OF USE FOR CONSOL2XCHANGE CARGOSPHERE SYSTEMS
1. Description of System Provided
Harbinger agrees to furnish User Company, at User Company's election, the following:
1.Access to the CargoSphere Rate Engine to access designated rates of the WCA Membership.
2. User Company Obligations
As an ongoing condition for the provision of System described in Section 1 above, User Company agrees to:
A.Be solely responsible for ensuring that all Users accessing the System have proper authority from WCA Membership to access and utilize the System;
B.Ensure that there is no User account sharing and every account is assigned to a person using such person's actual name in his or her User name;
C.Be solely responsible for the conduct of all Users with respect to their use of the System;
D.Utilize the System for internal business purposes only and refrain from any re-sale of System; and
E.Waive any and all claims and causes of action against Harbinger with respect to, and defend, indemnify and save Harbinger harmless from any third party suit based upon, WCA Membership’s and or User Company’s designated users' (each, a "User") access to and use of the System.
All title, rights and interest in and to the intellectual property comprising, and contributed to, the System shall be, and shall remain the sole and exclusive property of Harbinger. All title, rights and interest in and to the content, works, modifications, upgrades and/or intellectual property utilized, developed and/or arising out of provision of the System to User Company shall be and/or become the sole and exclusive property of Harbinger. The Parties acknowledge that the System is software that has been fully developed by Harbinger and that User Company has had no input, nor will it have any input, into the software that comprises the System. Consequently, no "work made for hire" is created or implied by this engagement between the Parties. It is expressly understood that no license is created or implied by or through this Contract, and that no title, rights, interest or ownership are transferred or conferred to User Company by this Contract. Harbinger shall retain exclusive and complete ownership or all hardware and peripherals utilized by Harbinger in the provision of the System to User Company, including all title, rights and interest thereto.
4. Confidentiality and Non-Disclosure
A. Confidential Information. User Company acknowledges that it may have access to certain confidential and proprietary information each of Harbinger and the WCA Membership ("Confidential Information"). Confidential Information means any information, whether or not stored in any medium, relating to the disclosing Party's business (and that of its parent, subsidiary or affiliate companies, directors, members, member-managers, suppliers and customers) including, but not limited to, intellectual property, business methods, proprietary information, databases, equipment, hardware, software, designs, technology, technical documentation, technical data, product or service specifications, research, marketing/business and other plans, strategies, proposals, pricing information, financial information, contracts, information relating to existing, previous and potential suppliers, customers and contacts, inventions, patents, patent applications, methodologies, developments, source code, architecture, functional specifications, hosting arrangements, protocols, interfaces, know-how, the existence of discussions between the Parties, and/or any other information that a reasonable business person would consider, from the nature of the information and circumstances of disclosure, is confidential to the Disclosing Party. Confidential Information includes original information supplied by the disclosing Party, as well as all copies and any reports, analyses, products and other material derived from, or containing, such original information, and any and all changes, modifications or additions to such information, each party's intellectual property, technology, customer information, business, plans, products and services, including the terms and conditions of this Agreement. Each Party agrees that it will hold the Confidential Information of the other Party in strict confidence, limiting disclosure to its employees and agents on a need-to-know basis only and under an appropriate agreement of confidentiality, and that it will use such Confidential Information only for the purposes of this Agreement.
B. Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party. Notwithstanding anything to the contrary herein, a Party may disclose the Confidential Information of the other Party if and to the extent that it is required to do so by law or legal process.
5. Limitation of Warranty
A. THE SYSTEM IS BEING PROVIDED TO USER COMPANY AS IS AND HARBINGER MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ITS USE OR PERFORMANCE. HARBINGER DOES NOT WARRANT, AND HEREBY DISCLAIMS ANY WARRANTY WITH RESPECT TO, THE PERFORMANCE OR RESULTS USER COMPANY MAY ACHIEVE BY USING THE SYSTEM OR ANY ASSOCIATED DOCUMENTATION. HARBINGER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, NOR DOES HARBINGER MAKE ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Without limiting the foregoing, Harbinger makes no representation or warranty as to merchantability, fitness for a particular purpose, or the accuracy of any information provided through the System.
6. Limitation of Liability
A. IN NO EVENT WILL HARBINGER BE LIABLE TO USER COMPANY FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS OR LOSS OF BUSINESS, EVEN IF A HARBINGER REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Notwithstanding anything to the contrary contained or implied herein, Harbinger shall have no liability for any damages, whatsoever relating to any tools, third party products, or any goods or services not developed or provided by Harbinger. Certain jurisdictions prohibit the exclusion or limitation of liability for indirect or consequential damages, and it is possible that one or more of the aforementioned exclusions or limitations will not apply. It is also possible that the User Company may have other rights in this regard, which rights may vary from one jurisdiction to another.
