Terms & Conditions
Last Updated June 1, 2024
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF COMPANY’S SERVICES AND COMPANY’S PROVISION OF THE SAME. BY ACCESSING OR USING COMPANY’S SERVICES, YOU ACCEPT OR AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO OR ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES, AS WELL AS YOU INDIVIDUALLY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE COMPANY’S SERVICES.
THIS AGREEMENT REQUIRES THE USE OF MANDATORY ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. BY ACCEPTING THESE TERMS, AS DETAILED IN SECTION 11 BELOW, CUSTOMER AGREES TO RESOLVE ANY DISPUTE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE PROCEDURES, UNLESS OTHERWISE PROVIDED BELOW, AND CUSTOMER AGREES TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION SUIT.
BY ACCEPTING THIS AGREEMENT, CUSTOMER ALSO AGREES TO COMPANY’S PRIVACY POLICY (ACCESSIBLE AT https://e-courier.com/privacy-policy/) WHICH IS INCORPORATED INTO THIS AGREEMENT AND MAY BE UPDATED FROM TIME TO TIME.]
These Terms of Service (these “Terms”) are made by and between the party accepting these Terms and/or the party on whose behalf they are accepted (“Customer”) and Company and are effective as of the date set forth in Section 10.1. “Company”, “we”, “our”, or “us” means e-Courier Software, LLC, a Delaware limited liability with offices located at 1333 N California Blvd, Suite 448, Walnut Creek, CA 94596 and its affiliates. The complete agreement with respect to the Services (the “Agreement”) includes these Terms, any Service Order, Company’s Privacy Policy, and/or any document incorporated herein or therein by reference
1. DEFINITIONS
1.1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that are used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Company Content” means information, data, analyses, and other content, in any form or medium, that is submitted, posted, made available, or otherwise transmitted through the Services, unless otherwise stated herein.
1.3. “Content” means Company Content and Customer Content (defined below).
1.4. “Deliverables” means any deliverables or work product developed, conceived, or acquired, during the Term (as defined below) of this Agreement, in connection with the Professional Services
1.5. “Professional Services” means professional services provided to Customer, including, without limitation, any Implementation Services (as defined in the Service Order) or training, specified in a Service Order.
1.6. “Services” means provision of Company IP, Content, and other services by Company to Customer as more particularly described in one or more Service Order(s).
1.7. “Service Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Company and Customer, indicated by Customer’s signature and Company’s acceptance thereof, including any addenda and supplements.
1.8. “Sensitive Data” means data relating to a person that identifies such person or could reasonably be used to identify such person that requires a heightened degree of protection by applicable law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted requiring heightened standards for data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act, the Gramm-Leach-Bliley Act.
1.9. “Software” means the software product more particularly described in one or more Service Order(s).
1.10. “Customer Content” means all information, data, analyses, and other content, in any form or medium that is submitted, posted, made available, or otherwise transmitted through the Services, unless otherwise stated herein.
1.11. “Subscription Services” means the provision of Software, Content, and Deliverables to Customer on a subscription basis.
1.12. “Company IP” means the Software, Company Content, Deliverables, Services, and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics and any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Services, but does not include Customer Content.
2. ACCESS AND USE.
2.1. Provision of Access. Subject to and conditioned on Customer’s compliance with all the terms and conditions of the Agreement and the Service Order, Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use in accordance with the terms and conditions herein and solely for Customer’s internal business purposes. Access to and use of the Services may not exceed the limitations set forth in the Service Order unless Customer pays the applicable Fees associated with such excess.
