Carrier SUBSCRIPTION Agreement
This is a legally binding agreement. Please read these terms and conditions carefully. By clicking the button on the HwyPro? online registration web page to accept this agreement, you represent that you have the full legal authority to enter this agreement yourself or on behalf of the party identified in the registration process, and in that capacity you acknowledge your agreement or such party?s agreement to be bound by the terms and conditions set forth or referenced below.
This agreement (the "Agreement") is between Highway Tribe, LLC, a Texas limited liability company ("Company"), and the party ("Carrier") indicated during the online registration process for use of the Company system (as amended from time to time in accordance with this Agreement, the "Registration"). This Agreement is effective upon its acceptance by Carrier in the course of the Registration (the "Effective Date"). The information entered by or on behalf of Carrier during the Registration is incorporated herein and made a part of this Agreement.
1. Certain Definitions.
"Application" means the online service offered by Company, known as HwyPro? and accessed at https://www.hwypro.com, together with any associated software applications, database structures and queries, interfaces, tools, and the like, together with any and all revisions, modifications, and updates thereof, all as made available by Company to Carrier (and Carrier?s Drivers, as applicable) pursuant to this Agreement.
"Carrier Administrator" means the person identified in the Registration (or otherwise pursuant to the Company?s procedures for doing so in effect from time to time) authorized to Authorize and terminate the Authorization of Users, to update Carrier?s online Registration information, and to accept notices from Company as provide in this Agreement, as such person may be changed by Carrier from time to time in accordance with the procedures set forth in this Agreement.
"Carrier Data" means all data entered into the Application by a User or entered into the Application by or on behalf of Carrier pursuant to a conversion from or interface with another system, in either case as such data is maintained in the Application from time to time during this Agreement.
"Confidential Information" means any information of any type in any form that (i) is disclosed to or observed or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) in the course of, or by virtue of, this Agreement and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the Application, Carrier Data, and content of this Agreement (other than the fact of its existence and the identities of the parties hereto) shall be deemed conclusively to be Confidential Information. For purposes of this Agreement, however, the term "Confidential Information" specifically shall not include any portion of the foregoing that (i) was in the recipient?s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. A selection or combination of information will not meet any of the foregoing exceptions solely because some or all of its individual component parts are so excepted and will meet such exception(s) only if the selection or combination itself is so excepted. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.
"Documentation" means all documentation (whether printed or in an electronic retrieval format) supplied or made available to Carrier by Company for use with or in support of the Application or its implementation, including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by Company to Carrier during the term of this Agreement and all copies thereof made by or on behalf of Carrier.
"Driver" means a person who operates a truck under the Motor Carrier (MC) Number of Carrier and is registered by Carrier as such in the Application.
"Environment Specifications" means the minimum information technology environment necessary for use of the Application described in the FAQs published by Company on its web site at www.hwypro.com/FAQ, as revised from time to time by written notice to Carrier.
"FMCSA" means the Federal Motor Carrier Safety Administration.
"Hazardous Materials" has the meaning ascribed in 49 C.F.R. §172.800, §173, and §397 et seq.
"Infringement Claim" means a claim that Carrier?s use of any Licensed Materials in accordance with the terms and conditions of this Agreement infringes a United States copyright of a third party or United States patent of a third party that practices such patent brought during the term of this Agreement.
"Licensed Materials" means the Application and any Documentation.
"Load" means a load to be transported that is posted for Carriers to accept through the Application.
"Shipper" means (i) a third party posting a Load through the Application and (ii) as the context dictates, a consignee or other third party responsible for payment for a Load.
"User" means the Carrier Administrator, any employee or individual independent contractor of Carrier who is authorized by the Carrier Administrator to access and use the Application on behalf of Carrier, and any of Carrier?s Drivers (if applicable).
2. License to Carrier. Subject to terms and conditions of this Agreement, Company grants to Carrier a non?exclusive, non?transferable (except as otherwise provided herein) license during the term of this Agreement for a User to access and use the Application and relevant Documentation in accordance with the terms of this Agreement solely for Carrier?s internal business purposes.
3. Services. Subject to the terms and conditions of this Agreement, provided Carrier is not in default of its obligations hereunder, Company shall provide, and Carrier shall accept, the following services during the term of this Agreement:
(a) Application Hosting. Company will host the Application as software-as-a-service in a multi-tenant environment and will use reasonable efforts to make it available via the Internet for access and use as provided in this Agreement other than during reasonable periods of interruption for scheduled maintenance.
