BEFORE YOU ACCEPT THESE TERMS OF SERVICE, WHICH WILL ENABLE YOU TO ACCESS AND USE THE SERVICES WHICH YOU HAVE SELECTED FOR YOUR PURPOSES, PLEASE READ CAREFULLY THE FULL TERMS AND CONDITIONS OF THIS AGREEMENT TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
| INTRODUCTION |
| Agreement |
| These Terms of Service constitute a legally binding agreement (the “Agreement” or “Terms”) by and between CXCX Technology LLC a WY company, with its principal place of business at 34 N Franklin Ave, Pinedale, WY 82941 Ste 687 (the “Provider”, “We”, “Us”, “Our”), and you, whether personally or on behalf of a company or other legal entity, executing this Agreement (the “Subscriber” or “You”). |
| This Agreement is a service contract and governs the access, and use of the Services described below, by the Subscriber and its User(s), whether the Services are free or payable. |
| Effective Date |
| This Agreement is effective as of the date of the Subscriber’s acceptance of the terms, as described below (the “Effective Date”). |
| ACCEPTANCE OF AGREEMENT |
| Subscriber Type |
| SERVICES ARE INTENDED FOR USE BY COMPANIES OR OTHER LEGAL ENTITIES, OR INDIVIDUALS IN THEIR COMMERCIAL, BUSINESS, CRAFT, OR PROFESSIONAL ACTIVITIES, PURSUANT TO THE TERMS OF THIS AGREEMENT. |
| YOU MUST BE AT LEAST 16 YEARS OLD OR AN EMANCIPATED PERSON, AND IF YOU ARE ACTING ON BEHALF OF THE COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF SUCH AN ENTITY. |
| Acceptance and Effects |
| BY (I) SIGNING UP FOR AN ACCOUNT, INCLUDING CLICKING ANY BUTTON OR CHECKING THE BOX MARKED “ACCEPT” (OR A SIMILAR TERM) OR OTHERWISE ASSENTING TO THESE TERMS, OR (II) BY EXECUTING AN ORDER OR ANY DOCUMENT REFERRING TO THESE TERMS, OR (III) BY OTHERWISE ACCESSING AND/OR USING THE SERVICES REGARDLESS OF WHETHER THEY ARE FREE OR PAYABLE, YOU SIGNIFY THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN OUR PRIVACY POLICY. |
| IF YOU DON’T AGREE TO THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME AS PROVIDED HEREIN, OR DON’T HAVE THE AUTHORITY TO BIND THE ENTITY OR ARE OTHERWISE BARRED FROM ENTERING INTO A BINDING AGREEMENT, OR OTHERWISE THERE ARE SITUATIONS THAT PREVENT OR PROHIBIT YOUR ACCESS AND USE OF THE SERVICES, DON’T ACCEPT THESE TERMS AND DO NOT ATTEMPT TO ACCESS OR USE THE SERVICES. |
| DEFINITIONS | |
| The following capitalized terms will have the following meanings whenever used in this Agreement: | |
| AUP | means Provider’s acceptable use policy posted on the website. |
| Account | means an account set up by, or on behalf of, Subscriber on the website that gives access to the Services, subject to the terms set out herein. |
| Order | means the Provider-approved ordering document or online order or subscription process created in the Service interface executed, completed, or approved by the Subscriber for access to the Services, which details the Services to be provided (e.g., product, functionality, features, etc.), the number of Users, the Subscription Term and Fee, and other applicable terms and conditions (if any). |
| Services | means the Provider’s cloud-based application, including software, database, system, website, content, services, and any updates, which are made available to Subscriber via the website, to access a fleet management platform tailored to both carriers and shippers as further detailed in the Service Documentation. |
| Subscription Services | means Services that Subscriber has subscribed to or purchased under an Order. |
| Subscription Term | means the period of time during which the Subscriber may access the Subscription Services, as set forth in an Order and each further renewal (if any). |
| Subscription Fees | means the fees payable by the Subscriber to the Provider for the Subscription Services. |
| Services Documentation | means any electronic information, images, videos, text, or other such information relating to but not limited to the functionality, features, use, term, and fees of the Services or the Subscription Services made available to the Subscriber via the website or the Services or other related means. |
| Subscriber Data | means all information submitted, created, stored, or processed through the Services by Subscriber or on Subscriber’s behalf. Subscriber data does not include payment records, credit cards, or other information Subscriber uses to pay Provider, or other information and records related to Subscriber’s account, including without limitation identifying information related to Subscriber staff involved in the payment or other management of such account, or Provider’s templates, designs, format, website, website content, service documentation, and usage data. |
| System | means the computer system(s), servers (physical or virtual), software, and network that the Provider uses to store, host, and provide access to the Services. |
| Software | means the software provided by the Provider (including third-party software) that is required by the Subscriber to access, use, and/or receive support for the Services. |