2.2. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Without limiting the generality of the foregoing, Customer shall not at any time, directly or indirectly: (i) access or use the Services in any way that Company, in its sole discretion, determines to be competitive with Company; (ii) violate any law or regulation, including any applicable export control laws and privacy laws; (iii) copy, modify, enhance, adapt, or otherwise create derivative works of the Services, in whole or in part; (iv) to redistribute, frameset, transmit, share, or broadcast any part of Services; (v) to rent, lease, sell, provide access to or sublicense any element of the Services to a third party; (vi) reverse engineer, disassemble, decompile, decode, adapt, “crawl”, “scrape”, “spider”, or otherwise attempt to derive, copy or gain access to data made available as part of the Services or the source of the Services or methods used to compile the Services; (vii) remove any proprietary or other notices contained in the Services; (viii) upload, launch, post, email or transmit any material (including any bot, worm, scripting exploit or computer virus) to or from the Services that may harm or corrupt the Services or Company Content, or harm or corrupt Company’s or anyone else’s computer systems or data; (ix) disable, interfere, or try to get around any of the features of the Services related to security, preventing or restricting use or copying of any element of the Services, or enforcing the limits on access to elements of the Services; (x) create, develop, product, or market a substantially similar product or Services; (xi) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; (xii) disguise the origin of any Content received from or transmitted through Services; (xiii) obscure or misrepresent Customer’s identity on the Services; (xiv) access or use the Services to monitor or evaluate the availability, performance or functionality of the Services for any competitive purpose or perform or assist any other party to perform any benchmarking on the Services; or (xv) provide anyone with access to the Services. Company expressly prohibits the use of bots and analogous automated methods to scrape or otherwise collect the data for first- or third-party use. During the Term, Customer hereby agrees, covenants and promises that it will not, directly or indirectly, distribute, develop, sell or market any product that performs substantially the same functions as the Services.
2.3. Reservation of Rights. Company 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 Company IP.
2.4. Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily or permanently suspend Customer’s access to any portion or all of the Services if (i) Customer is in breach of this Agreement, (ii) Customer’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company; or (iii) Customer is using the Provider IP for fraudulent or illegal activities (each, a “Service Suspension”). Customer acknowledges and agrees that Company may implement a Service Suspension with or without notice to Customer and will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
2.5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Company may: (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
2.6. Customer Responsibilities. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer is responsible for its own actions while using the Services.
2.7. Modifications to Services. Company reserves the right, in its sole discretion, of which Company may choose to do at any time and from time to time, to modify or discontinue, whether temporarily or permanently, the Services, or the features and/or functionality thereof, with or without notice to Customer. Company reserves the right to interrupt the operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes. Customer agrees that Company will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Services.
Service Capacity. The Services are subject to usage limits, for example, each subscription to the Services has entitlement to usage limits more fully described in the Service Capacity described in a Service Order and the Services may not be accessed in a way that exceeds the specified contractual usage limits. If Customer exceeds a contractual usage limit, Customer will promptly pay the applicable additional quantities of the applicable Services and/or pay any invoice for excess usage in accordance with the Additional Usage Fees set forth in an applicable Service Order. Additional quantities of the Services may be added during a subscription term in accordance with the Additional Usage Fees specified in the Service Order, prorated for the portion of that Term remaining at the time the additional quantities are added. Any added quantities will terminate on the same date as the underlying subscriptions.
2.8. Service Capacity. The Services are subject to usage limits, for example, each subscription to the Services has entitlement to usage limits more fully described in the Service Capacity described in a Service Order and the Services may not be accessed in a way that exceeds the specified contractual usage limits. If Customer exceeds a contractual usage limit, Customer will promptly pay the applicable additional quantities of the applicable Services and/or pay any invoice for excess usage in accordance with the Additional Usage Fees set forth in an applicable Service Order. Additional quantities of the Services may be added during a subscription term in accordance with the Additional Usage Fees specified in the Service Order, prorated for the portion of that Term remaining at the time the additional quantities are added. Any added quantities will terminate on the same date as the underlying subscriptions.
3. Confidential Information
From time to time during the Term, either party 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/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the generality of the foregoing, Company Confidential Information shall include all Company IP. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s officers, directors, agents, employees, or advisors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order 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. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Start Date and will expire five years from the date first disclosed to the receiving party; 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.
4. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.
4.1. Company IP. Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP.
4.2. Customer Content. Company acknowledges that, as between Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Content.
4.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP or the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
5. FEES; PAYMENT
5.1. Fees. Customer will pay all fees specified in a Service Order. Fees for Subscription Services are charged to Customer monthly. Except as otherwise specified, all fees are payable in advance, non-cancelable, and non-refundable. Commitments, including term length, cannot be decreased during the Term. Company may amend the fees or payment terms applicable to the Services upon thirty (30) days written notice to Customer. Customer acknowledges that Company may charge fees in addition to the subscription fees for requests that Company deems to exceed the scope of the Services.
