1) LICENSED PRODUCT. Throughout the Term, as defined in the order (the “Order”), Transfix, Inc. (the “Vendor”) shall, in accordance with all Terms and Conditions as set forth herein and the Order, provide to Customer TrueView TMS by Transfix  Platform (the “Licensed Products”), as defined in the Order.

2) LICENSE GRANT

  • a) Upon execution of the Order, subject to the Terms and Conditions and of the Order, Vendor grants, Customer a limited, non-exclusive, revocable license to use the Licensed Products.  Customer shall be defined the party and its subsidiaries and affiliates that directly or indirectly (i) own or control, (ii) are owned by or controlled by or (iii) are under common ownership or control utilizing the Vendor’s products 
  • b) Customer shall use the Licensed Products solely for the purposes set forth in the Order and shall not (i) modify, translate, copy or create derivative works based on the Licensed Products, or any element of thereof, (ii) create Internet “links” to or from the Licensed Products, or “frame” or “mirror” any content forming a part of thereof, other than on Customer’s own intranets, (iii) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Licensed Products in whole or in part, except as and only to the extent this restriction is prohibited by law, (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Licensed Products available to any third party, Users as contemplated by the Order, without the prior written consent of Vendor, (v) use the Licensed Products to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (vi) interfere with or disrupt the integrity or performance of the Platform or the data contained therein or block or disrupt any use or enjoyment of the Licensed Products by any third party, (vii) attempt to gain unauthorized access to the Licensed Products or its related systems or networks or (viii) remove or obscure any copyright, trademark or other proprietary notices, legends or labels contained in the Licensed Products.

3) OWNERSHIP. Customer acknowledges and agrees that Vendor shall at all times own the right to the Licensed Products and all other intellectual property rights set forth herein, and in no event does Vendor grant any other right expressed or implied .

4) MUTUAL NONDISCLOSURE

  • a) Pursuant to these Terms and Conditions and the Order, each party may, from time to time, furnish the other party with certain Confidential Information. Confidential Information means any information or data of a confidential or proprietary nature to a party, that is not generally known to the public, whether in tangible or  intangible  form, whenever  and  however  disclosed. The parties agree to hold each other’s Confidential Information in strict trust and confidence and not to disclose or otherwise disseminate such information to any nonparty person or entity, except the parties’ respective employees, agents, representatives, advisors, and counsel who are on a “need to know” basis and who agree to be bound by the obligations of confidentiality set forth herein (“Representatives”). Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its Representatives in violation of these Terms and Conditions and shall be liable for any such violation on the part of its Representatives. Each party shall retain ownership of any and all Confidential Information it discloses to the other party. The disclosure of discloser’s Confidential Information does not grant to the recipient any license or rights to any trade secrets or under any patents or copyrights, except as expressly provided by the licenses granted in these Terms and Conditions.
  • b) The obligations of recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
    • i) was in the public domain at the time of Discloser’s communication thereof to recipient;
    • ii) entered the public domain through no fault of recipient subsequent to the time of discloser’s communication thereof to recipient;
    • iii) was in Recipient’s possession free of any obligation of confidence at the time of discloser’s communication thereof to recipient;
    • iv) was independently developed by recipient as demonstrated by written records; or,
    • v) is required to be disclosed by court or government order and discloser has been given notice of such order.

5) WARRANTIES. Each party warrants that (i) it possesses all rights and interests necessary to enter into these Terms and Conditions and Order; and (ii) it shall perform all obligations under these Terms and Conditions and Order, in material compliance with all applicable federal, state, and local laws, rules and regulations (collectively “Laws”). In addition, Vendor extends the following warranties: WARRANTY EXCLUSIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITOINS AND ORDER, NEITHER PARTY MAKES, AND EACH EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6) EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY. For any breach of warranties contained in Section 3 of this Article, Customer’s exclusive remedy and Vendor’s entire liability shall be as follows:

  • a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FURTHER, EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN A GIVEN CALENDAR YEAR SHALL IN ANY CIRCUMSTANCES BE SUBJECT AND LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER WITHIN THE SAME CALENDAR YEAR THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, VIOLATION OF LAW, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, DAMAGES FOR BODILY INJURY (INCLUDING DEATH), FRAUD, AND DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY OR WITH RESPECT TO A BREACH OF THESE TERMS AND CONDITIONS. 
  • b) Except for actions for non-payment or breach of Vendor’s intellectual property rights, no action (regardless of form) arising out of these Terms and Conditions and Order, may be commenced by either party more than two (2) years after the cause of action reasonably should have been known to the aggrieved party and upon the expiration of such timeframe, any such claim and all respective rights related to the claim lapse. 
  • c) In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached the Terms and Conditions and Order, for any failure or delay in fulfilling or performing any term of the Terms and Conditions and Order, when and to the extent such failure or delay is caused by any circumstances (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date Effective Date, as defined in the Order, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, any complete or partial government shutdown, any national or regional shortage of adequate power, telecommunications or transportation, or interruption of service, in each case, beyond such party’s reasonable control.