| Third-Party Provider | means such third-party proprietor who has authorized the Provider to use and/or incorporate its own systems, software, material, products, services, and/or other information in or for the provision of the Services as such party may or may not be separately identified in/on any part of the Services or System. |
| Trial Services | means any product, service, or functionality in connection with the Services that may be made available by the Provider to the Subscriber free of charge and for a short test period, as further detailed in the Service Documentation. |
| User | means the Subscriber or the individuals (e.g., employees, agents, contractors, advisers) authorized by Subscriber to use the Subscription Services on its behalf. |
| Usage Data | means diagnostic and usage-related content from the operation of the Services and may include, but is not limited to, the type of browser and systems that are used and/or accessed, system, and service performance data. |
| Website | means https://truckingcontrol.com/and its subdomains operated by the Provider. |
| SERVICES |
| Access |
| Provider shall make access to the Subscription Services available to the Subscriber pursuant to the terms of this Agreement and any applicable Order Form(s), during the Subscription Term. |
| Provider will host the Subscription Services and provide software as a service. |
| Services Provision |
| Provider will provide the Subscription Services as they exist and are updated and modified during the Subscription Term. |
| Provider may provide the Subscriber with other materials from time to time necessary for the use and/or support of the Subscription Services, including, instruction guides, training, support procedures, documentation, information updates, and other material. The Subscriber will implement/comply with the Provider’s directions for the use and implementation of the same. |
| Subscription Services in certain portions may be provided by third-party providers (if any), and the Provider’s ability to provide the Subscription Services may be subject to the availability of such third-party providers. |
| Revision |
| Provider may, in its sole discretion at any time and with or without notice, make any changes, updates, and revisions to Subscription Services it deems necessary or useful to (a) maintain the quality, delivery, efficiency, performance, and competitive strength of the Services, (ii) comply with applicable law, and (iii) other reasons. |
| TRIAL SERVICES |
| Access to Trial Services |
| If the Subscriber registers for Trial Services on the Website or executes an Order for the same, Provider will make such Trial Services available on a trial basis free of charge until the earlier of (i) the end of the trial period for which the Subscriber register to use the applicable Trial Services or (ii) the end date specified in the Order or (iii) termination by the Provider in its sole discretion. |
| Trial Services are provided for evaluation purposes only, and not for production use; in this connection, the Subscriber shall have sole and full responsibility, and the Provider assumes no liability for any Subscriber Data used by the Subscriber in connection with Trial Services. |
| Additional terms and conditions may apply to access and use the Trial Services; any such terms are legally binding and are incorporated by reference into this Agreement. |
| Any Subscriber Data entered by the Subscriber in connection with accessing and using upon terms of the Trial Services will be permanently lost unless the Subscriber purchases a subscription to the same services as covered by Trial Services or purchase the other Subscription Services subject that such Services is not a downgrade in comparison with Trial Services, or export such Subscriber Data, before the end of the Trial Services. |
| USE OF THE SERVICES AND RESPONSIBILITIES |
| Access Rights |
| Subject to the terms and conditions of this Agreement, during the Subscription Term, the Subscriber has a non-exclusive, non-transferable subscription right to access and use the Subscription Services solely for the Subscriber’s own internal business purposes. |
| Account and Access Data |
| Subscriber shall create an account and be logged in when using the Subscription Services. Provider reserves the right to refuse registration of or cancel usernames. |
| Subscriber is (i) solely responsible for ensuring that all registration and contact details supplied to the Provider are true and accurate at all times and are kept updated by the Subscriber and (ii) solely responsible for all use of Subscription Services under its account; furthermore, Subscriber acknowledges that it retains administrative control over to whom it grants access to Subscription Services including Subscriber Data. |
