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HYMAN’S TECH, LLC

Merchant Terms and Conditions

Effective: May 1, 2024

 

  1. APPLICABILITY

 (a)        These terms and conditions for services (these “Terms”) are the terms that govern the provision of services by HYMAN’S TECH, LLC (“Company”) to the merchant (“Merchant”).

(b)       The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern.

(c)        These Terms prevail over any of Merchant's general terms and conditions regardless of whether or when Merchant has submitted its request for proposal, order, or such terms. Provision of services to Merchant does not constitute acceptance of any of Merchant's terms and conditions and does not serve to modify or amend these Terms.

  1. PRIVACY POLICY 

The Company’s Privacy Policy is hereby incorporated into these Terms and governs the Company’s treatment of any information, including personally identifiable information Merchant submits to the Company. Merchant acknowledges that Merchant’s submission of any information, statements, data, and content to the Company is voluntary. Further, Merchant’s use of and access to the Services as well as the Company’s handling of Merchant Data will be subject to and governed by the Company’s Privacy Policy. The Company uses and shares Personal Data and Personal Information as set forth in its Privacy Policy. For additional information please see the Company’s Privacy Policy located at www.accessmyhaulpass.com.

  1. DEFINITIONS

(a)        “Aggregated Statistics” means data and information related to Merchant’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

(b)       “Authorized User” means Merchant’s employees, consultants, contractors, and agents (i) who are authorized by Merchant to access and use the Company System under the rights granted to Merchant pursuant to this Agreement and (ii) for whom access to the Company System has been purchased hereunder. All Authorized Users are bound to these Terms.

(c)        “Merchant Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Merchant or an Authorized User through the Company System.

(d)       “Downloadable Software” means downloadable tools or other software that Company makes available for download specifically for purposes of facilitating access to, operation of, or use with the Services, and any updates Company may make available to such software from time-to-time. For the avoidance of doubt, Downloadable Software does not include Third-Party Products.

(e)        “Company IP” means the Company System, the SaaS Documentation, and any and all intellectual property provided to Merchant or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics and any information, data, or other content derived from Company 's monitoring of Merchant's access to or use of the Services or Downloadable Software but does not include Merchant Data.

(f)        “Company System” means the Services and the Downloadable Software.

(g)       “SaaS Documentation” means Company’s guides relating to the Services provided by Company to Merchant either electronically or in hard copy form/end user documentation relating to the Services description available at www.accessmyhaulpass.com.

(h)       “Services” means the software-as-a-service and related services provided by the Company.

(i)        “Shipment” means the goods to be shipped under Merchant’s request that a Shipper accepts to be delivered to Merchant. A Shipment may consist of multiple packages but shall nevertheless be considered as a single Shipment for all purposes including the determination of Company ’s rates and charges, loss, and damage claims, and purchasing of declared value coverage.

(j)        “Shipper” means a company engaged in the business of transporting property by motor vehicle in intrastate and interstate trade and desires to furnish to Merchant certain motor carrier transportation services.

(k)       “Third-Party Products” means any third-party products described in Order Confirmation provided with or incorporated into the Company System, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

  1. USER ELIGIBILITY AND REQUIREMENTS

To be eligible to use the Services, Merchant must meet the following criteria and represent and warrant that Authorized Users: (1) are 18 years of age or older; (2) are not currently restricted from the Services, or not otherwise prohibited from having an account, (3) have full power and authority to agree to these Terms and doing so will not violate any other agreement to which Merchant is a party; (4) will not violate any rights of the Company, including these Terms and/or any intellectual property rights such as copyright, patent, licensing, or trademark rights; (5) agree to provide at Merchant’s expense all equipment, software, and internet access necessary to use the Services; and (6) agree not to reproduce, copy, sell, resell, or exploit any portion of the Services (including, but not limited to, the HTML/CSS or visual design elements of the Company’s website), or use the Services or access the Services without the express written consent of the Company. Violation of this section may result in civil and/or criminal penalties and fines and Merchant agrees to pay for the Company’s reasonable attorneys’ fees if Merchant violates this section. Further, breach of this section is material and may result in termination of Services.