7) INDEMNITY. Customer, its affiliates, and their respective officers, directors, employees, and agents agrees to defend, indemnify, and hold harmless, at its own expense, Vendor and its shareholders, officers, directors, employees, agents, and representatives (the “Indemnified Parties”) from and against any and all, claims by any third party for injury to person, including death, or damage to property arising out of or resulting from (i) the  negligence or willful misconduct of Customer or (ii) any violation of laws by Customer,  except to the extent such claim arises out of or relates to any negligent or willful act or omission or violation of law by Vendor.

8) PAYMENT. 

  • a) RATES AND CHARGES. Vendor shall charge Customer the fees set forth in the Order for the Licensed Products. Customer shall make payment to Vendor, with no right to setoff, within thirty (3) days of receipt of invoice.  Vendor reserves the right to modify its fees with respect to the Licensed Product and to introduce new fees to become effective upon the renewal of a term of the Order by providing Customer written notice at least forty-five (45) days prior to the end of the then current Service Term and Customer may accept such charges or terminate the Order. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. 
  • b) TAXES. Vendor is not liable for any taxes, other than taxes of Vendor’s net income. All taxes relating to the Order shall be invoiced by Vendor to Customer and will be subject to the payment terms in Section 5(a).  In the event Client represents that it is not liable for taxes, and such taxes are assessed, Client shall be liable for payment of the tax and any interest and penalties on such unpaid amounts.

9) TERMINATION. If either party materially breaches these Terms and Conditions and Order, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate the Order. If such default is incapable of cure, the other party may terminate the Order immediately upon written notice of its desire to terminate. Vendor may terminate the Order without cause at any time, by providing Client with thirty (30) days prior written notice. Confidentiality obligations shall survive termination of the Order.

10) WAIVER. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications or supplements to these Terms and Conditions and Order shall be binding unless in writing and signed by the parties.

11) NOTICES. All notices shall be in writing and shall be sufficiently given if: (i) delivered by nationally recognized overnight courier with a signed receipt; or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, to the respective addresses of the parties noted herein or such other address as shall be furnished from time to time in writing by either party pursuant to this provision. To expedite order processing, Client agrees that Vendor may treat documents e-mailed by Client to Vendor as original documents. However, either party may require the other to exchange original signed documents.

12) GOVERNING LAW. The parties agree that these Terms and Conditions and Order shall be for all purposes be governed and construed solely under the laws of the State of New York regardless of its conflict of law statutes.,. The parties agree to the sole venue and jurisdiction of the State and Federal Courts, as applicable, found in New York County, New York, USA (Manhattan) and submit thereto, and waive all objections and defenses thereto, including that of inconvenient forum. No action arising out of these Terms and Conditions and Order, regardless of form, may be brought more than one (1) year after the claiming party knew or should have known of the cause of action.  The parties agree to waive their rights to a trial by jury to the fullest extent allowed under applicable law.

13) ASSIGNMENT. Customer may not assign, delegate, pledge, or otherwise transfer its rights or obligations under these Terms and Conditions or the Order, Vendor’s Confidential Information, to any third party, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation without the consent of Vendor, such consent shall not be unreasonably withheld, conditioned or delayed. 

14) PUBLICITY RIGHTS. Customer may not identify Vendor as a customer or client, or reference Vendor’s trade name, trademark, trade dress, service mark or any intellectual property in any press release, advertising or promotional materials in any media whatsoever, or represent that any product or service has been endorsed or approved by the other party, without Vendor’s prior written consent.

15) INSURANCE. During the Term of the Order, Customer agrees to maintain in effect the following minimum levels of insurance coverage:

  • a) Commercial General liability insurance in the amount of one million dollars ($1,000,000) per occurrence for bodily injury, including death, and property damage and including contractual liability, products, completed operations, and independent contractor coverage.
  • b) Network/Cyber Risk Liability insurance with limits of not less than $2,000,000 per occurrence and in the aggregate. Coverage shall apply to third party claims to protect Vendor, theft of Vendor’s property to include data, media of any type, lost or corrupted data and shall apply to both online and offline applications.
  • c) All insurance required to be procured and maintained by Client shall be written by an admitted insurance company (or companies) licensed to write insurance in the jurisdiction(s) where Vendor’s operations are located and conducted of good financial standing and shall be primary and non-contributory to any insurance held by Vendor.  Client shall assure that Vendor is named by endorsement as an additional insured to the extent of its interests in these Terms and Conditions and Order.  Client shall have sole responsibility for the payment of all premiums and deductibles on all insurance it holds. 
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