| Notwithstanding the foregoing, the Subscriber hereby grants the Provider permission to obtain and use Subscriber information that it deems necessary for the proper performance of its Services, including but not limited to the Subscriber IP address(es), company name, user numbers license number(s), etc., to enable it to provide the Subscription Services efficiently and to monitor the use of the same for security and compliance with this Agreement. Furthermore, upon each request of the Provider, Subscriber shall provide the Provider with any reasonable information or assistance in order to provide the Subscription Services or to resolve any issue arising in connection with the agreement. |
| User |
| Subscriber may use the Subscription Services through the User(s) provided that the maximum number of Users does not exceed the number specified in the Order. Unless otherwise specified on the Order, access and use of the Subscription Services are limited to one (1) User. |
| If the number of User(s) is exceeded or is required by the Subscriber to be increased at any time, then it must notify the Provider and pay the additional charges relating to the same from the date of first exceeded use. For the avoidance of doubt and without limiting any other remedies of the Provider, the Subscriber shall pay under the terms of this Agreement any invoice issued by the Provider for the excess of the maximum number of Users. |
| Subscriber is responsible and liable for (i) Users’ use of the Subscription Services, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Subscriber; and (ii) any use of the Subscription Services through Subscriber’s account, whether authorized or unauthorized. |
| Acceptable Use Policy |
| All use of the Subscription Services shall be subject to Subscriber’s AUP, which the Subscriber generally applies to the Subscriber and User(s). |
| Provider may update the AUP from time to time in a reasonable manner to prevent the use of the Subscription Services that Provider reasonably determines may be harmful to other Subscriber or User(s) or may cause substantial liability to Provider. |
| Provider, at its sole discretion, without advance notice, may terminate or suspend immediately the access to the Subscription Services, for any Subscriber or User violating the AUP, and Provider and Subscriber shall cooperate to resolve any violation. |
| Subscription Services may be subject to usage limits specified in Service Documentation, applicable Order, and AUP, or to a fair usage where specific usage limits of the Service are not set, or an AUP is not published on the website. |
| If the Subscriber exceeds a usage limit of the Subscription Services, the Subscriber shall pay the additional charges relating to the same from the date of first exceeded use. For the avoidance of doubt and without limiting any other remedies of the Provider, the Subscriber shall pay, in accordance with the terms of this Agreement, any invoice issued by the Provider for excess use of the Subscription Services. |
| Compliance |
| Subscriber will be solely responsible for determining the suitability of the Subscription Services for the Subscriber’s business and complying with the terms of this Agreement, AUP, and any laws, rules, and regulations, (including, without limitation, export, data protection, and privacy laws) applicable to Subscriber Data and Subscriber’s use of the Services. |
| Subscriber agrees to indemnify the Provider in the event Provider suffers loss or damage of any kind as a result of the Subscriber’s use of the Services and Subscriber Data in accordance with the section “Indemnification”. |
| Unauthorized Access |
| Subscriber shall take reasonable steps to prevent unauthorized access to the Subscription Services, including without limitation by protecting its passwords and other log-in information. The Subscriber will be solely liable to the Provider for any breach of this provision and undertakes to indemnify the Provider for all and any loss which Provider may suffer as a result of such breach in accordance with the ” Indemnity” section. |
| Usage Restrictions |
| Subscriber, including its User(s), shall not: (i) use the Services, including Subscription Services, for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Subscription Services; (ii) provide Services, including Subscription Services, passwords, or other log-in information to any third party; (iii) share non-public Services, including Subscription Services, features, or content, with any third party; (iv) access the Services, including Subscription Services, in order to build a competitive product or service, to build a product using similar ideas, features, functions, or graphics of the Services, or to copy any ideas, features, functions, or graphics of the Services; (v) engage in web scraping or data scraping on or related to the Services, including without limitation the collection of information through any software that simulates human activity or any bot or web crawler; (vi) input, access, store, transmit or distribute any viruses, Trojan horses, worms, time bombs, cancelbots, malware, spyware, or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting, or otherwise impairing the functionality, operation or integrity of the Services; (vii) disable, tamper, hack, copy, duplicate, disassemble, decompile, reverse engineer, extract, download, distribute, or re-publish any part or whole of the Services, website content, documentation, guides, or other proprietary information or any database or information that may be available by access to/extraction through the use of the Services; (viii) adapt, vary, modify, or work around any technical limitations, rights management, or monitoring in the Services; (xix) infringe the Provider’s intellectual property rights in and to the Services, website, or any material which the Provider has made available to the subscriber or any User or which you have otherwise gained from the Services. |