  1. ACCESS AND USE

(a)        Provision of Access. Subject to and conditioned on Merchant's payment of Fees and compliance with this Agreement, Company hereby grants Merchant a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Merchant's internal use. Company shall provide to Merchant the necessary network links or connections to allow Merchant to access the Services once Merchant’s log in is created.

(b)       Downloadable Software and SaaS Documentation License. Subject to this Agreement, Company hereby grants to Merchant a non-exclusive, non-sublicensable, non-transferable license during the Term to: (i) use Downloadable Software, in object code format, solely for Merchant’s internal use in connection with its use of the Services and (ii) use and make a reasonable number of copies of the SaaS Documentation solely for Merchant’s internal business purposes in connection with Merchant’s use of the Software during the Term up to the number of Authorized Users set forth in the end user license agreement available at www.accessmyhaulpass.com/the additional terms and conditions set forth in Exhibit A (the "Downloadable Software License Terms"). Merchant's use of Downloadable Software must comply with the Downloadable Software License Terms. In the event of any inconsistency between the Downloadable Software License Terms and this Agreement, the Downloadable Software License Terms shall apply only with respect to the Downloadable Software that the Downloadable Software License Terms reference and not the Services provided under this Agreement.

(c)        Use Restrictions. Merchant shall not use the Company IP for any purposes beyond the scope granted in this Agreement. Merchant shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Company IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Company IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Company IP, in whole or in part; (iv) remove any proprietary notices from the Company IP; or (v) use the Company IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Merchant agrees not to upload, post, host or transmit unsolicited emails or text messages including “junk mail” and “spam” messages or upload, post, host, e-mail, or transmit any content that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property rights or these Terms. Merchant agrees not to transmit any worm or virus or code of a destructive nature which interferes in any way with the Services and Merchant agrees to pay for the Company’s reasonable attorneys’ fees if Merchant violates this section.

(d)       Merchant agrees not to use the Services for any illegal or unauthorized purpose or activities. The Company may immediately suspend or terminate Merchant’s access to the Services, by written notice to Merchant, in the event that (i) the Company determines that the Services are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation or the Agreement, or (ii) in the event that a governmental, legal or other law enforcement authority so requires, or instructs the Company to terminate or suspend the Services to Merchant. Merchant is and shall be solely responsible for any fraudulent use, misuse, or illegal activity conducted in or on the Services by its Authorized Users.

(e)        Reservation of Rights. Company reserves all rights not expressly granted to Merchant in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Merchant or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.

(f)        Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily or permanently suspend Merchant's and any Authorized User's access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP; (B) Merchant's or any Authorized User's use of the Company IP disrupts or poses a security risk to the Company IP or to any other Merchant or vendor of Company; (C) Merchant, or any Authorized User, is using the Company IP for fraudulent or illegal activities; (D) subject to applicable law, Merchant has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company's provision of the Services to Merchant or any Authorized User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company's access to or use of any third-party services or products required to enable Merchant to access the Services (“Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Merchant and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Merchant or any Authorized User may incur as a result of a Service Suspension.

(g)       Limitations on Service. Merchant agrees to comply with and adhere to the Terms and any other policies issued by the Company related to the Services. Violation of any of the Terms or any other Company policies may result in termination of Merchant’s access to and/or use of the Services. The Company reserves the right to, and Merchant hereby acknowledges and agrees that the Company may in its sole discretion refuse access to and/or use of the Services to anyone for any reason at any time, including to Merchant.

(h)       Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Merchant’s use of the Services and collect and compile Aggregated Statistics. As between Company and Merchant, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Merchant acknowledges that the Company may compile Aggregated Statistics based on Merchant Data input into the Services. Merchant agrees that the Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law. 

