Customer Agreements and User Terms for Products and Services. By signing a Service Agreement and/or Order Form you accept the terms and conditions described in the agreements below. If you have any questions please contact your account executive or success manager.
THIS END USER LICENSE AGREEMENT GOVERNS CUSTOMERS’ ACQUISITION AND USE OF SUPER DISPATCH SERVICES.
IMPORTANT: PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOU MUST ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY THE COMPANY AND WILL NOT BE PART OF THIS AGREEMENT.
The term “Application” shall refer to and consist of the following:
(i) the mobile software application accompanying this Agreement, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components;
(ii) the physical, electronic hardware device accompanying this Agreement, including, without limitation, any firmware code, software code, scripts, cables, interfaces, connected and related vehicles, documentation and other components;
(iii) any updates, modifications or enhancements to the items listed in subsection (i);
(iv) any specific website the Application directs you to via any browser located on a mobile device or any other computer device (“Mobile Device”);
(v) any add-ons and extensions to third-party websites; and
(vi) any website usage and dashboard software.
2.0 License Grant and Restrictions on Use.
2.1 License Grant. The Company grants You a revocable, nonexclusive, nontransferable, limited right to install and use the Application on a single Mobile Device owned and controlled by You, and to access and use the Application on such Mobile Device strictly in accordance with the terms and conditions of this Agreement, the Usage Rules and any service agreement associated with your Mobile Device (collectively “Related Agreements”).
2.2 Restrictions on Use. The Company or its licensors retain all ownership and intellectual property rights in the Application(s). You shall use the Application or Applications strictly in accordance with the terms of the Related Agreements and shall not: (a) copy, scrape, reproduce, republish, download (except as otherwise provided for herein), upload, post, display, transmit, distribute, or otherwise exploit all or any portion of the Application or any materials, or other content or information available on or through the Application in any way without our prior written permission; (b) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application(s); (c) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application(s); (d) violate any applicable laws, rules or regulations in connection with Your access or use of the Application(s); (e) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Company or its affiliates, partners, suppliers or the licensors of the Application(s); (f) allow use or permit of one Mobile account for multiple users; (g) use the Application(s) for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by the Company; or (h) use any proprietary information or interfaces of the Company or other intellectual property of the Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application(s); (i) make the Application(s) available in any manner to any third-party; (j) use the Application to provide third-party training; (k) create derivative works based on the Application(s); or (l) disclose results of any Application benchmark tests without the Company’s prior written consent.
2.3 Consent to Use Location-Based Services and Data. The Application(s) may contain or use location-based services. If You use or access such location-based services in connection with the Application, You hereby consent to the collection, transmission and use of Your location data by the Application or Applications.
2.4 Account Use. You are responsible for use of Your account(s) by You or individuals authorized by You or the Company acting on Your behalf. The Company may add, change, delete and modify account information, including payment information, according to Your instruction and/or according to individuals authorized by Your through by phone, email, and chat communication. In any event, You agree and accept that You are fully responsible for any account modifications and not the Company.
3.0 Intellectual Property Rights.
3.1 Rights to Application. You acknowledge and agree that the Application(s) and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of the Company. Furthermore, You acknowledge and agree that the source and object code of the Applications and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of the Company and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the Application or Applications by implication, estoppel or other legal theory, and all rights in and to the Application(s) not expressly granted in this Agreement are hereby reserved and retained by the Company.
3.2 Third-Party Software. The Application or Applications may utilize or include third-party software that is subject to open source and third-party license terms (“Third-Party Software”). You acknowledge and agree that Your right to use such Third-Party Software as part of the Application(s) is subject to and governed by the terms and conditions of the open source or third-party license applicable to such Third-Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third-party licenses, the terms of the open source or third-party licenses shall control with regard to Your use of the relevant Third-Party Software. In no event shall the Application(s) or components thereof be deemed to be “open source” or “publicly available” software.
3.3 Company’s Marks. You are not authorized to use the Company trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of the Company, which may be withheld for any or no reason.
3.4 Infringement Acknowledgement. You and the Company acknowledge and agree that, in the event of a third-party claim that the Application(s) or Your possession or use of the Application(s) infringes any third-party’s intellectual property rights, You (and not the Company) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You will, however, promptly notify the Company in writing of such a claim.