| In the event that it suspects any breach of the requirements of this Section “Usage Restriction”, including without limitation by Users, Provider may terminate or suspend immediately Subscriber’s access to the Subscription Services without advance notice, in addition to such other remedies as Provider may have. |
| Neither this Agreement nor the AUP require that Provider take any action against Subscriber or any User or other third party for violating the AUP, this Section “Usage Restriction” or this Agreement, but Provider is free to take any such action it sees fit. |
| SUBSCRIBER DATA, USAGE DATA, AND PRIVACY |
| Data Ownership |
| Subscriber retains all ownership of and intellectual property rights in its Subscriber Data to the extent that it owns the same. |
| Usage Data |
| In the course of providing the Subscriber with the Subscription Services, Provider may also collect, use, process, and store Usage Data in order to create and compile anonymized and aggregated statistics about the Subscription Services. Provider will have the right to use such data in any manner. |
| Processing of Subscriber Data |
| Provider will have the right to use the Subscriber Data for the sole purpose of providing the Subscription Services to the Subscriber and to perform its obligations under this Agreement, including to prevent or address support, service, or technical problems. |
| Provider shall not: (i) access, process, or otherwise use Subscriber Data other than as necessary to facilitate the provision of the Subscription Services; or (i) give Subscription Data access to any third party, except Provider’s subcontractors, employees, affiliates, consultants that have a need for such access to facilitate the provision of the Subscription Services. |
| Provider shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Subscriber Data. |
| Risk of Exposure |
| Subscriber recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Subscription Services, the Subscriber assumes such risks. |
| Provider offers no representation, warranty, or guarantee that Subscriber Data will not be exposed or disclosed through errors or the actions of third parties. |
| Required Disclosure |
| Notwithstanding the provisions above of this Section “Subscriber Data”, the Provider may disclose Subscriber Data as required by applicable law or by proper legal or governmental authority. |
| Provider shall give the Subscriber prompt notice of any such legal or governmental demand and reasonably cooperate with the Subscriber in any effort to seek a protective order or otherwise contest such required disclosure, at the Subscriber’s expense |
| Additional Fee |
| Subscriber acknowledges and agrees that Provider may charge additional fees (without limitation) (i) for activities (if any) required by applicable Privacy and Security Laws and (b) for activities Subscriber requests to help it comply with applicable Privacy and Security Laws. |
| Erasure of Subscriber Data |
| Provider may permanently erase the Subscriber Data if the Subscriber’s account is delinquent, suspended, or Inactive for 30 days or more without limiting Provider’s other rights or remedies. |
| Subscriber will be responsible for preventing deletion and permanent loss of subscriber data (e.g., will make a daily backup of its data). |
| Data Responsibilities |
| Subscriber is solely responsible for the legality, accuracy, quality, completeness, and use of Subscriber Data. Subscriber shall not use or upload any Subscriber Data into the Subscription Service without sufficient rights to do so. |
| Provider shall have no responsibility or liability for the accuracy, legality, or completeness of data used or uploaded to the Services, by Subscriber, including without limitation Subscriber Data and any other data uploaded or used by Users. |
| Privacy |
| Subscriber acknowledges Provider’s Privacy Policy at the website, and Customer recognizes and agrees that nothing in this Agreement restricts Provider’s right to alter such Privacy Policy. |
| SUBSCRIPTION TERM |
| Subscription Term |
| The Subscription Term shall be as specified in the applicable accepted Order by the Provider (the “Initial Term”). |
| The Subscription Term commences from the date of payment of the Subscription Fee and other charges (if any) regulated in such an Order. |