  1. MOBILE DEVICES

The Company will provide certain Services that are available to Merchant via mobile phone or other mobile device if Merchant has subscribed to them, including the ability to use a mobile device to receive and reply to messages from the Company and access certain other features (collectively, the “Mobile Services”). Merchant’s mobile carrier’s normal messaging, data, and other rates and fees may apply to Merchant’s use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Merchant’s mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, Merchant is responsible for checking with Merchant’s mobile carrier to determine if the Mobile Services are available for Merchant’s mobile devices, what restrictions, if any, may be applicable to Merchant’s use of the Mobile Services and how much such services will cost. By using the Mobile Services, Merchant agrees that the Company may communicate with Merchant by SMS, MMS or other electronic means to Merchant’s mobile devices and that certain information about Merchant’s usage of the Mobile Services may be communicated to the Company.

  1. CHAT FUNCTION

Merchant will be allowed to use the Company’s chat function for sending messages to other parties regarding the Services. Merchant may only use the chat function for commercial purposes. Merchant represents and warrants that Merchant shall not use the chat function for any illegal or unauthorized purpose or activities or use any violent act or threatening language. Merchant’s violation of the section may lead to immediate termination of Merchant’s account and access to use any of the Services.

  1. DISALLOWED CONTENT 

The Company does not pre-screen content, but the Company has the right, but not the obligation, in its sole discretion, with or without notice, to refuse or remove any content for any reason or upon cancellation or termination of Services. Further, the Company has the right, but not the obligation, with or without notice, to remove content and accounts containing content that the Company determines, in the Company’s sole discretion, is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property rights or these Terms. 

  1. DELETED CONTENT 

Content cannot be recovered once it is deleted. The Company has no obligation to store, maintain or provide Merchant with a copy of any content that Merchant provides when using the Services.

  1. MODIFICATIONS 

(a)        The Company, in its sole discretion, has the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice for any reason at any time.

(b)       The Company reserves the right to amend or adjust these Terms from time to time and will provide thirty (30) day notice of any adjustments to Merchant prior to enacting the change. By using the Services, Merchant agrees to be bound by these Terms and any modifications thereto.

  1. SERVICE LEVELS AND SUPPORT

(a)      Subject to the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to make the Services available to Merchant.

(b)       Support. The access right granted hereunder entitles Merchant to the support services described on Exhibit B from time to time on Company’s website located at accessmyhaulpass.com during the Term.

  1. SUBSCRIPTION FEES AND PAYMENT

(a)        Fees. Merchant shall pay Company the monthly subscription fees ("Fees") as set forth in Order Confirmation without offset or deduction. Merchant shall make all payments hereunder in US dollars on or before the monthly due date as set forth in the Order Confirmation. The Company offers payment-based service plans under which the Company charges a monthly subscription fee for use of the Services. Subscription fee rates will be established upon the opening of an account with the Company by Merchant. Merchant consents to the Company’s collection of Merchant’s credit card and/or bank information for the creation of Merchant’s account and further consents to the Company charging such account on a monthly basis. All Authorized Users are subject to credit approval. If Merchant fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Merchant shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for seven (7) days or more, Company may suspend Merchant's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.

(b)       Taxes. All Fees and other amounts payable by Merchant under this Agreement are exclusive of taxes and similar assessments. Merchant is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Merchant hereunder, other than any taxes imposed on Company 's income.

(c)        Auditing Rights and Required Records. Merchant agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement. The Company may, at its own expense, on reasonable prior notice, periodically inspect and audit Merchant’s records with respect to matters covered by this Agreement. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.

(d)       The Company reserves the right to amend or adjust the Fee from time to time and will provide thirty (30) day notice of any Fee adjustments to Merchant prior to enacting the change. When paying by credit card or electronic funds, Merchant agrees to be responsible for all charges payable, including any adjustments. These charges and adjustments, if any, will be automatically debited to Merchant’s credit card or bank account.

  1. USER INFORMATION REQUIRED; RIGHTS GRANTED BY MERCHANT TO COMPANY; AUTHORIZATION 

(a)        Merchant must provide Merchant’s first name, last name, company/business name, a valid email address and any other information requested in order to complete the signup/login process. Merchant agrees that this information provided by Merchant will be accurate and current and Merchant further agrees to maintain and promptly update this information, as necessary. Merchant must also provide Merchant’s account information related to the various merchants Merchant wishes to contact through the Services.