(b) Application Support. Subject to such terms and conditions as may be set forth in the Proposal, during the normal business hours of Company (currently 8:00 a.m. to 5:00 p.m. Central Time weekdays except business holidays observed by Company), Company shall provide to Carrier?s duly qualified personnel consultation and assistance with operational and technical support issues arising from use of the Application in accordance with this Agreement. Carrier?s requests for support services shall be submitted by telephone or e-mail at such numbers and e?mail addresses as Company shall provide to Carrier and/or post on the Company web site at www.hwypro.com from time to time.
(c) Application Maintenance and Enhancement. In response to a reported error, Company shall use commercially reasonable efforts to correct the error or to provide a reasonable workaround sufficient to alleviate any material adverse effect of the problem on the utility of the Application, provided Carrier assists Company in its efforts to correct the error by making available information, documentation, access to personnel, and testing reasonably requested by Company from time to time to assist Company in identifying and correcting the problem. From time to time at its sole discretion, Company also may implement releases of the Application that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. Company in its sole discretion will determine whether to include in the Application, as part of the maintenance services hereunder, features or functionality offered in other products that could be incorporated into the Application, and Company shall have no obligation to disclose or offer to Carrier any such products, features, or functionality.
(d) Supported Environment. Company?s support and maintenance obligations pursuant to this Agreement are conditioned on access to and use of the Application in an information technology environment meeting the Environment Specifications.
(e) Disclaimer. Carrier acknowledges and agrees that Company?s responsibility hereunder is limited to provision of the Application and the billing and remittance services described herein and does not include actually performing transportation of a Shipper?s freight or dispatching or directing of the actual transportation of such freight.
4. Restrictions. Carrier shall not do, nor shall it authorize any person do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by this Agreement; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic retrieval format, except as expressly provided in this Agreement; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials except as explicitly authorized by this Agreement; (iv) create or recreate the source code for any or all of the Application, or re-engineer, reverse engineer, decompile, disassemble, modify, or alter any or all of the Application except as may be expressly authorized in this Agreement; (v) modify, adapt, translate, or create derivative works based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, content, or documentation except as expressly authorized by this Agreement; (vi) refer to or otherwise use any part of the Licensed Materials in any effort to develop a program having any functional attributes, visual expressions, or other features similar to those of the Licensed Materials or to compete with Company; (vii) sell, market, license, sublicense, distribute, rent, loan, operate for, or otherwise provide to any third party any right to access, possess, or utilize any portion of the Licensed Materials without the express prior written consent of Company; (viii) use the Licensed Materials to gain or attempt to gain unauthorized access to any applications or services for which Carrier has not paid the applicable fees to use or any software or computer systems belonging to any third party that has access to the Application; or (ix) attempt to do or assist any party in attempting to do any of the foregoing.
5. Logon Credentials and Data Security. Carrier SHALL NOT, AND SHALL ENSURE THAT USERS DO NOT, SHARE LOGON CREDENTIALS OR ATTEMPT TO ACCESS THE APPLICATION WITHOUT PROVIDING VALID LOGON CREDENTIALS SPECIFIC TO SUCH INDIVIDUAL. Except with respect to the hosting services provided by Company, Carrier shall be solely responsible for and shall maintain, in connection with the operation of the Application, adequate technical, physical, and procedural access controls and system security requirements and devices. Carrier shall cause each User to change his or her password thereafter and at such intervals and upon such circumstances as Carrier deems appropriate and prudent or as directed or enforced by Company in its sole discretion. Carrier shall cause each User to utilize a password of sufficient complexity as Carrier deems appropriate and prudent or as directed or enforced by Company in its sole discretion. Carrier shall maintain or cause to be maintained the confidentiality and security of all User logon credentials. All User logon credentials shall be deemed to be Confidential Information of both parties. CARRIER SHALL BE SOLELY RESPONSIBLE FOR ALL USE OR MISUSE OF USER LOGON CREDENTIALS OTHER THAN BY COMPANY. COMPANY SHALL NOT BE LIABLE TO CARRIER (OR TO ANY PARTY CLAIMING BY OR THROUGH CARRIER) FOR, AND CARRIER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY ALL LOSSES, LIABILITIES, DAMAGES, AWARDS, SETTLEMENTS, CLAIMS, SUITS, PROCEEDINGS, COSTS, AND EXPENSES (INCLUDING REASONABLE LEGAL FEES AND DISBURSEMENTS AND COSTS OF INVESTIGATION, LITIGATION, EXPERT WITNESS FEES, SETTLEMENT, JUDGMENT, INTEREST, AND PENALTIES) RESULTING FROM OR RELATING TO, CARRIER?S FAILURE TO MAINTAIN ITS OBLIGATIONS SET FORTH IN THIS PARAGRAPH OR ANY UNAUTHORIZED USE OR DISCLOSURE OF INFORMATION NOT DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY. Any provision of this Agreement to the contrary notwithstanding, any direction or enforcement by Company of password parameters or usage described in this paragraph, and any failure to do so, shall not give rise to any liability on the part of Company whatsoever, it being the express agreement of the parties that Carrier shall have sole responsibility for controlling the parameters and usage of passwords by Users.
6. Certain Representations and Warranties. Carrier represents and warrants to Company and each Shipper as follows:
(a) all information provided by any User is, and at all times will be, accurate and complete in all material respects;
(b) Carrier is a Registered Motor Carrier of Property, authorized by the FMCSA to provide transportation of property in intrastate, interstate, or foreign commerce;
(c) Carrier will transport each Load under its own operating authority and subject to the terms of this Agreement;
(d) Carrier is in, and at all times shall maintain, compliance with all applicable federal, state, and local laws relating to the provision of its services, including without limitation, the following to the extent applicable: (i) transportation of Hazardous Materials, including the licensing and training of HAZMAT qualified drivers, to the extent that any Loads constitute Hazardous Materials; (ii) security regulations; (iii) owner/operator lease regulations; (iv) loading and securement of freight regulations; (v) implementation and maintenance of driver safety regulations, including without limitation hiring, controlled substances and alcohol testing, and hours of service regulations; (vi) sanitation, temperature, and contamination requirements for transporting food, perishable, and other products, (vii) qualification, licensing, and training of drivers; (viii) implementation and maintenance of equipment safety regulations; (ix) maintenance and control of the means and method of transportation, including without limitation performance of its drivers; and (x) all applicable insurance laws and regulations, including without limitation workers? compensation;
(e) all transportation performed under this Agreement will be contract carriage; and
(f) Carrier has, and at all times will maintain, a U.S. DOT safety rating that allows it to continue to operate unconditionally and without ongoing intervention or reviews by the FMCSA.
7. Responsibilities of Carrier.
(a) No Brokering or Subcontracting. Carrier shall not re-broker, co-broker, subcontract, assign, interline, pass off, or hand off the transportation of Loads hereunder to any other person or entity (other than a Driver) without prior written consent of Company in its sole discretion. Without limiting any other remedies available to Company (including without limitation for consequential damages), and any provision of this Agreement to the contrary notwithstanding, if Carrier breaches this provision, Company may pay the monies it owes Carrier for such Load directly to the delivering Carrier (the Carrier that physically transported the freight) in lieu of payment to Carrier.
(b) Hazardous Materials. Carrier shall comply with all applicable laws and regulations relating to the transportation of Hazardous Materials as defined in 49 C.F.R.§ 172.800, §173, and §397, et seq. (including any amendments) to the extent that any shipments hereunder constitute Hazardous Materials. Carrier shall be solely responsible for any violation of the applicable laws and regulations regarding the transportation of Hazardous Materials and shall defend, indemnify, and hold harmless Company, Shippers, their respective subsidiaries and affiliates, and each of their respective directors, officers, employees, and agents from and against any claim, loss, cost, liability, or damages (including without limitation reasonable attorney fees and expenses), incurred therefrom.
(c) Driver Training and Qualifications. Carrier shall ensure that its Drivers are properly trained, licensed, and qualified pursuant to all applicable legal authorities and are competent and capable of safely handling and transporting Loads in accordance with such laws. Carrier agrees that Drivers will be dispatched and Loads will be picked up and delivered in accordance with each Driver's maximum available hours of service as provided in the regulations of the FMCSA while in the United States or as provided by any Canadian authority having jurisdiction over a given route/trip. Carrier warrants that it will monitor the performance and continued compliance by its Drivers with all applicable safety regulations of the FMCSA and any other governing authority.
(d) Control of Drivers. As between Company and Carrier, all Drivers shall be subject exclusively to the direction, control, and supervision of Carrier.
(e) Load Information. Carrier acknowledges and agrees that information furnished to Carrier by Company in order to satisfy shipping requirements of a Shipper, including without limitation routes, pick-up and delivery dates and times, special handling requirements, bracing and blocking requirements, dimensions, and weights, and any communication or report regarding the location of freight (tracing), is provided for informational purposes only. Carrier shall not rely, and shall ensure that Drivers not rely, upon any such information and assumes full responsibility for verifying the accuracy thereof.
