Terms and Conditions

THIS TERMS AND CONDITIONS AGREEMENT (THESE “TERMS” OR THIS “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN DFM DATA CORP., INC. (“CORPORATION”) AND YOU (“CUSTOMER”) (CORPORATION AND CUSTOMER, COLLECTIVELY, THE “PARTIES”).  IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER IS THE EMPLOYEE OR AGENT OF SUCH OTHER ENTITY AND THAT CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH OTHER ENTITY. BY USING CORPORATION SOFTWARE (AS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW,  AND UNDERSTANDS AND AGREES TO BE BOUND BY SAME. IF CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CORPORATION IS UNWILLING TO LICENSE THE SOFTWARE TO CUSTOMER, AND CUSTOMER MUST REFRAIN FROM USING THE SERVICES (AS DEFINED BELOW). FOR PURPOSES OF THIS AGREEMENT, THE “EFFECTIVE DATE” IS THE DATE UPON WHICH CUSTOMER COMMENCES USE OF THE SERVICES.

1. Definitions.

1. “Account” means the Customer’s personal identifying information through which he or she gains access to the Services provided by the Corporation.
   1. “Contributing Member” is a self-certified industry participant who applies for involvement with the Corporation’s Services.  
   1. “DFM Member” means an entity providing dynamic freight services who has entered into an agreement with the Corporation with the intent to participate in the Services offered by the Corporation.  A DFM Member may participate in Working Groups and may participate in the Steering Committee, if elected by other DFM Members.
   1. “Intellectual Property Rights” means any and all right, title, and interest in and to the Software and any and all patents, copyrights, moral rights, trademarks, trade secrets, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing property rights.
   1. “Invited Contributing Member” means any non-DFM Member having industry expertise, as determined and invited by the Corporation, in the Corporation’s sole and absolute discretion, to participate in any meetings held by the Corporation to provide critical standards, guidance, and expertise in furtherance of dynamic freight matching advancements.  An Invited Contributing Member may, as determined by the Corporation in its sole and absolute discretion, be issued certain voting privileges with respect to the implementation of additional features of the Software and/or the Services.
   1. “License Agreement” means that certain License Agreement made and entered into by and between the Corporation and the Customer of even date herewith.
   1. “Member” means a DFM Member or a Contributing Member.
   1. “Member Voice “™” meansthat certain web-based portal of the Corporation to which the Customer shall have access upon fully onboarding as a Member in good standing.
   1. “Services” means the provision of software and other related Services provided by Corporation that permit Customer to engage in blockchain technology and other technologies to manage and assist in the transportation of goods and the interactions between SAAS providers or brokers of transportation services related to dynamic freight matching including the dynamic matching of transport order to transport assets.
   1. “Software” means any and all graphics, user interface, scripts algorithms and/or computer code used to implement the Services, and includes any and all software provided to Customer as a part of and/or in connection with the Services, including use of features presented on Corporation’s website or developed from initiatives of the Steering Committee (as defined below).
   1. “Steering Committee” means an elected or invited body of DFM Members, Contributing Members, and the Corporation, assembled to manage the strategic direction of the Services.
   1.  “Working Group” means any combination of DFM Members, Contributing Members, and/or the Corporation, assembled for the purpose of addressing Ideas and Recommendations as recommended by Members.

• Accounts.

Customer must be at least 21 years of age to create an Account with the Corporation and use the Services. By creating an Account, Customer covenants and agrees that the information it provides is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of Customer’s right to use the Services.

Customer is responsible for maintaining the confidentiality of Customer’s Account and password, including but not limited to the restriction of access to Customer’s computer and/or Account. Customer agrees to accept responsibility for any and all activities or actions that occur in connection with Customer’s Account and/or password, whether such password is used in connection with the Services or any third-party services. Customer shall notify the Corporation immediately upon becoming aware of any breach of security or unauthorized use of Customer’s Account.  Customer shall not be permitted to share Account information with any third party.  Customer acknowledges and understands that the Services and the Software constitute proprietary technology developed by the Corporation, and hereby warrants and represents that Customer’s Account shall only be used by Customer, and may not be used by any third party, including without limitation other entities affiliated with the Corporation, without express written permission of the Corporation, which written permission may be withheld in the Corporation’s sole and absolute discretion.

• Modifying the Services and Termination.

Customer understands that the Corporation is always striving to improve and enhance the Services, and may add new product features or enhancements from time to time as well as remove some features. Customer understands that if such enhancements do not materially affect Customer’s rights or obligations, the Corporation has no obligation to provide notice of such modifications. Only upon suspending the Services will Corporation have an obligation to notify Customer, which Corporation hereby covenants and agrees to provide Customer with advance notice unless extenuating circumstances, such as safety or security concerns, prevent Corporation from doing so.

