END USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT (this “Agreement”), is a binding agreement made by and between Morgan Goodwin North America Incorporated, a Texas corporation with its principal offices located at 325 North St. Paul Street #3100, Dallas, TX 75201, United States (“Licensor”) and the person agreeing to the terms of this Agreement by clicking on the Agree button (“you” or the “End User”). BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE A DULY APPOINTED AND AUTHORIZED OFFICER OF END USER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE or THE PLATFORM.
1. GENERAL
This Agreement applies to Software (as defined herein) pursuant to which Licensor provides a platform (the “Platform”) that may be accessed and used by End Users to calculate shipping rates for goods, including any duties, taxes and impositions imposed with respect to such shipment, and all maintenance and support services related to the Software and the Platform.
2. LICENSE
2.1 Software. Subject to all terms and conditions of this Agreement, Licensor grants End User a limited, royalty-free, non-exclusive, non-sublicensable, non-transferable right during the Term (as defined in Section 4.1) to access, and use (“Use”) the Platform and the software that Licensor provides to End User for remote electronic authorized Use of the Platform by End User (the “Software”), in accordance with this Agreement and any additional Use restrictions (including any limitations agreed in writing between End User and Licensor and any limitations on the number of authorized users identified by End User and approved by Licensor (“Authorized Users”). End User may Use the Software and Platform solely for the benefit of the End User and may not Use the Software or Platform for any other purposes. End User shall not provide or otherwise make the Software or Platform available to any third party. During the Term, Licensor will use commercially reasonable efforts to make available the Software and Platform for authorized Use by End User and Authorized Users, except for (i) scheduled downtime (of which Licensor shall give reasonable advance electronic notice); (ii) service downtime or degradation due to a Force Majeure Event (as defined in Section 11); (iii) other circumstances beyond Licensor’s reasonable control; or (iv) Use of the Software or Platform other than in accordance with this Agreement.
2.2 Restrictions. Except as specifically set forth herein, End User shall not, nor shall permit others to (a) allow the Software or Platform to be accessed or made available over the Internet or other public network, or use the Software and Platform for or in connection with any other purpose; (b) publish, rent, sell, lease, license, sublicense, or otherwise transfer or disclose the Software or any part thereof, nor shall End User reverse engineer, reverse assemble or otherwise attempt to discover the underlying Software source code; (c) re-install, copy, modify or enhance the Software or Platform without the prior written consent of Licensor; (d) use the Software or Platform to conduct any type of service bureau or time-sharing operation or to provide remote processing, network processing, network telecommunications or similar services to any individual or entity, whether on a fee basis or otherwise; (e) refer to or otherwise use the Software or Platform, reports or other output of the Software or the Platform, as part of any effort either (i) to develop a program having any functional attributes, visual expressions or other features similar to those of the Software or the Platform or (ii) to compete with Licensor; or (f) input, upload, transmit or otherwise provide to or through the Software or the Platform (or any related systems, software, hardware, data, materials or services) any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the Licensor Materials, the Software or the platform. End User will maintain the security of logins and passwords in its and its Authorized Users’ possession in accordance with industry standards and applicable law. End User shall notify Licensor promptly if it learns of any unauthorized disclosure, access or use of the Software or Platform or any login or password assigned to End User or its Authorized Users.
3. PROPRIETARY RIGHTS
3.1 Ownership. End User acknowledges that the Software and Platform and all specifications, documentation, systems, information, data (except for End User Data), documents, materials, designs, plans, works, content, devices, methods, processes, hardware, software and other technologies that are provided or made available in connection with, or that otherwise comprise or relate to, the Software or the Platform and all improvements, enhancements or modifications thereto or derivative works thereof (collectively, the “Licensor Materials”), are the sole property of Licensor. As between Licensor and End User, ownership and title to (i) the Licensor Materials; (ii) any software, applications, inventions, technology, materials or other deliverables developed or delivered in connection with the Software or the Platform; and (iii) all intellectual property rights related to any of the foregoing (as well as all intellectual property rights in the Software or the Platform) shall remain with Licensor. The Software and Platform are made available for authorized Use, not sold, to End User, and End User shall have no intellectual property rights therein, other than the limited rights expressly granted hereunder. End User acknowledges and agrees that the Licensor Materials contain valuable proprietary information and trade secrets of Licensor and are protected intellectual property rights of Licensor.
3.2 End User Data. End User shall retain all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, all of its data in any form, collected or created by Licensor in the course of providing the Software or the Platform or furnished, disclosed or otherwise made available to Licensor, directly or indirectly, by or on behalf of End User, including data of or pertaining to any derivatives of such data (collectively, “End User Data”) that End User provides or delivers to Licensor in connection with this Agreement.
4. TERM AND TERMINATION
4.1 Term. This Agreement shall commence upon the date that End User clicks the Agree button (the “Effective Date”) and continue until terminated by Licensor (the “Term”). Licensor may modify, suspend, or terminate this Agreement at any time without notice for any business reason of Licensor, including if it ceases to support the Software or the Platform. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or fail for a period of thirty days following notice thereof to pay any fees and charges assessed with respect to the use of the Software.
4.2 Effect of Termination. In the event of termination or expiration of the Term, (a) End User shall immediately cease Use of the Software and Platform, (b) all Authorized Users’ access to the Software and Platform, including any reporting or other functionality, will be disabled; and (c) Licensor shall timely return all End User Data housed within its Software in a format reasonably determined by Licensor.
4.3 Surviving Provisions. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers, indemnification and limitations of liability.
5. USER DATA
5.1 Collection and Use of Your Information. You acknowledge that when you download, install, register an account with, or use the Software and Platform, Licensor may use automatic means to collect information about your use of the Software and Platform. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software and Platform or certain of its features or functionality, and the Platform may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Software and Platform is subject to applicable data protection laws and any privacy policy adopted by Licensor and then in effect, if any (a ”Privacy Policy”). By using, and providing information to or through this Software or the Platform, you consent to all actions taken by us with respect to your information in compliance with such laws and any Privacy Policy.
6. SUPPORT
6.1 Support Services. During the Term, provided that End User is in compliance with this Agreement and has paid current all fees and charges, Licensor will provide to End User, at no charge, support services for the Software as set forth in this Section 6. Licensor shall provide to End User, from 9:00 a.m. to 5:00 p.m. EST, Monday through Friday, excluding holidays (“Normal Business Hours”), telephone assistance regarding End User’s proper and authorized Use of the Software. Licensor shall provide to End User, during Licensor’s Normal Business Hours, commercially reasonable efforts in solving Errors reported by End User. An “Error” means failures of the Software to perform in accordance with the documentation. End User shall provide to Licensor reasonably detailed documentation and explanation, together with underlying data, to substantiate any Error and to assist Licensor in its efforts to diagnose, reproduce and correct the Error.
6.2 Updates to the Software. Licensor may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete certain features and functionality. You acknowledge that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Software and the Platform and be subject to all terms and conditions of this Agreement.
6.3 Updates to the Agreement. Licensor may modify this Agreement from time to time. When we modify the Agreement, we will give you notice by posting the amended Agreement or amended policy on the Platform. If you continue to access or use the Software and Platform after the Agreement is amended, you agree to be bound by the updated Agreement. If you do not accept the updated Agreement, you acknowledge that you will promptly stop using the Software.
7. CONFIDENTIALITY
7.1 Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”), regardless of format or medium, including the Disclosing Party’s financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, samples, specifications, protocols, performance standards, formulations, compounds, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of the Disclosing Party’s existing or potential licensors, suppliers, clients or employees, the terms of this Agreement or any information derived from any of the foregoing; provided that such information is of the nature and type that it should reasonably be regarded as confidential. Licensor’s Confidential Information includes the Licensor Materials (including any results or data). End User’s Confidential Information includes End User Data. Confidential Information shall not include any information which (i) is or becomes available to the public other than as the consequence of a breach of this Agreement; (ii) is actually known to or in the possession of Recipient without any limitation on use or disclosure prior to receipt from the Disclosing Party; (iii) is rightfully received from a third party in possession of such information who is not under obligation to the Disclosing Party not to disclose the information; or (iv) is independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information. The burden of proving the applicability of these exceptions shall be on Recipient.