(b) By submitting Merchant’s name, company name, email, passwords, usernames, account information, data, and other content to the Company through the login process to access and use the Services, Merchant is licensing such content to the Company for the purpose of providing the Services. The Company may use and store the content in accordance with these Terms and the Company’s Privacy Policy. By using the Services, Merchant expressly authorizes the Company to access Merchant’s account information. The Services will be directly connected to the information systems for the merchants. Merchant hereby authorizes and permits the Company to use and store information submitted by Merchant to accomplish the foregoing and to configure the Services so that it is compatible with the merchants’ accounts.

(c)        The Company is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information. Merchant authorizes the Company to work with merchants to retrieve electronic information concerning Merchant’s shipments. The Company assumes no liability and in no event shall be responsible for any carrier and/or broker billing or tariff inaccuracies.

(d)       Merchant shall at all times: (a) provide the Company with good faith cooperation and assistance and access to such information and personnel as may be reasonably required by the Company in order to provide the Services from time to time; and (b) carry out in a timely manner all other Merchant responsibilities set forth in this Agreement.

  1. ACCOUNT SECURITY 

Merchant agrees that Merchant is responsible for maintaining and protecting the security of Merchant’s account, account information and password. Merchant further agrees that the Company is not liable for any loss or damage resulting from Merchant’s failure to comply with this security obligation. Merchant will not allow anyone who is not an Authorized User to access Merchant’s account nor share any information from the Services with any non-authorized users. Further, Merchant agrees Merchant is fully responsible for anything that happens through Merchant’s account.

  1. INFORMATION PROVIDED BY MERCHANT TO COMPANY   

(a)        By providing information through the account, Merchant represents and warrants that Merchant is entitled to submit the information and that the information is true, accurate, complete, current, not confidential, and not in violation of any contractual restrictions or other third-party rights. It is Merchant’s responsibility to ensure the accuracy of all information provided and to keep Merchant’s profile information accurate and updated.

(b)       By providing information through the account, Merchant consents to the Company’s access to all information submitted and monitoring of Merchant’s account.

  1. COMMUNICATIONS

 The Services may include certain communications via email or text message from the Company, such as service announcements, administrative messages, newsletters, etc. Merchant understands that these communications shall be considered part of using the Services.

  1. CONFIDENTIAL INFORMATION

(a)        From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(b)       Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this section would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

  1. INTELLECTUAL PROPERTY OWNERSHIP

(a)       Company IP. Merchant acknowledges that, as between Merchant and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Products, the applicable third-party Companies own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

(b)       Merchant acknowledges that, as between Merchant and Company, the Company owns all right, title, and interest, including all intellectual property rights, in and to the data connected with the Services. Merchant hereby grants to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the data displayed in the Company System and perform all acts with respect to the data as may be necessary for Company to provide the Services to Merchant, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display data incorporated within the Aggregated Statistics.

(c)        Feedback. If Merchant or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Merchant hereby assigns to Company on Merchant's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.

  1. LIMITED WARRANTY AND WARRANTY DISCLAIMER

(a)        Company does not make any representations, warranties, or guarantees regarding the availability of the Services. The sole remedy for any alleged failure of the Services is termination by the Merchant in accordance with the Termination provisions of this Agreement. THE COMPANY STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY SERVICES PROVIDED BY A SHIPPER AND ANY THIRD-PARTY PRODUCTS.

(b)       THE COMPANY IP AND SERVICES ARE PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP OR SERVICES, OR ANY PRODUCTS, SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET MERCHANT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

(c)        It is understood and agreed between the parties that the Company shall not acquire title to or assume risk of loss for any Shipment on behalf of Merchant, and shall not, in the course of providing the Services in accordance with this Agreement or otherwise, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, any Shipment whether on behalf of Merchant or otherwise.

