These Terms and Conditions (“Terms and Conditions”) and the applicable order form, which is hereby incorporated by reference (“Order Form,” and together with these Terms and Conditions, the “Agreement”) is entered into as of the date such Order Form is accepted by ExpediteLoadBoard, Inc., a Delaware corporation (“ExpediteLoadBoard”), by and between ExpediteLoadBoard and the Customer set forth on such Order Form (”Customer”).
ExpediteLoadBoard is a provider of a web-based order and web-based inventory management service (including the Site (defined below), the “Service”). Customer desires to obtain and ExpediteLoadBoard desires to provide Customer with access to the Service, pursuant to the Agreement.
1. Provision of Service. Subject to the terms and conditions of this Agreement, including without limitation Customer’s payment of all of the fees due hereunder, ExpediteLoadBoard will provide Customer with access to the Service, to be delivered via the Internet at the website address www.ExpediteLoadBoard.com (the “Site”) during the term of the Agreement. Customer may use the Service solely for its intended purpose in accordance with the Agreement.
3. Account Protection. Customer and all Authorized Users shall protect the confidentiality of all Account information, including user names and passwords, and will not share such information with any person. In the event that an Authorized User becomes aware that the security of such party’s login information has been breached, the party shall immediately notify Customer and Customer shall immediately de-activate such Account or change the Account’s login information.
4. Customer Assistance and Materials. Customer shall provide ExpediteLoadBoard with all information, assistance and materials as reasonably required for ExpediteLoadBoard to activate and operate the Service for Customer pursuant to this Agreement. Customer grants and agrees to grant to ExpediteLoadBoard a non-exclusive license to use, reproduce, display and distribute such information and materials in connection with the provision of the Service for Customer.
5. Infrastructure. ExpediteLoadBoard may host the Service using its own infrastructure or it may engage a third party to host the Service on its behalf.
6. Support and Maintenance. ExpediteLoadBoard will provide Customer with a reasonable amount of maintenance and support regarding use of the Service during the Term. Updates to the Service may be provided in ExpediteLoadBoard’s discretion at no additional charge to Customer. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by ExpediteLoadBoard. During such time, the Service may be unavailable. Emergency maintenance may be required at other times. ExpediteLoadBoard will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Service.
7. Restrictions and Customer Obligations. Customer and any Authorized Users may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service; (iii) use the service to violate and law or regulation; (iv) access or attempt to access another Customer’s or party’s data or confidential information; or (v) use the Service as a service bureau or any other manner to provide services for a third party. Neither Customer nor any Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service. Customer and its Authorized Users shall comply with all applicable law relating to its use of the Service.
FEES AND PAYMENT
1. Fees. Customer shall pay ExpediteLoadBoard for use of the Service in accordance with the pricing set forth on our Pricing and Usage Table, as may be updated from time to time. CUSTOMER AUTHORIZES ExpediteLoadBoard TO CHARGE CUSTOMER’S CREDIT CARD OR OTHER PAYMENT METHOD IN ACCORDANCE WITH THIS AGREEMENT, REPRESENTS THAT IT HAS THE RIGHTS TO AUTHORIZE SUCH CHARGES AND PAYMENTS, AND SHALL BE RESPONSIBLE FOR PAYMENT IN THE EVENT THAT THE PAYMENT METHOD IS DECLINED, EXPIRED OR DISCONTINUED. All fees are non-refundable (irrespective of actual usage), and are due and payable in U.S. dollars via the mechanisms made available within the Service (e.g. credit card, PayPal, etc.). Unless otherwise agreed, fees are due in advance for the applicable period.
2. Taxes. All fees are inclusive of applicable sales, excise, use or similar taxes.
3. Late Payments. If payment is not made on the respective due date, ExpediteLoadBoard may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Should Customer not pay amounts when due, ExpediteLoadBoard may also (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service.
LIMITATIONS OF LIABILITY
1. Warranty Disclaimer. ExpediteLoadBoard DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR ANY SUPPORT RELATED THERETO AND WITH RESPECT TO ANY INFORMATION PROVIDED VIA THE SERVICE, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
2. Limitations of Liability. ExpediteLoadBoard SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOST OF INFORMATION, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT SHALL ExpediteLoadBoard’S THE TOTAL COLLECTIVE LIABILITY FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
3. Allocation of Risk. The warranty disclaimers and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Customer and ExpediteLoadBoard each acknowledge and agree that the limitation of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Customer’s use of the Service and, but for this provision, ExpediteLoadBoard would not have made the Service available to Customer at the prices contemplated under this Agreement.
4. Customer Indemnity. Customer shall indemnify, defend, and hold harmless ExpediteLoadBoard and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service or use or disclosure of ExpediteLoadBoard Confidential Information by Customer or any Authorized User, (b) use of the Service by Customer or any Authorized User in violation of the Agreement; (c) Customer or Authorized User violation of applicable law; (d) any data uploaded by Customer or an Authorized User; or (e) any activities of Customer or an Authorized User through the use the Service.
1. Term. This Agreement will commence on the Effective Date and will continue for an initial term of one (1) month (the “Term”). Thereafter, Customer’s subscription to the Service and the Term of this Agreement will renew for successive periods of one (1) month, unless one party advises the other of its intent not to renew not less than ten (10) days prior to the applicable renewal date.
2. Termination. In the event that either party is in material breach of this Agreement, and the non-breaching party does not cure such breach within ten (10) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party.
3. Effect of Termination. Upon termination of this Agreement, Customer and any Authorized Users must immediately stop using the Service, return or destroy any documentation provided to Customer. Upon termination of this Agreement, Sections 2.8,7 shall survive and remain in effect.