PostBidShip Free Trial Terms and Conditions
POST.BID.SHIP. TRIAL PERIOD SUBSCRIPTION AGREEMENT
This Post.Bid.Ship. Trial Period Subscription Agreement (the “Agreement”) effective as [DATE CLICKED], is entered into by and between Post.Bid.Ship., Inc. (“Post.Bid.Ship.”), and Subscriber. From time to time in this Agreement, Post.Bid.Ship. and Subscriber will collectively be referred to as “parties” and individually as a “party.”
A. Post.Bid.Ship. is in the business of providing innovative technology solutions in the commercial transportation market by enabling shippers and third-party logistics service providers to conduct online auctions for their freight shipments;
B. Post.Bid.Ship. has developed and owns the Program (as defined below);
C. Subscriber desires to subscribe to the Program for the Trial Period (as defined below); and
D. Post.Bid.Ship. desires Subscriber to obtain a subscription for the Program during the Trial Period.
NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Activation Date” means the date on which Post.Bid.Ship. first makes the Program available to Subscriber for commercial use.
“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.
“Authorized Users” means the Subscriber’s employees and, with the prior written approval of Post.Bid.Ship., any agents, representatives or independent contractors acting on behalf of Subscriber.
“Carrier List” means any list of logistics service providers used by Subscriber that Subscriber provides to Post.Bid.Ship.
“Compete(s)” means the provision of a product or service that is competitive with the Program, including any product or service related to freight auction processes or technology.
“Confidential Information” has the meaning set forth in Section 7.1.
“Feedback” has the meaning set forth in Section 5.3.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, algorithms, data structures, taxonomies, vocabularies and synonyms, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Post.Bid.Ship.” has the meaning set forth in the introductory paragraph to this Agreement.
“Post.Bid.Ship. Subscription Service(s)” means Post.Bid.Ship.’s online software application, accessible via web browser at such URLs as Post.Bid.Ship. may designate from time-to-time.
“Program” means the software or programs provided by Post.Bid.Ship. to Subscriber, which programs may include the Post.Bid.Ship. Subscription Services, Third-Party Software or Data subscribed through Post.Bid.Ship., all related documentation, and any other programs subsequently provided by Post.Bid.Ship, and any customizations made to programs provided by Post.Bid.Ship.
“Subscriber” has the meaning set forth in the introductory paragraph to this Agreement.
“Subscriber Data” means proprietary data and information input by Subscriber or by any Authorized Users into, and stored by, the Program.
“Subscriber Marks” has the meaning set forth in Section 5.4.
“Trial Period” has the meaning set forth in Section 3.1.
“Third-Party Software or Data” means any software or data provided to Post.Bid.Ship. by a third party, including any software or data integrated into the Program as a component part thereof.
2. POST.BID.SHIP. PROGRAM TRIAL PERIOD SUBSCRIPTION GRANT.
2.1 Right of Subscription. Subject to the terms and conditions of this Agreement, Post.Bid.Ship. hereby grants to the Subscriber a revocable, non-exclusive, non-transferable, and non-assignable right, during the Trial Period, to use the Program for Subscriber’s internal business purposes only. Except as may be expressly provided in writing by Post.Bid.Ship., the use of the Program for any other purpose is not permitted.
2.2 Authorized Users. Subscriber may permit only Authorized Users to use the Program. Subscriber agrees and understands that it will cause Authorized Users to (a) be assigned a unique username-password combination to use the Program, (b) register online to use the Program and (c) comply with the terms and conditions of this Agreement.
2.3 Restrictions. Subscriber will have no rights with respect to the Program or any portion thereof and will not use the Program or any portion thereof except as expressly set forth herein. Without limiting the generality of the foregoing, Subscriber will not resell the Program, attempt to interfere with or disrupt the Program, allow access to or use of the Program by anyone other than Authorized Users, modify or create derivative works of the Program, sublicense the Program, decompile or reverse-engineer the Program, make available through the Program any content that infringes any Intellectual Property Right or other proprietary right of any party or use the Program for any illegal or unauthorized purpose. In the event that Subscriber is located or uses the Program outside of the United States, or the systems Subscriber is operating are running on one or more servers located outside of the United States, Subscriber agrees to comply with any laws, rules or regulations in Subscriber’s locale or in the location of Subscriber’s servers regarding online conduct and acceptable content, including laws, rules or regulations governing the export of data to or from the United States or Subscriber’s locale.
