Terms & Conditions

1. SERVICES AND SUPPORT

1.1 Subject to the terms and conditions of this Agreement, P44 will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at P44’s sole discretion, for any purpose deemed appropriate by P44, provided that such modification will not materially affect the basic functionality of the Services. P44 will use reasonable efforts to give Customer prior written notice of any such modification.

1.2 P44 will undertake commercially reasonable efforts to make the Services available. Notwithstanding the foregoing, P44 reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to P44.

1.3 Subject to the terms hereof, P44 will provide reasonable support to Customer for the Services from Monday through Friday during P44’s normal business hours.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).

2.2 Customer will cooperate with P44 in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as P44 may reasonably request. Customer will also cooperate with P44 in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.

2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to P44.

2.4 Customer hereby agrees to indemnify and hold harmless P44 against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although P44 has no obligation to monitor the content provided by Customer or Customer’s use of the Services, P44 may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.5 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

2.6 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). P44 is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. P44 does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it [without restriction] by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, P44 may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.

3.2 Customer acknowledges that P44 does not wish to receive any Proprietary Information from Customer that is not necessary for P44 to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, P44 may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

3.3 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Except as expressly set forth herein, P44 alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to P44. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.

4.2 During the Service Term and for a period three years thereafter, Customer hereby agrees to furnish and make available to P44 all of the data and information described on Exhibit A attached hereto and made a part hereof (the “Data”). The Data shall be transmitted or made available to P44 with such frequency and in such format as P44 shall reasonable designate. If requested by P44, Customer shall provide the Data to P44 in accordance with the parameters, protocols and procedures as P44 shall reasonably establish. Such operational arrangements do not need to be signed as a supplement or amendment to this Agreement. All data sent electronically shall be transmitted in accordance with these operational arrangements. Each party, at its own expense, shall provide and maintain the equipment, software, services and testing necessary to effectively and reliably transmit and receive data. Customer agrees that, during the period it is obligated to provide Data to P44 hereunder, Customer will not transmit, provide or make available the Data to any third party in any form, or otherwise commercially exploit the Data in a manner that is reasonably likely to be competitive with or erode the value of P44’s services and products.

4.3 P44 is hereby granted the right to use and use and exploit the Data in aggregated, unidentifiable form together with similar data furnish by third parties, provided that the Data will not constitute in excess of twenty percent (20%) of any such combined data set, for the purpose of providing and improving the Services and for developing and delivering any service or product (including informational products) that may from time to time be offered or developed by P44. Without limiting the generality of the foregoing permitted uses of the Data, P44 may: (i) combine the Data with the data and information of third parties; (ii) sell and/or sublicense the Data, whether standing alone or in combination with the data and information of third parties, to third parties; and (iii) create derivative works of the Data to develop products and data streams for marketing and sale to customers of P44.

4.4 Customer grants P44 the right to use Customer’s name and logo on P44’s website and/or in P44 marketing materials, solely to identify Customer as a Services user. Customer also agrees to participate in a case study and provide a testimonial upon the successful deployment of the Services. Any other use of Customer’s name or logo must be pre-approved in writing by Customer.

6. WARRANTY DISCLAIMER

THE SERVICES AND P44 PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. P44 (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL P44 (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF P44 HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF P44, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO P44 HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by P44 are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with P44’s prior written consent. P44 may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind P44 in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. P44 will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of Illinois, U.S.A. without regard to its conflict of laws provisions. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Cook County, Illinois, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Chicago, Illinois. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees.. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by P44. P44 is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.

EXHIBIT A
DATA

1) RATING

a) Origin and Destination
i) 5-Digit Zip Code
ii) City
iii) State
b) Shipment characteristics
i) Weight
ii) Dimensions
iii) Freight class
iv) Quantities
c) Pickup date
d) Carrier’s rate
e) Carrier transit time

2) DISPATCH
a) Origin and Destination (city, state, zip code)
b) Shipment characteristics
i) Weight
ii) Dimensions
iii) Freight class
iv) Quantities
v) Item description
c) Pickup date
d) Delivery date (if appointment is used)
e) Transit time
f) Quote Number

3) TRACKING
a) Shipment status and timestamps
b) Shipment location (when available, defined as one of the following)
i) Address (City, State, Zip)
ii) Carrier Terminal (known location)
c) Delivery time