4.0 Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the Application or Applications, this Agreement or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
5.0 Use of Information.
5.1 Consent to Use Information. You hereby authorize and consent to the collection, storage and use, by the Company and its affiliates, partners and agents, of any information and data related to or derived from Your use of the Application(s), and any information or data that You provide to the Company and its affiliates, partners and licensors (“Information”). This information will be used by the Company to improve the Application(s) and the user experience for You. We will not share Your information with companies, or any other parties not affiliated with the Company.
6.0 Third-Party Content and Services.
6.1 General. You acknowledge that the Application(s) permits access to products, services, websites, vendors and other third parties that are required for the Application(s) to operate (“Third-Party Content and Services”).
6.2 Disclaimer. You acknowledge that Company does not investigate, monitor, represent or endorse the Third-Party Content and Services (including any third-party websites available through the Application(s)). Furthermore, Your access to and use of the Third-Party Content and Services is at Your sole discretion and risk, and the Company and its affiliates, partners, suppliers and licensors shall have no liability to You arising out of or in connection with Your access to and use of the Third-Party Content and Services. The Company hereby disclaims any representation, warranty or guarantee regarding the Third-Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guarantee regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third-Party Content and Services.
6.3 Third-Party Terms of Service. You acknowledge and agree that Your access to and use of the Third-Party Content and Services and any correspondence or business dealings between You and any third-party located using the Application(s) are governed by and require Your acceptance of the terms of service of such third-party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. Furthermore, You acknowledge and agree that the Third-Party Content and Services and any related third-party terms of service are subject to change by the applicable third-party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any third-party, and you agree that the Company and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that You are not being granted a license to (i) the Third-Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third-Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property rights in the Third-Party Content or Services or any products, services, processes or technology described or offered therein.
6.4 Endorsements. You acknowledge and agree that the provision of access to any Third-Party Content and Service shall not constitute or imply any endorsement by the Company or its affiliates of such Third-Party Content and Services. The Company reserves the right to restrict or deny access to any Third-Party Content and Services otherwise accessible through the Application, although the Company has no obligation to restrict or deny access even if requested by You.
6.5 Inaccurate Materials. You understand that by accessing and using the Third-Party Content and Services, You may encounter information, materials and subject matter (i) which may or may not be identified as being inaccurate. Notwithstanding the foregoing, You agree to use the Third-Party Content and Services at Your sole risk and that the Company and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
6.6 Use of Third-Party Content and Services. You agree that the Third-Party Content and Services contain proprietary information and material that is owned by the Company and its affiliates, partners, suppliers and licensors and is protected by applicable intellectual property and other laws, including, without limitation, pursuant to copyright, and that You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Third-Party Content and Services. No portion of the Third-Party Content and Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third-Party Content and Services, in any manner, and You shall not exploit the Third-Party Content and Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening network capacity. You agree that You will not use any Third-Party Content and Services in a manner that would infringe or violate the rights of any other party, and that the Company is not in any way responsible for any such use by You.
7.0 Fees and Payment Terms. The Company provides licenses based on subscription fees. You agree to pay such fees and costs. Failure to pay may result in suspension or termination of access to service, license, and Your account.
7.1 Monthly Subscription. If You have a monthly subscription, You agree to pay monthly subscription and other fees in accordance with the Company rate schedule in effect at the time of Your subscription. The Company may increase such monthly subscription fees from time to time without prior notice but no such increase shall occur more than once in a consecutive 12-month period. Such fees are non-refundable and may be tiered based on Your usage of the applicable Application during the previous month and will be due and payable on the date Your account was activated each month that Your account remains active. The Company may change the payment terms for monthly subscriptions at our discretion and will post such changes in the Application. Your continued use of the Application will be deemed acceptance of the new fees.
7.2 Annual Subscription. If You have an annual subscription, You agree to pay the annual subscription fees in effect at the time of Your enrollment or Order Form execution. Such fees are due and payable within 10 days after the last day of each billing month. In the event of a termination of the Agreement through no fault of the Company, all sums payable to the Company during the then-current term will be accelerated and will be due and payable within 10 days from receipt of notice from the Company. The Company may change the fees for annual subscriptions at any time after the initial 12-month term by providing You with 30 days’ notice of the change. If You do not agree to the new fees, You may terminate Your account by providing the Company with a written notice of Your intent to terminate by contacting Your account representative by emailing [email protected] or calling (816) 974-7002 within 30 days of the fee change. Your termination will be effective as of the last day of the then-current calendar month.
7.3 Renewal. Your license will continue and automatically renew until terminated. To use the service and Application You must have internet access and active Payment Method information on the account. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time. You must cancel Your account before it renews in order to avoid billing for the next billing cycle to Your Payment Method. The company reserves the right to automatically charge Your Payment Method.
7.4 Payment Terms. You are responsible for any sales, use, or other taxes applicable to the services provided under this Agreement. If your account is delinquent or experiences one or more of a failed payment, declined payment, or returned payment then the Company may immediately suspend or terminate without notice. Subscription fees will not be prorated for any partial month. If You pay by credit card or debit card, and if payment is not received from the card issuer or its agents, You agree to pay the Company all amounts due upon demand.
8.0 Term and Termination.
8.1 Term. This Agreement is non-cancellable and non-transferable unless provided in the Agreement or Order Form. In the event of breach by You, the Company may terminate the Agreement accelerate all amounts owed in the Agreement or Order Form to become due immediately.
8.2 Termination. The Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by the Company. Upon the termination of this Agreement, You shall cease all use of the Application and uninstall the Application.
8.3 Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION(S) IS/ARE PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION(S) AND ANY THIRD-PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. THE COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES REGARDING THE APPLICATION AND THIRD-PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, THE COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION(S) OR THIRD-PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION(S) OR THIRD-PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION OR APPLICATIONS WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION(S) OR THIRD-PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTEE. FURTHERMORE, YOU ACKNOWLEDGE THAT THE COMPANY HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.0 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION OR APPLICATIONS AND ANY THIRD-PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT EQUAL TO THE AMOUNT OF THE LAST PAID INVOICE FOR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITY, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD-PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, ARISING FROM OR RELATED TO THE USE OF THE APPLICATION OR ANY DATA DERIVED THEREFROM, EVEN IF THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.0 Indemnification. You shall indemnify, defend and hold harmless the Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following:
(i) Your access to or use of the Application, Applications or Third-Party Content and Services; (ii) Your breach of this Agreement; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third-party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.
11.0 Compatibility. The Company does not warrant that the Application(s) will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with your Mobile Device, including vehicles. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of Your Mobile Device or Your vehicle to diminish or fail completely, and may result in permanent damage to Your Mobile Device, loss of the data located on Your Mobile Device, and corruption of the software and files located on Your Mobile Device or may result in permanent damage to Your vehicle, electronics, driving functionality and related systems. You acknowledge and agree that the Company and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
12.0 Product Claims. You acknowledge that You (not the Company) are responsible for addressing any third-party claims relating to Your use or possession of the Application(s), and agree to notify the Company of any third-party claims relating to the Application of which You become aware. Furthermore, You hereby release the Company from any liability resulting from Your use or possession of the Application or Applications, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Application(s) fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
13.0 Disputes & Feedbacks. You agree to abide by the Company’s Code of Conduct and comply with all Company written and verbal requirements in a timely manner, including but not limited to policies, guidelines, and instructions. As part of the Services, you agree to provide feedback to other customers and receive feedback from other customers. In the event of a dispute by you or other customers, you agree to abide by the Company’s request to produce documents, information, and responses in a timely manner. Failure to adhere to any of the terms above will result in suspension or termination of the Services and closure of the account. In such event, all outstanding amounts owed to the Company as agreed in the Order Form will become due immediately.
14.1 Governing Law. This Agreement shall be deemed to take place in the State of Missouri and shall be governed by and construed in accordance with the laws of the State of Missouri, excluding its conflicts of law principles. Any disputes arising from this Agreement shall be adjudicated in the courts of the City of Kansas City. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
14.2 Binding Arbitration. We hope we never have a dispute, but if we do, You and the Company agree to try for 60 days to resolve it informally. If we can’t, You agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the FAA. The dispute procedure and rules are following but not limited to:
(i) Disputes Covered. Disputes includes everything except IP. The term “Dispute” is as broad as it can be. It includes any claim or controversy between You and the Company concerning the products and services, the software related to the products, Super Dispatch account, advertising, marketing, communications, billing, or this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or the Company intellectual property rights.
