1. Defined Terms:
1.1. “Affiliate” of an entity means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.2. “Continuous Decision Intelligence Platform” or “CDI Platform” means Company’s commercially available proprietary software and data products developed exclusively at Company’s expense, for deriving, analyzing and storing of data for developing object profiles and object predictive behavior in near real-time, Company’s commercially available proprietary user interface software and mobile applications for providing and displaying Data Deliverables, and Company’s submitters, emitters and connectors for collecting Company, Customer and Third Party Data and providing machine-to-machine output to downstream systems. An object includes, but is not limited to, transportation assets, warehouses, distribution facilities, manufacturing facilities, customer locations, retail locations, ports, airports, railways, rivers, roads, routings, border crossings, and other schedulable and non-schedulable assets.
1.3. “Data Deliverables” means rules, alerts, notifications, insights, raw or derived data, predictions, interfaces, tracking services and other information providing supply chain situational awareness and actionable intelligence.
1.4. “Documentation” means the manuals and other documentation that Company ordinarily makes available with services Company provides under the CDI Platform and any other documentation and information from third parties relating to the use of Third-Party Data.
1.5. “Field of Use” means management, planning, operations, optimization, situational awareness, forecasting, order fulfilment, customer service risk analysis and interdiction, and actionable intelligence for global supply chains.
1.6. “Intellectual Property” means (a) patent rights, (b) rights associated with works of authorship including copyrights and mask work rights, (c) rights relating to the protection of trade secrets and confidential information, (d) rights in trademarks, service marks, trade dress, trade names, and design patent rights, and (e) any other proprietary rights relating to intangible property.
1.7. “Customer” means Customer accessing the CDI Platform and Data Deliverables that are provided by Company.
1.8. “Proprietary Information” means information relating to a Party’s research, development, trade secrets or business affairs, or provided to a Party by a third party in confidence, that such Party treats as confidential provided under this Order and that: (a) is marked “Proprietary Information” if disclosed in writing (including electronically), or (b) is identified as “Proprietary Information” prior to oral disclosure and reduced to writing, marked as “Proprietary Information,” and delivered to the other Party within thirty (30) days of the oral disclosure. The term “Receiving Party” means a Party that receives Proprietary Information disclosed by the other Party (the “Disclosing Party”).
1.9. “Service Order” or “Order” means a written document agreed to by the Customer and the Company, to provide services and data deliverables.
1.10. “Territory” means worldwide.
1.11. “Third Party Data” means data derived from sensors provided by third parties to Company as inputs to the CDI Platform.
1.12. “Tracking” means location tracking, monitoring, and providing insights to an individual shipment identified by an Ocean Container, Master Air Waybill or Parcel Tracking Number.
2. Data Services Provided by Company.
2.1. CDI Platform and Data Deliverables. Company shall host the CDI Platform and make the CDI Platform available to enable Company delivery of the Data Deliverables to Customer in the Field of Use and the Territory.
3. Licenses and Grants. Company grants to Customer a non-exclusive, personal, non-transferable license under Company’s Intellectual Property to use the CDI Platform, Data Deliverables, and Services as specified in an Order, in the Field of Use and Territory during the Term of this Order pursuant to the terms and subject to the conditions of this Order.
4. Intellectual Property
4.1. Company is the owner of all right, title and interest to the CDI Platform and Data Deliverables, all enhancements to the CDI Platform created, developed, conceived, or reduced to practice by any party pursuant to the terms and subject to the conditions of this Order, and all Intellectual Property thereto. All such enhancements created during the term of this Order are automatically included in the license granted to Customer pursuant to Section 9.
4.2. Trademarks. Neither party is granted any ownership in or license to the trademarks, marks, or trade names (collectively, “Marks”) of the other party.
4.3. Copyright Notices. Customer agrees that it will not remove any copyright notices, proprietary markings, trademarks, marks or tradenames of Company from the CDI Platform, Data Deliverables, or Documentation, including install scripts and product notices.
