation or customization fees as described on any Order Forms or Exhibits, and all amounts are due upon execution of this Agreement, with the exception of recurring monthly fees which shall be due net 30 days from invoice and shall be billed one month in advance. Fees are non-refundable. Customer shall be responsible for all taxes, governmental fees, or surcharges (except for taxes applicable to Our income), and all amounts are exclusive of any such amounts. You shall provide sufficient documents to support any tax-exempt status and/or official receipts of tax payments made or withheld.
(c) Any amounts more than fifteen (15) days overdue shall be subject to suspension. Monthly fees shall continue to accrue during suspension and all past-due amounts shall be required to be paid in full before the suspension will be lifted. Suspension for more than sixty (60) days shall result in termination. Early termination by Customer or due to Customer's breach shall not relieve Customer from its obligation to pay all amounts, including monthly fees for the duration of the current Term.
(d) Pricing shall remain constant for the initial Term. Thereafter, pricing is subject to change once per calendar year upon ninety (90) days prior notice to Customer.
6. Warranty Disclaimer; Limitation of Liability
(a) Although We use commercially reasonable efforts to maintain the security of the Products, Products are provided to CUSTOMER on an "AS IS" and "AS AVAILABLE" basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY, AND SYSTEM INTEGRATION. WE DO NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PRODUCTS WILL OPERATE WITH ANY OTHER SOFTWARE OR EQUIPMENT, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO REPRESENTATION OR WARRANTY CAN BE GIVEN THAT THE DATA IS CURRENT. We do not guarantee the accuracy, completeness, efficacy, reliability, or veracity of the Products. We make NO WARRANTY as to the security of the Products or the security or effectiveness of measures involved in User Account Administration. We neither warrant nor represent that Customer's use of the Products is legal under all applicable laws and regulations or will not infringe rights of other parties.
(b) The Products are intended as a convenience and reference for Customer to assist in its business operations. Customer shall have the ultimate responsibility for verifying all transactions and information described in the Products. USE OF THE PRODUCTS IS ENTIRELY AT CUSTOMER'S OWN RISK. Customer's reliance on any information provided in or through the Products is at Customer's own risk. We assume no responsibility for consequences resulting from the use of the Products, including but not limited to use of the Products which may relate to permits, load limits, privacy, financial, safety procedures, checks, or other compliance. Customers are encouraged to consult legal advisors for assistance in determining these issues as may be specific to Customer's business. No advice or information obtained by Customer, whether written or oral, from Us shall create any warranty whether express or implied.
(d) YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). This limitation of liability applies without limitation to losses or damages RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PRODUCTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE WEB PORTAL AND/OR SERVICES OR DATA; (iv) RELEASE OR DISCLOSURE OF DATA; OR (v) ANY OTHER MATTER RELATING TO THE PRODUCTS. This limitation of liability applies without limitation to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of THE PRODUCTS AND/OR SERVICES, whether for breach of contract, tortious behavior, negligence, or under any other cause of action.
(e) If at any time Customer is dissatisfied with the Products, does not agree with any portion of this Agreement, or has any other claim against Us relating to either this Agreement or the Products, then Customer's sole, exclusive remedy is to discontinue using the Products. IN NO EVENT SHALL OUR LIABILITY WITH RESPECT TO ANY ACT, OMMISSION, DEFAULT OR BREACH UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER CONTEMPLATED HEREBY EXCEED THE TOTAL AGGREGATE AMOUNTS ACTUALLY PAID TO US BY CUSTOMER UNDER THIS AGREEMENT FOR THE IMMEDIATELY PRECEEDING CALENDAR YEAR.
(f) Neither Party shall be liable for failure to perform the party's obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service.
(g) Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to Customer.
Customer agrees to indemnify, defend, and hold harmless Us, our parent, subsidiaries, affiliates, licensors, and their respective officers, directors, shareholders, employees, representatives and agents from and against any and all claims, demands, liabilities, expenses (including reasonable attorneys' fees and costs) and damages arising out of claims resulting from Customer's User Account Administration and User Activity, including without limitation claims arising out of Data, Customer's violation of a third party's intellectual property or other rights, or any claims alleging facts that if true would constitute a breach by Customer of the terms and conditions of this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, and in such case, Customer agrees to cooperate with Our defense of such claims.