(ii) Notice of Dispute First. If You have a dispute and our customer service representatives can’t resolve it, You must send a Notice of Dispute by U.S. Mail to Super Dispatch, Inc., ATTN: Legal Department, 1617 Main St, Kansas City, MO 64108, U.S.A.
(iii) Conflict with AAA Rules. These terms of this Agreement govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
(iv) Filing Deadline. Parties agree to file in arbitration any claim or dispute (except intellectual property disputes) within six (6) month from when it first could be filed. Otherwise, it’s permanently barred.
14.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
14.4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.
14.5 Export Control. You may not use or otherwise export or re-export the Application(s) except as authorized by United States law and the laws of the jurisdiction(s) in which the Application(s) was/were obtained. You represent and warrant that You are not located in any country that is 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 including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that You will not use the Application(s) for any purposes prohibited by United States law.
14.6 Modification or Amendment. The Company may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on the Company website under Terms & Conditions section. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended Agreement is posted on the Company’s Terms & Conditions website section.
14.7 Survival. The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: 1, 2.2, 3, 4, 5, 7, 8, 9, 10, 12 and 13.
14.8 Assignment. You shall not assign this Agreement or any rights or obligations herein without the prior written consent of the Company and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
14.9 Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application(s) licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
15.0 Acknowledgments. Both parties acknowledge and agree that (i) this Agreement is between the Company and You, and that Apple and Google are not a party to this Agreement; (ii) that the Company is solely responsible for the Application(s) and the content thereof; (iii) that Apple, Google and their respective subsidiaries, are third-party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third-party beneficiary hereof.
Access to Platform. In consideration of the payment of the Pilot License Fee or Complimentary License, during the Pilot Period, SD will provide the Customer access to and use of the SD Platform for the Intended Purpose, and for no other purpose, in accordance with these Terms.
Conclusion of Pilot Period. For a period noted in the Pilot Order following the Pilot Period, the SD will maintain any content created by Customer on the SD Platform. If Customer desires to continue use of the SD Platform after the Pilot Period, Customer shall separately execute and deliver SD’s standard order form and master agreement.
Definitions. As used in these Terms:
“SD Platform” means a transportation management system or platform called “Shipper TMS”, wholly owned by SD, designed for creating transportation loads by customers and/or finding carriers.
“Intended Purpose” means creation of transportation loads, pricing tools, carrier network, and other systems or services in the option(s) made available by the SD Platform.
“Pilot Period” means the period noted in the Pilot Order commencing on the date that SD and the Customer sign Pilot Order and receives the Pilot License Fee, unless Complimentary License.
“Pilot License Fee” means the fee specified at the time of Customer’s order, which amount is payable at the commencement of the Pilot Period and non-refundable and fully earned by SD as of such date.
“Pilot Order” means the order document between SD and Customer describing length, services and any additional terms of the pilot.
Restrictions on Use. Customer shall not (a) demonstrate, copy, sell, rent, lease, lend, sublicense, distribute, or otherwise transfer or provide access to the SD Platform to any third party; (b) publish or otherwise disclose information relating to the performance, quality, or capability of the SD Platform to any third party; (c) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate any software contained within the SD Platform or any portion thereof; (d) create derivative works based on the SD Platform; or (e) delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by SD on or in the SD Platform.
Legal Compliance. Customer and SD shall each comply with all applicable laws and regulations with respect to the use of the SD Platform. SD may suspend Customer’s access to the SD Platform, in its sole discretion, for: (i) use of the SD Platform in a way that violates applicable laws and regulations or these Terms, or (ii) any instance of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
Intellectual Property. SD owns and shall retain all right, title and interest in and to all intellectual property rights embodied in and appertaining to the SD Platform, including, without limitation, all such rights in the software and content, together with all improvements, enhancements, developments, derivative works, and other modifications thereto. As between Customer and SD, Customer will own and retain all rights to its own materials and previously existing intellectual property, including confidential and proprietary information and data.
Representations and Warranties. SD represents and warrants to Customer that it holds all rights necessary to grant the license set forth herein and to provide the SD Platform as contemplated by these Terms. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SD PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. SD MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SD PLATFORM, AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitations on Liability. To the extent permitted by law, in no event shall either SD or Customer be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.
Governing Law. The Terms shall be governed by and construed in accordance with the internal laws of the State of Missouri.
By Posting or Requesting this load, Broker/Shipper and Carrier confirm the following: [bullet points]
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