  1. MERCHANT INDEMNIFICATION

Merchant shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Company resulting from any third-party claim, suit, action or proceeding (“Third-Party Claim”) that the Merchant Data, or any use of the Merchant Data in accordance with this Agreement, infringes or misappropriates a third party's intellectual property rights and any Third-Party Claims based on Merchant’s or any Authorized User's (i) conduct, negligence or willful misconduct; (ii) use of the Company IP in a manner not authorized by this Agreement; (iii) use of the Company IP in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (iv) modifications to the Company IP not made by Company; or (v) Merchant’s breach of these Terms, provided that Merchant may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

MERCHANT SHALL HAVE NO REMEDY AND COMPANY SHALL HAVE NO LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE COMPANY’S IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

  1. INSURANCE 

At Company’s request, Merchant shall furnish certificates of insurance evidencing the policies described below, satisfactory to Company as to contents and carriers. Where permitted, a certificate of insurance for the general liability, automobile liability and umbrella/excess coverages shall be issued by Merchant containing the following language: 

"Company and its affiliated entities including but not limited to officers, partners, directors, employees, and agents are named as additional insureds. Such coverages are primary, non-contributing and contain waivers of subrogation against any coverage held by Company." 

In addition, the workers’ compensation policy shall contain a waiver of subrogation in favor of Company. The insurance carriers must have an A.M. Best rating of at least A - VII, or the equivalent for insurers based outside the U.S. and Canada, and the policies will not contain any non-standard exclusions. Merchant will cause its insurers to provide Company with at least 30 days prior written notice of cancellation or any material change to the policies listed above.

Merchant’s insurance must provide coverage for bodily injury, death, personal injury, and property damage arising out of the Merchant’s professional acts, errors, and omissions. Further, Merchant shall maintain all risks property insurance with limits of not less than US $5,000,000 per occurrence covering property of the Merchant. 

Minimum Limits in connection with this Agreement: 

Automobile Liability

US $1,000,000

Per occurrence

Workers Compensation

Statutory limits

 

Employer’s Liability

US $1,000,000

Each Accident

US $1,000,000

Disease Policy Limit

US $1,000,000

Disease Each Employee

General Liability

US $1,000,000

Per Occurrence

US $2,000,000

General Aggregate

US $1,000,000

Products/Completed Operations Aggregate

Umbrella/Excess Liability

US $5,000,000

Per Occurrence

US $5,000,000

Aggregate

 

  1. SAFETY DISCLAIMERS

THE COMPANY IS NOT RESPONSIBLE FOR LATE SHIPMENTS, LOST SHIPMENTS, LATE DELIVERIES, INCORRECT DELIVERIES, IMPROPER OR LACKING USES OF LIFT GATES, INACCURATE WEBSITE OR APPLICATION INFORMATION OR LATE DELIVERIES. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SERVICES PROVIDED BY A SHIPPER. FURTHER, THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S OR ANY THIRD PARTY’S PROPERTY OR FACILITIES RESULTING FROM OR ARISING OUT OF THE SERVICES.

Merchant assumes all responsibility and risk for the use of the Services. The Company does not assume any liability arising out of or related to a Shipper, any Shipment, materials, or anything shipped and the Company disclaims any liability for injury, death or damages resulting from the use thereof. The Company will not be liable for any delay in the Services and/or any Shipments including, but not limited to, any event of Force Majeure. The Company will not be liable for lost profits, loss of business or other incidental, consequential, indirect, or punitive damages arising out of any delay. The Merchant agrees that, for any liability arising out of a delayed Shipment, the Company is not liable or responsible for any amount of damage.

Shipper shall have exclusive custody, control and care of each Shipment tendered for transport under this Agreement and for all packages comprising each Shipment, from the time the Shipment is tendered to Shipper for transportation until such time that the Shipment has been delivered to the Merchant. The Company is not liable to Merchant or any third party for Shipper’s mishandling of any Shipment. Shipper shall be liable to Merchant for the full actual loss, damage or injury to any Shipment occurring while in the custody, possession, or control of Shipper, or resulting from Shipper’s performance of or failure to perform the shipping services. Under no circumstances may Merchant offset any amounts owed to the Company because of a damaged Shipment. These Terms shall control in the event of any conflict or difference between these Terms and any other terms of a Shipment.

  1. LIMITATIONS OF LIABILITY

IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS, SHIPMENT OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. COMPANY WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE IP, ANY SHIPPER, OR THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY.

IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER THIS AGREEMENT OR COMPANY’S RELATIONSHIP WITH MERCHANT TO THE MERCHANT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, LOSS OF SALES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA CAUSED BY ANY CUSTOMER USING THE COMPANY’S SERVICES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, LOSS OF SALES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA CAUSED BY ANY SHIPPER OR SHIPPER’S SERVICES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

Merchant shall have one (1) year from the date of any alleged breach of this Agreement to bring any cause of action against Company under this Agreement or their relationships.

  1. TERM AND TERMINATION

(a)        Term. The term of this Agreement begins on the Effective Date and will continue in effect until terminated by either party for any reason (the “Term”).

(b)        Termination. Upon termination, the Merchant shall pay all outstanding amounts owed to the Company within five (5) business days.

(c)        Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Merchant shall immediately discontinue use of the Company IP and, without limiting Merchant's obligations under the Confidentiality section, Merchant shall cease using and delete, destroy, or return all copies of the Company IP and certify in writing to the Company that the Company IP, system and data has been deleted or destroyed. No expiration or termination will affect Merchant's obligation to pay all Fees that may have become due before such expiration or termination or entitle Merchant to any refund.

  1. CANCELLATION POLICY

Merchant may terminate Merchant’s account and access to the Services at any time by contacting Company at account@accessmyhaulpass.com. Merchant terminates its account and access to the Services, there will not be any refunds issued and Merchant will be responsible for the Fees for the month of cancellation. These Terms shall survive any termination.

  1. CLAIMS POLICIES

All claims must be handled through Company’s Claims Department. Merchant may not deduct amounts of pending claims from charges owed to Company. The Merchant waives any and all rights, including statutory and common law rights, pertaining to applying claim amounts against charges owed to Company. The Company shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided by Merchant or any Authorized Users to the Company in connection with the Services.

  1. MERCHANT REPRESENTATIONS AND WARRANTIES

Merchant represents and warrants that:

(a)        Merchant has the necessary licenses, rights, consents, and permissions to allow its Authorized Users to use the Services and Merchant is in full compliance with all federal, state, and local laws, rules, and regulations applicable to the Shipments delivered to Merchant.

(b)       Merchant’s use of the Services or any Merchant Data does not and will not infringe, violate, or misappropriate any applicable laws or any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, contractual right, or any other Intellectual Property or proprietary right;

(c)        There are no pending or threatened actions or proceedings or government investigations against it that may affect Merchant’s performance of this Agreement;

(d)       Merchant shall at all times comply with all applicable laws, rules, and regulations, including data privacy laws, and the terms of this Agreement during Merchant’s use of the Services;

(e)        Merchant shall not engage in any conduct that may cause a virus or other computer code, file, or program to interrupt, destroy or limit the functionality of the Services and/or any related hardware or technological equipment, or otherwise permit unauthorized access to or use of the Services;

(f)        Merchant is an entity duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its incorporation or organization and is authorized to do business in each jurisdiction in which it will be performing the transportation Services;

(g)       Merchant’s compliance with these Terms does not violate any law or governmental rule, regulation, or order applicable to Merchant, and that there are no agreements to which Merchant is or was a party that might conflict or interfere with, limit, be inconsistent with, or otherwise affect Merchant’s right or ability to perform its obligations hereunder; and

(h)       Merchant shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the Company IP or any Merchant Data outside the US.

  1. MERCHANT RESPONSIBILITIES

(a)        General. Merchant is responsible and liable for all uses of the Services and Company IP resulting from access provided by Merchant, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Merchant is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Merchant will be deemed a breach of this Agreement by Merchant. Merchant shall use reasonable efforts to make all Authorized Users aware of these Terms as applicable to such Authorized User's use of the Company IP and shall cause Authorized Users to comply with such provisions.

(b)       Third-Party Products. Company may, from time to time, make Third-Party Products available to Merchant. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Merchant does not agree to abide by the applicable terms for any such Third-Party Products, then Merchant should not install or use such Third-Party Products. The Downloadable Software also contains certain open-source software. Merchant understands and acknowledges that such open-source software is not licensed to Merchant pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Merchant shall have only such rights and/or licenses, if any, to use the open-source software as set forth in the licenses referenced in Exhibit A.