Customer may deactivate its Account at any time, for any reason, by providing written notice to the Corporation of same; provided, however, that Customer expressly acknowledges and agrees that  deleting said Account will not release Customer from any contractual obligations it may have with the Corporation, including ongoing obligations to make payments under any ancillary agreements related to use of the Intellectual Property.

The Corporation may terminate or suspend Customer’s Account and bar access to the Services immediately, without prior notice or liability, for breach of any agreement between Customer and Corporation, including but not limited to a breach of these Terms. All provisions of the Terms which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.  These Terms are in addition to and are not altering or amending any other agreements between the Parties.  Customer shall comply with this Agreement and the Terms of any other agreement that it may have or execute with the Corporation.  It is the intent of the Parties that any agreement clauses in subsequently executed contracts will not amend, replace, or terminate these Terms unless specifically stated therein, by referencing these Terms specifically by name.  If there is a conflict between these Terms and another agreement executed by the Parties such that it would be impossible to abide by both provisions, this document shall not control. 

• Safety; Customer Interactions with Other Users.

Though the Corporation strives to encourage a respectful user experience, it is not responsible for the conduct of any customer on or off of the Services. Accordingly, Customer agrees to use caution in all interactions with other users, and agrees to hold the Corporation harmless from any damages or harm created by other users.

CUSTOMER AGREES THAT IT SHALL BE SOLELY RESPONSIBLE FOR ALL INTERACTIONS WITH OTHER CUSTOMERS, AND FURTHER UNDERSTANDS THAT THE CORPORATION DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ALL USERS OF THE SERVICES. THE CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY CUSTOMERS.  NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, THE CORPORATION RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS CREDIT CHECKS, FINANCIAL SCREENING, LICENSING COMPLIANCE, AND OTHER INFORMATION) AT ANY TIME USING AVAILABLE PUBLIC RECORDS AND MAY REQUEST ADDITIONAL RECORDS BEFORE PROVIDING OR ALLOWING USE OF THE SERVICES OR OTHER BENEFITS OFFERED BY THE CORPORATION.

• License to Customer.

By using the Services, Customer warrants that it has, or is currently contemplating, making and entering into the DFM License Agreement with the Corporation on an effective date, at which time the Customer shall receive access to the anonymized data services provided as a supplement to operate its business. 

Customer hereby warrants that it will not surreptitiously access any part of the Member Voice ™ site that is only available to users that have executed a separate License Agreement.  By using the Services, Customer warrants that it is in compliance with all the Terms of the License Agreement, including without limitation any payment obligations thereunder.

• License to Corporation.

As a material condition of Customer’s use of the Software and/or the Services, Customer hereby grants to Corporation and its contractors, heirs and assigns, an irrevocable, royalty-free, worldwide license to access, use, modify, and delete any submitted data that would otherwise frustrate the purpose of the Software or the Services (the “Cleansed Data”). Notwithstanding material Corporation licenses to Customer or any other agreement regarding the ownership of Intellectual Property executed by the Parties, the Corporation does not claim ownership of the Cleansed Data, which Cleansed Data the Customer (or other third parties) submit or make available to the Corporation via the Services. However, by submitting or downloading, and/or maintaining such Cleansed Data that are accessible by other users with whom Customer consents to share same, Customer grants to Corporation a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Cleansed Data and/or materials, for the purpose for which such Cleansed Data was submitted or made available, without any compensation, consideration, or obligation to Customer.

License Restrictions.