7.2 Non-Disclosure of Confidential Information. Recipient shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that it uses to protect the confidentiality of its own confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any third party without the prior written consent of the Disclosing Party. Notwithstanding the preceding sentence to the contrary, Recipient may disclose Confidential Information to its or its affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary.
7.3 Compelled Disclosure. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, Recipient gives the Disclosing Party written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allows the Disclosing Party a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that Recipient shall furnish only that portion of the Confidential Information which it is advised by a written opinion of counsel is legally required, and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
8. WARRANTY AND DISCLAIMER
8.1 Licensor Warranty. Licensor represents and warrants that: (a) it has all necessary licenses, rights, title, interests and authority to provide the Software described in this Agreement and the Platform and to grant the rights granted to End User herein; and (c) the Software does not and will not infringe any patents, copyrights, trademarks or other intellectual property rights, privacy, or similar rights of any person or entity.
8.2 End User Warranty. End User represents and warrants that End User shall at all times comply with all applicable laws, rules and regulations and the terms of this Agreement and accompanying documentation with respect to Use of the Software or Platform.
9. LIMITATIONS
9.1 Disclaimer. THE SOFTWARE AND PLATFORM ARE PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR PLATFORM WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, MOBILE APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
9.2 Limitation on Liability. EXCEPT AS IT RELATES TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR AFFILIATES, OR ITS OR THEIR RESPECTIVE DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS IT RELATES TO EXCEPTIONAL CIRCUMSTANCES, IN NO EVENT SHALL LICENSOR BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES IN ANY AMOUNT EXCEEDING $1,000.00.
9.3 Calculation of Tariffs and Taxes. End User acknowledges on behalf of itself and its customers that the calculation of taxes, duties, tariffs or other impositions (Collectively, “Impositions”) may vary based upon the final weight or dimensions of the final packed products actually shipped and accordingly, no warranty is made to End User or any such customer that the estimate provided by the Software will be accurate. Licensor shall have no liability hereunder for any additional Impositions that may be assessed with respect to any shipment nor any penalty, fine or other amount levied as a result of the failure to timely pay any Impositions, nor any damages arising from any delay or hold up that may occur as a result of the estimated Impositions being incorrect.
10. INDEMNIFICATION
10.1 Indemnification by Licensor. Licensor will defend, indemnify, and hold harmless End User and its affiliates, officers, directors, managers, members, agents and employees from and against any and all third-party claims, losses, damages, actions, demands, liabilities, judgments, penalties, fines, costs or expenses, including reasonable attorneys’ costs and fees, arising out of or in connection with the Software’s infringement or misappropriation of any third party intellectual property rights. The foregoing infringement obligation of Licensor does not apply to the extent such claim arises from (x) the Software being combined with any non-Licensor software, processes or materials where the alleged infringement would not have occurred without such combination; (y) where End User’s use of the Software or Platform is not for the purposes set forth in this Agreement; or (z) to any infringement or alleged infringement arising from any content, software, information or data provided by End User, or any third party. If any applicable infringement claim is initiated, or, in Licensor’s reasonable opinion, is likely to be initiated, then Licensor may, at its option and at its sole cost and expense, (i) modify or replace the infringing part of such products or services so that it is no longer infringing; (ii) procure for End User the right to continue using the infringing part of such products or services; or (iii) if Licensor can neither acquire the right to continue using nor replace or modify the infringing part of such products or services then remove the infringing part of such products or services. The foregoing states End User’s sole and exclusive remedy, and Licensor’s sole liability, with respect to claims of infringement of proprietary rights of any kind.
10.2 Indemnification by End User. End User will defend, indemnify, and hold harmless Licensor, its licensors, and its and their affiliates, officers, directors, managers, members, agents and employees from and against any and all third party claims, losses, damages, actions, demands, liabilities, judgments, penalties, fines, costs or expenses, including reasonable attorneys’ costs and fees, arising out of or in connection with End User’s access to and use of the Software or Platform in a manner not authorized by this Agreement, or in violation of any applicable restrictions or law or the breach of any representation and warranty made by the End User herein.
