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End User Agreement
IMPORTANT: CAREFULLY READ THE FOLLOWING END USER AGREEMENT BEFORE SELECTING THE “CREATE YOUR ACCOUNT” BUTTON IN THE CREATE ACOUNT FORM OR USING THE EASYTARIFF® SOFWARE. IF YOU AGREE TO THESE TERMS AND CONDITIONS, USE OF EASYTARIFF® BY YOU OR OTHER COMPANY EMPLOYEES WILL BE BOUND BY THESE TERMS AND CONDITIONS.
By clicking on the “Create Your Account” button or otherwise acting to use the EasyTariff® Software you accept and agree that your company and the users of EasyTariff® will be bound by all the terms of this End User Agreement. The EasyTariff® Software may not be used without your prior acceptance of the all the terms of this End User Agreement. If you do not agree to all the terms of this End User Agreement, close this “Create Account: form and your registration will be canceled.
A. “End User” means the person or entity company that is licensing and using the EasyTariff™ Software under the terms of this End User Agreement under a valid, active company account, regardless of whether the license (the right by End User to use EasyTariff™) has been obtained in exchange for payment to EDC®, regardless whether such payment, if applicable, has been made by a third-party on behalf of End User, and regardless of the type of user account (administrator or standard). However, in case of dispute, End User is ultimately legally responsible for legally obtaining, paying for, and using, EasyTariff™ in accordance with this End User Agreement.
B. EasyTariff™ (thereafter known as the “Software”) is a web-based software application. The Software and all its accompanying user guides and written materials are developed, enhanced, amended and owned by Enterprise Database Corporation (EDC®). The Software is a web-based application which allows End User, among other functionality, to price shipments based on industry tariffs, End User’s own company tariff(s) and other End Users’ company tariffs in accordance with the terms of this End User Agreement. The Software includes the system functionalities and functions as deployed and made available by EDC® at this time as well as any future enhancements to the Software developed and implemented by EDC® in its sole discretion.
C. “EDC®” means Enterprise Database Corporation of Virginia, United States, the company that has developed and owns the Software and that is granting End User the license to use the Software under the terms and conditions of this End User Agreement.
D. “Confidential Information” means the Software, the terms and conditions of this End User Agreement, pricing or other proprietary business information, and any other information provided by EDC® to the End User, whether or not such information is marked as confidential; provided, however, that Confidential Information will not include information that: (a) is or becomes generally known to the public through no fault of the End User; (b) was lawfully obtained by the End User from a third party free of any obligation of confidentiality; (c) was already in the End User’s lawful possession prior to receipt, directly or indirectly, from the disclosing party; (d) is independently developed by the End User without the use of the Confidential Information; (e) is disclosed with EDC®’s express written permission; or (f) is disclosed pursuant to a lawful court or governmental order, provided the End User has provided EDC® with prompt prior written notice of any proceeding that may involve such an order, and an opportunity to content any disclosure at such proceeding.
A. Subject to the terms and conditions of this End User Agreement, EDC® grants End User a nonexclusive, nontransferable, revocable license, without the right to sublicense, to use the Software under the terms specified under this End User Agreement.
B. Except as otherwise indicated below, the license granted under this End User Agreement permits the use of the Software solely for End User’s internal use (and not for use by affiliates or independent contractors), and only by End User’s employees in the ordinary course of End User’s internal business.
C. End User’s license entitles End User to set up an unlimited number of administrator and standard user accounts under End User’s company account. Each basic company account includes 2 simultaneous sessions, which refers to the number of company administrator and standard users who can be simultaneously logged in to the End User’s company account. The number of administrator and standard users who can log in at the same time is limited to the number of simultaneous sessions licensed by the End User under its company account. Administrator users can purchase additional sessions and additional services at any time. Only Administrator user accounts can set up additional user accounts, purchase additional sessions and services, or perform certain functions under the company account. The administrator and standard user accounts give End User and its employees the right to access and use the Software from any Internet-enabled device. The administrator and user account information cannot be shared with any company or individual that is not an End User employee.
D. End User hereby agrees: (a) not to permit personnel other than employees of the End User to use the Software; (b) that End User and its employees shall use the Software in accordance with this End User Agreement; (c) that End User and its employees may not modify, translate, adapt, create derivative works, decompile, decrypt, disassemble or reverse engineer the Software in any way nor merge the Software into any other program for any purpose; (d) that End User and its employees may not apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any algorithm, process, procedure or other information contained in the Software; (e) that End User and its employees shall not use the Software, either directly or indirectly, to develop or help another party develop any product or service that competes with the Software or other EDC® products and services provided under this End User Agreement; (f) that End User and its employees shall not transfer, lease, sublicense, distribute, allow access to, assign, rent, sell or otherwise dispose of the Software or any permissibly modified, translated, adapted or derived portion, output or result of the Software; (g) that End User and its employees shall not circumvent or attempt to circumvent any applicable security measures of the Software; (h) that End User and its employees shall not use the Software for any unlawful purpose; and (i) that End User and its employees shall not publicly display visual output of the Software.
