SMC³’s webRater is an interactive rating system that allows a company’s transportation customers to access the company’s carrier-related pricing via the Internet. webRater allows the provision of real-time quotes and is targeted toward carriers, shippers, and other related types of companies. The webRater service is provided via a custom-designed web page resident at the SMC³ Web site, which may be linked-to from the company Web site pursuant to the terms of this agreement.
“Agreement” shall refer to this SMC³ webRater Agreement.
“Hit” shall refer to each access or use of the webRater Page. Each query to the webRater Page, without regard to the uniqueness of the User or the number of queries per session, shall constitute a Hit.
“Licensee” and “You” shall refer to the person or entity entering into this Agreement.
“SMC³” shall refer to Southern Motor Carriers Rate Conference, Inc. doing business as SMC³.
“User” (or “Your User”) shall refer to any Internet user who seeks to or does access the webRater Page or any portion thereof.
“webRater Page” shall refer to that World Wide Web page specifically designed by SMC³ for You. The webRater Page is housed on SMC³’s server (i.e., is actually a part of SMC³’s Web site) and allows input/output functionality consistent with that explained in the webRater documentation.
a. Scope of License & Services
SMC³ grants to You, and You accept, a nonexclusive, nontransferable, limited license on the terms set forth herein to link to, access, and use the webRater Page on the terms set forth herein. Such access and use shall be effected by a link (the “Link”) from Your Web site to the webRater Page. No other link to the SMC³ Web site is permitted hereunder. You may configure Your Web site and the Link so that the webRater Page opens in a separate browser window, or You may configure the Link so that its existence is invisible to the user (i.e., so that the user is unaware that he is interacting with any URL or Web site other than Yours). You may not, however, configure the Link or the surrounding portion of Your Web site in any manner that tends to or does disparage or demean SMC³ or that might otherwise inure to the financial or commercial detriment of SMC³.
Licensee acknowledges that, except for the license expressly granted hereunder, all right, title, and interest in and to the webRater Page (other than any of Your marks used on the webRater Page to identify it as Your page) and the associated applications and functionality are and shall remain SMC³'s sole and exclusive property, and that the webRater Page shall not be used in any manner except as expressly permitted by this Agreement.
2. Authorized Use; 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 employees of that Administrative User or his company may be designated as other users on that account. Furthermore, deep linking 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.
You and your Users may use the webRater Page, and the information derived therefrom for internal purposes only. The calculations and other information generated when You or a User accesses or otherwise uses the webRater Page may not be re-sold, sub-licensed, or otherwise communicated to any third-parties, except: (a) when accessed by You or an agent or employee of You, 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, and/or (b) when accessed by a User, for internal use by that User in the User’s capacity as a customer or potential customer in relation to the goods or services that You customarily sell or provide. You may not encourage or permit access to the webRater Page in a “service bureau” capacity or in any manner other than is expressly set forth above.
3. Design Of webRater Page And Link
SMC³ will provide the reasonable labor necessary to design and implement the webRater Page (which may be “private labeled” via the use of Your marks and name) and, if necessary, will provide reasonable assistance in the implementation of the Link at your Web site.
4. Your Enforcement Of License Terms And Limitations
It is Your responsibility to ensure that all Users are authorized under this Agreement to access and use the webRater Page. You agree that You will include in your Web site terms of service (or other such provisions governing the access to or use of Your Web site, without regard to the name given to such provisions) (“TOS”): (a) a prohibition against third-party deep-linking to that page or portion of your Web site that includes the Link (whether the Link is framed, hidden, or otherwise) and/or to the webRater Page itself ; (b) provisions by which Users agree that they will use and access the webRater Page only as allowed herein; and (c) disclaimers and limitations of liability consistent with those set forth herein naming both You and SMC³ as the beneficiaries of such provisions. You may further wish to include some security measure(s) (such as an “access code” or “membership code”) for the page or portion of your Web site that includes the Link, or have SMC³ do the same at the webRater Page itself. Notwithstanding your decision to include or omit any such security measures, your compliance with the required TOS provisions, or any other steps you take or fail to take, You understand that You are ultimately responsible under the payment terms of this Agreement for each Hit.
b. Prohibited Acts You shall not permit any party to: (i) use or access the webRater Page 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 webRater Page, 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 webRater Page; (iv) alter, modify, or prepare derivative works based on any software or application accessible through the webRater Page; or (v) use the webRater Page or the functionality accessible through the webRater Page 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 webRater Page applications.
c. Technical Assistance and Upgrades Technical assistance for Your use of the webRater Page 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.
SMC³ SHALL NOT BE LIABLE TO YOU 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 YOUR 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. IN ANY EVENT, SMC³ 'S MAXIMUM LIABILITY TO LICENSEE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE webRater Page, THE RELATED APPLICATIONS, AND/OR THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE 30 DAYS IMMEDIATELY PRECEDING SUCH TERMINATION. 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 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 agree-ments 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. This term shall automatically renew unless terminated as permitted elsewhere herein.
j. Payment Licensee has complied or will comply will all payment obligations to SMC³ arising from or relating to this Agreement. These obligations are set forth on the Order Form completed by Licensee. 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. Any Monthly fees due hereunder shall be calculated on a calendar month basis.
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: webRater Page Notice, SMC³, 500 Westpark Drive, Suite 300, Post Office Box 2040, Peachtree City, Georgia 30269.
l. Indemnity You agree to indemnify and hold harmless SMC³ and its officers, directors, members, employees, attorneys, and agents from and against any and all third-party claims, actions, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) (collectively “Claims”), where such Claims arise out or relate in any way to the Claiming third-party’s use of or access to the webRater Page.
m. Remedies If Licensee breaches or threatens to breach any provision of this Agreement, which breach jeopardizes any confidential and/or proprietary information or property of SMC³ 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.
n. Termination This Agreement may be terminated immediately 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 webRater Page access or use and/or any breach of the restrictions on webRater Page use contained herein. Such termination of this Agreement shall, however, in no way toll, release, or reduce Licensee’s obligations or liability hereunder. Furthermore, either party may terminate this Agreement for any reason upon five (5) days written notice to the other party. 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 (including the payment by You of any amounts due in relation to pre-termination Hits).