(c)        It shall be Merchant’s responsibility to inspect each Shipment upon delivery. Merchant shall immediately notify the Company and Shipper of any visible damage to the Shipment. Further, it is the responsibility of Merchant to obtain appropriate signatures from any Shipper for delivery confirmation, if any.

(d)       It is the responsibility of the Merchant to ensure that a Shipment ordered does not violate any federal, state, provincial, or local laws or regulations applicable to the Shipment. The Merchant agrees to indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, and their successors and assigns, from all claims, demands, expenses, liabilities, causes of action, enforcement procedures, and suits of any kind or nature brought by a governmental agency or any other person or entity arising from or relating to the transportation of any Shipment to Merchant. Under no circumstances shall Company be liable for special, incidental, or consequential damages arising from the transportation of any Shipment to Merchant.

(e)        Merchant is responsible for entering accurate information into its account, including, but not limited to, current address information for delivery of any Shipment to Merchant and has an obligation to update address information if there are any changes to Merchant’s address. The Company is not responsible for the accuracy of addresses. The Shipper is responsible for delivering any Shipment as addressed.

  1. MISCELLANEOUS

(a)        Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

(b)       Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Order Confirmation (or to such other address that may be designated by each respective party from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this section.

(c)        Force Majeure. In no event shall Company be liable to Merchant, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d)       Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e)        Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(f)        Governing Law; Exclusive Venue; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Exclusive venue for any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts or state courts of the State of Illinois, County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g)       Assignment. Merchant may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

(h)       US Government Rights. Each of the SaaS Documentation, the Downloadable Software, and the software components that constitute the Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Merchant is an agency of the US Government or any contractor therefor, Merchant only receives those rights with respect to the Services, Downloadable Software, and SaaS Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

(i)        Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. 

 

EXHIBIT A 

HYMAN’S TECH, LLC

MOBILE APPLICATION END USER LICENSE AGREEMENT

This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and HYMAN’S TECH, LLC ("Company"). This Agreement governs your use of the HAULPASS on the HAULPASS, (including all related documentation, the "Application"). The Application is licensed, not sold, to you.

BY CLICKING THE "AGREE" BUTTON OR DOWNLOADING/INSTALLING/USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

  1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
    1. download, install, and use the Application for commercial use on as many mobile devices as per your subscription ("Mobile Device") strictly in accordance with the Application's documentation; and
    2. access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms and Conditions (link) applicable to such Content and Services as set forth in Section 5.
  2. License Restrictions. Except as may be expressly permitted by applicable law or expressly authorized by the Application, you shall not:
    1. copy the Application, except as expressly permitted by this license;
    2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
    3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
    4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
    5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
    6. use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material on the Application;
    7. use any manual process to monitor or copy any of the material on the Application, or for any other purpose not expressly authorized in this Agreement, without Company's prior written consent;
    8. frame, mirror, or otherwise incorporate the Application or any portion of the Application as part of any other mobile application, website, or service;
    9. use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party's use of the Application; or
    10. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
  3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
  4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy at www.accessmyhaulpass.com. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  5. Content and Services. The Application may provide you with access to Company's website located at www.accessmyhaulpass.com (the "Website") and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by Website's Terms of Use and Privacy Policy located at www.accessmyhaulpass.com, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.]
  6. Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
  7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
    1. the Application will automatically download and install all available Updates; or
    2. you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

  1. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
  2. Term and Termination.
    1. The term of Agreement commences when you download or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.
    2. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
    3. Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion or as described in the Terms and Conditions. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
    4. Upon termination:
      1. all rights granted to you under this Agreement will also terminate; and
      2. you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
    5. Termination will not limit any of Company's rights or remedies at law or in equity.
  3. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
    1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
  2. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
  3. US Government Rights. The Application is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
  4. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
  5. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in Chicago and Cook County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
  6. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
  7. Entire Agreement. This Agreement, the Terms and Conditions and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
  8. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

 

EXHIBIT B 

CUSTOMER SUPPORT