7. Limitation of Claims
Any claim, of whatever nature, of either Party against the other, must be brought within one year of the time when such claim arose or be barred.
8. System Performance
User Company's remote access to the System shall normally be provided on a twenty-four hour per day, seven days per week basis, except scheduled and unscheduled downtime. Harbinger will use commercially reasonable efforts to limit any scheduled downtime to hours outside of normal business hours. User Company understands and agrees that the operation, availability and speed of the structures used for accessing and interacting with the System or for transmitting information, including telecommunications lines, computer networks and the Internet can be unpredictable and may, from time to time, interfere with or prevent access to, and/or the use or operation of, the System. User Company agrees that Harbinger is in no way responsible for such factors or their consequences. User Company shall not be entitled to any setoff, discount, refund or other credit, in the case of the operation of any such factors, including but not limited to, service outages, which are beyond Harbinger's reasonable control. Harbinger and/or its designated third party hosting facility shall maintain reasonable bandwidth and connection to the Internet. Harbinger does not, however, guarantee any response rate or download time.
The Parties expressly recognize that it is impossible to maintain flawless security, but Harbinger shall take reasonable steps to prevent security breaches in Harbinger's server interaction with User Company and security breaches in Harbinger's server interaction with resources or users outside of any firewall that may be built into Harbinger's server. However, User Company is solely responsible for preventing password protected pages within its own website from being automatically indexed and linked to search engine robots or spiders. User Company acknowledges that it must take reasonable steps of its own to prevent security breaches to the System, including but not limited to, requiring registration of any User prior to his or her accessing and utilizing the System, and monitoring System usage. User Company is solely responsible for any damage caused by unauthorized access, and User Company indemnifies and holds Harbinger harmless for any compromise of User Company's security.
The Parties expressly recognize that Harbinger cannot and does not guarantee or warrant that information and data emanating from, or coming to, its website and servers will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. User Company agrees that it shall be solely responsible for implementing sufficient procedures to satisfy User Company's particular requirements for accuracy of data input and output, and for maintaining its own means to reconstruct any lost data and/or to address any damages caused by such destructive code. The accuracy of all information and data related to the registration, validation and issuance by User Company of identifiers and passwords to User Company's Users and the content and use of data by User Company and User Company's Users on the System are the sole responsibility of the User Company.
11. Prohibited User Company Actions
User Company may not employ, or permit to be employed, any device, software, or routine to interfere or attempt to interfere with the proper working of the System. User Company agrees not to use, or permit to be used, any robot, Trojan horse, worm, spider, other automatic device, and/or manual process to monitor, copy, reproduce, modify, create derivative works, manipulate, publicly display any content, or in any way alter any part of the System (or the content contained therein), System technology or any element of Harbinger's intellectual property. User Company agrees not to take any action that imposes an unreasonable or disproportionately large load on Harbinger's infrastructure. User Company may not copy, modify, reverse engineer, reverse compile, reverse assemble or otherwise derive any form of Harbinger's technology or attempt or permit others to do any of the foregoing.
12. Relationship between the Parties
As to each other, the Parties are independent contractors. The provisions of this Contract shall not, under any circumstances, be interpreted as creating any association, joint venture, or partnership between the Parties. The Parties acknowledge and agree that access to the System shall be limited to User Company and User Company's Users pursuant to the terms and conditions of this Contract. User Company acknowledges and agrees that Harbinger will have the right, in its sole discretion, to monitor User Company's use of the System at all times.
13. Force Majeure
Neither Party shall be deemed to be in default pursuant to this Contract if the fulfillment of all or part of its obligations is delayed or prevented due to "force majeure". Force majeure is an event beyond a party's reasonable control.
The headings in this Contract have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
17. No Waiver
Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or recourse provided for in this Contract be considered to be a waiver of such right or recourse. The waiver of any breach or default of this Contract will not constitute a waiver of any subsequent breach or default and will not serve to amend or negate the rights of the waiving Party.
This Contract is not assignable by either Party, except that, upon advance written notice, a Party may assign this Contract to a parent, subsidiary or successor in interest to the business of the Party, provided that the assignee is able to, and does, fulfill the obligations of the assignor hereunder.
19. Authority of the Parties
The individual accepting these terms and conditions represents and warrants that he or she has the authority to act for the legal entity on whose behalf he or she is so accepting.
19. Choice of Law and Jurisdiction
The Parties agree that the laws of the State of New York will govern the construction and operation of this Contract, without regard to the conflict of laws provisions thereof. The Parties further agree to submit to the exclusive jurisdiction of the state or federal courts of the State of New York. If either Party breaches the terms of this Contract, the offended Party shall have the right to apply to such courts for injunctive or other appropriate relief.
DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.
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