8. Term & Termination
(a) This Agreement shall commence upon execution and continue for an initial term of two years, and shall then automatically renew for successive one year terms unless either party provides written notice of its intent not to renew within ninety (90) days prior to the expiration of the then-current term. Customer may terminate this Agreement early only upon the occurrence of a material breach if We fail to cure within thirty (30) days of written notice thereof.
(b) Notwithstanding the above, We may suspend, terminate, or deny Customer's access to and use of the Products and/or Services in whole or in part, and/or terminate or revoke any or all of Customer's other rights granted under this Agreement if Customer fails to comply with this Agreement, including failure to make any payment required herein. Automatic termination results in the event for any reason that the Products are discontinued or if server or infrastructure components through which the Products are offered are discontinued or become unavailable, or if Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. Any termination of this Agreement shall not affect the respective rights and obligations of the parties arising before the date of termination, and all license rights to Data loaded, posted, or published through the Products as granted herein to Us shall survive in perpetuity.
(c) In the event of termination or expiration for any reason, Customer must immediately cease accessing and/or using the Products, and must remove and destroy all material provided or owned by Us in Customer's possession obtained from or through the Products, including any archival, installed, or stored copies. Customer must promptly provide Us with written verification of completion of such destruction upon request.
9. Intellectual Property
(a) We or our licensors are the owner of all right, title, and interest in and to the Products, and all portions thereof (including but not limited to all U.S. and international copyrights, trademarks, patentable inventions, trade secrets, and other intellectual and proprietary rights) and any revisions or derivatives thereof, whether or not authorized; provided, however, that Customer shall retain all right, title, and interest in and to its Data loaded, posted, or otherwise provided via the Products.
(b) All content, software, HTML, source code, object code, and any other code, associated media, print media, online or electronic documentation, data, databases, and script forming a part of Products, and all trademarks, service marks, trade dress, logos, and tag lines displayed on the Products and/or Services, as well as all trade secrets, patents and patentable inventions (collectively, the "Intellectual Property"), are the sole and exclusive property of Us or our licensors. Customer shall not challenge the Intellectual Property rights associated with the foregoing or do anything that might impair or damage those rights. Customer is not granted any right or license, either express or implied, in any copyright, trademark, service mark, trade dress, logo, tag line, patent, trade secret, right of publicity, or other Intellectual Property or proprietary right of Us or our Products or any of the goodwill associated with any of the foregoing. Customer shall not reproduce, edit, modify, adapt, or distribute the foregoing for any purpose whatsoever in violation of Intellectual Property rights. If Customer requests customization of any Product, Customer acknowledges and agrees that We shall continue to own all rights to the revised or customized Products.
(c) Customer shall not remove any copyright, trademark, or other proprietary legends or notices that appear on, in, or as part of the Products.
10. Availability, Training and Support
(a) We shall use commercially reasonable efforts to make the Web Apps and Software available to Customer twenty-four hours a day, every day, including weekends and holidays, but exclusive of maintenance and repair periods. However, Customer acknowledges that (i) the availability of the Web Apps and/or Software in part depend upon the Internet and other third party products and services, and (ii) We are not responsible for any adverse impact on the Products resulting from problems attributable to the Internet or any such third party products or services. Should the system become unavailable, We will act in good faith to expediently restore service and functionality.
(b) We shall provide basic support (the "Help Desk") to answer Products-related questions from Monday through Friday, except during federal holidays, during the hours of 8:00 A.M. to 5:00 P.M. Central Daylight Time. Email support is included in licensing fees. Additional pre-paid telephone support or other training, maintenance, or support may be available at an additional charge via email, internet, onsite training, or other means upon mutual written agreement. Help Desk inquiries are typically answered in a short time, however depending on support traffic, a response may take 24 to 48 hours. To the extent Customer desires additional training or support services, as described on Exhibit 1 or an amendment to this Agreement.
11. Third Party Components & Links To Other Internet Sites
Customer is responsible for providing all equipment, Internet connections, and software necessary to operate the licensed Products, including any necessary or desirable third party software, operating systems, databases, or other components. Links to Internet sites owned, operated, or maintained by third parties not under Our control may be available through the Products. These links are provided for Customer's convenience and reference only. Such links are not and shall not be deemed to be Our endorsement of the organization or individual associated with the linked site. We are not responsible for the content, quality, security, or accuracy of any materials or sites referenced or linked through Products. Customer assumes sole responsibility and liability for Customer's use of such linked sites.