(f) Canada. To the extent that Carrier performs services pursuant to this Agreement within, or to or from, Canada, Carrier shall procure and maintain any and all operating authorities or permits required to be held by Carrier under any applicable Federal, Provincial, or Territorial laws of Canada and shall adhere to the Canadian National Safety Code.
(g) Maintenance. Without cost to Company, Carrier shall provide and ensure completion of all preventive maintenance and ongoing maintenance including, but not limited to, periodic safety inspections, annual safety inspections, and emissions testing pursuant to the standards set out in any and all of the applicable motor vehicle statutes and regulations of the applicable jurisdiction(s) of operation.
(h) Equipment. Carrier shall provide the necessary equipment and qualified personnel for completion of the transportation services required for Shippers for each Load. Except when transporting Hazardous Materials, Carrier shall not supply equipment that has been used to transport Hazardous Materials or hazardous wastes, solid or liquid, regardless of whether they meet the definition in 40 C.F.R. §261.1 et. seq.
(i) Timing. Carrier shall transport and deliver all Loads with reasonable dispatch.
(j) Bills of Lading. Carrier shall sign a bill of lading produced by a Shipper or Carrier in compliance with 49 C.F.R. §373.101 (and any amendments thereto), for the property it receives for transportation under this Agreement. Unless otherwise agreed by Company in writing, Carrier shall become fully responsible and liable for the freight of a Load when Carrier takes or receives possession thereof and the trailer is loaded, regardless of whether a bill of lading has been issued, signed, and/or delivered to Carrier. Such responsibility and liability shall continue until delivery of the shipment to the consignee and the consignee has signed the bill of lading or delivery receipt. Any terms of the bill of lading (including but not limited to payment and credit terms, released rates, or released value) inconsistent with the terms of this Agreement shall be ineffective. Carrier?s failure to issue a bill of lading or sign a bill of lading acknowledging receipt of the cargo by Carrier shall not limit the liability of Carrier.
(k) Notice of Certain Events. Carrier shall notify Company immediately in the event of (i) any suspension, cancellation, termination or withdrawal of its operating authority, (ii) any sale or change in control of Carrier, and (iii) any termination, cancellation, suspension, or revocation (or threat thereof) of any insurance required hereunder.
(l) Carrier IT Environment. Carrier shall be responsible for selecting, obtaining, and maintaining any equipment, computer software, Internet access, and telecommunication or other ancillary services needed to connect to or otherwise access the Application in accordance with the Environment Specifications.
8. Indemnification. Carrier shall defend, indemnify, and hold harmless Company, Shippers, their respective subsidiaries and affiliates, and each of their respective directors, officers, employees, and agents from and against any claim, loss, cost, liability, or damages (including without limitation reasonable attorney fees and expenses) arising out of its performance under this Agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death. Neither Party shall be liable to the other for any claims, actions or damages due to the negligence or intentional act of the other Party or the Shipper.
9. Insurance. Carrier shall maintain a policy or policies of insurance providing the following minimum limits: general liability $1,000,000; motor vehicle (including hired and non-owned vehicles) $1,000,000 (if transporting Hazardous Materials, $5,000,000 and including environmental damages due to release or discharge of hazardous substances); cargo damage/loss, $100,000; and workers' compensation with limits required by law. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the FMCSA and any other applicable regulatory agency. Carrier shall furnish Company with certificates of insurance or copies of insurance policies evidencing the foregoing and providing 30 days? advance written notice to Company of cancellation or termination. Nothing in this Agreement shall be construed to avoid or limit Carrier's liability due to any exclusion or deductible in any insurance policy. Coverage provided Carrier's insurance policies shall have no exclusions or restrictions of any type that foreseeably would preclude coverage relating to loss and damage claims. Carrier grants Company permission to obtain, and shall require its insurance underwriters and agents to provide to Company upon its request copies of all such insurance policies, including without limitation copies of all exclusions on any cargo policy. The cargo insurance policy shall not exclude coverage for infidelity, fraud, dishonesty, or criminal acts of Carrier, its employees, officers and directors, contractors, subcontractors, owner-operators, or agents of Carrier. If any such policy contains such exclusions, Carrier shall obtain and furnish endorsements to the policy providing coverage to the satisfaction of Company. No policy of insurance required hereunder shall have a deductible greater than $5,000.
10. Loss and Damage Claims. Carrier shall comply with 49 C.F.R. §370.1 et seq. and any amendments and/or any other applicable regulations adopted by the FMCSA, U.S. Department of Transportation, or any other applicable regulatory agency for processing all loss and damage claims and salvage. Carrier?s liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. §14706.