E. Notwithstanding any other provision of this End User Agreement, EDC reserves the right to amend, at EDC’s discretion, the terms and conditions herein, including, without limitation, any pricing and fees, by providing End User a thirty (30)-day written notice. Such amendments shall be effective on the date specified by EDC in the written notice sent to the End User. Such written notice shall be provided to End User via email, under the End User’s company account, or as otherwise determined by EDC®.
F. End User and EDC® shall not disclose the Confidential Information to any third party, or use the Confidential Information in any manner except as explicitly authorized under this End User Agreement. End User and EDC® agree to use the same degree of care to prevent disclosure of the Confidential Information as End User and EDC® use to protect their own Confidential Information, but in no event less than a reasonable standard of care. In the event of any unauthorized disclosure of Confidential Information, the disclosing party shall immediately provide the other party with written notice of the details of such disclosure (including but not limited to the identification of the receiving party).
I. EDC® will use commercially reasonable efforts to maintain the security of the Software and of the data on EDC®’s servers. End User will use commercially reasonable efforts to maintain the security of its systems and of the Software. Such steps by EDC® and End User will be taken at their own sole cost and expense, and shall include, without limitation, creating firewalls to protect against unauthorized access to their systems by their employees, contractors, customers, or by any other person. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the Internet.
3. COST, USE OF PERSONAL INFORMATION
A. The Software is licensed to End User in accordance with the fee schedule published by EDC®. End User is responsible for any use, excise, or other tax or custom duties in accordance with local law and resulting from the use by End User of the Software. Except for taxes based solely on income of EDC®, End User agrees to indemnify, defend and hold EDC harmless against all suits and claims in the event that EDC® is notified by tax governmental authorities of any claims with respect to or resulting from End User’s use of the Software.
4. TERM AND TERMINATION OF LICENSE
A. This End User Agreement shall become effective when the End User clicks the “Create Account” button, shall renew automatically yearly, and shall remain in effect until terminated by either party in accordance with this End User Agreement.
B. Either party may terminate this End User Agreement by giving the other party a thirty (30) day written notice. EDC® may suspend or terminate use of the Software by End User immediately if (a) after five (5) business days of receiving email notice or written notice from EDC® to the email or address provided during registration and setup, End User fails to correct any breach or default, including payment, or use of the Software beyond the scope of the original grant herein; (b) End User does any act which threatens to cause an infringement of any EDC® intellectual property or other property right including, without limitation any title, copyright, license right, or trade secret right; (c) End User does any act which circumvents or attempts to circumvent the license and use requirements under this End User Agreement; or (d) End User ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a Liquidator, Receiver, or Trustee for its business or any of its assets, or avails itself or becomes subject to any insolvency or protection from creditors, including bankruptcy.
C. In the event this End User Agreement is terminated by either party, End User’s administrator and user accounts shall be deactivated and End User’s access to the Software shall be terminated.
D. The fees paid by End User under this End User Agreement are not refundable. The fees incurred by End User under this End User Agreement remain payable to EDC® regardless of the date of termination of this agreement.
5. OWNERHIP AND INTELLECTUAL PROPERTY RIGHTS
EDC® retains all title, ownership rights, and intellectual property rights in the Software, including any programs, databases, schemas, procedures, as updated by EDC®, that are incorporated as part of the Software and including any variations of code, modifications, custom enhancements or customizations made to the Software by EDC® as a result of suggestions submitted by End User and its employees. End User acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with EDC®’s ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. Nothing contained in this End User Agreement shall be construed as granting or conferring any rights by license or otherwise, express, implied, or otherwise, for any product, deliverable, invention, discovery, or improvement made, conceived, or acquired prior to the date of this End User Agreement. Any such rights may only be granted explicitly, through this End User Agreement or a separate document signed by the parties.
6. EXPORT COMPLIANCE
You agree not to export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported, re-exported to or used in (a) any country to which the United States has embargoed goods (or any national or resident thereof); (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Order: or (c) in any manner not in full compliance with the requirements of the United States Bureau of Industry and security and all applicable Export Administration Regulations. End User warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.