5.2. Invoicing & Payment. The fees become due and payable upon the Effective Date. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Company will invoice Customer in arrears for such additional usage and Customer agrees to pay the additional fees. Customer will provide Company with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Company. If Customer provides credit card information to Company, Customer authorizes Company to charge such credit card for all Services listed in the Order Form for the Term, any additional fees incurred in accordance with these Terms, including any Renewal Term. The charges will be charged monthly or in accordance with any different billing frequency stated in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card, then Company will invoice Customer in accordance accordingly and, unless otherwise stated in the Order Form, all fees are due upon receipt. For transactions with a returned payment fee, Company will impart all associated fees to Customer. Company reserves the right to hold Customer responsible for all reasonable fees and expenses associated with the collection of payment, including but not limited to collection agency and attorneys’ fees.
5.3. Interest, Suspension of Services & Acceleration. If any fees are thirty (30) or more days overdue, Company may, without limiting Company’s other rights and remedies: (a) charge Customer interest at the rate of the lesser of 1.5% per month, or the maximum rate permitted by law; (b) accelerate Customer’s unpaid fees so that all such obligations become immediately due and payable; (c) suspend Customer’s access to and use of the Services until such amounts are paid in full; and/or (d) terminate the Agreement with immediate effect.
5.4. Applicable Taxes. The fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction. Customer are responsible for the payment of all taxes.
6. CONTENT
6.1. Company may, in Company’s sole discretion, permit Customer, from time to time to submit, upload, publish, transmit, or otherwise make available to Company through the Services textual, audio, visual or other content and information, including, without limitation, load information, location information, commentary, and feedback related to the Services, ratings and reviews (including of motor carriers and facilities), and initiation of support requests, (“Customer Content”). Customer Content may be shared directly through the Services or through communications with Company which are later transcribed or summarized by Company and disseminated to other users of Company’s Services. Customer understands that any Customer Content may be seen by other users and is not subject to the confidentiality provisions of this Agreement. By providing Customer Content to Company, Customer grants Company a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Customer Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Company’s business and on third-party sites and services), without further notice to or consent from Customer, and without the requirement of payment to Customer or any other person or entity.
6.2. Customer represents and warrants that: (i) Customer either is the sole and exclusive owner of all Customer Content or has all rights, licenses, consents and releases necessary to grant Company the license to the Customer Content as set forth above; and (ii) neither the Customer Content, nor Customer’s submission, uploading, publishing or otherwise making available of such Customer Content, nor Company’s use of the Customer Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
6.3. Customer shall not upload any Content which includes Sensitive Data, including without limitation, social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers. Customer acknowledges and agrees that: (i) Company has no liability for any failure to provide protections set forth in laws related to Sensitive Data; and (ii) the Services are not intended for management or protection of Sensitive Data and may not provide adequate or legally required security for Sensitive Data. If Customer discovers that due to human error or otherwise, any Customer Content does include Sensitive Data, Customer will promptly notify Company, and upon such notification, Company’s sole obligation will be to scrub its systems and the Sensitive Data in its control or possession.
6.4. Company may monitor Content from time to time. Company may, but has no obligation to, monitor content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Company or its customers, or operate the Services properly. Company, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
6.5. Customer hereby acknowledges that Company may, from time to time, establish general practices and limits concerning the use of the Services, including without limitation the maximum number of days that Content will be retained by Company. Customer further acknowledges and agrees that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. If Customer wishes to retain any Customer Content, it must keep its own electronic backups of such Customer Content.
7. THIRD PARTY PRODUCTS AND SERVICES
7.1. Customer may choose to use services not provided by Company (“Non-Company Services”) with the Services and in doing so grants Company permission to interoperate with the Non-Company Services as directed by Customer or the Non-Company Services. Unless specified in a Service Order: (a) Company does not warrant or support Non-Company Services, (b) as between Company and Customer, Customer assumes all responsibility for the Non-Company Services and any disclosure, modification or deletion of Customer Data by the Non-Company Services and (c) Company shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Company Services or the ability of or any change in the ability of Company or Company’s Services to interoperate with the Non-Company Services. Without limiting the generality of the foregoing, Customer, not Company, is responsible for ensuring the cooperation of any provider of Non-Company Services for Customer to make use of the Services and any failure by Customer to obtain such cooperation and/or delays caused by such failure shall not relieve Customer of its obligation to pay fees under this Agreement.