| If no Subscription Term is specifically identified in an order, the subscription term is one (1) month. |
| Subscription Renewal |
| Unless otherwise provided in an Order, any subscription for accessing Subscription Services is on an automatically renewing subscription basis, unless either party gives to the other a written notice at least 14 days before the end of the “Initial Term” or any extended term (“Renewal Term”) |
| The Subscription Term shall be automatically extended for the same terms and conditions (e.g., period and fees) set out in the previous Order except as otherwise provided in the applicable Order or set out herein, in particular, the section below “Renewal Fee Amendments”. |
| Cancelation |
| Subscriber may cancel its subscription at any time via its account. |
| Cancellation will take effect at the end of the current Subscription Period. |
| FEES AND PAYMENT |
| Subscription Fees |
| Subscriber shall pay timely all fees specified in each relevant Order for each Subscription Term. |
| Subscription Fees constitute the consideration of the Subscriber for access to Subscription Services. |
| Subscription Fees selected by Subscriber are specified in Service Documentation and are based on the Subscription Services purchased (e.g., functions, features, number of User(s), usage limits, Subscription Term, etc.), as specified in the applicable Order and not on actual usage thereof. |
| Subscription Fees are payable in United States dollars (unless expressly agreed otherwise in the applicable Order) and are non-refundable. Notwithstanding the foregoing, in any event of “Termination for Cause” due to a material breach by Provider shall not apply to amounts paid for the Subscription Services in advance, but which are unused Services at the date of termination, which may be refundable on a pro-rata basis. |
| Subscription Services and their corresponding payment obligations, ordered under an applicable Order, shall be deemed non-cancelable unless expressly agreed otherwise in such Order. |
| Payment Terms |
| Subscriber will provide Provider with a valid Order as set out herein and will be responsible for providing complete and accurate billing and contact information to Provider and updating Provider of any such changes. |
| Subscription Fees, regardless of the selected Subscription Services, are billed in advance based on the billing frequency stated in the applicable Order. |
| If no billing information is specifically identified in an applicable Order, the Subscription Services are billed in advance on a monthly basis. |
| All invoices issued by the Provider under this Agreement are due and payable according to payment terms in the Order or within 1 days of invoice send date if not specified therein. If the Subscriber is paying by credit card or other electronic means, all fees are due and payable immediately unless otherwise specified in the applicable Order. |
| If the Subscriber is paying by credit card or other electronic means, Subscriber authorizes the Provider to charge all such fees due during the Subscription Term and each renewal term using Subscriber’s selected payment method. |
| Renewal Fee Amendments |
| Upon Renewal Term, the Provider may increase Subscription Fees to the then-current Provider list price in effect at the time of the applicable renewal. |
| If the increase in the Subscription Fee applies to Subscriber, Provider will take reasonable steps to inform the Subscriber of this increase in fees with as much advance warning as possible, and the increased fees will apply at the start of the next Renewal Term. |
| Provider may apply to the Services some promotional fees or one-time-priced subscription as detailed in Service Documentation (the “Special Products”). |
| Except as expressly provided in the applicable Order Form, renewal of Special Products will be at the Provider’s appropriate list price in effect at the time of the applicable renewal. |
| Overdue Charges |
| For late payment of any fees under this Agreement, without limiting Provider’s right and remedies, Subscriber shall pay interest charges from the time the payment was due at the rate that is the lower of 0 % per month or the highest rate permissible under applicable law. |
| Suspension Services |
| If any undisputed charge hereunder remains unpaid 30 days after its due date, Provider may, without limiting its rights and remedies, accelerate any unpaid fee obligations of the Subscriber under this Agreement so that all such obligations become immediately due and payable, and suspend the Subscriber’s use of the Subscription Services until such amounts are paid in full. |
| Taxes |
| Amounts due under this Agreement are payable to Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (the “Sales Tax”). |
| Except as forbidden by applicable law, Provider may require that Subscriber submit applicable Sales Taxes to Provider, except that Subscriber is tax-exempt, provided it gives the Provider a valid tax exemption certificate within 30 days of the Effective Date. |
