Software License Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE OPENING THE PROGRAM.
This End-User License Agreement (the "Agreement") is entered into by and between FREIGHT+ and you ("End-User"). END-USER'S USE OF THE LICENSOR PRODUCT IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING THE "I AGREE" BUTTON BELOW, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "I DO NOT AGREE" BUTTON AND YOU MUST CEASE ALL FURTHER USE OF THE LICENSOR PRODUCT.
SOFTWARE LICENSE AND WARRANTY AGREEMENT
Freight+, formerly Carrera Computers, a California company ("Licensor") grants YOU, the end user, a non-transferable, non-exclusive license to use this copy of Freight Shipping Software ("Software") and the accompanying materials (all of which are the "Product") according to the following terms:
License: You may:
a) Use the Software on a single computer( and store the Software in a disk drive accessible only by that computer) or in a single networked group of computers which share a common disk drive in which the Software is stored, provided that: 1)The Software is stored only on that shared disk drive and is not also stored on a disk drive independent of the drive shared by the networked computers, and 2) the Software s operated only on the operating platform for which licensee fees were paid;
b) Make a (1) copy of the Software solely for backup purposes, provided that You reproduce all proprietary notices on the copy;
You may not:
a) distribute the Software, portions or derivative products thereof, including source or object code;
b) use more that the number of copies of Software licensed and paid for;
c) rent, lease, lend, transfer or sublicense the Product except as allowed below; or
d) Remove and proprietary notices, labels or marks.
This license is not for sale. Title and copyrights to the Product, portions and derivative products, accompanying materials and any copies made by You remain with Licensor.
Unauthorized use, copying or transfer of the Software, or portions of derivative products, or the accompanying materials, or failure to comply with the above restrictions will result in automatic termination of this license and will make available to Licensor other legal remedies. Upon termination of this license, You will destroy or return to Licensor the Product and all portions, copies and derivative products thereof.
LIMITED WARRANTY AND DISCLAIMER
LICENSOR WARRANTIES THAT THE PRODUCT WILL OPERATE IN SUBSTANTIAL CONFORMITY WITH THE WRITTEN USER MANUAL AND ADDENDUM'S PROVIDED BY LICENSOR FOR A PERIOD OF ONE (1) YEAR AFTER THE DATE OF DELIVERY OF THE PRODUCT TO YOU. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ABOVE WARRANTY DOES NOT APPLY TO, AND LICENSOR DISCLAIMS ANY AND ALL OF, ANY THIRD Party SOFTWARE THAT MAY BE BUNDLED OR INCLUDED WITH THE PRODUCT AND/INTEGRATED INTO THE PRODUCT. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE IS ERROR FREE OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. The duration of any implied warranties is limited to that period stated above. Licensor's entire liability and Your exclusive remedy is, subject to adequate proof of license. the repair or replacement of the defective product, the refund of license fees paid and termination of this agreement. Notwithstanding and foregoing, Licensor's warranty obligations set forth in this section are expressly contingent upon You: 1) notifying Licensor of a warranty claim within thirty(30) days after having actual or constructive knowledge of the same; 2)providing sufficient detail of the facts associated with the warranty claim in writing so as to allow Licensor to reasonably reproduce any alleged defects and errors in the Product, or demonstrate to Licensor such defect or error; and (3) providing Licensor with sufficient information in order to verify that any error or defect is solely attributable to the Product.
Licensor reserves the right, without notice, to supersede versions of Product with newer versions, which may add, modify, or eliminate functionality of earlier versions. Licensor may provide such newer versions as warranty replacements.
Some jurisdictions do not allow limitations on how long an implied warranty lasts so the above limitations may not apply to You. This warranty gives You specific legal rights. You may also have other rights that vary for jurisdiction to jurisdiction.
LIMITATION OF LIABILITY
IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INCIDENTAL OF CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE PRODUCT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OT TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OND INDEPENDENT OF ANY FAILURE OF ASSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMEDIES PROVIDED HEREIN. SOME JURISDICTIONS DO NOT ALLOW LIMITAION OR EXCLUSION OF LIABILITY OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS DISCLAIMER SHALL APPLY WHETHER OR NOT LICENSOR HAS BEEN APPRAIDED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S AGGREGATTW LIABILITY FOR DAMAGES IN CONNCETION WITH THIS AGREEMENT EXCEED THE PAYMENTS MADE TO LICENSOR BY YOU FOR THE PRODUCT.
The parties acknowledge the limitations set forth in this Agreement are integral to the amount of fees levied in connection with this agreement and that, were Licensor to assume any further liability other than set forth herein, such fees would of necessity be set substantially higher.
THIRD PARTY SOFTWARE
Portions of the Product contain proprietary software and other materials and information provided by United Parcel Services General Services Co. ("UPS"). Your rights to use the UPS materials is subject to your agreement to the terms and conditions set forth in Addendum No. 1 of this Agreement.
