Effective Date: September 29, 2012
THIS AGREEMENT GOVERNS YOUR USE OF THIS SITE IN ANY MANNER, INCLUDING REGISTERING FOR, ACCESSING, BROWSING, OR ANY OTHER USE PROVIDED BY THE SITE.
You may not access the Services if You are Our direct competitor, except with Our written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
"Admins" means individuals who have administrative or complete control over the subscription that has been purchased on behalf of their Company. Admins assign Users and set the parameters for their permissions.
"Affiliate" means any entity which directly or indirectly controls, is controlled, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Archive" means the shipment, inspection, and transaction data that can be stored or archived electronically by the User.
"Buyer" means the Party that uses Our Marketplace trading platform to purchase goods from Our exclusive Supplier network.
"Checklists" means the list of parameters required for conducting shipment inspections at neutral 3rd party logistics service provider warehouse locations.
"Company Subscriptions" means the LSP or Distributor entity that has purchased a subscription for Our Services. Sole proprietors, LSPs or Distributors with one User are included in this definition.
"Deal Manager" means the Service We offer to help Distributors organize their trading (buying and selling) operations. This includes keeping track of deal terms and sharing information with LSPs required for the physical transport of product.
"Distributor" means any company that buys and/or sells physical products. Distributors tend to outsource their logistics operations partially or entirely to LSPs.
"Distributor Platform" or "Distribution Management Suite" means the suite of productivity software developed and marketed by Us to facilitate the business operations of Distributors.
"Free Trial" means Our promotion whereby We make available the Distributor Platform free of charge for a limited time, typically 15 days or 30 days.
"Freemium" means Our basic free account whereby You can buy goods and request inspections. Freemium accounts are limited in functionality.
"HDTS Network" means collectively the LSPs and Distributors that use Our Services.
"HDTS Platform" means the logistics and distribution management technology and services provided by Us. This is the software that is used by LSPs and Distributors.
"Inspection" means inspections of physical goods performed by the LSP using Our Inspection software, according to standardized or buyer-submitted checklists, at their warehouse. Trained employees of the LSP are responsible for properly performing the Inspection.
"LSP" or "3PL" means the neutral 3rd Party Logistics Service Provider that operates a warehouse and offers Inventory Management, Inspection and other Services provided by Us. Most LSPs in the HDTS Network offer freight forwarding and customs brokerage services. LSPs are responsible for handling the physical movement of cargo on behalf of Distributor clients.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Marketplace" means the trading platform Service to be launched in early 2013 which allows Buyers to find Suppliers.
"Members" means the Buyers and Sellers that use Our Marketplace Services.
"Mobile Warehouse Manager" or "Inventory Manager" or "Warehouse Manager" means the mobile (tablet and/or smartphone) application for inventory management developed by Us and used by LSPs (and sometimes Distributors) to manage the receipt and release of goods at a warehouse owned or operated by the aforementioned User Party.
"Non-HDTS Applications" means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
"Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto. Order Forms shall be deemed incorporated herein by reference.
"Promotions" means any discounts or price changes We may offer from time to time.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Scorecard" means the set of metrics used to track HDTS System usage. Your Scorecard is the average of Your Inventory Score, Product Score, Notification Score, Contact Score, and Picture Score. LSPs see user guide for each component metric definition.
"Services" means the products and services that are ordered by You under a free trial or an Order Form and made available by Us online via the customer login link at http://www.hdtradeservices.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide. "Services" exclude Non-HDTS Applications.
"Show My Goods" means the live (and stored) high definition streaming video showcase of Your physical goods performed by the LSP.
"Suppliers" or "Sellers" means the Party that sells physical products to Buyers on Our Marketplace trading platform. Sellers can also refer to Distributors that are selling goods to trading partners using Our Inspection and Deal Manager Services.
"Permission Settings" means the various levels of permission that can be granted to individual users and groups of users by the Company Admin(s).
"Total Score" your total score means the average of all scores in Your Scorecard (see below). We recommend a total score of 97% or higher, ideally 100%. A Total Score of 90% is required to maintain eligibility on the HDTS Network.
"Trading Partner" means the Buyer or Seller You enter into a business agreement with to transfer ownership of physical goods in exchange for compensation.
"User Guide" means the online user guide which can be in text with images or in video, for the Services, accessible via login at http://www.hdtradeservices.com as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (15-Day Free Trial) below.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"User Subscriptions" means the annual subscription to Our Services paid for on a per-user basis. Our Services can also be purchased as Company Subscriptions, which includes a set number of Users. To add Users to the Company Subscriptions, You must purchase additional User Subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
"We," "Us" or "Our" means HD Trade Services, Inc. or any of its subsidiaries, the company described in Section 14 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. Company and User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as Company Subscriptions and may be accessed by no more than the specified number of Users within that company, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 6:00 p.m. Sunday Pacific Time, UTC - 8), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. None of this shall serve has a guarantee that services will be uninterrupted.
4.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, infringing, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, including, remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site or User Content, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or User Content (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) be false, inaccurate or misleading, or (h) Use any robot, spider, scraper, or other automated means to access the Site for any purpose or bypass any measures HDTS may use to prevent or restrict access to the Site.