11. Rates and Payments; Taxes.
(a) Rates. By accepting a Load through the Application, Carrier agrees to the rates set forth in the Application with regard to such Load. Acceptance of a Load by a Driver shall be deemed acceptance by Carrier.
(b) Invoicing, Collection, and Remittances. Company will be responsible for invoicing Shippers and for collecting payments from Shippers; provided, however, that Carrier shall bear the risk of non-payment by a Shipper and, promptly upon notice thereof from Company, Carrier shall reimburse Company for any amount remitted to Carrier by Company with regard to a Load for which the Shipper fails to pay Company timely in full. Company shall remit to Carrier that portion of the fee for a given Load, and within the time, as Carrier elects in the Registration (as such election may be modified by Carrier subsequently through the Application from time to time). Each such remittance shall be to such bank account as Carrier specifies in the Registration (as such specification may be modified by Carrier subsequently through the Application from time to time). For purposes of such remittances, "day" means a business day and "week" means five business days.
(c) Certain Acknowledgments and Agreements. Carrier hereby authorizes Company to invoice Carrier?s freight charges to each Shipper for payment. Carrier acknowledges and agrees that a Shipper?s insertion of Company?s name as the Carrier on a bill of lading shall be for the Shipper?s convenience only and shall not change Company?s status as providing a platform to match shippers with motor Carriers nor Carrier?s status as a motor Carrier. Carrier hereby assigns to Company all of its rights to payments from Shippers for transported Loads. Carrier shall not seek payment from a Shipper for any amount paid to Company by such Shipper. Carrier is responsible for paying its Drivers and shall indemnify, defend, and hold harmless Company in the event a Driver seeks to obtain payment from Company for a Load.
(d) Setoff. Amounts payable to Carrier hereunder may be withheld in whole or in part by Company to satisfy any amount owing from Carrier to Company or its subsidiary or affiliate, whether arising out of this Agreement or otherwise.
(e) Underpayment Claims. Any claim for underpayment of transportation charges in connection with Loads transported under this Agreement shall be presented to Company by Carrier within 60 days of discovery of the claim and in no event more than 180 days after the delivery of the Load(s) giving rise to any such claim.
(f) Charges for Ancillary Services. If Carrier elects to purchase any ancillary services from Company through the Application, Carrier shall pay all fees, expenses, and other charges set forth in the Application with regard thereto, all of which are non-refundable. Such amounts shall be paid in the manner specified in the Application at the time of such purchase. If applicable, Carrier authorizes Company to charge or debit automatically, using Carrier's selected payment method, all such amounts. Carrier is responsible for providing complete and accurate billing and contact information to Company. If Company offers Carrier an option to be invoiced and Carrier elects such option, payment on each such invoice shall be due within 30 days from the date thereof or on such other terms as may be set forth in the Application. All payments shall be made in U.S. Dollars. Payments not received within 30 days after the due date shall accrue interest from such due date at the rate of 1.5% per month or, if less, at the highest rate permitted by applicable law.
(g) Taxes. Carrier assumes full responsibility and liability for payment of all applicable federal, state, and local payroll taxes, taxes for unemployment insurance, retirement pensions, workers? compensation, and social security with respect to persons engaged in the performance of its transportation services hereunder. Company shall not be liable for any such payroll-related tax obligations, and Carrier shall indemnify, defend, and hold harmless Company from any claim or liability imposed or asserted against Company for any such obligations. Carrier shall pay when due (and Company at its discretion may collect and pay on Carrier?s behalf) all taxes based on or in any way measured by this Agreement, the services provided hereunder, or Carrier?s use of the Licensed Materials or any portion thereof, excluding taxes based on Company?s net income, but including without limitation sales and use taxes and personal property taxes, if any.
(a) Security of Confidential Information. In addition to any other restrictions or obligations imposed at law or provided under this Agreement, each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using reasonable security measures and in any event not less than the same security procedures used by such party for the protection of its own Confidential Information of a similar kind.
(b) Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any third party without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party?s exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound either by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
(c) Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; and (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise reasonable efforts to obtain appropriate assurance that confidential treatment will be accorded the Confidential Information so disclosed.
(d) Non-Use Obligation. Except as expressly authorized in this Agreement, during the term of this Agreement and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
(e) Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of the first party and fully subject to the obligations of confidence set forth herein.
(f) Proprietary Legends. Without the other party?s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party?s rights.
(g) Reports of Misappropriation. Each party immediately shall report to the other party any act or attempt by any person of which such party has knowledge or reasonably suspects (i) to use or disclose, or copy Confidential Information without authorization from the other party or (ii) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information.