8. PROFESSIONAL SERVICES
8.1. Company and Customer agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a timely and professional manner.
8.2. Company will perform the Professional Services through qualified employees and/or non-employee contractors of Company.
8.3. Customer agrees to provide, at no cost to Company, timely and adequate assistance and other resources reasonably requested by Company to enable the performance of the Professional Services (collectively, “Assistance”). Company, will not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of Customer, including, but not limited to, Customer’s failure to provide Assistance as required hereunder and/or any Non-Company Services.
8.4. Deliverables shall be deemed accepted by Customer on the date that Company provisions them to Customer unless otherwise specified in the applicable Service Order.
8.5. The parties hereby agree that the specified Professional Services to be completed pursuant to any Service Order primarily involve the configuration of Customer’s subscription to the Subscription Services and integration of Customer Content with and into one or more Services, and therefore the Deliverables are inoperative without an active subscription to the Subscription Services. As between the parties, Company shall solely and exclusively own all right, title, and interest in the Deliverables, including all derivatives, enhancements and modifications thereof; and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Subject to the terms and conditions hereof, Company grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the Deliverables solely in connection with Customer’s permitted use of the Services.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
9.1. DISCLAIMER. THE SERVICES AND COMPANY IP ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 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. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.2. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND 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 COMPANY’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, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT.
10. INDEMNIFICATION
Customer agrees to indemnify and hold Company and its affiliates and suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of Customer’s use of the Services, provision of Customer Content, or breach of this Agreement (collectively referred to as “Claims”). Company reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. Customer agrees to reasonably cooperate as requested by Company in the defense of any Claims.
11. TERM; TERMINATION
11.1. Term. Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date set forth in the Service Order and shall continue for the Billing Duration set forth in the Service Order (“Initial Term”), and shall renew automatically for successive one (1) year terms unless terminated upon thirty (30) days’ written notice by either party prior to the expiration of the then-current Term (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
11.2. In addition to any other rights or remedies available to a party under this Agreement, a party may terminate this Agreement (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or, immediately upon written notice, if such material breach is incapable of being cured, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Any termination of this Agreement shall not affect Company rights to any payments due to it. In addition, Sections 1,2.2,2.3,2.5,3,4,6,8.5 ,9,10,11.3,11.4, 12, 13, and 14 will survive and remain in effect even if the Agreement is expiration or termination of this Agreement.
11.4. Upon termination of this Agreement for any reason, Company reserves the right to: (a) collect all charges, fees, commitments and obligations incurred or accrued by Customer; (b) delete any of Customer’s Content, listings, messages or other information in connection with Customer’s account; (c) prohibit Customer’s access to Customer’s account, including without limitation by deactivating Customer’s password; and (d) refuse Customer’s future access to the Services. In no event shall Company be required to refund, redeem, or pay amounts to Customer upon termination of Service or return any of Customer’s Content. Company is not a data storage solution and upon expiration or termination of this Agreement, Company may delete all data (Customer Content or otherwise) in its possession or control.
12. GOVERNING LAW; DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER.
12.1. Customer’s use of the Services and this Agreement, shall be governed in accordance with the laws of the State of Delaware, without regard to conflict of law provisions (except for those that would permit the adoption and application of Delaware law). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2. Any dispute, claim or controversy among the parties arising out of or relating to these this Agreement or the Services (“Dispute”) shall be finally resolved by and through binding arbitration in accordance with the Federal Arbitration Act to the exclusion of any other Federal, state or municipal law of arbitration. Both the foregoing agreement of the parties to arbitrate any and all Disputes, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration, shall be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction.
12.3. For any Dispute, the place of arbitration shall be in Walnut Creek, California.
1.4. The cost of the arbitration proceeding, including, without limitation, each party’s attorneys’ fees and costs, shall be borne by the unsuccessful party or, at the discretion of the arbitrators, may be prorated between the parties in such proportion as the arbitrators determine to be equitable and shall be awarded as part of the award.
12.5. RESTRICTIONS ON ARBITRATION: ALL DISPUTES, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE, SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY DISPUTES CUSTOMER MAY HAVE AGAINST COMPANY, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS, CUSTOMER HEREBY AGREES TO BIFURCATE AND ARBITRATE AGAINST THEM INDIVIDUALLY IN CONTRA COSTA COUNTY, CALIFORNIA. CUSTOMER IS WAIVING ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. THE PARTIES AGREE THAT THE ARBITRATORS HAVE NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND ARE ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN THE PARTIES AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS. FURTHER, CUSTOMER WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
12.6. THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING WAIVER OF CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION, IF CHALLENGED, ARE TO BE DETERMINED SOLELY AND EXCLUSIVELY BY THE STATE AND FEDERAL COURTS LOCATED IN OR NEAR CONTRA COSTA COUNTY, CALIFORNIA.
12.7. WITHOUT WAIVING THE RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION 11 BE STRICKEN FROM THIS AGREEMENT OR DEEMED OTHERWISE INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 11 (OTHER THAN THIS SENTENCE) SHALL BE STRICKEN FROM THIS AGREEMENT AND INAPPLICABLE, AND ANY AND ALL DISPUTES SHALL PROCEED IN THE STATE AND FEDERAL COURTS LOCATED IN OR NEAR CONTRA COSTA COUNTY, CALIFORNIA AND BE DECIDED BY A JUDGE, SITTING WITHOUT A JURY, ACCORDING TO APPLICABLE COURT RULES AND PROCEDURES, AND NOT AS A CLASS ACTION LAWSUIT.
13. APP STORE/GOOGLE TERMS. The following terms shall apply to the extent that that Customer accesses or uses the Services on or through Company’s mobile application (“Application”):
13.1. Acknowledgement. The parties acknowledge and agree that this Agreement is solely between Company and Customer, and neither Apple Inc.(“Apple”) nor Google LLC (“Google”) is a party to this Agreement. Neither Apple nor Google are responsible for the Services.
13.2. Maintenance and Support. Company and Customer acknowledge and agree that neither Apple nor Google have any obligation whatsoever to furnish any maintenance and support services with respect to the Services.
13.3. Warranties. Company and Customer acknowledge and agree that neither Apple nor Google will have any warranty obligation whatsoever with respect to the Services, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty provided in this Agreement, to the extent not effectively disclaimed hereunder, will be Company’s sole responsibility.
13.4. Product Claims. Company and Customer acknowledge and agree that neither Apple nor Google are responsible for addressing any claims of the Customer or any third party relating to Services, including, without limitation: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
13.5. Intellectual Property Rights. Company and Customer acknowledge that neither Apple nor Google are responsible for the investigation, defense, settlement and discharge of any third party claim that the Services or Customer’s possession and use of the Services infringes that third party’s intellectual property rights.
13.6. Third Party Beneficiary. Company and Customer acknowledge that Apple, Google, and their respective subsidiaries are third party beneficiaries of this Agreement, and that, upon the Customer’s acceptance of this Agreement, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third party beneficiary thereof.
14. GENERAL
14.1. Entire Agreement; Modification. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following, the order of precedence shall be: (i) the applicable Service Order, (ii) these Terms, and (iii) the Privacy Policy. Company and Customer each represent that it has validly entered into or accepted the Agreement and has the legal power to do so. Company may modify these Terms from time to time. Any and all changes to these Terms will be posted at https://e-courier.com/terms-and-conditions/ and the Terms will indicate the date they were last updated. Changes will become effective upon posting and Customer is deemed to accept and agree to be bound by any changes to the Agreement when Customer uses the Services after the effective date of those changes. Any term or condition stated in a Customer purchase order or other Customer order documents (excluding Service Orders) is void.
14.2. Publicity. Customer consents to Company’s use of Customer’s name and logo and general description of Customer’s relationship with Company in press releases and other marketing materials and appearances. Customer further permits Company to use it as a reference account for marketing purposes and agrees, from time to time, to support Company by participating in reference phone call(s) and other marketing events including with press, analysts, and Company’s existing or potential investors or customers upon reasonable request by Company.
14.3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth in the applicable Service Order (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
14.4. Force Majeure. In no event shall Company be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.5. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
14.8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Content outside the US.
14.9. US Government Rights. Each of the software components that constitute the Services 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 Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services 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 users and their contractors.
14.10. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 3 or 4 , in the case of Customer, Section 2.2, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