4.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
5.1. Acquisition of Non-HDTS Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-HDTS Applications and implementation, customization and other consulting services. Any acquisition by You of such non-HDTS products or services, and any exchange of data between You and any non-HDTS provider, is solely between You and the applicable non-HDTS provider, and this Agreement will not govern that relationship, except to the extent stated in this Section 5. We do not warrant or support non-HDTS products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. Subject to Section 5.3 (Integration with Non-HDTS Services), no purchase of non-HDTS products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
5.2. Non-HDTS Applications and Your Data. If You install or enable Non-HDTS Applications for use with Services, You acknowledge that We may allow providers of those Non-HDTS Applications to access Your Data as required for the interoperation of such Non-HDTS Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-HDTS Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-HDTS Applications for use with the Services.
5.3. Integration with Non-HDTS Services. The Services may contain features designed to interoperate with Non-HDTS Applications. To use such features, You may be required to obtain access to such Non-HDTS Applications from their providers. If the provider of any such Non-HDTS Application ceases to make the Non-HDTS Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days' prior notice that Your account is overdue, in accordance with Section 14.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) modify, adapt, translate or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, or (vi) modify, adapt or hack the Site or modify another website so as to falsely imply that it is associated with HDTS.
7.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You hereby grant to HDTS a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual license to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
7.5. Suggestions. We shall have a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.7. Reservation of Rights. HDTS reserves all rights not expressly granted in this Agreement.
7.8. Prevention of Unauthorized Use. HDTS reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.
8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other Party's prior written consent.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with Non-HDTS Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (v) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.
9.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, HDTS PROVIDES THE SITE AND SERVICES "AS IS" AND MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND HDTS SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HDTS OR THROUGH HDTS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT THE TERM HDTS INCLUDES HDTS?S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
9.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
9.5. Inventory Management. Inventory management via Our Mobile Warehouse Manager tablet application and LSP Web App is performed by the LSP that purchases a Subscription to Our software. Although We continuously strive for 100% inventory accuracy, and we mandate that LSPs in our Network maintain the integrity of inventory data in Our system, We are not liable for the accuracy of data entered into the Mobile Warehouse Manager and LSP Web App, which is accessed by Distributors. You (LSP) are responsible for goods damaged on Your premises while using Our Service.
9.6. Inspection and Show My Goods. We license our Inspection technology to LSPs who assume responsibility for delivering the Inspection Service. Although We apply strict requirements when approving LSPs to join the HDTS Network, and We thoroughly train these Inspection locations to perform HDTS Inspections at a consistent level, We recognize they may make errors. We are not responsible for any errors during the performance of Inspections. The LSP Party physically performing the inspection is responsible for the accuracy and quality of Inspections. Inspections are a tool to aid decision making while purchasing, We recommend that users conduct their own thorough due diligence for each transaction. We simply provide the technology to allow Your clients to view their goods remotely. We are not responsible for the quality of the goods Inspected. We are not responsible for goods damaged during the Inspection, You are responsible for goods damaged during Inspection.
9.7. Fees for Inspection and Show My Goods. Fess for Inspection are billed at $25.00 USD/man hour rate with a minimum fee of $50.00 USD. For Inspections, We bill the buying Party directly and then pass the money to You on a monthly basis. Fees for Show My Goods are billed at a rate of $25.00 USD/man hour with a minimum fee of $50.00 USD. For Show My Goods, We bill the selling Party directly and then pass the money to You on a monthly basis.
9.8. Good Standing - LSPs. In order to maintain good standing within the HDTS Network, LSPs are required to maintain a Total Score of 90% by the time your Subscription is up for renewal. If Your average Total Score is below 90%, you will lose your eligibility to offer your services on the HDTS Network and Trading Platform with no refund. You will regain eligibility when your average Total Score remains at or above 90% for 30 days.
9.9. Good Standing - Distributors. In order to maintain good standing within the HDTS Network, Distributors must honor agreements they enter with Trading Partners and LSPs. You (Distributor) will lose your eligibility to conduct business on the HDTS Network and Trading Platform with no refund if Our dispute reolution process of analyzing claims submitted against you leads to Our reasonable judgement that You have conducted Your business in such a manner that compromises the exclusivity and integrity of Our Serivces.
9.10. Transfer of Funds. We do not operate Our own transaction platform that Buyers can use to safely transfer funds to Sellers. We recommend that Buyers require Inspections to verify the quality of the products to be purchased. As such, We assume no liability for any issues that may arise regarding the transfer of funds between Parties.
10.1. Indemnification. You agree to indemnify, defend and hold HDTS harmless from and against any and all liability, claims causes of actions, damages, costs and expenses, including, but not limited to, attorneys' fees and costs of suit, arising out of any breach of this Agreement.
11.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL HDTS HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12.1 Hardware and Rates. We ship Our Mobile Warehouse Manager tablet hardware and Inspection hardware to Your (LSP) warehouse location upon subscription to Our Purchased Services and receipt of payment. Hardware makes and models may vary depending on date of licensure. Shipping rates and fees may vary depending on the delivery address for your order.
12.2 Term of International Shipping. HDTS ships required hardware to all international locations allowable under United States federal trade law. For more information, please send an email to [email protected] or call +1 (415) 223-1112, Option 1.
12.3 Customs Agreement. Your packages may be subject to the customs fees and import duties of the country to which you have your order shipped. These charges are always the recipient's responsibility.
13.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
13.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 15% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as Promotional or one-time.
13.3. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
13.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
13.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data.
13.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Return of Your Data), 14 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
14.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
14.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
14.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
15.1. Legal Compliance. You will comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Site and any HDTS service.
15.3. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at [email protected].
15.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
15.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.6. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
15.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.8. Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
15.9. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
15.10. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. A Party's sole remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party's election, termination of this Agreement upon written notice to the assigning Party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
15.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.