5.1. Limits on Use and Disclosure of Proprietary Information.
5.1.1. Company. Company shall use Proprietary Information disclosed by Customer (“Customer’s Proprietary Information”) only for purposes of meeting its obligations under this Order. Company shall limit disclosure of Customer’s Proprietary Information and the terms of this Order to those of its employees and contractors with a need to know (as determined by Company) such Proprietary Information, subject to a nondisclosure obligation comparable in scope to this Article 5.
5.1.2. Customer. Customer shall use Proprietary Information disclosed by Company (“Company’s Proprietary Information”) only for purposes of exercising its rights consistent with this Order and shall limit disclosure of Company’s Proprietary Information to its affiliates and those of their respective trustees, employees, contractors with a need to know (as determined by Customer) such Proprietary Information, subject to a nondisclosure obligation comparable in scope to this Article 5.
5.2. Protection of Proprietary Information. The Receiving Party shall protect the Disclosing Party’s Proprietary Information by using the same degree of care (but no less than a reasonable degree of care) that the Receiving Party uses to protect its own Proprietary Information. The obligations imposed by this Article 5 shall expire three (3) years after this Order’s completion or termination and shall not apply to any information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) is developed independently by the Receiving Party prior to the date of disclosure; or (c) is rightfully obtained by the Receiving Party from a third party entitled to disclose the information without confidentiality restrictions. Notwithstanding the foregoing, Company’s obligation to protect the terms of this Order as specified in the first sentence of this Section 5.2 shall continue until such Order falls within clause (a) or (c) above.
5.3. Permitted Disclosures. A Receiving Party may disclose a Disclosing Party’s Proprietary Information if required by law (including without limitation, federal or state securities laws) or by a court or other governmental authority, provided that in any case where a Receiving Party proposes to disclose a Disclosing Party’s Proprietary Information because disclosure is required as provided above, (a) the Receiving Party shall provide the Disclosing Party with prior notice of the proposed disclosure, (b) at the request of and in consultation with the Disclosing Party, the Receiving Party shall undertake efforts to maintain the confidential nature of the Disclosing Party’s Proprietary Information, or appropriately redact portions thereof, and (c) the Receiving Party shall cooperate with the Disclosing Party’s actions to prevent disclosure of the Disclosing Party’s Proprietary Information.
5.4. Injunctive Relief. A Party’s breach of this Article 5 would cause the other Party irreparable injury for which it would not have an adequate remedy at law. The non-breaching Party shall be entitled to seek injunctive relief in a court of competent jurisdiction in addition to other legal or equitable remedies.
6. Representations and Warranties
6.1. General Warranty. Company and Customer each warrant to the other that it has full power and authority to enter and perform this Order and to grant the rights granted herein free of any and all restrictions, settlements, judgments or adverse claims not set forth herein.
6.2. Program Warranty. Company represents, warrants, and covenants that the CDI Platform referred to herein will operate in accordance with and substantially conform to the Documentation, manuals, any specifications provided or agreed to by Company with respect to the CDI Platform. Customer understands and accepts that Company is not the supplier of Third-Party Data and, accordingly, the CDI Platform is provided for use by Customer subject to the express warranty terms specified by the provider of the Third-Party Data.
7. Indemnity. Customer will indemnify, defend and hold harmless Company and its affiliates, and their respective employees, officers, directors, shareholders, agents, representatives, licensors and suppliers from and against all claims, demands, losses, liabilities, damages, and other costs and expenses (including attorneys’ fees and legal costs) arising from or relating to: (a) Customer use of, or acts or omissions in connection with, any Services or Materials; (b) Customer breach (or allegation that, if true, would be a breach) of this Order; (c) Customer actual or alleged violation of applicable laws, statues, rules or regulations; or (d) Customer actual or alleged violation of the rights of any third party.
8. Taxes. All fees set forth in this Order are exclusive of taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Relationship of Parties. The parties are independent contractors. This Order shall not make any Party the agent, legal representative, joint venturer or partner of the other Party. Neither Party is, nor will either Party represent itself as being, an employee, agent, or representative of the other for any purpose. Neither Party has the right or authority to assume or create any obligation on behalf of or in the name of the other, or to otherwise act on behalf of the other. Each Party is responsible for hiring, supervising, and paying for their respective staff necessary to provide the services called for by this Order.