| Provider’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section “Taxes”. |
| If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section, “Taxes” does not govern taxes based on Provider’s net income. |
| INTELLECTUAL PROPERTY |
| IP Ownership |
| Provider retains all rights, title, and interest in and to the Services, including without limitation, and any updates to the Services, software (source code, object code), database, workflow processes, format, directories, queries, structure, organization, algorithm, and all graphics, user interfaces, logos, and trademarks reproduced through the Services. |
| This Agreement does not grant Subscriber any intellectual property license or rights in or to the Services, including Subscription Services or any of its components, except to the limited extent that such rights are necessary for Subscriber’s use of the Services, including Subscription Services as specifically authorized by this Agreement. |
| Subscriber recognizes that the Services, including Subscription Services and its components, are protected by copyright and other laws. |
| Feedback and Publicity |
| Feedback refers to any suggestion, enhancement, feature request, or idea for improving or otherwise modifying any of the Provider’s Services or products (the “Feedback”). |
| Feedback will be given by the Subscriber voluntarily. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Subscriber. Feedback will not be considered Subscriber’s trade secret or confidential information. |
| Subscriber grant Provider the right to use and add its name, trade name, and company logo to Provider list and website or other Service Documentation until Subscriber revokes this right upon written notice to Provider. |
| CONFIDENTIALITY |
| Scope |
| This Section “Confidentiality” does not apply to Subscriber Data; for the avoidance of doubt, the terms related to the use, confidentiality, and security of Subscriber Data are regulated in the Section “Subscriber Data, Usage Data, and Privacy.” |
| Confidential Information |
| “Confidential Information” means any non–public information and items that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) during the term of this Agreement (i) that is identified at the time of disclosure as “Confidential”; (ii) the Services including its content, elements, technology, etc. and the terms of this Agreement and all applicable Order(s); and (iii) any other nonpublic, sensitive information should be reasonably understood a trade secret or otherwise confidential given the nature of the information and the circumstances of disclosure. |
| Notwithstanding the preceding, Confidential Information does include information or item that: receiving party’s use of information: (i) is in Receiving party’s possession at the time of disclosure; (ii) is independently developed by Receiving party without the use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by Disclosing Party. |
| Confidentiality and Non – Disclosure |
| As between the parties, each party retains all ownership rights in and to its Confidential Information. |
| Receiving party shall not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement (the “Purpose”) and (i) shall not disclose Confidential Information to any employees, representatives, or contractors of Receiving Party unless such person needs access in order to facilitate the Purpose and who are bound by a written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party; and (ii) shall not disclose Confidential Information to any other third party without Disclosing Party’s prior written consent. |
| Without limiting the generality of the foregoing, Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care and shall promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to Receiving Party’s attention. |
| Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party shall give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Provider’s expense. |
| Ownership |
| This Agreement does not transfer ownership of Confidential Information or grant a license thereto. As between the parties, each party retains all ownership rights in and to its Confidential Information. |
| Injunction |
| Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section “Confidentiality”. |
| REPRESENTATIONS AND WARRANTIES |
| Provider Representations |
| Provider represents and warrants that: (i) it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Services set forth in this Agreement without the further consent of any third party, for the avoidance of any doubt this representation does not apply to the use of the Services in combination with third-party provider products or services (e.g., system, hardware, software, etc.); |
| For any breach of this representation and warranty, Subscriber’s exclusive remedies are those described in Section “Termination for cause”. |
| Subscriber Representations |