(h) Post-Termination Procedures. Except as otherwise provided in this Agreement, as soon as practicable upon any termination of this Agreement or other termination of a party?s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing) any embodiments of any Confidential Information of the other party.
14. License to Use Carrier Data. Carrier grants to Company a non?exclusive, royalty?free license during the term of this Agreement to use and disclose Carrier Data as follows:
(i) to perform its obligations under this Agreement;
(ii) to use Carrier Data that has been de-identified as to individuals for compiling statistical information and metadata (including without limitation aggregating such de-identified Carrier Data with other data) that does not identify Carrier or any of Carrier?s personnel or drivers ("Anonymized Data"); and
(iii) to use (but not disclose except as otherwise provided in this Agreement) Carrier Data for purposes of monitoring, improving, and correcting the performance of the Application, developing enhancements to the Application and new products, and other internal business purposes.
Carrier represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to Company during the term of this Agreement the license set forth in this section and that Company?s use of Carrier Data as provided herein will not infringe any intellectual property or proprietary right or violate any trade secret or otherwise violate any right of a third party. Carrier shall indemnify, defend, and hold harmless Company, its subsidiaries and affiliates, and each of their respective directors, officers, employees, and agents from and against any claim, loss, cost, liability, or damages (including without limitation reasonable attorney fees and expenses) arising from or relating to a claim of a third party with respect to a breach of the foregoing representations and warranties of Carrier.
(a) Carrier Data. As between Company and Carrier, Carrier has and retains exclusive and valid ownership of all Carrier Data.
(b) Licensed Materials. As between Company and Carrier, Company has and retains exclusive and valid ownership of the Licensed Materials, the names and marks thereof, and all intellectual property and proprietary rights therein, and Carrier acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of Company.
(c) Suggestions, Joint Efforts, System Use Statistics, and Anonymized Data. Carrier may suggest, and the parties may discover or create jointly, findings, inventions, improvements, discoveries, or ideas that Company, at its sole option, may incorporate in the Licensed Materials or in other products or services that may or may not be made available to Carrier. Any such finding, invention, improvement, discovery, or idea, whether or not patentable, that is conceived or reduced to practice during the term of this Agreement, whether by a party alone or by the parties jointly, arising from or related to this Agreement or the Licensed Materials shall be and remain the sole property of Company and may be used and be sold, licensed, or otherwise provided by Company to third parties, or published or otherwise publicly disclosed, in Company?s sole discretion without notice, attribution, payment of royalties, or liability to Carrier. Carrier acknowledges and agrees that Company has and retains exclusive and valid ownership of all statistical information and metadata regarding a User?s use of the Application ("System Use Statistics"). Carrier hereby assigns to Company any and all right, title, and interest, including without limitation copyright and patent rights, in and to any such findings, inventions, improvements, discoveries, ideas, and System Use Statistics and in and to all Anonymized Data. Unless otherwise expressly agreed in writing, Carrier shall not obtain any right, title, or interest in or to anything created or developed by Company in connection with or incident to this Agreement other than the license expressly set forth herein.
16. Backup Copies. Carrier may make copies of the Documentation provided that no more than a reasonable and necessary number of such copies may be in existence at any one time. Carrier shall preserve on and/or in all such backup copies all of Company?s copyright and other restrictive and proprietary notices in the form and content as they appear on and/or in the Documentation. Carrier acknowledges and agrees that all such backup copies are and shall remain Licensed Materials.
17. Warranties and Disclaimers.
(a) Viruses. Company represents that to its knowledge the Application does not contain any computer code designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as "viruses" or "worms") and warrants that it will not intentionally cause the same to be embodied in the Application and will take commercially reasonable efforts to ensure that no third party causes the same to be embodied in the Application.
(b) WARRANTY DISCLAIMERS. THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND COMPANY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF OR THE SERVICES HEREUNDER, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN Carrier WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF.
(c) Other Disclaimers. Carrier will be exclusively responsible as between the parties for, and Company makes no warranty or representation with respect to, determining whether the Application will achieve the results desired by Carrier and selecting, procuring, installing, operating, and maintaining the technical infrastructure for Carrier?s access to and use of the Application. Company shall not be liable for, and shall have no obligations with respect to, any aspect of the Application that is modified by any person other than Company or its contractors, use of the Application other than in accordance with the most current operating instructions provided by Company, malfunctions or failures caused by defects, problems, or failures of hardware or software not provided by Company, or malfunctions or failures caused by acts or omissions of Carrier or any third party. Carrier acknowledges that the operation of the Application will not be error free in all circumstances, that all defects in the Application may not be corrected, and that the operation of the Application may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of Company.