Customer shall not, without Our prior written consent which shall not be unreasonably withheld, assign or otherwise transfer this Agreement or assign, delegate, or otherwise transfer any of Customer's rights, duties, or obligations under this Agreement and any such prohibited assignment, delegation or other transfer shall be void. This Agreement shall inure to the benefit of Our and Customer's permitted successors, assigns, and licensees.
13. Injunctive Relief; Remedies
Customer agrees that Our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that We shall be entitled to injunctive relief in addition to any other legal or equitable remedies, including damages, that We may be legally entitled to recover. In any action to enforce this Agreement, whether a court proceeding, settlement, mediation, arbitration or otherwise, We shall be entitled to recover its reasonable expenses, including attorneys' fees. All rights and remedies granted to Us under this Agreement are cumulative and not alternative, and are in addition to all other rights and remedies available to Us at law or in equity.
14. Governing Law; Limit on Commencing Actions
This Agreement is governed by the laws of the State of Tennessee, U.S.A. without regard to the conflicts of laws principles thereof. Customer must commence any cause of action or claim against Us within one (1) year after the cause of action or claim arises, otherwise Customer agrees that Customer's cause of action or claim shall be barred.
15. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by this Agreement, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
(c) Customer is thus GIVING UP CUSTOMER'S RIGHT TO GO TO COURT to assert or defend Customer's rights under this contract EXCEPT for matters that may be resolved by small claims court (as specified below). Customer's rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. Customer is entitled to a FAIR HEARING, BUT arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) The parties must abide by the following rules: (a) for any claim that could otherwise be resolved in small claims court (as specified below), the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b)if the claim exceeds what can be recovered in a said small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Customer and Us, and if the Parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator's ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CUSTOMER OR US MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, We will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) We also reserve the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Customer or Us shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person or any other of Our customers; and (j) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees' and litigation expenses.
(e) Notwithstanding the foregoing, either party may bring an individual action which can be resolved in small claims court (or equivalent) in Davidson County, Tennessee to which you consent to jurisdiction. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Davidson County, Tennessee. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Nashville, Tennessee in order to maintain the status quo pending the arbitrator's ruling, and hereby agree to submit to the personal jurisdiction of the courts located within Davidson County, Tennessee. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither party shall be entitled to arbitration. In the event this agreement to arbitrate is held unenforceable by a court, or in the event AAA refuses to arbitrate the Dispute, all controversies, disputes, demands, counts, claims, or causes of action between Us and Customer shall be exclusively brought in the state or federal courts located in Davidson County, Tennessee for such purpose and for any other action contemplated in this Section 16.
(g) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
16. Binding Agreement, Interpretation & Severability
A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Products and/or Agreement to the same extent and subject to the same conditions as other business documents and records. We recommend Customer print a copy of the applicable version of this Agreement for Customer's records. The section titles in this Agreement are for convenience only and carry no contractual or legal effect whatsoever. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
17. No Waiver
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of said right or provision unless the waiver is in writing signed by both parties, and any single waiver shall not constitute a future waiver of any similar provision or obligation.
18. Notices & Contact Information
Any notice required or desired to be given under this Agreement shall be deemed given if provided in writing via overnight carrier, certified mail, or an email address designated for such notification purposes. If to Us, notification can be made at the addresses listed above or by email to email@example.com, and if to You, notification can be made at the addresses or email designated in User accounts. Notice shall be effective upon the date of confirmed delivery.
19. No Third Party Beneficiaries
No other third party beneficiaries are created by or shall be implied under this Agreement.
20. Entire Agreement
This Agreement, together with any amendments, exhibits, and other addenda, if any, constitute the entire agreement and understanding of the parties relating to the Products and supersedes all prior or contemporaneous negotiations, promises, representations, communications, undertakings, or agreements, either written or oral, of either or both parties in connection therewith. No terms on any order form or purchase agreement shall supersede this Agreement.
BY SELECTING "I AGREE" CUSTOMER IS DEEMED TO HAVE READ, UNDERSTOOD AND AGREED TO EACH OF THE ABOVE TERMS, CONDITIONS, AND NOTICES.
IF CUSTOMER DOES NOT UNDERSTAND OR AGREE TO EACH OF THE ABOVE TERMS, CONDITIONS, AND NOTICES DO NOT ACCESS OR USE THE PRODUCTS.
Date Published: May 21, 2013 at 16:55 CST