3. TRIAL PERIOD.
3.1 The right of subscription granted to Subscriber pursuant to Section 2.1 will begin on the Activation Date and end on the date that is 30 days after the Activation Date (the “Trial Period”). During the Trial Period, Subscriber will have access to the Program free of monetary charge but will be bound by the obligations of Subscriber set forth in this Agreement. If Subscriber desires to continue use of the Program after the Trial Period, Subscriber and Post.Bid.Ship. will enter into a separate subscription agreement which will govern Subscriber’s use of the Program after the Trial Period.
3.2 During the Trial Period, Subscriber may access the Program to make an unlimited number of shipment postings within the Program.
3.3 All pricing terms related to the Program (including Subscriber’s right of subscription free of monetary charge during the Trial Period) are confidential, and Subscriber agrees not to disclose them to any third party.
4. DISCLAIMER OF WARRANTIES.
POST.BID.SHIP. MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROGRAM, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PART THEREOF INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. POST.BID.SHIP. DOES NOT WARRANT THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE. THE PROGRAM IS PROVIDED “AS IS”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL THIRD-PARTY PROGRAMS OR DATA INCLUDED WITHIN THE PROGRAM ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
5. SUBSCRIBER OBLIGATIONS.
5.1 Subscriber Obligations. Subscriber acknowledges and agrees that: (a) any use of the Program is not a substitute for professional judgment and does not relieve Subscriber or any Authorized User from exercising the appropriate standard of care and skill and professional judgment relevant to its business, (b) information offered by the Program in any particular situation does not constitute a recommendation or advice by Post.Bid.Ship., and neither Subscriber or any of its Authorized Users will rely on the Program for such purpose and (c) Subscriber and its Authorized Users assume full responsibility for their actions undertaken in connection with the use of the Program.
5.2 Non-Competitive Uses Only. Subscriber agrees it will not use the search results provided by the Program with an existing product or service that Competes with any Post.Bid.Ship. products or services, including the Program. Subscriber will not create, acquire, partner, joint-venture, or otherwise control or pass information about the Program to a service to Compete with the Program.
5.3 Feedback. Any questions, comments, ideas or any type of communication Subscriber desires with Post.Bid.Ship. should be delivered by electronic mail (“Feedback”) using the following electronic mail address: email@example.com. Subscriber agrees, understands, and acknowledges that such Feedback will be the intellectual property of Post.Bid.Ship. upon receipt, and Subscriber agrees, understands and acknowledges that Post.Bid.Ship. will have all rights to such Feedback for use by Post.Bid.Ship., including but not limited to incorporation of such Feedback into any existing or non-existing product or service of Post.Bid.Ship. without any compensation to Subscriber, its affiliates, agents, representatives, or Authorized Users.
5.4 Marketing Support. Subscriber grants to Post.Bid.Ship. a non-exclusive, perpetual, royalty-free, limited right to use Subscriber’s name, trademarks, and logos (collectively, the “Subscriber Marks”) in the production of marketing materials, provided that such use is in accordance with Subscriber’s trademark and logo use guidelines, which Subscriber will provide to Post.Bid.Ship. Post.Bid.Ship. will use its commercially reasonable efforts to cooperate with Subscriber in monitoring use of the Subscriber Marks. All goodwill developed from such use will be solely for Subscriber’s benefit.