| Along with other representations and warranties of the Subscriber set forth in this Agreement, the Subscriber represents and warrants that (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself, and it has not provided any inaccurate information about itself to or through the Services; (iii) it acknowledges and understands that third-party providers are integrally or partially involved in the provision of the Services or support and as such, Provider does not warrant that the Subscriber’s access to the Services provided hereunder will be uninterrupted, error-free or completely secure. |
| Disclaimer of Warranties |
| EXCEPT FOR THE LIMITED WARRANTY AND REMEDY EXPRESSLY SET FORTH IN SECTION “PROVIDER REPRESENTATIONS” ABOVE, SUBSCRIBER ACCEPTS THE SERVICES “AS IS” AND “AS AVAILABLE”, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,: (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (ii) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (iii) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT SUBSCRIBER DATA WILL REMAIN PRIVATE OR SECURE. ACCESS AND USE OF THE SERVICES ARE SOLELY AT THE SUBSCRIBER’S OWN RISK. |
| INDEMNIFICATION |
| Third-Party Claims |
| Subscriber shall defend, indemnify and hold harmless Provider and its officers, directors, shareholders, parents, subsidiaries, employees, agents, successors, and assigns (the “Indemnified Party”) against any third-party claim, suit, or proceeding arising out or related to Subscriber’s alleged or actual use of, misuse of, or failure to use the Services (the “Indemnified Claim”), including without limitation (i) claims by User or by Subscriber’s customers; (ii) claims that Subscriber Data or use thereof in the Services infringes or violates any rights of a third party, including without limitation infringement or violation of copyright, trademark, trade secret or privacy or confidentiality right; (iii) claims that Customer’s or its Users’ use of the Platform or services in violation of this Agreement infringes the rights of such third party; (iv) claims related Data Incidents, including without limitation any unauthorized disclosure of, access, to, or use of Subscriber Data, or violation of privacy and security law via account; (v) CLAIMS ARISING OUT OF OR RELATED TO PROVIDER’S NEGLIGENCE. |
| Subscriber’s obligations set forth in this section, “Indemnification”, without limitation: (i) settlement at Subscriber’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Subscriber’ assumption of the defense (but not attorneys’ fees incurred thereafter). |
| Indemnification Procedures |
| The Provider shall: (i) promptly notify the Subscriber to provide such indemnification in writing of any such claim; (ii) give sole control of the defense and settlement of any such claim to the Subscriber (provided that Subscriber may not settle any claim in a manner that adversely affects Provider’s rights, imposes any obligation or liability on the Provider or admits liability or wrongdoing on the part of Provider, in each case, without Provider’s prior written consent); and (iii) provide all information and assistance reasonably requested by the Subscriber, at the Subscriber’s expense, in defending or settling such claim. The Provider may join in defense with counsel of its choice at the Provider’s own expense |
| Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by Subscriber. |
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| LIMITATION OF LIABILITY |
| Limitation of Indirect Damages |
| IN NO EVENT SHALL PROVIDER OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF, OR RELATED TO THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED DAMAGES RESULTING FROM LOST PROFITS, LOST REVENUES, LOSS DATA OR BUSINESS OPPORTUNITY, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, ANY DAMAGES CAUSED BY ABNORMAL OR IMPROPER USE OF THE SERVICE, OR OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE, OR THE RESULT OF USE THE SERVICES WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, OR REGARDLESS OF THE THEORY OF LIABILITY. |
| Limitation of Liability Amount |
| IN NO EVENT SHALL THE PROVIDER AND ITS AFFILIATES LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY SUBSCRIBER TO PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISION GIVING RISE TO THE LIABILITY. |
| TERM AND TERMINATION |
| Term |
| This Agreement commences on the Effective Date and continues through the Subscription Term until all Orders hereunder have expired or have been terminated pursuant to the terms provided herein. |
| Termination for Cause |
| Except as otherwise provided herein, either party may terminate this Agreement and any then-current Order prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for 30 days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. |
| Effects of Termination |
| Upon expiration or termination of this Agreement, (i) the rights granted under this Agreement and any then-current Orders will be immediately revoked, and Provider may immediately deactivate Provider’s account; (ii) the Subscriber and its Users shall cease all use of the Services; (iii) Subscriber shall immediately pay the Provider all outstanding and unpaid Subscription Fees; (iv) Provider will be entitled to permanently erase the Subscriber Data except as provided otherwise herein or an applicable Order. |