Any authorized Freight Reseller is not affiliated with Licensor in any capacity other than as a distributor of Licensor's Products and has no authority to bind Licensor or modify any license or warranty. Licensor makes not representations, warranty, endorsement or guarantee with respect to the skills or qualifications of any Freight Authorized Reseller and You are encouraged to independently investigate the skills and qualifications of any Freight Authorized Reseller with whom you associate.
No action concerning, related to, or arising out of this Agreement or any breach of or default under this Agreement, may be commenced more than one (1) year after the occurrence of any such beach or default.
The laws of the State of California will govern this agreement. Each party to this Agreement hereby submits to the jurisdiction of the courts of the State of California and agrees to maintain all actions in courts located in Riverside County, California.
Licensor: Freight+, P.O. Box 808, Wildomar, Ca. 92595
This Agreement, including any exhibits and/or addenda referenced herein, is the entire agreement between us and supersedes any other communications with respect to the Product. If any provision of this agreement is held to be unenforceable, the remainder of this agreement shall continue in full force and effect.
ADDENDUM No. 1
UPS Materials END-USER LICENSE AGREEMENT
This UPS Materials End-User License Addendum (the "Addendum") is entered into by and between Licensor and you, "End-User". END-USER'S USE OF THE UPS MATERIALS CONTAINED IN THE LICENSOR PRODUCT IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING THE "I AGREE" BUTTON BELOW, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS ADDENDUM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS ADDENDUM, CLICK THE "I DO NOT AGREE" BUTTON AND YOU MUST CEASE ALL FURTHER USE OF THE UPS MATERIALS CONTAINED IN THE LICENSOR PRODUCT.
1.1 Licensor Product or Licensor Products mean the software and hardware product(s) the Licensor distributes to End-Users with the UPS Licensed Materials.
1.2 UPS means United Parcel Service General Services Co.
1.3 UPS License Agreement means that certain license agreement between UPS and Licensor or licensor's supplier pursuant to which UPS grants to Licensor a limited, revocable, non-exclusive, non-transferable right to sublicense the UPS Licensed Materials as part of the Licensor Products to End-Users.
1.4 UPS Licensed Materials means the UPS proprietary software contained in the Licensor Product and the related Documentation.
1.5 UPS Services means UPS shipping services including the labeling, rating, routing, recording and tracking of shipments tendered by or for End-Users to UPS for delivery.
1.6 UPS Systems means the UPS proprietary network and computer systems accessed by the Licensor Product, including, without limitation, the UPSnet, the Package Tracking System, and the Tracer Information Processing System.
2. License Grant. Licensor hereby grants to End-User, subject to the terms and conditions of this Addendum, a limited, revocable, non-exclusive, non-assignable, nontransferable, right and license to use, in the United States of America only, the UPS Licensed Materials solely for its own internal business purposes in order to gain access to the UPS Systems and provide UPS with Package Level Detail ("PLD").
3. License Restrictions and Acknowledgements. End-User shall not, nor shall it permit any other third party to: (a) translate, deactivate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, distribute or otherwise dispose of the UPS Licensed Materials or any part thereof; (b) allow distribution of any information regarding the UPS Services, through use of the Licensor Product or UPS Licensed Materials or any other means by wireless or satellite delivery services or applications; or (c) host or use, or allow any entity or person to host or use the UPS Licensed Materials so that functions within the UPS Licensed Materials are available to third parties, via an application service provider arrangement or otherwise. Notwithstanding sub-section 3(c) above, End-User may (i) host the Licensor Product at an End-User location in the U.S. only for its sole benefit, or (ii) contract with a third-party service provider ("Hosting Provider") to host the Licensee Product at the Hosting Provider's location in the U.S. only for End-User's sole benefit. Further, End-User shall use the UPSlink Software contained in the UPS Licensed Materials only to communicate with the UPS Systems, and for no other purpose. For each End-User location supported by a Licensor Product, End-User must have a UPS Shipper Number and receive UPS Daily Pick-up Service. End-User acknowledges that, concurrently with an End-User initiated connection to the UPS Systems, the Licensor Product may be remotely accessed for a limited period of time by UPS in order to provide updates and changes relating to the UPS Licensed Materials and other UPS software related information. End-User further acknowledges that (a) it may be asked by its consignees to include a location identifier ("LID"), which is used by the consignee to participate in the UPS Quantum View Inbound(tm) Service, in the PLD upload to UPS for certain packages shipped by End-User to such consignee using the UPS shipping system; and (b) if End-User chooses to include the consignee LID in its PLD records, UPS may, at the request of a consignee, distribute to the consignee or a third party the information of such PLD records which include the consignee LID and such recipient may further use and distribute such information to other parties.
4. Limited Access. End-User shall not, nor shall it permit any other third party to, gain or attempt to gain access to any UPS computer system or data base, other than the UPS Systems, by any means, including by use of the UPS Licensed Materials or the Licensor Products.
5. Third-Party Beneficiary. Licensor and End-User agree that UPS is an intended third-party beneficiary of this Addendum and any amendments thereto.
6. Changes to UPS Services and Materials. End-User understands and acknowledges that the UPS Services, UPS Licensed Materials, and UPS Systems may be updated, altered, terminated, modified or supplemented at any time.
7. Ownership and Other Rights. End-User hereby acknowledges and agrees that UPS or its parent or affiliate is the owner of all right, title and interest in and to the UPS Licensed Materials and the UPS trademarks, service marks and logos (the "UPS Marks"). End-User further does not acquire any right of ownership in the UPS Licensed Materials or UPS Marks. UPS reserves all of its rights pertaining to the subject matter hereof not specifically granted herein to End-User.
8. Smart Labels. For all packages shipped via UPS, End-User must use the UPS Smart Labels. "Smart Labels" mean labels generated by an application certified or provided by UPS which comply with the then current version of the UPS Guide to Labeling. All shipments manifested through the Licensor Product and received by UPS Daily pick-up service must be billed to End-User's six digit UPS Shipper Number. End-User may not use a six digit shipper number which UPS has not specifically assigned to End-User. End-User may not permit any third party to use the six digit UPS Shipper Number which UPS has assigned to End-User. End-User's production and use of Smart Labels produced for shipping via UPS are subject to the following restrictions: (i) only one unique Smart Label may be printed for a package and such unique Smart Label may only be used in connection with the unique package for which such unique Smart Label was generated; (ii) no Smart Label may be copied, photocopied, reproduced, modified, altered, distributed, transferred, stored, sold, leased, transmitted, or disclosed, electronically or otherwise, to any third party; (iii) Smart Labels may only be used by End-User in connection with shipments tendered by End-User to UPS; and (iv) End-User shall not interfere with or disable features of the Licensed Materials which cause shipments for which Smart Labels are generated not to have their package level detail electronically transmitted to UPS.
9. Limitations on Branding. End-User shall not allow any third party to brand, re-brand or co-brand the Licensor Products which incorporate the UPS Licensed Materials in connection with the trademark, service mark, trade name, logo, symbol, or mark of any third party.
10. Confidentiality. Any information received from he UPS Licensed Materials, the UPS Systems or the UPS Services is "Confidential Information". End-User shall (a) hold in confidence, and not disclose to any person or entity, any Confidential Information of UPS; and (b) not use or disclose any of the UPS Confidential Information for any purpose at any time other than for the limited purpose of performance under this Addendum. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and, with respect to Confidential Information that is not a trade secret, shall continue for so long as such information maintains its status as Confidential Information.
11. No Warranty. THE UPS LICENSED MATERIALS ARE PROVIDED "AS IS." NO WARRANTY, REPRESENTATION, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTIBILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE LICENSED MATERIALS IS GIVEN OR ASSUMED BY UPS OR ITS AGENTS AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
12. Disclaimer of Third-Party Liability and Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, UPS SHALL NOT BE LIABLE TO END-USER OR ANY THIRD PARTY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, OR TO THE EXTENT PERMITTED BY LAW, DAMAGES RESULTING FROM DEATH OR INJURY TO ANYONE, SUFFERED BY END-USER OR ANY SUCH THIRD PARTY ARISING OUT OF THIS AGREEMENT EVEN IF UPS HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL UPS'S LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY TYPE EXCEED $100.
13. Indemnification. End-User will, at End-User's sole cost and expense, indemnify and hold UPS and its officers, directors, employees, agents, successors, and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses, including attorneys' fees (any of the above being a "Claim") arising out of or related to (a) End-User's violation of the terms of this Agreement; or (b) any wrongful act or omission of End-User and/or End-User's employees, agents, or contractors.
14. Termination. End-User acknowledges and agrees that this Addendum may be terminated by Licensor for any reason or no reason upon thirty (30) days prior written notice. Notwithstanding the foregoing, this Addendum may be terminated immediately upon a breach of the Confidentiality provision; the License Restrictions; or the Limitations on Branding provision, as each are contained in this Addendum. Upon expiration or termination of the UPS License Agreement, UPS reserves the right within its sole discretion to (a) allow this Addendum to continue pursuant to its terms, (b) require Licensor to terminate this Addendum, or (c) require Licensor to terminate this Addendum, and replace such portions with license agreements by and between the End-User and UPS or one of its affiliates. Sections 3, 4, 5, 7, 10, 11, 12, 13, 14 and 16 of this Addendum shall survive termination or expiration of this Addendum.
15. Compliance with Laws. End-User agrees to comply with all United States and other applicable laws, rules and regulations relating to this Addendum.
16. Miscellaneous. If any portion of this Addendum is found to be invalid or unenforceable, the remainder of the agreement shall remain in full force and effect. Use, duplication or disclosure of the UPS Licensed Materials by the United States Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR- 52-227.19, as applicable. This Addendum shall constitute the entire agreement between Licensor and End-User with respect to the subject matter hereof and supersedes all prior or contemporaneous representations and agreements related thereto.
17. Order of Precedence. In the event any of the terms and conditions contained in the Carrera Computers End-User License Agreement conflict with any of the terms and conditions contained in this Addendum, the terms and conditions contained in this Addendum shall control with respect to the subject matter of this Addendum.