5.5 Enforcement. Subscriber is responsible for all activity occurring under its use of the Program. Subscriber will ensure that all Authorized Users comply with this Agreement. Upon Subscriber’s actual knowledge of any violation of this Agreement, Subscriber will promptly notify Post.Bid.Ship of such violation. Subscriber will cooperate with any investigation by Post.Bid.Ship. of any suspected or alleged violation of this Agreement. Post.Bid.Ship. may suspend or terminate any Authorized User’s access to the Program upon notice to Subscriber in the event that Post.Bid.Ship. reasonably determines that such Authorized User has violated this Agreement. Subscriber will be liable for any violation of this Agreement by any Authorized User.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Intellectual Property and Proprietary Rights.
6.1.1 Post.Bid.Ship. exclusively owns and retains all rights, title and interest in and to the Program (including all copies of any software used for the provision of the Program), including all Intellectual Property Rights therein or relating thereto. Post.Bid.Ship. will exclusively own all rights, title and interest in and to the Feedback, and Subscriber hereby assigns to Post.Bid.Ship. all of Subscriber’s right, title, and interest in the Feedback, including all Intellectual Property Rights therein or relating thereto, and, at Post.Bid.Ship.’s request and expense, Subscriber will execute documents and take such further acts as Post.Bid.Ship. may reasonably request to assist Post.Bid.Ship. to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
6.1.2 Subscriber agrees that it will protect the rights of Post.Bid.Ship. in the Program and agrees that it will not sell, disclose or otherwise make the Program available to any third party. Subscriber further agrees not to copy, in whole or in part, the Program.
6.2.1 Subscriber agrees that it will not at any time challenge or contest the validity of the Program or Post.Bid.Ship.’s ownership of the Program or any other proprietary property rights of Post.Bid.Ship., and the subscription granted to Subscriber will not be construed to limit Post.Bid.Ship.’s ownership of the Program or other proprietary rights.
6.2.2 Except for the limited rights in favor of Post.Bid.Ship. set forth in Section 7.2, Subscriber will exclusively own all rights, title, and interest in and to all Subscriber Data and any Carrier List. Subscriber Data and any Carrier List are Confidential Information under this Agreement. All rights not expressly granted to Subscriber are reserved by Post.Bid.Ship.
6.3 Trademarks. The trademarks of Post.Bid.Ship. will remain the proprietary property of Post.Bid.Ship. and Subscriber will have no right to use any trademark of Post.Bid.Ship. without the prior written consent of Post.Bid.Ship.
7. CONFIDENTIALITY; USE OF SUBSCRIBER DATA AND CARRIER LIST.
7.1 Confidentiality. In connection with this Agreement and Subscriber’s use of the Program, each party may disclose to the other confidential information regarding its business or products. “Confidential Information” means and includes all information identified by a party as confidential or that is not generally known to the public or that constitutes a trade secret under applicable law, including but not limited to, a party’s information regarding its business, employees, financial condition, operation, customers, and/or financial matters. Each party’s Confidential Information will (i) remain the sole property of that party and (ii) be used by the receiving party only as permitted by this Agreement and may not be disclosed, provided or otherwise made available to any third party except as permitted by this Agreement, provided that Confidential Information may be disclosed to the receiving party’s employees or agents who have a need to know the Confidential Information in the scope of their work for the receiving party so long as the receiving party ensures that its employees and agents comply with the terms of this Section 7.1. The receiving party will be responsible and liable for any of its employees’ or agents’ noncompliance with the terms of this Section 7.1. Confidential Information does not include (i) information that the receiving party can establish was already rightfully known to the receiving party at the time it was disclosed in connection with this Agreement, (ii) information that is developed independently by the receiving party without reference to or use of any Confidential Information of the disclosing party, (iii) information the receiving party obtains from a third party lawfully in possession of the information and having no duty to keep the information confidential, (iv) information that becomes publicly known other than by a breach of this Agreement, or (v) information disclosed in accordance with a valid court order or other valid legal process, provided that before disclosing such information, the receiving party must provide the disclosing party with sufficient advance notice of the order to enable the disclosing party to exercise any rights it may have to challenge or limit access to such Confidential Information. Each party agrees to hold the Confidential Information of the other party in strictest confidence and not to copy, reproduce, distribute, publish or disclose such Confidential Information to any person except as expressly permitted by this Agreement. The obligation of the parties under this provision will continue in effect as to any Confidential Information for the longer of five years following the termination of this Agreement or until the Confidential Information ceases to qualify for trade secret protection under applicable law other than as a result of any act or omission of the receiving party. Notwithstanding any other provision of this Agreement to the contrary, each party will have the right to disclose pricing and other terms of this Agreement to that party’s attorneys and accountants or other professional advisors provided any such attorneys, accountants or professional advisors are bound to the same level of confidentiality set forth in this Agreement.
7.2 Use of Subscriber Data and Carrier List. Post.Bid.Ship. will not disclose the Subscriber Data (including any pricing information included therein) or any Carrier List to any third party, including any customer or subscribers of Post.Bid.Ship. other than Subscriber; provided that, the foregoing restrictions will not prohibit Post.Bid.Ship. from (a) directly communicating with, soliciting or entering into any commercial relationship with any logistics service provider, regardless of whether such logistics service provider is included on a Carrier List, or (b) anonymizing and aggregating the Subscriber Data in a blinded format that does not permit third parties to associate the Subscriber Data with Subscriber and making such anonymized and aggregated Subscriber Data available to all users of the Program.
8. TERM AND TERMINATION.
8.1 Expiration at End of Trial Period. Upon completion of the Trial Period, this Agreement will automatically expire without any further action on the part of either party.
8.2 Early Termination by Post.Bid.Ship. Post.Bid.Ship. will have the right to terminate this Agreement upon written notice to Subscriber in the event of a breach of this Agreement by Subscriber.
8.3 Effect of Termination. Upon the expiration or termination of this Agreement (a) each party will, within 30 calendar days, return all copies of the Confidential Information of the other party to the other party (or destroy such copies of Confidential Information if it is not commercially feasible to return such copies); provided, however, that notwithstanding this Section 8.3, Post.Bid.Ship. will be entitled to retain and use the Subscriber Data after the termination or expiration of this Agreement for the limited purpose set forth in Section 7.2, and (b) Subscriber will cease all use of the Program and will cause its Authorized Users to do the same. The termination or expiration of this Agreement will not relieve either party of any obligations under this Agreement that (a) have already accrued hereunder or (b) by their terms continue after the date of termination or expiration. Subject to the foregoing, the party terminating this Agreement, or in the case of the expiration of this Agreement, each party, will not be liable to the other party for any damage of any kind (whether direct or indirect) incurred by the other party by reason of the expiration or termination of this Agreement. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 8.3, Section 1, Section 3.3, Section 4, Section 5.3 through Section 5.5, Section 6, Section 7 and Section 9.
9.1 Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire agreement between the parties and supersedes all prior understandings and agreements, whether written or oral, that may relate to the subject matter of this Agreement. Any term of this Agreement may be amended, modified, or waived only with the written consent of the parties. Any amendment or waiver effected in accordance with this Section 9.1 will be binding upon the parties and their respective successors and permitted assigns.
9.2 Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be deemed modified to the extent necessary (consistent with the intent of the parties) to eliminate the illegal, invalid or unenforceable effect or to delete such provision if modification is not feasible, and the remaining terms will continue in full force and effect.
9.3 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona 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 Arizona.
9.4 Assignment. Neither this Agreement, nor any of the parties’ rights or obligations hereunder, may be assigned by either party without the prior written consent of the other party.
9.5 Headings; Interpretation. Headings used in this Agreement are provided for convenience only and will not be used to construe meaning or intent. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
9.6 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
9.7 Notices. All communications required or permitted to be given by this Agreement will be made in writing and will be sent by a recognized overnight commercial delivery or certified U.S. mail to the address for the respective party shown on the signature page of this Agreement or such other address as either party may specify from time to time in writing.
9.8 Relationship Between the Parties. The relationship between the parties is that of independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
9.9 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement would cause the other party irreparable harm, for which an award of monetary damages would not be adequate compensation. Consequently, 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 of competent jurisdiction, 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.
9.10 No Third-party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.