Terms of Service
These Terms of Service (this "Agreement") is a binding contract between you ("Customer," "you," or "your") and Cargologik, Inc., a Florida Corporation ("Provider," "we," or "us"). This Agreement governs your access to and use of the Cloud Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BOX AND THEN SIGN IN TO THE CARGOLOGIK APP OR CLOUD SERVICES, OR WHEN YOU OTHERWISE ACCESS OR USE THE CLOUD SERVICES (the "Effective Date"). BY ACCEPTING THESE TERMS, YOU (A) ACKNOWLEDGE THAT YOU HAVE HAD AMPLE OPPORTUNITY TO READ THIS AGREEMENT AND UNDERSTAND ITS TERMS; (B) UNDERSTAND AND AGREE THAT YOU ARE ENTERING INTO A BINDING LEGAL AGREEMENT; (C) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (D) ACCEPT THIS AGREEMENT AND AGREE THAT YOU (OR THE ORGANIZATION THAT YOU REPRESENT) ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT SIGN INTO, OR OTHERWISE USE THE CLOUD SERVICES OR THE ASSOCIATED APP.
THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY, WAIVERS OF WARRANTIES, AND OTHER TERMS THAT AFFECT YOUR RIGHTS. IT ALSO CONTAINS LIMITATIONS ON WHERE AND HOW YOU CAN BRING LEGAL ACTIONS RELATING TO THIS AGREEMENT. IT IS IMPORTANT THAT YOU UNDERSTAND SUCH LIMITATIONS AND WAIVERS BEFORE YOU AGREE.
This Agreement contains the following sections:
1. Definitions – Defines certain key terms that are used throughout the Agreement. Defined terms are capitalized when they are used.
2. Access and Use—Describes your ability to access the Cloud Services and related software, and certain limitations on that access and use, including our right to suspend your access in certain circumstances.
3. Customer Responsibilities—These are some of your responsibilities in connection with how you use the Cloud Services and related software.
4. Service and Support—This section describes the service levels that apply to the Cloud Services and what happens if those levels are not achieved.
5. Fees and Payment—Describes how we charge for the Cloud Services.
6. Confidential Information – This section addresses what we consider confidential and how it can be used.
8. Intellectual Property—Discusses what we consider to be our IP and how we may use any feedback you provide. Also provides us permission to use your trademarks to identify you as one of our users.
9. Limited Warranty and Warranty Disclaimer—This section addresses our warranties to you, and your warranties to us. It also contains limitations on those warranties.
10. Indemnification—Discusses how each party will indemnify the other in the event of third party claims.
11. Limitations of Liability—Limits our liability to you in the event of a problem with the services or software.
12. Term and Termination—This section discusses how this Agreement can be terminated and what happens upon termination.
13. Dispute Resolution, Arbitration, and Class Action Waiver—Sets forth the process we will use to address any disputes that arise in connection with this Agreement.
14. User Generated and Third Party Content—Discusses content and messages you and others may post using the Cloud Services, the rules for such postings, and the fact that we are not responsible for content or postings provided by others.
15. Miscellaneous—This section has a number of miscellaneous terms relating to this Agreement.
The foregoing table of contents is intended for convenience only. To the extent there is any conflict between the table of contents and the terms and conditions below, the terms and conditions below will govern and control.
Definitions. Capitalized terms not elsewhere defined in this Agreement, have the
- "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Cloud Services has been purchased hereunder.
- "Cloud Services" means the services provided by Provider under this Agreement that are detailed on Provider's website available at cargologik.com. For avoidance of doubt, Cloud Services includes the Cloud Services as they exist as of the Effective Date
- "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
- "Documentation" means Provider's manuals, help files and guides relating to the Cloud Services provided or made available by Provider to Customer either electronically or in hard copy form.
- “Mobile App” means the Cargologik mobile app, as available from the Apple iTunes store or the Google Play store.
- "Provider IP" means the Cloud Services, the Mobile App, the Documentation, and all intellectual property provided or made available to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Cloud Services, but does not include Customer Data.
- "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
Access and Use.
- Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.
- Mobile App(s). Use of the Cloud Services may require or include use of Provider’s Mobile Apps. Provider grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use the Mobile Apps solely for your internal business purposes in connection use of the Cloud Services.
- Use Restrictions. You shall not, and shall not permit any Authorized Users or other third party to, use the Cloud Services, Mobile Apps, or any software component of the Cloud Services or Mobile Apps, or Documentation for any purposes beyond the scope of the access granted in this Agreement. Without limiting the foregoing, you shall not at any time, directly or indirectly, and shall not permit any Authorized Users or other third party to: (i) copy, modify, or create derivative works of the Cloud Services, Mobile Apps, any software component of the Cloud Services or Mobile Apps, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services, Mobile Apps or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services or Mobile Apps, in whole or in part; (iv) remove any proprietary notices from the Cloud Services, Mobile Apps or Documentation; or (v) use the Cloud Services, Mobile Apps or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Cloud Services and Mobile Apps to monitor compliance with its terms and to collect and compile data and information related to Customer's use of the Cloud Services and Mobile Apps. Compiled data and information may be used by Provider only in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services and Mobile Apps and trends and costs in the shipping and transport industry ("Aggregated Statistics"). As between Provider and Customer, Aggregated Statistics are deemed and treated as Provider’s Confidential Information and all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law (either at no charge, or for a fee), and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Cloud Services and/or Mobile Apps if: (i) Provider reasonably determines that (A) there is a threat or attack of any kind on any of the Provider IP; (B) Customer's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for abusive, improper (in the sole discretion of Provider), fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Cloud Services, Mobile Apps or Documentation to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Cloud Services or Mobile Apps; or (iii) in accordance with Section 5 (any such suspension described in subclauses (i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. PROVIDER WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF OR PROFITS), OR ANY OTHER CONSEQUENCES THAT CUSTOMER OR ANY OTHER AUTHORIZED USER MAY INCUR AS A RESULT OF A SERVICE SUSPENSION.
Acceptable Use Policy. You will comply with all terms and conditions of this
Agreement, all applicable laws, rules, and regulations, and all
guidelines, standards, and requirements that may be posted on the
website available at cargologik.com from time to time, including,
without limitation, the following acceptable use
- The Cloud Services may not be used for unlawful, fraudulent, abusive, offensive, or obscene activity.
- All communications using the Cloud Services must be respectful, professional, and non-discriminatory. Hate speech and abusive material is strictly forbidden.
- Communications using the Cloud Services are restricted to communications relating to transactions in connection with which the Cloud Services are being used. Communications for other purposes are forbidden.
- Under no circumstances may any person use the Cloud Services or Mobile Apps in any manner that is calculated or likely to interfere with the operation of the Cloud Services or any other person’s ability to access or use the Cloud Services.
- Under no circumstances may any person use the Mobile Apps or Cloud Services to obtain, or seek to obtain, any access credentials, data or information that person does not have express permission to obtain.
- Under no circumstances may any person use the Mobile Apps or Cloud Services to access, or seek to access, any source code or other confidential information of Provider.
- Account Use and Passwords. It is important that you keep all credentials for accessing the Cloud Services secure at all times, and that you ensure that all Authorized Users are aware of, and comply with, the terms of this Agreement. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is authorized by you, or permitted by, or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of persons, artificial intelligences, bots and entities who obtain access to the Cloud Services using access credentials created by, or given to you (including Authorized Users), and any act or omission by such actors that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
- Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to host, reproduce, distribute, analyze, aggregate and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Cloud Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
- Third-Party Products. The Cloud Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance either within the Cloud Services by website link or via a method provided by the provider of the Third-Party Products. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products. We have no control over, and are not responsible or liable for, the acts or omissions of any providers or uses of Third-Party Products, and we expressly disclaim any and all liability for the performance, availability, security, usability, or operation of such Third-Party Products. You use Third-Party Products entirely at your own risk.
- Acceptable Use Policy. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on the website available at cargologik.com from time to time, including, without limitation, the following acceptable use requirements:
Service Levels and Support.
- Scheduled Downtime. We may schedule a reasonable amount of downtime for routine maintenance, back-ups, and related activities (“Scheduled Downtime”). Except in the case of an emergency, we will give you reasonable advance notice of any Scheduled Downtime. Except in the case of an emergency, all Scheduled Downtime will occur on weekends, after 6:00 PM and before 12:00 AM, Eastern Time.
- Availability. The Cloud Services shall be deemed “Available” unless Customer is unable for practical business purposes to use the Cloud Services in accordance with this Agreement with no work around provided by us. For avoidance of doubt, Scheduled Downtime shall not be considered as time when the Cloud Services are not Available.
- Exclusive Remedy for Lack of Availability. During the subscription term, we will use commercially reasonable efforts to ensure the Cloud Services are Available 98% of the time. In the event the Cloud Services are not Available for any reason, your sole and exclusive remedy will be to terminate this Agreement. Under no circumstances will Provider or its service providers be liable to you or any Authorized User or customer of yours due to a lack of Availability of the Cloud Services.
- Support. The access rights granted hereunder entitle Customer to standard support services. Standard support services means that, if you identify an error or bug in the operation of the Cloud Services, and we can reproduce that error or bug, we will then use commercially reasonable efforts to correct the error or bug, or provide a workaround, within a reasonable period of time. In addition, if you contact us with questions about how to use the Cloud Services, we will use commercially reasonable efforts to answer those questions in a timely manner. Support may be obtained by emailing email@example.com. Provider also reserves the right, but is not obligated, to offer enhanced support services for a fee. Regardless of whether you have standard or enhanced support, in the event of a defect, bug, or error in the Cloud Services, Mobile Apps, or Documentation, Provider’s sole liability, and your sole remedy, is that Provider will use commercially reasonable efforts to reproduce and correct the defect, bug or error in a timely manner, or provide a work-around for it. Under no circumstances, however, will Provider be responsible for issues that are not caused by the Cloud Services or Mobile Apps themselves including, without limitation, internal network or connectivity issues.
- Fees and Payment. The Cloud Services are offered on a month-to-month subscription basis, paid for in advance. Fees shall be based on the level of services purchased, and the number of Authorized Users. Upon signup, Customer shall provide a credit card. Provider will cause its merchant bank provider to charge that credit card (i) on the date of signup, pro-rata for the time period beginning on the date of signup and ending the last day of that month, and (ii) thereafter on the first of each month for all fees due. Fees will include monthly subscription charges for the upcoming month, plus any additional fees based on volume of use or additional purchases. All charges are final and not refundable. In the event Provider or Provider’s merchant bank provider cannot charge Customer’s credit card for any reason, Provider may suspend access to the Cloud Services and/or Mobile Apps and/or Documentation, without liability, until such time as an alternate payment method is provided, and may cancel Customer’s account and terminate this Agreement with no further liability to Customer in the event payment is not made within two (2) days after notice has been given to Customer. 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. Provider reserves the right to adjust its fees at any time, provided that Provider shall give at least one month’s prior notice to Customer prior to increasing any subscription or volume-based fees. To the extent Customer does not agree with any fee increase, Customer’s sole remedy is to terminate this Agreement prior to the next renewal date.
- Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of, or reference to, the disclosing Party’s Confidential Information or intellectual property. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Neither party shall use the other’s Confidential Information for any purpose other than providing and receiving the Cloud Services as permitted under this Agreement. Each party's obligations of non-disclosure and non-use with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services, Documentation, Mobile Apps and Aggregated Data, and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, Mobile Apps or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
- Trademark Use. Provider may, from time-to-time, include the names and logos of its customers in its advertising, marketing, and promotional material. You hereby grant Provider a non-exclusive, perpetual, paid-up, royalty-free, worldwide right and license to use your company name and logo in Provider’s press releases, publicity matters, and promotional materials solely to identify your company as a customer of Provider, including, without limitation, by including your company name and/or logo in customer lists shown in Provider’s publicly available or sales and marketing materials.
Limited Warranty and Warranty Disclaimer.
- Provider Warranty. Provider warrants that it provides Cloud Services, Mobile Apps and Documentation using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD PARTY PRODUCTS.
- Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Customer Data, Cloud Services and Mobile Apps are, and will be, in compliance with the AUP.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE CLOUD SERVICES, MOBILE APPS AND DOCUMENTATION ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF ARE SECURE OR WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Provider shall indemnify, defend, and hold Customer harmless from and against 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 (collectively "Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, Mobile Apps or Documentation, or any use of the Cloud Services, Mobile Apps or Documentation in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
- If such a Third-Party Claim is made or Provider anticipates such a Third-Party Claim will be made, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Cloud Services, Mobile Apps, Documentation or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative acceptable to Provider, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services, Mobile Apps or Documentation infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
- This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, violates, infringes or misappropriates such third party's intellectual property, privacy or other rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Cloud Services, Mobile Apps, or Documentation in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Provider Indemnification.
- Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100.00, WHICHEVER IS GREATER. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL NOT APPLY TO HARM THAT IS INFLICTED WILLFULLY OR CAUSED BY GROSS OR WANTON NEGLIGENCE OR CLAIMS FOR BODILY HARM OR WRONGFUL DEATH. The exclusions and limitations in this Section 11 do not apply to the parties' indemnification obligations under Section 10. To the extent that any limitation, disclaimer or waiver in this Section 11 is determined to be unenforceable under applicable law, the parties agree that it shall be construed and deemed to provide the maximum possible limitation, disclaimer or waiver that is permitted under law.
Term and Termination.
- Term. The term of this Agreement begins on the Effective Date and continues until terminated.
Termination. In addition to any other express termination right set forth in
- Either party may terminate this Agreement for any reason by providing at least seven (7) days’ notice prior to the end of the then-current subscription term.
- 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: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
- To the maximum extent permitted under applicable law, either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
- Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
- Survival. This Section 12(d), Sections 1, 2(d), 2(e), 3(d), 4(d), 6, 8, 9(c), 10(b), 11, 12(c), 13, 14, 15 and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination [or expiration] of this Agreement, will survive any such termination or expiration.
- Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida, United States of America, 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 Florida.
- Informal Resolution. If any dispute, controversy, or claim (“Dispute”) arises out of, under, or in connection with this Agreement, any party may give notice of the Dispute to the other party in writing (“Dispute Notice”). After the Dispute Notice has been received by the other party, authorized representatives of both parties shall then negotiate in good faith to resolve such Dispute for no less than thirty (30) days before instituting formal legal action.
- Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach thereof which has not been resolved by the parties within the applicable notice or through informal negotiation will be finally resolved by arbitration exclusively (i) administered by the International Center for Dispute Resolution (the “ICDR”) and (ii) under the Commercial Arbitration Rules of the ICDR, (the “ICDR Rules”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. A sole arbitrator shall be appointed to resolve such particular dispute, appointed exclusively in accordance with the ICDR Rules and this Agreement. The third arbitrator shall be appointed by the ICDR. The place of arbitration shall be Tampa, Florida USA. The arbitration proceedings shall be conducted in English. Any award of the arbitral tribunal shall be final and binding on the parties to the arbitration and judgment thereon may be entered in any court of competent jurisdiction, and application may be made to any court of competent jurisdiction for injunctive or other relief in aid of such arbitration and for judicial recognition of the award and an order of enforcement. The parties hereby waive any right to appeal from any award to the extent allowed by applicable law and agree that UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) is applicable to the enforcement of any award. The Parties further waive, to the extent permitted under applicable law, any right that they may have under any law applicable to this Agreement or any Party hereto to object to arbitration hereunder on the basis that such an agreement was not entered into after a dispute had arisen. The Parties further agree that arbitration under this section shall be the exclusive method for resolving the disputes covered hereby, and no party to this Agreement shall commence any action or proceeding in any court with respect to any such dispute except (i) to enforce this Section; (ii) to obtain provisional judicial assistance in aid of arbitration under this Section; (iii) to obtain injunctive relief (either permanent or temporary) in aid of any of the provisions of this Agreement; or (iv) to enforce an arbitral award made in accordance with this Section. Except as may be required by law, neither a party nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Class Action Waiver. Customer and Provider expressly intend and agree that[to
the fullest extent allowable and enforceable under applicable
- class action and collective action procedures shall not be asserted, and will not apply, in any arbitration under this Agreement;
- each will not assert class or collective action claims against the other in arbitration, court, or any other forum;
- each shall only submit their own individual claims in arbitration and shall not bring claims against the other in any representative capacity on behalf of any other individual; and
- any claims by Customer will not be joined, consolidated, or heard together with claims of any other party.
Notwithstanding anything to the contrary in the ICDR Rules, and the general grant of authority to the arbitrator in this Section of the power to determine issues of arbitrability, the arbitrator shall have no jurisdiction or authority to compel any class or collective claim, to consolidate different arbitration proceedings, or to join any other party to an arbitration between Provider and Customer.
- Equitable Relief. Customer acknowledges that a breach by Customer of this Agreement may cause Provider irreparable harm, for which an award of damages would not be adequate compensation and agrees that, in the event of such a breach or threatened breach, Provider will be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any arbitrator or court, and Customer hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief.
- For avoidance of doubt, nothing in this Agreement (including without limitation any term or provision of this Section 13 (Dispute Resolution)) shall preclude Provider from seeking immediate injunctive or other equitable relief in any court or tribunal of competent authority to protect its intellectual property, confidential information, trade secrets, or reputation.
User Generated and Third Party Content.
- The Cloud Services and Mobile Apps may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Cloud Services or Mobile Apps.
- All User Contributions must be respectful, professional, and may, in no event, include any pornographic, obscene, abusive or inappropriate material or be used for any illegal, harassing, or improper purpose.
- Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
- You represent and warrant that: (i) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and (ii) all of your User Contributions do and will comply with this Agreement. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Provider, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
- We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Cloud Services.
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Disclose your identity or other information about you to law enforcement or any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Cloud Services.
- Terminate or suspend your access to all or part of the Cloud Services for any or no reason, including without limitation, any violation of this Section 14.
- We do not undertake to review material before it is posted and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section 14.
Content Standards. These content standards apply to any and all User
Contributions and use of Cloud Services. User Contributions must
in their entirety comply with all applicable federal, state,
local, and international laws and regulations. Without limiting
the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- Reliance on Information Posted. We do not warrant the accuracy, completeness, or usefulness of any User Contributions. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you, or by anyone who may be informed of any of its contents.
- Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time-to-time, and that modified terms become effective on the next subscription renewal date after such modified terms are posted. You will be notified of modifications through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least thirty (30) days' advance notice of changes to this Agreement.
- US Government Rights. Each of the software components that constitute the Cloud Services, Mobile Apps and the Documentation is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
- Additional Terms. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at www.cargologik.com, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.