7. ACCESS, MAINTENANCE AND SUPPORT SERVICES
A. End User’s use of the Software will enable access to databases maintained by EDC® on centralized computers. EDC® provides services in maintaining these databases for the benefit of all End Users. End User’s computers must have Internet access to access and use the Software.
B. The license legally obtained by or for End User entitles End User to receive any new, corrected or enhanced version of the Software as created by EDC®. Such enhancements shall include all modifications to the Software that increase the speed, efficiency or ease of use of the Software, or add additional capabilities or functionality to the Software®. The provision of new releases, modifications or enhancements of the Software issued by EDC® shall be subject to the conditions, limitations and restrictions of this End User Agreement. These updates are delivered by EDC automatically as an online software release. In addition, the license entitles End User to receive unlimited remote email and telephone technical support and training. For onsite technical support and training, End User will pay EDC® travel and lodging costs as well as hourly on-site fees at the hourly rate then charged by EDC® for such services. Such travel costs will be authorized by End User based on estimates obtained by EDC® and prior to EDC® incurring the costs. End User shall ensure that EDC receives payment for such services by the due date of invoice. Travel and on-site services shall be approved by both End User and EDC® before EDC® incurs the expense.
8. LIMITATION OF WARRANTY AND LIABILITY
A. EDC® warrants that it is the owner of the Software, that it owns the copyright and all other rights in and to licensed Software and has all other right, title and interest, including but not limited to all copyrights necessary to grant the licenses granted hereunder. EDC® represents and warrants that at the time of delivery to End User, no Software provided under this End User Agreement is the subject of any litigation, and that EDC® has all right, title, ownership interest, and/or marketing rights necessary to provide the Software to End User.
B. EDC warrants the Software (a) will materially perform the functions described in the specifications or user guide accompanying such release of the Software, and (b) that there are no known viruses in the Software. This warranty is effective only if the Software is properly used in conjunction with the equipment for which it is intended and in accordance with the instructions and specifications set by EDC®. In the event that the Software fails to so perform as described above because of a material defect in the Software during the sixty (60) day period from the effective date (the date of registration), as the sole remedy for End User, EDC® shall use commercially reasonable efforts within a reasonable time after receiving notice from End User to repair or replace the Software. End User, however, shall be solely responsible for any of the outputs, business information or results from its operation of the Software. All notices required hereunder shall be in writing, addressed to EDC®’ s principal place of business, and all duties of EDC® with respect to this license, warranty, or any other duty arising out or in connection with this license of the Software will be performed by EDC at its principal place of business, currently located at 5611 Wellington Road, Suite 115, Gainesville, VA 20155. This warranty shall not apply to the Software if modified by anyone other than EDC® or if used improperly or on an operating environment not approved by EDC®.
C. EDC® warrants that all services will be performed by EDC® in a workmanlike manner in accordance with generally accepted industry standards and practices.
D. The Software depends on reliable, high-speed Internet connectivity being installed at End User’s location where the Software will be accessed. Internet connectivity is a third-party service governed by a third-party service agreement, and not by EDC®. Therefore, EDC® makes no warranties and shall not be held liable for the performance of this third-party service.
E. The Software is designed to be fault-tolerant; however, the Software is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, EDC® specifically disclaims any express or implied warranty of fitness for High-Risk Activities. End User agrees that EDC® will not be liable for any claims or damages arising from the use of the Software in such applications.
F. Should the Software in EDC®'s opinion be likely to become the subject to a claim of infringement against EDC® or End User, then EDC® may, at its option (a) procure for End User the right to use the Software free of any liability for infringement; (b) replace the Software with non-infringing substitute Software substantively the same or similar; or (c) indemnify and hold End User harmless against such claim in accordance with this End User agreement. THE FOREGOING OBLIGATIONS BY EDC® CONSTITUTE EDC®'S SOLE LIABILITY AND END USER’S SOLE REMEDY FOR INFRINGEMENT OF PATENTS AND COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS AS DESCRIBED THEREIN.
G. EDC® shall not be held responsible or liable for any delays in or failure or suspension of service caused by mechanical or power failure, computer malfunctions (whether software, hardware and firmware related), transmission link failures, communication failures, Internet connectivity failures, delay or error by any third party or in any other third party system, strikes, labor difficulties, fire, unusual delays in transportation, acts of God or other causes reasonably beyond our control.
H. EDC® MAKES NO OTHER WARRANTIES EXPRESSED OR IMPLIED WITH RESPECT TO THE SOFTWARE LICENSED HEREUNDER. SPECIFICALLY AND WITHOUT LIMITATION, EDC® MAKES NO WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EDC® MAKES NO WARRANTIES WITH RESPECT TO ANY RESULTS OBTAINED BY END USER THROUGH THE USE OF THE SOFTWARE.
I. End User agrees to indemnify, defend, and hold harmless EDC®, its directors, officers, employees and agents, and defend any action brought against them with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (a) if true, would constitute a breach of any of End User's representations, warranties, or agreements hereunder; (b) arises out of the negligence or willful misconduct of End User; or (c) arises out of any infringement of intellectual property rights or any other rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses arises due to End User’s action or omission. In claiming any indemnification hereunder, EDC® shall promptly provide End User with written notice of any claim which EDC® believes falls within the scope of the indemnification, defense and hold harmless covenant above. EDC® may, at its own expense, assist in the defense if it so chooses, provided that End User shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind EDC ®shall not be final without EDC®'s written consent, which shall not be unreasonably withheld.
J. EDC® agrees to indemnify, defend, and hold harmless End User, its directors, officers, employees, and defend any action brought against them with respect to any claim, demand, cause of action, debt or liability, including reasonable attorney’s fees, to the extent that such action is based upon a claim that, if true, would constitute a breach of any of EDC®’s representations, warranties, or agreements hereunder. In claiming any indemnification hereunder, End User shall promptly provide EDC® with written notice of any claim which End User believes falls within the scope of the indemnification, defense and hold harmless covenant above.
K. EDC®'s maximum liability and obligation to End User and End User's sole exclusive remedy for any cause whatsoever, regardless of the form of action, whether in contract or in tort including negligence, relating to this End User Agreement shall be limited to the repair or replacement of the defective Software, or to payment of the fees paid by End User during the 30 calendar days immediately preceding the date of the claim, all of which at EDC®'s option.
L. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EDC® BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF END USER’S USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, EDC®'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES END USER PAID FOR THIS LICENSE DURING THE 30 CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF EDC® TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. EDC® IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY END USER OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
A. This Agreement shall be governed in all respects by the laws of the Commonwealth of Virginia, United States, without regard to its conflict of law provisions, and EDC and End User agree that the sole venue and jurisdiction for disputes arising from this End User Agreement shall be the appropriate state or federal court located in the Counties of Fairfax or Prince William or the City of Alexandria, and EDC and End User hereby submit to the jurisdiction of such courts.
B. End User shall not assign, without the prior written consent of EDC, its rights, duties or obligations under this End User Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this End User Agreement.
C. The headings in this End User Agreement are inserted for convenience only and shall not be used to define, limit or describe the scope of this End User Agreement or any of the obligations herein.
D. The relationship between EDC and End User is that of independent contractor and neither End User nor its agents shall have any authority to bind EDC in any way.
E. This Agreement constitutes the final understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings or agreements between the parties, whether written or oral. This Agreement may be amended, supplemented or changed only in writing by notice presented by EDC® in accordance with this End User Agreement.
F. If any provision of this End User Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this End User Agreement if no such modification is possible, and all other provisions of this Agreement and this End User Agreement shall remain in full force and effect.
G. The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
H. The provisions of this End User Agreement which require or contemplate performance after the expiration or termination of this End User Agreement shall be enforceable notwithstanding said expiration or termination. Such provisions include confidentiality, EDC® Software ownership rights, assignment.
I. If the performance of any part of this End User Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
J. If any dispute arises under this End User Agreement, the prevailing party shall be reimbursed by the other party for reasonable legal fees and costs associated therewith.
K. EDC® may use End User’s name in any EDC reference list, case studies, testimonials, or in any press release issued by EDC® regarding the EDC products and services, and/or provide to third parties End User’s name.
L. This End User Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto.
M. The controlling language of this End User Agreement is English. If End User has received a translation into another language, it has been provided for End User’s convenience only.
N. This End User Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if mailed, five (5) business days after deposit in the United States mail, postage prepaid, certified mail, return receipt requested, (c), if by email, upon email confirmation receipt. All notices shall be addressed to the other party’s last known address or such other address as either party may in the future specify in writing to the other.
BY SELECTING “CREATE YOUR ACCOUNT” BELOW TO CREATE THE ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS IN THIS END USER AGREEMENT (INCLUDING THE SPECIFIC LIMITATIONS, RESTRICTIONS AND DISCLAIMERS SET FORTH ABOVE) AND ALSO THAT YOU ARE AUTHORIZED TO MAKE A DECISION TO AGREE TO AND ACCEPT THIS LEGALLY BINDING AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS IN THIS END USER AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE EASYTARIFF® SOFTWARE.