10.3 Indemnification Process. The indemnifying party shall assume the defense or settlement of any claim with counsel of its choice; provided that the indemnified party shall have the right to participate in the defense or settlement of such claims at their own cost and expense. The indemnifying party shall not consent to entry into judgment or enter into any settlement that admits liability of the indemnified party, provides for injunctive or other non monetary relief affecting the indemnified party, or that does not include as an unconditional term the giving by each claimant or plaintiff to the indemnified party of a release from all liability with respect to such claim without the prior consent of the indemnified party, which consent shall not be unreasonably withheld. The indemnifying party’s liability under this Section 10 shall be reduced to the extent that the indemnifying party is actually prejudiced by the indemnified party’s failure to give notice promptly after the indemnified party learns of such claim.
11. FORCE MAJEURE
End User acknowledges that Licensor may be interrupted, delayed, or prevented from completing performance of any or all of Licensor’s obligations under this Agreement due to an occurrence outside of Licensor’s reasonable control, including fire, flood, explosion, pandemic, natural disaster or act of God, war, riot, terrorist act, malicious attack, action or inaction of government, strike, labor dispute, materials shortage, shortage of adequate power, internet or telecommunications or conduct of third parties (“Force Majeure Event”). Licensor will use reasonable efforts to mitigate the effects of a Force Majeure Event, but shall not be liable or responsible to End User, or be deemed to have defaulted under or breached this Agreement, as a result of a Force Majeure Event.
12. MISCELLANEOUS
12.1 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to conflicts of laws provisions thereof. The application of the Uniform Computer Information Transactions Act is expressly excluded. Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Wilmington, Delaware.
12.2 Independent Contractor. In making and performing this Agreement, the parties act and will act at all times as independent contractors and nothing contained in this Agreement will be construed or implied to create the relationship of principal-agent, partner, joint venturer, franchisor-franchisee or employer-employee between the parties. At no time will either party have any right, power or authority to create any obligation or responsibility on behalf of the other party.
12.3 Entire Agreement; Amendment. This Agreement together with any Software License Agreement between you and Licensor (the “Agreements”) constitutes the complete and exclusive agreement between End User and Licensor concerning the subject matter of this Agreements and supersede any and all prior or contemporaneous proposals, agreements, verbal or written, and may not be modified except in writing executed by Licensor and End User (or as otherwise expressly set forth in the Agreements). The Agreements shall take precedence over any additional or different terms and conditions either party may provide, including any agreement or confirmation of use, to which notice of objection is hereby given.
12.4 Compliance with Applicable Laws. Each of End User and Licensor shall comply with any law or regulation applicable, in the case of Licensor, to the delivery or provision of the Software or Platform.
12.5 Waiver; Severability. The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or a party’s right thereafter to enforce provisions in accordance with the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent..
12.6 Construction. The parties do not intend, nor shall any clause be interpreted, to create under this Agreement any obligations of Licensor in favor of, or benefits to, or rights in, any third party. For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. This Agreement may be executed in any number of counterparts, each of which is deemed to be an original and all of which taken together constitutes one agreement.
12.7 Waiver of Jury Trial. YOU AND LICENSOR IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU OR LICENSOR MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) THE PLATFORM OR THE SOFTWARE (OR THE USE OF ANY OF THE FOREGOING BY YOU OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR LICENSOR OF ANY OBLIGATIONS UNDER THIS AGREEMENT, (D) ACTUAL OR ALLEGED INFRINGEMENT BY YOU, LICENSOR, THE SOFTWARE OR THE PLATFORM OF ANY INTELLECTUAL PROPERTY RIGHTS OR (E) ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY RELATED TO THIS AGREEMENT. YOU CERTIFY AND ACKNOWLEDGE THAT: (1) LICENSOR HAS NOT REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LICENSOR WOULD NOT SEEK TO ENFORCE THE FOREGOING
WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (4) YOU HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION.
12.8 Limitation of Time to File Claims. PART OF OUR AGREEMENT IS THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED.