THESE TERMS OF USE CONTAINS A MANDATORY ARBITRATION PROVISION, WAIVER OF JURY TRIAL AND OTHER RIGHTS AND OBLIGATIONS. PLEASE READ IT CAREFULLY BEFORE AGREEING.

 

USER AGREEMENT

 

1. Responsibilities of Company.

Company will provide access to and functionality of the Company’s cloud-based software which includes, but is not limited to, the features set forth in the invitation, and all changes, corrections, bug fixes, enhancements, updates, upgrades, and other modifications thereto, whether made by or on behalf of Company, User, or any third party (collectively the “Software”) and other services as mutually agreed to by the Parties. User agrees and acknowledges that Company will have the right, but not the obligation, to review and monitor all use of the Software and any documentation provided by the Company for use with the Software under this Agreement (the “Documentation” and together with the Software, the “Licensed Materials”) and the use of the software on the Company’s system, which for purposes of this Agreement may include, but is not limited to, the systems of Company’s hosting service provider (the “Company System”) to ensure compliance with the terms of this Agreement.

 

2. Responsibilities of User.

2.1  User will cooperate in setting up the Software as reasonably requested by Company, including naming an authorized representative who will be responsible for providing information, instructions, approvals and coordinating the setup on User’s behalf.

 

2.2 User will be responsible at its expense for obtaining and maintaining all the necessary computer hardware, software, modems, connections to the Internet and other items required to access the Company System.

 

2.3  The Software may permit User and/or Users to communicate with, provide, submit, or upload to, Company or the Software, graphics, text, audio, photos, software, materials, User Data, or similar information (the “User Content”). User shall ensure that User and Users (defined below) shall not, nor permit any third party, to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any User Content that: (i) is unlawful or encourages another to engage in anything unlawful; (ii) is untrue, inaccurate, outdated or not current; (iii) contains a virus or any other similar programs or software which may damage the operation of Company’s or another’s computer; (iv) violates the rights of any third party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any third party; or (v) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. User understands and agrees that Company reserves the right to edit, modify or remove any User Content being hosted by Company, in its sole discretion.

 

2.4  User shall assign each User a unique user identification, password, and a role that dictates permission-based access to the Software and/or Company’s System. User shall not allow login accounts, user identifications, and passwords to be shared, even among Users. In addition, User shall be solely responsible for any and all acts or omissions by Users, including any actions which result in any unauthorized access to or use of the Software.

 

2.5  User shall comply with any applicable local, state, national and foreign laws and regulations.

 

3. Definitions.

For the purposes of this Agreement, “Company” shall mean Transfix, Inc. and “User” shall mean you or your company.

 

4. Payment.

There shall be no payment required hereunder.

 

5. Terms.

5.1  Subject to the terms and conditions of this Agreement and Company’s Terms of Service, which are hereby incorporated by reference, only User’s employees, representatives, consultants, contractors, agents and other persons expressly permitted to make use of the Software by User in connection with User’s business (“Users”), may access and use the Software and only for internal use as it relates to operations of the User. Company does not guarantee, represent or warrant that (i) access to the Software will be uninterrupted or error-free, and (ii) that User will be able to access or use all of the Software features at all times. Company will make reasonable efforts to notify User of system outages and scheduled downtime. Company may suspend or interrupt access to, or use of, the Software, in whole or in part, if (iii) User or Users are using the Software or Services in violation of this Agreement or in violation of the law; (iv) User’s or Users’ system or account has been compromised or unlawfully accessed; or (v) suspension of the Software or Services is necessary to protect the infrastructure of Company or its affiliates or required under the law.

 

5.2  User shall not, and shall not permit any third party to: (i) use the Licensed Materials except as expressly permitted in Section 4.1; (ii) decompile, disassemble, or reverse engineer the Software (unless this restriction is not permitted under applicable law); (iii) modify or create any derivative work of any part of the Licensed Materials; (iv) permit any third parties to use the Licensed Materials; (v) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Licensed Materials, or use the Licensed Materials for time-sharing or service bureau use; or (vi) remove any proprietary notices contained in the Licensed Materials.

 

5.3 Company reserves all rights to the Licensed Materials, Documentation and the Company System not otherwise expressly granted in this Section 4.

 

6. License to Company.

User hereby grants Company a non-limited, worldwide, non- exclusive, royalty-free and irrevocable license to use, reproduce, distribute, transmit, have transmitted, perform, display, store, archive, and to modify, aggregate (in anonymized form), and make derivative works of the User Content in order to provide and improve the Services and as otherwise provided for in this Agreement.

 

7. Ownership.

7.1  As between User and Company, the User shall retain all right, title and interest in and to the User Content, and all rights in, to, or arising out of: (i) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (ii) copyrights, copyright registrations, software, trademarks, publicity, whether arising by operation of law, contract, license or otherwise; and (iii) any other similar or equivalent proprietary rights anywhere in the world (collectively, the “Intellectual Property Rights”). Nothing in this Agreement will confer on Company any right of ownership or interest in the User Content or the Intellectual Property rights therein.

 

7.2  Company may use, analyze and modify User Content in connection with its business and Company offerings including, but not limited to creating derivative works therefrom (“Derivative Works”). User hereby agrees that all Derivative Works created by Company are the exclusive property of Company, and User will and hereby does irrevocably waive all right, title and interest in and to the Derivative Works and all related Intellectual Property Rights therein.

 

7.3  As between User and Company, Company shall retain all right, title and interest in and to the Licensed Materials, the Software, the Company System, any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the Parties all such rights shall vest in and are hereby irrevocably assigned to Company. Nothing in this Agreement will confer on User any right of ownership or interest in the Licensed Materials, the Software, the Company System, or the Intellectual Property rights therein otherwise set forth in this Agreement.

 

8. Representations and Warranties; Disclaimer.

8.1 Company represents and warrants to User that: (i) Company possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;and (ii) the performance of the terms of this Agreement and of Company’s obligations hereunder shall not breach any separate agreement by which Company is bound

 

8.2 User represents and warrants to Company that: (i) User possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder; (ii) the performance of the terms of this Agreement and of User’s obligations hereunder shall not breach any separate agreement by which User is bound; (iii) Company’s use of User Content as directed by User will not violate, misappropriate, or infringe the rights of any third party including, but not limited to, Intellectual Property Rights and rights under applicable data privacy laws; and (iv) the User shall comply with all applicable legal and/or regulatory requirements.

 

8.3 EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 7, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, THE COMPANY SYSTEM, CONFIDENTIAL INFORMATION, SERVICES, DELIVERABLES, AND/OR ANY OTHER MATERIALS PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY WAIVED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS.

 

9. Term; Termination.

9.1 Unless earlier terminated as provided for herein, this Agreement will commence on the Effective Date (individually and collectively the “Term”) and continue until terminated by either Party.

 

9.2 Termination.

 

9.2.1 This Agreement may be terminated by either Party upon:

(a)  thirty (30) days written notice to the other Party; or

(b)  upon written notice if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within seven (7) days after such filing.

 

9.2.2 In the event of termination (i) User and Users shall cease accessing and using the Licensed Materials; (ii) Company shall terminate access to the Software for User and Users; and (iii) each Party shall promptly return, or at the other Party’s request, destroy, all Confidential Information of the other Party (including without limitation the User Data and the Documentation). Sections 3, 4.2, 5-6, 7.2, 8.2.1, and 9-12 shall survive expiration or termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon expiration or termination of this Agreement.

 

10. Confidentiality.

10.1 From time to time, before or during the Term, Company may disclose non-public information to User including but not limited to, (a) marketing, sales, services, costs, business methods, formulae, product specifications, planning, financial information, engineering, designs, software, technical information and business strategies of all kinds; (b) customer lists and customer information, including the identity and contact information for each Party’s individual contacts at such individuals or entities; (c) business partners, vendors, suppliers and resources, and the identities and contact information for each Party’s individual contacts at such individuals or entities; (d) reports, proposals and other work product and (e) trade secrets. Notwithstanding anything to the contrary herein, all technology or proprietary information underlying the Software and the Company System and all derived data and Documentation shall be deemed Confidential Information of Company. User agrees that it shall use and reproduce the Confidential Information of the Company only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes. Further, Company shall restrict disclosure of such Confidential Information to User’s employees, consultants, or advisors who have a need to know and who are bound in writing to keep it confidential at least to the same degree provided herein. User shall not disclose such Confidential Information to any third party without the prior written approval of the Company. The foregoing obligations shall be satisfied by the User through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but in no event less than a reasonable degree of care. All third parties to whom the User discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the User to disclose Confidential Information pursuant to the explicit written consent of the Company, or if compelled to do so under applicable law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the User has given the Company prior notice and reasonable assistance to permit the Company a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. In no event shall the User shall disclose more than the minimum amount of Company’s Confidential Information necessary to comply with such applicable law, or judicial or governmental investigation.

 

10.2  Notwithstanding anything to the contrary herein, the following shall not be considered Confidential Information, information that: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the User; (ii) was known to the User, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by the User without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (iv) becomes known to the User, without restriction, from a source other than the Company without breach of this Agreement by the User and otherwise not in violation of the Company’s rights; or (v) is disclosed generally to third parties by the Company without restrictions similar to those contained in this Agreement.

 

10.3  The User agrees that a breach of this Section 9 may result in immediate and irreparable harm to the Company that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Company will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

 

11. Limitation.

11.1 USER ACKNOWLEDGES THAT, EXCEPT AS ARISING UNDER COMPANY’S OBLIGATIONS PURSUANT TO SECTION 11 OF THIS AGREEMENT, COMPANY WILL NOT BE LIABLE TO THE USER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LICENSED MATERIALS, THE COMPANY SYSTEM, CONFIDENTIAL INFORMATION, SERVICES, DELIVERABLES, AND/OR ANY OTHER MATERIALS PROVIDED HEREUNDER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.

 

11.2  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY’S MAXIMUM AND TOTAL LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT , THE LICENSED MATERIALS, , THE COMPANY SYSTEM, CONFIDENTIAL INFORMATION, THE SERVICES, DELIVERABLES, AND/OR ANY OTHER MATERIALS PROVIDED HEREUNDER SHALL NOT EXCEED $100.00 (USD).

 

11.3  Should the Software not perform or function as expressly described in the Documentation, Company shall use reasonable efforts to correct the nonconformities. The foregoing remedy is available only if User notifies Company in writing of such non-conformity within sixty (60) days of its discovery by User, and Company’s examination of the Software discloses that such non-conformity exists. The foregoing remedies shall be User’s sole and exclusive remedies and Company’s entire liability for any non- conformity with respect to the performance or functionality of the Software.

 

12. Indemnification.

12.1  Company shall indemnify, defend and hold User harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) (“Claim”) caused by (i) without implying a duty of care not otherwise provided under applicable law, the gross negligence or intentional misconduct by Company in connection with this Agreement; or (ii) a third party’s intellectual property rights based on the use of, or access to, the Company System or Licensed Materials by User or Users. This indemnity does not apply to, and Company will have no obligation to the User for, any infringement or misappropriation claim that arises from (i) modifications to the Company System or Licensed Materials by anyone other than Company, (ii) modifications to the Company System or Licensed Materials based upon specifications furnished by the User, (iii) User’s use of the Company System or Licensed Materials other than as specified in or in violation of this Agreement or in the applicable documentation, (iv) use of the Company System or Licensed Materials in conjunction with third-party software, hardware or data other than that approved by Company, or (v) any combination of the foregoing.

 

12.2  User agrees to defend, indemnify and hold harmless Company and its directors, officers, employees, and agents from and against all damages, costs (including reasonable attorneys’ fees), judgments and other expenses arising out of or on account of a Claim relating to (i) the performance of any services by Company that were directed by User; (iii) any personal injury or property damage occurring in the course of User’s operations; (iv) any breach of this Agreement by User or Users; (v) the negligence, gross negligence, violation of law, professional or intentional misconduct on the part of the User or Users; or (vi) the infringement of a third party’s intellectual property or privacy rights by User Data or User Content.

 

12.3  The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of the negotiations, litigation, or settlement and (ii) the indemnifying Party shall not settle any Claim in a manner that would admit fault or wrong- doing of the Indemnified party without that Party’s written consent, not to be unreasonably withheld or delayed. The indemnified Party may, but is under no obligation to, participate in the defense of a Claim with its own counsel and at its own cost.

 

12.4  In the event any portion of the Company System or the Licensed Materials is held or believed by Company, or any portion of the User Data or User Content is held or believed by the User, to infringe or misappropriate Intellectual Property Rights of any third party (the “Infringing Materials”) in any place where the Company System or the Licensed Materials is used or accessed, then in addition to any other rights in this Section 11, Company or User, as applicable, shall, at its sole expense and at its option: (i) obtain from such third party the right for the other Party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or, (iii) upon mutual agreement with the other Party, remove and/or disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement.

 

12.5  THIS SECTION 11 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.

 

13. Miscellaneous.

13.1 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Company may assign its duties and obligations under this Agreement to a successor in interest in connection with an acquisition, merger, reorganization, recapitalization or the sale of substantially all or all of its assets. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns. Any assignment or transfer made in violation of this Section 12.1 shall be null and void and without effect.

 

13.2  Publicity. User agrees that Company may use User’s name, service mark or trademark and success metrics in connection with promotional or other marketing material.

 

13.3  Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.

 

13.4  Force Majeure. If either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.

 

13.5  Governing Law; Dispute Resolution. This Agreement shall be governed by and interpreted solely in accordance with the laws of the state of New York without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of New York, New York.

 

13.6  Arbitration. THE PARTIES AGREE THAT EITHER PARTY MAY, AT ITS SOLE DISCRETION, ELECT TO INITIATE ARBITRATION OF ANY DISPUTE PURSUANT TO THE THEN EXISTING COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT. THE PARTIES FURTHER AGREE THAT: (I) ARBITRATION OF LOSS AND DAMAGE CLAIM DISPUTES WILL SATISFY ANY REQUIREMENT THAT SUIT BE FILED, WHETHER SAID REQUIREMENT OF SUIT IS BY CONTRACT OR STATUTE; (II) ARBITRATION AWARDS WILL BE BINDING AND ENFORCEABLE IN A COURT OF COMPETENT JURISDICTION; (III) IF USER DECLINES OR REFUSES TO PARTICIPATE IN ARBITRATION, COMPANY (OR CLAIMANT) MAY INITIATE SUIT IN A FORUM OF ITS CHOICE AND, IN THAT EVENT, USER SHALL REIMBURSE COMPANY (OR CLAIMANT) ITS COSTS AND EXPENSES OF SUIT; (IV) ARBITRATION WILL BE BEFORE A SINGLE ARBITRATOR CHOSEN BY THE PARTIES AND WILL TAKE PLACE IN NEW YORK, NY IN THE ENGLISH LANGUAGE; (V) THE ARBITRATOR WILL HAVE THE RIGHT TO GRANT DISCOVERY AS THEY DEEMS FIT AND FAIR; (VI) THE ARBITRATOR WILL PROVIDE A WRITTEN DECISION SETTING FORTH HIS OR HER FACTUAL AND LEGAL BASIS FOR SAME; (VIII) THE COST OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES, AND EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN COST OF COUNSEL AND (VIII) THE PROVISIONS OF THE U.S. FEDERAL ARBITRATION ACT SHALL APPLY.

 

13.7 All notices and other communication hereunder shall be sent to fleetplannersupport@transfix.io.

 

13.8 The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

 

13.9 If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.

 

13.10 No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.

 

13.11 Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.

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