10. Independence and Compliance with Laws. Each Party represents, warrants, and covenants that it will not pursue business under this Order that would violate or conflict with a contractual or fiduciary relationship with any Third Party or would violate applicable law.
11. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, ALL SERVICES AND DELIVERABLES SOLD, LICENSED OR PROVIDED BY COMPANY ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. COMPANY DOES NOT MAKE ANY WARRANTIES, CONDITIONS OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THE DATA DELIVERABLES, OR THE CORRECTNESS OR ACCURACY THEREOF, PROVIDED HEREUNDER, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACTS, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING THE PROVISION OF THE SERVICES OR DATA DELIVERABLES, WHICH IS NOT CONTAINED IN THIS ORDER, SHALL BE BINDING ON COMPANY. COMPANY EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICES OR DATA DELIVERABLES (OR THE CUSTOMER’S USE THEREOF) WILL BE ERROR FREE OR UNINTERRUPTED.
12. Limitation of Liability. NEITHER COMPANY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF DATA, ACCURACY OR CORRECTNESS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITIES OR SOFTWARE ERROR, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS ORDER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR DATA DELIVERABLES, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. COMPANY’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID FOR SERVICES AND DATA DELIVERABLES PURCHASED BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH NOTIFICATION.
13. Dispute Resolution. In the event of a dispute arising out of or relating to this Order, Company and Customer agree to finally resolve all disputes by binding arbitration before a single arbitrator, who shall be selected from a panel of individuals having experience in information technology disputes. The arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time the dispute is submitted to arbitration. The language of arbitration will be English. Venue for arbitration or litigation of any matter arising out of or relating to this Order shall be in Virginia and the governing law shall be the law of the Commonwealth of Virginia, without giving effect to conflict of laws principles. The arbitrator may award reasonable attorneys’ fees and costs to the prevailing party, and judgment upon the award may be entered in any court having jurisdiction. This Section does not prevent either party from seeking equitable or injunctive relief in any court of competent jurisdiction.
14. Entire Order. This Order and its Exhibits issued herein under, describes the entire agreement between Company and Customer concerning the use of the CDI Platform and the Data Deliverables by Customer. Any modification or amendment to this Order must be in writing signed by authorized representatives of both Parties. Any prior or contemporaneous written or oral agreement or understanding that is inconsistent with this Order or adds to it is not binding on either Party.
15. Term and Termination. Either Party may terminate this Order upon written notice, (a) in accordance with Section 17 (Assignment), and (b) immediately upon written notice to the other Party if such other Party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other applicable insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due.
16. Survival. Provisions concerning the Parties’ rights and obligations which by the content of the provision operate after termination or which are necessary to enforce any right will survive termination or expiration of this Order. Without limiting the foregoing, all obligations of confidentiality, indemnification and limitations on liability will survive termination of this Order perpetually.
17. Assignment. Except for a transfer of this Order to the surviving entity in a merger, acquisition, or similar transfer of all or substantially all a Party’s assets or equity, which is expressly permitted, neither Party is entitled to assign or transfer its obligations under this Order without the other’s written consent, and any attempted assignment is void. A Party may terminate this Order with immediate effect if the other Party transfers this Order to a competitor of that Party pursuant to the foregoing sentence. This Order is binding on Company, Customer, and their respective successors and assigns.
18. Delay. A Customer delay in the delivery of any materials required by Company for service commencement or completion may result in delay or inability of Company to provide service to the Customer.
19. Captions. The captions and section headings used in this Order are for convenience only and are not intended to be referred to in construing any provision of this Order.
20. Severability. If any provision of this Order is invalid or unenforceable, the remaining provisions of this Order will be valid and enforceable to the fullest extent permitted by law.
21. Nonwaiver. Either Party’s failure to require the other Party to perform any provision of this Order will not limit or affect the Party’s right to require performance of that provision or any other provision on other occasions.
22. Counterparts. This Order may be executed in duplicate originals; each will be treated as an original. Signatures on this Order that are transmitted by email will be treated as original signatures.