SMC³ Online Applications Product Agreement
Overview
SMC³’s Web Site includes an "ASP or "Applications Service Provider" section (also known as the "Online Applications") that allows Web Site users to submit input and obtain results using one or more of SMC³’s various Software products (hereinafter the "Member Area"). The Member Area of the Web Site can be thought of as providing remote access via the Internet to the SMC³ Software Products. There is a per-Product fee for each of the Product applications to which You desire access/use. To access and use this section of the Web Site, You must be an Authorized User, which means that a Membership must have been purchased in Your individual name (i.e., for You individually, not a multi-user company account, which is not permitted). There are two types of Memberships: Administrative and User. An Administrative Membership entitles the holder to purchase the right to use various SMC³ products via the Member Area, the right to add or subtract additional User Members, and the right to use the specific SMC³ products that have been separately licensed for use in association with that Administrative User’s master account. User Members may access and use the specific SMC³ products that have been separately licensed an Administrative User for that account.
* This SMC³ Member Area Agreement ("Agreement") governs all access to and use of the Member Area.
* The Web Site Terms Of Service form a part of this Agreement and are incorporated herein by reference as if set forth herein in full. In the event of any conflict between the Terms of Service and this Agreement, this Agreement shall supercede and shall govern.
Other Definitions
"Authorized User" shall mean a person who is physically present in the U.S., Canada, or Mexico at the time of Member Area access or use and who is otherwise allowed and authorized under this Agreement to access and use the Member Area of the Web Site. No one other than an Authorized User may access or use the Member Area.
"Licensee" and "You" shall refer to the individual person entering into this SMC³ Member Area Agreement.
"SMC³" shall refer to Southern Motor Carriers Rate Conference, Inc. doing business as SMC³.
"Member Area" shall refer to that section of the SMC³ Web Site described in the Introduction above.
Terms and Conditions
1. Grant of License and Related Rights
a. Scope of License
1. Generally
SMC³ grants to Licensee, and Licensee accepts, a nonexclusive, nontransferable, limited license on the terms set forth herein to access and use the Member Area of the Web Site on the terms set forth herein. You may use the Member Area, and the information derived therefrom for internal purposes only. The calculations and other information generated when You access or otherwise use the Member Area may not be re-sold, sub-licensed, or otherwise communicated to any third-parties, except as may be necessary to provide pricing information to Your customers or potential customers in relation to the goods or services that You customarily sell or provide to such customers or potential customers. Licensee acknowledges that, except for the license expressly granted hereunder, all right, title, and interest in and to the Member Area and the associated applications and functionality are and shall remain SMC³'s sole and exclusive property, and that the Member Area shall not be used in any manner except as expressly permitted by this Agreement.
2. Authorized Users; No Sharing Of Member Area Access
Only a natural person may be an Authorized User. Each Authorized User (i.e., each person from Your business or association who will be accessing or using the System) must have a separate license. Under no circumstances may there be any sharing of the right to access the Member Area arising from your License. Furthermore, You must take reasonable steps to protect and ensure the confidential nature of your Login ID, password, SMC³ Customer No., and SMC³ Account PIN, as well as the Member Area content. In relation to any Administrative User’s account, only agents or employee of that Administrative User or his company may be designated as other users on that account. Furthermore, deeplinking to any portion of the Member Area is prohibited. An Authorized User must complete the Member Login process at the SMC3.com website prior to accessing the Member Area.
b. Prohibited Acts Licensee shall not, nor shall You permit any other party to: (i) use or access the Member Area except as specifically provided by this Agreement; (ii) disassemble, decompile, decrypt, or reverse engineer any applications, software, source code, or other computer language that provides or helps to provide functionality (including query results) in the Member Area, or that otherwise powers or comprises the applications accessible at that Area; (iii) remove, alter, cover, or obscure the copyright or other proprietary notices placed on or appearing at the Member Area; (iv) alter, modify, or prepare derivative works based on any software or application accessible through the Member Area; or (v) use the by at or derived from the applications available in the Member Area. You may not lease, rent, lend, or otherwise transfer any rights in, or right to access or use, the Member Area.
c. Technical Assistance and Upgrades Technical assistance for the use of the Member Area will be provided via telephone during the period 7:30 a.m. to 5:15 p.m. Eastern Time, Monday through Friday (excluding national holidays) at 800-272-3425. Calls will be handled on a live basis when possible. In the event that you must leave a message, SMC³ will return the call as soon as is reasonably practicable.
2. SMC³'s Warranties And Disclaimers
SMC³ warrants that the applications and functionality available at the Member Area will perform substantially in accordance with the applicable documentation for the respective applications. THIS WARRANTY AND REPRESENTATION IS THE ONLY WARRANTY OR REPRESENTATION MADE BY SMC³ WITH RESPECT TO THE MEMBER AREA, THE UNDERLYING SOFTWARE AND APPLICATIONS, AND/OR IN RELATION TO THIS AGREEMENT. SMC³ EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Further, the warranty set forth above: (a) is contingent upon Licensee’s proper use of the Member Area and compliance with the terms of this Agreement; (b) does not guarantee execution or operation of the Membership Area applications and functionality without interruptions, bugs, or errors, or that all errors will be corrected; (c) does not apply to data or to data input, output, accuracy, and suitability, which are under Licensee's exclusive control; (d) does not guarantee that the Member Area and/or the related applications will meet Licensee’s requirements or operate in the combinations Licensee may select or use; and (e) is automatically void upon any material breach of this Agreement or upon any access or use of the Member Area not permitted by this Agreement.3. Limitation of Liability
SMC³ SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE, REGARDLESS OF THE FORM OR BASIS OF THE ACTION, EVEN IF SMC³ HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SMC³ 'S ENTIRE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY SHALL BE, AT SMC³’S OPTION, FOR SMC³ TO CORRECT SUCH NONCONFORMITY BY REPAIR, REPLACEMENT, RECONFIGURATION, OR SUITABLE WORKAROUND, OR TO TERMINATE THIS AGREEMENT AND REFUND THE APPLICABLE PRO-RATA PORTION OF THE MEMBER AREA-RELATED LICENSE FEE PAID TO SMC³ FOR THE NONCONFORMING APPLICATION. IN ANY EVENT, SMC³ 'S MAXIMUM LIABILITY TO LICENSEE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE MEMBER AREA, THE RELATED APPLICATIONS, AND/OR THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE USE OF THE NONCONFORMING APPLICATION(S). THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.4. Miscellaneous
a. Assignment This Agreement shall be binding upon and inures to the benefit of the parties and any permitted successors or assigns. No other entity shall be entitled to rely upon or to receive benefits from this Agreement. Licensee shall not sell, transfer, lease, assign, pledge, mortgage, or otherwise dispose of any of the rights, privileges, duties, and obligations granted or imposed hereunder.
b. Force Majeure Except for the payment of fees or other amounts due under this Agreement by Licensee, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other such cause beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
c. Governing Law And Forum This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Georgia, USA, without regard to its principles governing conflict of laws. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought, if at all, only in the Superior Court of Fayette County, Georgia, or the United States District Court for the Northern District of Georgia. All parties to this Agreement acknowledge the right of any court situate in said counties to assert personal jurisdiction in any such action over the parties to this Agreement and waive and release now and forever any defense to that assertion of jurisdiction that might otherwise exist.
d. Headings Section and paragraph headings are for convenience in reference only and do not define or limit the scope of any provision of this Agreement.
e. Notices Any notice provided pursuant to this Agreement to SMC³ shall be given in writing and sent via certified mail, return receipt requested to the notice contact/address set forth in the SMC3.com Web Site Terms of Service at the time such notice is sent.
f. Severability If any provision herein is declared invalid, the other provisions shall remain in full force and effect, and this Agreement shall be deemed to be amended to replace, to the extent legally possible, the rights and obligations contained in the invalid provision. The invalidity of any provision is not a failure of consideration hereunder.
g. Waiver Any failure or delay in exercising, or any single or partial exercise of, any right or remedy by either party hereto shall not be deemed a waiver of any further, prior, or future right or remedy hereunder.
h. Entire Agreement This Agreement constitutes the entire agreement between SMC³ and Licensee and supersedes all prior agreements and understandings, whether oral or written, relating to the specific subject matter hereof.
i. Term The license granted hereunder by SMC³ shall be for a term of one (1) year unless terminated by SMC³ upon breach of this Agreement by Licensee.
j. Payment Licensee has complied or will comply with all payment obligations to SMC³ arising from or relating to the Software rights granted by SMC³ under this Agreement. Licensee’s payment obligations in relation to the Software shall survive the Merger Clause herein (Paragraph 4.h) and shall be fully enforceable by SMC³. All payments shall be made in U.S. funds.
k. Notice To SMC³ Any notice to SMC³ provided pursuant or in relation to this Agreement shall be in writing and shall be deemed given: (i) if by hand delivery, upon receipt thereof, (ii) if mailed, on the actual date of delivery as evidenced by a "certified mail, return receipt requested" card; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed as follows: Attention: Member Area Notice, SMC³, 500 Westpark Drive, Suite 300, Post Office Box 2040, Peachtree City, Georgia 30269.
l. Remedies If Licensee breaches or threatens to breach any provision of this Agreement, which breach jeopardizes the confidential and/or proprietary nature of the Software or otherwise threatens irreparable harm to SMC³, in addition to any other remedies it may have at law or in equity, SMC³ shall be entitled to a restraining order, injunction, or other similar remedy. SMC³ reserves all rights not explicitly granted herein.
m. Termination This Agreement and the license granted hereunder may be terminated by SMC³ upon any material breach by Licensee, including, but not limited to, Licensee's default in the payment of any portion of the fees due in relation to Member Area access or use and/or any breach of the restrictions on Member Area use contained herein. Such termination of this Agreement shall, however, in no way toll, release, or reduce Licensee’s obligations or liability hereunder. Upon termination of this Agreement for any reason whatsoever, the license and all other rights and obligations of both parties shall immediately cease and terminate except for those provisions hereunder which by their sense and context are intended to survive termination. Upon termination, Licensee shall immediately cease use of the Member Area. Finally, SMC³ may at any time, upon five days’ notice to its Members, remove any or all portions of the Member Area from the Web Site or otherwise terminate the licenses and rights granted hereunder by returning the unearned pro-rata share of Member’s applicable license fees.