Master Subscription Agreement

 

THE TERMS SET FORTH IN THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES (as defined below). IF YOU REGISTER FOR A BETA TRIAL OF OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT BETA TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SALES ORDER WITH US , YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the services if you are a competitor of ours (as defined below), except with our prior written consent. In addition, you may not access the services (as defined herein) for purposes of monitoring their availability, performance or functionality, for any other benchmarking or for any competitive or anti-competitive purposes.

This Agreement is between you and us as of the date of you accepting this agreement.

1. DEFINITIONS

"Affiliate" means any entity that directly or indirectly controls, is controlled by, 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 or the ability to elect, remove or control the management of the subject entity.

“Agreement” means this Master Subscription Agreement.

“Beta Trial Services” means our services that are generally available to launch customers, and defined in Section 3.4 hereof.

“Content” means information obtained by us from our content licensors or publicly available sources and provided to you pursuant to a sales order executed.

“Documentation” means our online CATE™ user guides, related documentation, and help and training materials related thereto, as updated from time to time, whether or not accessible at login to the applicable service.

“Malicious Code” means code, files, scripts, agents or programs doing or intended to do harm, including, for example without limitation, viruses, worms, time bombs and Trojan horses.

“Sales Order” means an ordering document specifying the services to be provided by us that is entered into between you and us or with any of our resellers, including any addenda and supplements thereto. By entering into a Sales Order, your affiliates  agree to be bound by the terms of this agreement as if it were an original party hereto.

"Purchased Services" means Services that you or your affiliate purchase under a Sales Order, as distinguished from those provided pursuant to a beta trial.

“Services” means the products and services that are ordered by you under a beta trial or a Sales Order and made available online by us, including associated offline components, as described in the Documentation.

“User” means an individual who is authorized by you to use a Service, for whom you have ordered the service, and to whom you (or we at your request) have supplied a user identification and password or who you let or enable to use our service without our permission. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.

"We," "Us" or "Our" means the CATEtech.com online portal and Channel Logistics LLC, the company described in Section 13 (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 electronic data submitted by or for you to the purchased Services or collected and processed by or for you using the Purchased Services, excluding content within the CATEtech.com application.

2. BETA TRIAL

If you register on our website for a beta trial, we will make one or more Services available to you on a trial basis until the earlier of (a) the end of the trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by you for such service(s). ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR BETA TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE BETA TRIAL, OR PURCHASE UPGRADED SERVICES. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE BETA TRIAL; THEREFORE, YOU MUST SAVE YOUR DATA MODELS OFFLINE BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA MODELS WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE BETA TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the User Guide during the beta trial period so that you become familiar with the features and functions of the services before you make your purchase.

3. OUR RESPONSIBILITIES

3.1 Provision of Purchased Services We will (a) make the services and content available to you pursuant to this Agreement and the applicable Sales Order, (b) provide our standard support for the purchased services to you at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online purchased services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which we shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern Standard Time), and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, tornado, hurricane, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), power or Internet service provider failure or delay, freeware supporting CATEtech.com application, or denial of service attack.

3.2 Protection of Your Data We will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, reasonable measures for preventing access, use, modification or disclosure of your Data by our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) (c) or as otherwise allowed by this Agreement..

3.3 Our Personnel We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein. Our responsibility for our personnel is subject to the standards and limitations set forth in this Agreement.

3.4 Beta Trial Services From time to time, we may invite you to try Beta Trial Services. You may accept or decline any such trial in your sole discretion. Beta Trial Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Trial Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms determined by us in our sole discretion. Unless otherwise stated, any Beta Trial Services period will expire upon the earlier of one month from the trial start date or the date that a version of the Beta Trial Services becomes generally available. We may discontinue Beta Trial Services at any time in our sole discretion and may never make them generally available at our option. We will have no liability for any harm or damage arising out of or in connection with a Beta Trial Service, any software or code associated with it and their use.

4. USE OF SERVICES AND CONTENT

4.1 Subscriptions Unless otherwise provided in the applicable Sales Order, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing rate per bundle of users, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

4.2 Usage Limits Services and Content are subject to usage limits, including, for example, the quantities specified in Sales Order. Unless otherwise specified, (a) a quantity in a Sales Order refers to Number of bundled users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you agree to execute a Sales Order for additional quantities of the applicable Services or Content promptly upon our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).

4.3 Your Responsibilities You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of your data models and the means by which You acquired your data models, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of CATEtech.com applications with which you use Services or Content.

4.4 Usage Restrictions You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than you or users you authorize, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, pornographic, incendiary,  or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, (l) reverse engineer any Service (to the extent such restriction is permitted by law) modify any code or Service or make any improvement, enhancement thereto.

4.5 Removal of Content if we are required by a licensor to remove Content, or receive information that Content provided to you may violate applicable law or third-party rights, We may so notify you and in such event you will promptly remove such content from your data models. If you do not take required action in accordance with the above, we may remove such content and/or may disable the applicable content and/or CATEtech.com application until the potential violation is resolved, and or terminate this Agreement and all rights you have hereunder.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

5.1 Fees You will pay all fees specified in the Sales Order. Except as otherwise specified herein or in a Sales Order, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

5.2 Invoicing and Payment You will provide us with valid billing information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide checking or credit or charge card account information to us, you authorize us to charge such checking, credit or charge account for all Purchased Services listed in the Sales Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Sales Order. If the Sales Order specifies that payment will be by a method other than a bank transfer, we will invoice you in advance and otherwise in accordance with the relevant Sales Order. Unless otherwise stated in the Sales Order, 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.  The failure to do so may result in the cancellation of your rights to use the Service, the forfeiture of all monies paid to Us and the acceleration of all monies due to Us under this Agreement and your Sales Orders.

5.3 Overdue Charges If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those 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, and/or (b) We may condition future subscription renewals and sales order forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4 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 auto debit your bank, credit or charge card account), 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 10 days’ prior notice that your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to you.  If we have to pursue collection actions for amounts due us that past due, you will be responsible for reasonable attorney’s fees and court courts incurred by US to collect such amounts.

5.5 Payment Disputes we will not exercise our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.6 Taxes Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use, goods and services, or withholding taxes, assessable by any jurisdiction whatsoever and howsoever denominated (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases, possession and use of the Services and any code or software provided by Us.. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 5.6, we will invoice you and you agree to promptly pay that amount invoiced unless you provide us with a valid tax exemption or tax reduction certificate authorized by the appropriate taxing authority, in which case you will pay the amounts claimed owed remaining after proper application of such exemption or reduction certificate, if any. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.

5.7 Future Functionality You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.  You agree that we have the sole right to make or mot make such future modifications in respect to functionality or features as we determine in our sole determination.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the Services and Content, including all of our/ their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.  You specifically agree that You shall make no claim under any local law of any foreign country that you have ownership or similar rights in and to the Services and the Content.

6.2 License by us to use content we grant to you a worldwide, limited-term license, under our applicable intellectual property rights and licenses, to use Content used by you pursuant to the Sales Order Forms, subject to those Sales Order Forms, this Agreement and the Documentation. 

6.3 License by you to host your data models You grant us and our Affiliates a worldwide, limited-term license to host, copy, transmit and display your data models, and any non Channel Logistics risk models created by or for you using a Service, as necessary for us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data Models or any non Channel Logistics application or program code.

6.4 License by You to Use Feedback You hereby grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or users relating to the operation of the Services.  You agree to execute all reasonable documentation to evidence such license to Us.

6.5 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 granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data Models; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Sales Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), (b) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (c) 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 and contractors who need that 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 will disclose the terms of this Agreement or any Sales Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.

7.3 Compelled Disclosure The Receiving Party may disclose Confidential Information of the Disclosing Party only to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Representations each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2 Our Warranties We warrant that (a) this Agreement, the Sales Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data Models, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term unless required by law, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into your data models. For any breach of an above warranty, your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).

8.3 Disclaimers EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA TRIAL SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by us We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give us written notice of the Claim Against you, (b) give us sole control of the defense and settlement of the Claim Against you (except that we may not settle any Claim Against you unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Service, We may in our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a claim against You arises from misuse of Content or your breach of this Agreement.

9.2 Indemnification by You You will defend s against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that your data models, or your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement of, a claim against us, provided we (a) promptly give you written notice of the claim against us, (b) give you sole control of the defense and settlement of the claim against us (except that you may not settle any claim against us unless it unconditionally releases us of all liability and does not obligate us to do or refrain from any activity or action other than the payment of money damages), and (c) give you all reasonable assistance, at your expense.

9.3 Exclusive Remedy This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

10 LIMITATION OF LIABILITY

10.1 Limitation of Liability NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).

10.2 Exclusion of Consequential and Related Damages IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION

11.1 Term of Agreement This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.

11.2 Term of Purchased Subscriptions The term of each subscription shall be as specified in the applicable Sales Order Form. Except as otherwise specified in an Sales Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. The per unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

11.3 Termination 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.

11.4 Refund or Payment upon Termination If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Sales Order Forms after the effective date of termination. If this Agreement is terminated by us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Sales Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5 Your Data Model Portability and Deletion Upon written request by You made within 30 days after the effective date of termination or expiration of this Agreement with respect to any Sales Order, we will make your data models available to you as provided in the Documentation. After that 30-day period, we will have no obligation to maintain or provide your data models, and will thereafter delete or destroy all copies of your data models in our systems or otherwise in our possession or control as provided in the Documentation, unless legally prohibited.

11.6 Surviving Provisions The Sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Model Portability and Deletion," "Who You Are Contracting With, Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration if this Agreement

12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

12.1 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 have jurisdiction over any such lawsuit:

Domicile

You are contracted with

Send Notice to:

Governing Law

Anywhere Worldwide

Channel Logistics LLC., a Corporation organized under the laws of the State of Delaware, USA

Channel Logistics LLC

200 Federal Street Suite 300, Camden New Jersey 08103 USA

New Jersey

 

12.2 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 seventh business day after mailing, (iii) the third business day after sending by confirmed facsimile, or (iv) the third 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.

12.3 Agreement to Governing Law and Jurisdiction Each party agrees to the applicable governing law above without regard to such jurisdiction’s choice or conflicts of law rules, and to the exclusive jurisdiction of the state and federal courts, as applicable with jurisdiction, in and for, or over the State of New Jersey..  Each party waives any objections regarding convenience of such forum.

12.4 No Agency For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other reseller company. Subject to any permitted Assignment under Section 13.4, the obligations owed by Us under this Agreement shall be owed to You solely by us and the obligations owed by You under this Agreement shall be owed solely to our reseller and/or Us.

13. GENERAL PROVISIONS

13.1 Export Compliance The Services, Content, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

13.2 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 us. The governing US law is The Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.)

13.3 Entire Agreement and Order of Precedence This Agreement is the entire agreement between you and us regarding your use of Services and Content 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in your sales order or in any other of your order documentation (excluding Purchase Order Forms) that is not specifically initialed by Us or otherwise specifically approved in writing by US is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Sales Order Form, (2) this Agreement, and (3) the Documentation.

13.4 Assignment Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Sales Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, we will refund to you any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.5 Relationship of the Parties The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.

13.6 Third-Party Beneficiaries Our Content licensors shall have the benefit of our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.

13.7 Waiver No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

13.8 Severability If any provision of this Agreement is held by an arbitration court of competent Singapore jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect