THIS DATA LICENSE AND END-USER AGREEMENT (“AGREEMENT”) GOVERNS AND SETS FORTH ALL OF YOUR RIGHTS IN THE SMC³ DATA YOU HAVE LICENSED OR ARE LICENSING. IF YOU ARE DOWNLOADING THE DATA VIA THE INTERNET, YOU MUST CONSENT TO THIS AGREEMENT BEFORE PROCEEDING. IF YOU HAVE LICENSED PRE-PACKAGED DATA AND HAVE NOT PREVIOUSLY SIGNED A LICENSING AGREEMENT FOR THE DATA, YOU MUST EITHER ASSENT TO THIS AGREEMENT PRIOR TO PROCEEDING WITH THE DATA INSTALLATION OR RETURN OR DESTROY THE DATA AND INDICATE IN WRITING TO SMC³ THAT SUCH ACTION HAS BEEN TAKEN AND THAT THE DATA HAS NOT BEEN DOWNLOADED/INSTALLED. BY PROCEEDING WITH THE DATA DOWNLOAD/INSTALLATION, YOU HEREBY AGREE AS FOLLOWS:
“Authorized User” shall mean a person who is physically present in the U.S., Canada, or Mexico at the time of Data use and who is allowed and authorized under this Agreement to Run and otherwise use the Data. All Authorized Users must be Licensee employees or personnel, unless otherwise noted. No one other than an Authorized User may Run or otherwise use the Data.
“Computer” shall mean a single computer, workstation, handheld PC, terminal, “smart phone,” or other such electronic device.
“Effective Date” shall mean the date upon which you placed the order, whether by telephone, Internet, or other means, for the Data with SMC³.
“Licensee” and “You” shall refer to the person or entity licensing the Data.
“Run” shall mean to install, use, access, display, or otherwise use the Data in a manner consistent with this Agreement.
“SMC³” shall refer to Southern Motor Carriers Rate Conference, Inc. doing business as SMC³.
“Data”, including but not limited to FastClass®, CzarLite®, CanadaLite, MexicoLite, RateWare®, BatchMarkTM, ProRater 2000TM, Priority1TM, CarrierConnectTM, Bid$ense, and SMC³ Data Modules, shall refer individually and collectively to all parts and aspects of the SMC³ products licensed hereunder, including (without limitation) the source code, executable code, program architecture, system documentation (including any “users’ manuals” or the like), and any updates, upgrades, modifications, authorized copies, and/or derivative works to/of any Data part or aspect. It is understood that certain carriers provide data for use in SMC³ products and that these carriers are the owners of such data and reserve the right to authorize or deny release of their data.
“User” shall mean a single, natural person.
a. Scope of License
SMC³ grants to Licensee, and Licensee accepts, a nonexclusive, nontransferable, limited license on the terms set forth herein to install and run one (1) copy of the Data you have purchased. You may use the Data for internal purposes only. The calculations and other information generated when you run or otherwise use the Data may not be re-sold, sub-licensed, or otherwise communicated to any third parties. In any case, any individual, company, organization, etc., using the licensed data OR receiving benefit of the data, must be licensed by SMC³. Licensee acknowledges that, except for the license expressly granted hereunder, all right, title, and interest in and to the System are and shall remain SMC³’s sole and exclusive property, and that the System(s) shall not be used in any manner except as expressly permitted by this Agreement. Licensee acknowledges that certain SMC³ products contain data released by third parties for use in the SMC³ product and that these third parties have the right to approve the release of their data through the SMC³ product. Licensee acknowledges that Licensee has licensed, and not purchased, the Data.
Licensee agrees not to incorporate any SMC³ product in whole or in part or in any modified form, including results, in system packages with other software (besides that which the Data was originally licensed for use with) owned by Licensee or third parties without the prior written approval of SMC³.
2. Number Of Authorized Users
This license authorizes users as described in the executed sales agreement between you and SMC³. Otherwise, this license allows for a single user system, to be used by one person on one non-networked computer station. The Authorized User(s) may only use the Data for the purpose of applying service guide information to your customers or for internal purposes such as data analysis, auditing, providing customer quotes and other internal practices typically performed by an LTL customer.
b. Permissible Copies Other than permitted herein, Licensee shall not copy, duplicate, replicate, or reproduce the Data or any portion thereof, provided, however, that Licensee shall be entitled to make one (1) copy of the Data only as needed for archival, back-up, and testing purposes. System documentation provided by SMC³ in printed form may not be copied or duplicated and may not be disclosed to any third parties other than is necessary to effect and carry out Licensee’s rights under this Agreement.
c. Prohibited Acts Licensee shall not, nor shall it permit any other party to: (i) use the Data except as specifically provided by this Agreement; (ii) disassemble, decompile, decrypt, or reverse engineer the Data, or in any way attempt to discover or reproduce source code for the System, or any part thereof; (iii) remove, alter, cover, or obscure the copyright or other proprietary notices placed on or embedded in the Data; (iv) alter, modify, or prepare derivative works based on the Data; or (v) use the Data in any manner for the purpose of creating any computer programs, including any program that performs functions substantially similar to the functions performed by the software. You may not lease, rent, lend, or otherwise transfer any rights in or use of the Data. Use is limited to the system specified in the executed agreement with SMC³ and the Data and/or results obtained from the software may not be used in any other system without the express written permission of SMC³. The output from the Data may not be used to create any type of derivative base rate/tariff and may not be shared with any other third party Data. Licensee may not incorporate any SMC³ product in whole or in part or in any modified form in system packages with other Data owned by Licensee or third parties without the prior written approval of SMC³.
d. Technical Assistance and Upgrades Technical
assistance for the diagnosis of software problems will be provided via telephone
during the period 7:30 a.m. to 6:30 p.m. Eastern Time, Monday through Friday
(excluding holidays) at (800) 272-3425 for licensed users. 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.
This license includes an Automatically-Renewing Annual Upgrade Subscription (automatically renews on each anniversary of the Effective Date at the then-applicable annual rate), for which you will be billed unless you cancel in writing at least thirty (30) days prior to the immediately upcoming anniversary.
Licensee understands and is aware that Licensee’s failure to obtain and install on an ongoing basis the most current upgrades may prevent the accurate and proper operation of the program, including but not limited to: calculations based on data that is no longer current (including but not limited to superceded rates and item classifications); the inability to process newly-designated ZIP codes; improper calculations regarding modified ZIP codes; and other such data-dependent issues.
SMC³ warrants that each System will perform substantially in accordance with the applicable documentation for a period of ninety (90) days after Licensee’s purchase of the System. THIS WARRANTY AND REPRESENTATION IS THE ONLY WARRANTY OR REPRESENTATION MADE BY SMC³ WITH RESPECT TO THE DATA 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 Data and compliance with the terms of this Agreement; (b) does not guarantee execution or operation of the Data 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 Data will meet Licensee’s requirements or operate in the combinations Licensee may select or use; and (e) does not apply if any person or entity other than SMC³ has modified the Data.
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 DATA LICENSE FEE PAID TO SMC³ FOR THE NONCONFORMING DATA. IN ANY EVENT, SMC³’s MAXIMUM LIABILITY TO LICENSEE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE DATA OR THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THENONCONFORMING DATA. 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.
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 upon it hereunder. However, in the circumstance of (i) a merger or acquisition of Licensee and its affiliates by a non-competitor of SMC³ or (ii) a transfer or assignment to a Licensee affiliate or subsidiary or as the result of a divestiture, SMC³ will review the circumstances and determine whether Licensee may transfer the license for the Data under this Agreement or if a new Agreement will be required.
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 (500 Westpark Drive, Suite 300, Peachtree City, GA 30269) 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 Unless a separate, customized written agreement, prepared specifically for Licensee’s use of the Data and/or data referenced in this Agreement, was previously executed by SMC³ and Licensee, this Agreement constitutes the entire agreement between SMC³ and Licensee and supersedes all prior agreements and understandings relating to the subject matter hereof.
i. Term The license granted hereunder by SMC³ shall be automatically renewed on an annual basis unless terminated by SMC³ upon breach of this Agreement by Licensee.
j. Pricing Pricing for SMC³ products is published annually in the SMC³ catalog, and annual license fees will reflect said published pricing. Under no circumstances will pricing be changed in a timeframe shorter than twelve months.
k. Payment Licensee has complied or will comply with all payment obligations to SMC³ arising from or relating to the Data rights granted by SMC³ under this Agreement. All payments shall be made in U.S. funds.
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 Data 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. Modification and Termination The terms and conditions of this Agreement may not be amended, waived, or modified, except by a writing signed by both parties hereto. 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 Data fee and/or any breach of the restrictions on Data use contained herein. Such termination of this Agreement shall, however, in no way 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 Data, remove same from any equipment on which it has been installed, return it with all documentation to SMC³, and provide SMC³ with written certification of the foregoing.