18. Intellectual Property Indemnification.
(a) Indemnity. Company shall indemnify Carrier against any final judgment entered in respect of an Infringement Claim by a court of competent jurisdiction and against any settlements arising out of such a claim. Company?s obligations specified in this paragraph will be conditioned on Carrier?s notifying Company promptly in writing of the Infringement Claim or threat thereof (whether or not litigation or other proceeding has been filed or served) and giving Company full and exclusive authority for, and information for and assistance with, the defense and settlement of such claim and any subsequent appeal.
(b) Remedies. If an Infringement Claim has occurred or in Company?s opinion is likely to occur, Carrier agrees to permit Company, at its option and expense, either to (i) procure for Carrier the right to continue using the Licensed Materials, (ii) replace or modify the same so that it becomes non-infringing, or (iii) immediately terminate both parties? respective rights and obligations under this Agreement with regard to the Licensed Materials, in which case, if the Carrier possesses any Licensed Materials, Carrier will return all copies thereof to Company and Company will refund to Carrier the applicable license fees paid by Carrier for the then-current term of this Agreement prorated for the portion of the term through the date of such termination.
(c) Exceptions. The foregoing notwithstanding, Company shall have no liability for, and Carrier will indemnify Company and its directors, officers, and employees against, any claim arising from (i) the combination, operation, or use of any Licensed Materials with equipment, devices, or software not supplied by Company if such claim would not be valid but for such combination, operation, or use, (ii) modification of any Licensed Materials, (iii) Company?s compliance with Carrier?s designs, specifications, or instructions, or (iv) Carrier?s use of the Licensed Materials after Company has informed Carrier of modifications or changes in the Licensed Materials required to avoid such claims if such claim would have been avoided by implementation of Company?s recommended modifications and Company has offered to pay Carrier?s out-of-pocket costs of implementing any such modifications.
(d) EXCLUSIVE REMEDY. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY, AND THE EXCLUSIVE REMEDY OF Carrier, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS AND MISAPPROPRIATION OF TRADE SECRETS.
19. Risk Allocation.
(a) EXCLUSION OF INDIRECT DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY?S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
(b) MAXIMUM AGGREGATE LIABILITY. OTHER THAN FOR Carrier?S USE OR DISCLOSURE OF THE LICENSED MATERIALS BEYOND THE SCOPE OF THE LICENSE GRANTED HEREIN OR IN VIOLATION OF THE TERMS OF THIS AGREEMENT, IN NO EVENT SHALL A PARTY?S AGGREGATE LIABILITY TO THE OTHER PARTY (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH SUCH PARTY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID HEREUNDER DURING THE ONE?YEAR PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO CLAIM. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
(c) Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement were negotiated, as a material part of the agreement memorialized herein, to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.
20. Breach; Termination.
(a) Notice of Breach; Cure Period. In the event of a breach of provision of this Agreement, the notice and cure procedures set forth in this paragraph shall apply. The non-breaching party shall give the breaching party notice describing the breach and stating the time, as provided herein, within which the breach must be cured. If a provision of this Agreement sets forth a cure period for the breach in question, then that provision shall take precedence over any cure period set forth in this paragraph. No cure period shall be required, except as may be provided otherwise in this Agreement, if this Agreement sets forth specific deadline dates for the obligation allegedly breached. If the breach is (i) of an obligation to pay money or (ii) a non-willful breach of an obligation of a party relating to the other party?s Confidential Information, then the breaching party shall have five business days to cure the breach after written notice thereof by the non-breaching party. If the breach is a willful breach of an obligation of a party relating to the other party?s Confidential Information, then the non?breaching party, in its sole discretion, may specify in the notice of breach that no cure period will be permitted. If the breach is other than a breach of the kind described above in this paragraph, then the cure period will be 30 days after the notice of the breach by the non-breaching party.
(b) Termination for Breach. If a breach of any provision of this Agreement has not been cured at the end of the applicable cure period, if any (or upon such breach if no cure period is permitted), then the non-breaching party thereupon may terminate this Agreement by notice to the other party. This Agreement shall terminate automatically, without notice from Company, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if Carrier makes an assignment for the benefit of its creditors, files a petition in bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within 60 days after the effective filing date thereof), or admits of a general inability to pay its debts as they become due. Any termination of this Agreement for breach shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.
(c) Suspension, Cancellation, Termination, or Withdrawal of Operating Authority. Without limiting any provision of this Agreement or any other remedies available to Company, this Agreement shall terminate automatically, without notice from Company, upon any suspension, cancellation, termination or withdrawal of Carrier?s operating authority.