| Survival |
| The following provisions will survive termination or expiration of this Agreement: (i) any obligation of Subscriber to pay Subscription Fees or other charges incurred before termination; (ii) Articles and Sections 9 (Intellectual Property), 10 (Confidential Information), 11 (Representations and Warranties), 12 (Indemnification), 13 (Limitation of Liability), and 14 (General) and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose. |
| GENERAL |
| Choice of Law & Jurisdiction |
| This Agreement is governed by and will be construed in accordance with the laws of the State of WY and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. |
| Provider and Subscriber agree to submit to the personal and exclusive jurisdiction of the courts located in Pinedale, WY, and the parties’ consent to the personal jurisdiction of such court. This section, “Choice of Law & Jurisdiction,” governs all claims arising out of or related to this Agreement. |
| Subject to any applicable law to the contrary, Subscriber agrees that any cause of action arising out of or related to the use of the Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. |
| Assignment |
| Subscriber will not assign or otherwise transfer all or part of this Agreement, access to, and/or use of the Services without the prior written consent of Provider. |
| Relationship of the Parties |
| The Parties are independent contractors and shall represent themselves in all regards, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. |
| No Third-Party Beneficiaries |
| There are no third-party beneficiaries to this Agreement. A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement. |
| Force Majeure |
| Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, pandemic, Internet backbone outages, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s reasonable control, and denial of service attacks. |
| Severability |
| To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. |
| In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. |
| No Waiver |
| Subject to the terms of this agreement, neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. |
| Export Compliance |
| Subscriber shall not: (i) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (ii) export or re-export any Services, including software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Subscriber shall not permit any third party to access or use the Services in, or export such Service to, a country subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, or territory listed on any U.S. Government list of prohibited or restricted parties. |
| Construction |
| Titles and headings of Articles and sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. |
| Entire Agreement |
| This Agreement and any Orders, including the documents incorporated herein by reference, represent the entire Agreement of the parties concerning its subject matter and are intended to be the final expression of their Agreement and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. |
| Amendments |
| PROVIDER MAY MAKE CHANGES TO THIS AGREEMENT FROM TIME TO TIME BY POSTING AN AMENDED VERSION ON THE WEBSITE. IF SUCH CHANGES ARE CONSIDERED MATERIAL, THE PROVIDER WILL PROVIDE THE SUBSCRIBER WITH ADDITIONAL NOTICE, AND THE CHANGES WILL TAKE EFFECT ONE MONTH AFTER SUCH NOTICE HAS BEEN MADE UNLESS THE SUBSCRIBER FIRST GIVES THE PROVIDER WRITTEN NOTICE OF REJECTION OF THE AMENDMENT. IN THE EVENT OF SUCH REJECTION, THIS AGREEMENT WILL CONTINUE UNDER ITS ORIGINAL PROVISIONS, AND THE AMENDMENT WILL BECOME EFFECTIVE AT THE START OF THE SUBSCRIBER’S NEXT SUBSCRIPTION TERM FOLLOWING THE PROPOSED AMENDMENT DATE. UNLESS OTHERWISE NOTED HEREIN, THE AMENDED TERMS WILL BE EFFECTIVE IMMEDIATELY, AND THE CONTINUED USE OF THE SERVICES CONFIRMING THE SUBSCRIBER’S ACCEPTANCE OF THE CHANGES. IF THE SUBSCRIBER DOESN’T AGREE TO THE AMENDED TERMS, THE SUBSCRIBER MUST STOP USING THE SERVICES, IF APPLICABLE, CANCEL THE SUBSCRIPTION. |
| Notices |
| All notices provided by the Provider to Subscriber under this Agreement may be delivered in writing by email or postal mail associated with its account, postings within the website or through the Services, or other legally accepted means. It is Subscriber’s responsibility to keep the account information current to receive notifications. The Provider reserves the right to determine the form and means of providing notices to the Subscriber, and the Provider is not responsible for any automatic filtering Subscriber, or its network provider may apply to the e-mail notices. |
| Any formal notices to Provider under this Agreement shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial delivery courier service, or by certified or registered mail, return receipt requested, to: CXCX Technology LLC ATT: Legal Department Franklin Ave Pinedale, WY,82941,Ste 687 Copy to [email protected] |