21. Nature of Relationship. Company shall perform all services hereunder as an independent contractor to Carrier, and nothing contained herein shall be deemed to create any agency or other relationship between the parties or any of their affiliates. Neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.
22. Marketing. Except as otherwise provided in this Agreement, Company shall not display or use Carrier?s logos, trademarks, service marks, or other indicia of origin without Carrier's prior written consent (which may be given in email), and any such consent may be revoked at any time upon reasonable advanced written notice from Carrier to Company; provided, however, that Company may identify Carrier as a Company customer in its marketing materials and advertisements, on its web site, and in presentations. Company shall not acquire any intellectual property rights in any such logos, trademarks, service marks, or other indicia of origin.
23. Other Provisions.
(a) Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement in writing, in the English language, (i) by personal delivery, provided that if the applicable person is an entity, such delivery shall be to an officer of such entity or, if none, to an individual serving in a similar capacity (in which case such notices shall be deemed given upon such personal delivery), (ii) by certified or registered U.S. mail, postage pre-paid, from within the United States (in which case such notices shall be deemed given on the third business day after deposit), (iii) with next-business-day instruction by a recognized overnight courier, pre-paid, with next-business-day delivery instruction (in which case such notices shall be deemed given on the next business day after deposit), or (iv) to Carrier, by e-mail (in which case such notice shall be deemed given upon transmission unless Company receives a non-delivery email message within a reasonable time thereafter). Notices shall be sent to Company at Attn: Legal Department, HwyPro, 19 Oakthorn Court, Youngsville, LA 70592, with copy to Steve F. Wood, Esq., Baker Donelson, 211 Commerce Street, Nashville, Tennessee 37201, and to Carrier at the address or email address for notices provided in the Registration or as provided in clause (iv) of this paragraph. Company may change its address for purposes of notice by written notice thereof to Carrier, and Carrier may change its address for purposes of notice by written notice to Company.
(b) Survival. The covenants herein concerning Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
(c) Force Majeure; Emergency Suspension. Except with respect to any payment obligations and except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party, including without limitation acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, fires, floods, explosions, epidemics, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies. Any provision of this Agreement to the contrary notwithstanding, if Company reasonably believes that use of the Application by any User will or could disrupt operation of the Application, other Carriers' use of the Application, or the infrastructure used to provide the Application, or will or could result in unauthorized access to the Application or information stored or processed by or through the Application, Company without notice to Carrier may suspend or limit use of the Application to the extent and for such time as Company reasonably deems necessary or appropriate.
(d) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Mississippi (other than its conflicts of law provisions) and venue shall be exclusive in the federal or state courts in Mississippi.
(e) Assignment. Carrier may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement only with the express prior written consent of Company, which may be granted or withheld in Company?s sole discretion. Any purported transfer or assignment by Carrier of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement. This Agreement shall be assignable by Company upon notice to Carrier.
(f) Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
(g) No Third Party Beneficiaries. Except with respect to express indemnitiees as set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and their respective successors or assigns any rights or remedies whatsoever.
(h) Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
(i) Amendment and Waiver. No modification or amendment to this Agreement will be valid or binding unless in writing and duly executed by the party or parties to be bound thereby (which may be accomplished in electronic form or by electronic means). The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement.
(j) Severability. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other government body making the ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable would be deemed amended, and the court or other government body is authorized to reform the provision(s), to the minimum extent necessary to render them valid and enforceable in conformity with the parties? intent as manifested herein; and (iv) if the ruling, and/or the controlling principle of law or equity leading to the ruling, subsequently is overruled, modified, or amended by legislative, judicial or administrative action, then the provision(s) in question as originally set forth in this Agreement will be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
(k) Attorney Fees. If litigation or other action is commenced between the parties concerning any dispute arising out of or relating to this Agreement, the prevailing party will be entitled, in addition to any other award that may be made, to recover all court costs and other official costs and all reasonable expenses associated with the litigation or other action, including without limitation reasonable fees and expenses of attorneys.
(l) Injunctive Relief. Recognizing the unusual nature of computer software and trade secrets, Carrier acknowledges that any violation by Carrier of its covenants in this Agreement relating to Company?s Confidential Information, including without limitation the Licensed Materials, would result in damage to Company that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give Company the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants. Carrier agrees to pay Company any reasonable expenses, including without limitation attorney fees and expenses, incurred in obtaining such specific enforcement (in addition to any other relief to which Company may be entitled).
(m) Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.