1. Ownership. As between the Parties, Corporation owns or is licensed to use all Intellectual Property Rights embodied or used in connection with the Services. As between the Parties and subject to the Terms and Conditions of this Agreement, Customer owns all right, title, and interest in and to the Cleansed Data generated by the use of the Software by Customer. There are no implied licenses in this Agreement, and Corporation reserves all rights not expressly granted under this Agreement.
   1. No Reverse Engineering. Unless otherwise expressly set forth in these Terms or another agreement between the Parties, Customer will not: (a) modify, translate, or create derivative works of the Software or the Services; (b) decompile, reverse engineer, or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute, or otherwise transfer all or any portion of the Software or allow a third party to do the same; (d) make, have made, reproduce, or copy the Software; (e) remove or alter any trademark, logo, copyright, or other proprietary notices associated with the Software; and/or (f) cause or permit any other party to do any of the foregoing.
   1. Limited use of Services. Customer agrees to use the Services only for purposes permitted by this Agreement and any other agreements executed by the Parties, and only to the extent permitted by any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. If Customer’s use of the Services or other behavior intentionally or unintentionally threatens Corporation’s ability to provide the Services or other systems to Customer or any third party, Corporation shall be entitled to take all reasonable steps to protect the Services and Corporation’s systems, which may include restricting Customer’s access to the Services, in whole or in part. Any violations of the limitations set forth herein may result in termination of Customer’s use of the Services.
   1. Availability of the Services. The Services, or any feature or part thereof, may not be available in all languages or in all countries and Corporation makes no representation that the Services, or any feature or part thereof, are appropriate or available for use in any particular location. To the extent that Customer chooses to access and use the Services, Customer does so at Customer’s own initiative and is responsible for compliance with any and all applicable local laws.  To the extent that Customer chooses to access and use the Services in a particular location, Customer does so at Customer’s own initiative, and hereby agrees to indemnify the Corporation on account of any failure to comply with any and all applicable local laws.
   1. Change of Services. Corporation reserves the right at any time to modify this Agreement and to impose new and/or additional Terms or Conditions on Customer’s use of the Services. Such modifications and additional Terms and Conditions will be communicated to Customer and, if accepted, will be effective immediately and will be thereby incorporated into this Agreement. In the event that Customer refuses to accept such changes, Corporation will continue to abide by any other agreement executed between the Parties, including the License Agreement, however new features may not be made available to such Customer. Customer agrees that Corporation shall not be liable to Customer or any third party for any modification of the Services including adding or removing features.
   1. Use of Customer’s Account. As a registered user of the Services, Customer must establish an Account. Corporation agrees to not reveal Customer’s login information publicly. Customer is solely responsible for maintaining the confidentiality and security of Customer’s Account and for all activities that occur on or through Customer’s Account. Customer agrees to immediately notify Corporation of any security breach of Customer’s Account. Customer further acknowledges and agrees that the Services are designed and intended for Customer’s use only, and that Customer should not share any information and/or password details with any other individual or entity, including affiliates of Customer. Provided that Corporation has exercised reasonable skill and due care, Corporation shall not be responsible for any losses arising out of the unauthorized use of such Customer information resulting from Customer’s noncompliance with this or any other provision in this Agreement.
   1. Account Authentication Information. In order to use the Services, Customer must enter Customer’s username and password, and any other required information, to authenticate Customer’s Account. Customer agrees to provide accurate and complete information when Customer registers with, and as Customer uses, the Services and Customer agrees to update this information from time to time to keep it accurate and complete. Failure to provide accurate, current and complete information may result in the suspension and/or termination of Customer’s Account. Customer agrees that Corporation may store and use this information in maintaining and billing fees to Customer’s Account.
   1. Use of Services. ANY USE OF THE SOFTWARE OR ANY PART OF THE SERVICES, EXCEPT FOR USE OF THE SERVICES AS PERMITTED IN THIS AGREEMENT OR ANOTHER AGREEMENT EXECUTED BY THE PARTIES, IS STRICTLY PROHIBITED AND MAY SUBJECT CUSTOMER TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES.
   1. Trademark Information. Corporation, Corporation’s logo(s), trademarks, Services marks, and graphics used in connection with the Services are trademarks or registered trademarks of the Corporation in the United States and/or other countries. Customer is granted no right or license in any of the aforesaid trademarks, and further agrees that Customer shall not remove, obscure, or alter any proprietary notice(s) (including trademark and copyright notices) that may be affixed to or contained within the Services.

• Customer Warranties and Acknowledgements.

1. Devices. Use of the Services may require compatible device(s), access to the internet, certain software (fees may apply), and periodic updates. Use of the Services may be affected by the performance of these factors. Corporation reserves the right to limit the number of licenses granted pursuant to this Agreement that may be used on a device. The latest version of required software may be required for certain features. Customer agrees that meeting these requirements is Customer’s responsibility.
   1. Ownership. Customer acknowledges and agrees that Corporation and/or its licensors own all legal right, title and interest in and to the Services and the Software, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Customer further agrees that the Services (including the Software or any other part thereof) contain proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. Customer agrees that Customer will not use such proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement. Customer understands and accepts that no portion of the Services may be reproduced in any form or by any means, except as expressly permitted in this Agreement or another duly executed agreement between the Parties.
   1. Cleansed Data. Customer understands and accepts that Cleansed Data in its entirety is their sole responsibility. This means that Customer, and not Corporation, is solely responsible for any Cleansed Data that Customer uploads, emails, transmits, stores or otherwise makes available through Customer’s use of the Services. Corporation does not control the Cleansed Data once it has been delivered to the Customer, nor does it guarantee the accuracy, integrity, or quality of such delivered Cleansed Data. Customer understands and agrees that Customer’s use of the Services and any Cleansed Data is solely at Customer’s own risk.
   1. Promise to Comply with Import and Export Laws. Use of the Services and Software may be subject to the export and import laws of the United States and other countries. Customer agrees to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any country subject to an embargo by the United States or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. This assurance and commitment shall survive termination of this Agreement.
   1. Third-Party Suppliers. The Software may include software or other code distributed under license from third-party suppliers or other users. Corporation disclaims and makes no representation or warranty with respect to any such third-party software, code, or any portion thereof and assumes no liability for any claim that may arise with respect to any such third-party software or Customer’s use or inability to use the same even if incorporated into the Services.
   1. Links and Other Third-Party Materials. Certain Cleansed Data, components, or features of the Services may include materials or Services provided by third parties and/or hyperlinks to other web sites, resources, or content. Because Corporation may have no control over such third-party sites and/or materials, Customer acknowledges and agrees that Corporation is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy, legality, or use of any such sites or resources, and shall in no way be liable or responsible for any third-party services, advertising, products, or materials on or available from such third-party sites or resources. Customer further acknowledges and agrees that Corporation shall not be responsible or liable in any way for any damages or criminal prosecution Customer incurs or alleges to have incurred, either directly or indirectly, as a result of Customer’s use and/or reliance upon any such third-party services, content, advertising, products, or materials on or available from such sites or resources even if incorporated into the Services.
   1. Third-Party Services.
      1.  Products and Services. Customer hereby acknowledges that the Corporation does not warrant the quality, safety, or fitness for any particular purpose of any products, locations, or services provided by, or at the premises of, third parties. Although the Corporation’s Services may recommend, allow the use of, or incorporate third-party products, software, or services, the Corporation cannot and does not regulate the conduct of said third parties and is not responsible for third-party actions. Use of third-party products, software, or services may be limited by additional Terms and Conditions created by such third party and not contained herein. Customer hereby assumes any and all risk of injury or loss from the actions of third parties. Customer hereby agrees to hold Corporation harmless from any claim or demand and hereby assumes any and all risk of injury or loss arising from or related to the actions of third parties. Customer hereby agrees to hold Corporation harmless from any claim or demand, including reasonable attorneys’ fees resulting from any third party’s actions, products, services, or lack thereof. Customer hereby acknowledges that any and all information regarding price, quality, performance or promotional material regarding any good or services provided to Customer by a third party is the responsibility of such third party, even if the information is channeled through the Services provided by the Corporation. Customer hereby waives all current and future claims against Corporation for any and all harm caused, or contributed to, by third parties.
      1.  Private information.
         1. Customer hereby acknowledges that Corporation may in Corporation’s sole and absolute discretion, publish certain Customer information, as is necessary to provide the Services. Furthermore, in an effort to facilitate the Services, Corporation may disclose other information that the Corporation might deem useful to share with third parties to increase the convenience of the Customer, to provide the Services, to increase the efficacy of the Services, or for any other reason. No information will be communicated with a third party that is covered by a separate agreement executed by the Parties regarding the disclosure of confidential information.
         1. Customer hereby acknowledges that Corporation must use some Customer information to procure or recommend third-party products and services. Customer hereby grants permission to Corporation to use information given to it by Customer, including personally identifiable information, for the purpose of providing the Services and procuring or recommending third-party products and services to the Customer.
      1. Payment. Customer hereby acknowledges that Customer is solely responsible for any payments or charges assessed by third parties for their products or services.
      1. Performance. Customer acknowledges that the third party is solely responsible to Customer for providing those third-party products or services.
   1. Customer Warranty and Corporation Disclaimer. By accepting this Agreement, Customer warrants that Customer is not barred from receiving the Services under the laws of the United States or any other applicable jurisdictions, including the country in which Customer resides or from where Customer uses the Services. CUSTOMER IS WARNED TO NEVER ACTIVELY OPERATE CORPORATION SOFTWARE OR ANY OTHER MOBILE APPLICATION WHILE OPERATING A MOVING VEHICLE. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CORPORATION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. CORPORATION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (1) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (3) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (4) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO CUSTOMER AS PART OF THE SERVICES WILL BE CORRECTED. CORPORATION DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND CORPORATION DISCLAIMS ANY LIABILITY RELATING THERETO. ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S DEVICE(S), COMPUTER(S), OR LOSS OF DATA THAT RESULTS FROM ANY SUCH MATERIAL(S). CUSTOMER FURTHER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR ACTIVE USE WHILE DRIVING OR OPERATING ANY MOTOR VEHICLE(S) AND/OR IN OTHER SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
   1. Limitation of Liability. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT CORPORATION AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES (2) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY CESSATION OF THE SERVICES OR ANY PART THEREOF; (3) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (4) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE CUSTOMER’S TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (5) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (6) ANY OTHER MATTER RELATING TO THE SERVICES. WITHOUT LIMITATION TO THE FOREGOING, IN NO EVENT WILL CORPORATION BE LIABLE FOR ANY FAILURE OF THE SYNCHRONIZATION FUNCTIONALITY OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS, OR DAMAGE TO ANY CUSTOMER DEVICE, OBJECT, OR PRODUCT, OR TO THE CUSTOMER, AND CUSTOMER WILL NOT RELY ON THE SOFTWARE OR ITS SYNCHRONIZATION FUNCTIONALITY. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL CORPORATION’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CORPORATION, IF ANY, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
   1. Anti-Trust Policy. The Customer and each Member, will be combining unique, extraordinary, and proprietary experience and skills to create services for the Dynamic or Digital Freight Matching (“DFM”) industry. Accordingly, the purpose and objectives of the Corporation would be difficult to achieve through the independent efforts of each Member. Each Member is committed to fostering open competition in the development and sales of products and services related to the DFM industry.

1. The Members also understand that in certain lines of business they may be direct competitors and that it is imperative that they and their representatives comply with all applicable competition or antitrust laws. In particular, in relation to activities of the Corporation, including those activities contemplated by these Terms, the License Agreement, and any other agreements between the Corporation and a Member, each Member agrees that:
   1. It will not enter into any agreement whose object or effect is anti-competitive or abuse of a dominant position;
      1. It will not exchange any competitively sensitive information including the price of its products or services, the costs of its products or services, or the Terms and Conditions under which such products or services are sold;
      1. It will not engage in conduct which leads to price-fixing, market sharing or exclusion; and
      1. It will adhere to the objects outlined in the written agendas of the Steering Committee and Working Group meetings which they will attend in compliance with all applicable competition or antitrust laws and the provisions of this Policy.

The Corporation is not intended to, and may not, play any role in the competitive decisions of any Member, or in any way restrict competition in industries related to DFM.  For more information please review the guidance from the IEEE found here http://standards.ieee.org/develop/policies/antitrust.pdf. It is the sole responsibility of each Member to obtain appropriate legal counsel regarding their conduct in relation to any services offered by the Corporation, and to remain in compliance with all applicable antitrust or competition laws and regulations

• Confidentiality, Non-Disclosure and Non-Solicitation.
  •  Confidential Information.  Customer acknowledges and agrees that: (i) the Corporation has expended and will continue to expend considerable and substantial time, effort and capital resources to develop the Confidential Information (as hereinafter defined); (ii) the Confidential Information is innovative and proprietary in nature, derives much of its commercial value from not being generally known, and must receive confidential treatment to protect the Corporation’s proprietary interest therein from irreparable damage; (iii) the steps which the Corporation has taken to maintain the confidentiality of the Confidential Information are reasonable in light of the need to protect its proprietary interest therein; (iv) Customer, by virtue of its use of the Software and/or the Services, will have access to and, in some instances, constitute the producer of the Confidential Information; and (v) the Confidential Information and all physical, tangible and intangible embodiments or other repositories of the same shall be and at all times remain the sole and exclusive property of the Corporation.  The term “Confidential Information” as used in this Agreement means confidential or proprietary information relating to either the Corporation’s business, its Intellectual Property Rights, the Software, or the Services and disclosed by the Corporation or its officers, directors, contractors, agents, or by other Members to Customer, or learned by Customer prior to termination of this Agreement, the License Agreement, or any other agreement made and entered into between the Parties.  Confidential Information includes, but is not limited to, the following:
    • all documents or information belonging to, created for use by, or located on the premises of the Corporation or any Member (whether in physical or electronic form), product development information such as lab notebooks, all Member files and information, and any templates and form letters or libraries used by the Corporation in producing documentation for products for or communications with Members;
    • any policies, procedures, know-how, intellectual property, and techniques used or developed by the Corporation in conducting its business, including, but not limited to formulae, methods, plans, products and potential products, services and potential services, patents (in addition to the Patent subject to this Agreement), inventions, invention rights, improvements, and design contributions (all regardless of by whom conceived), cost information for estimating, and procedures for conducting, planning, scheduling and documenting transactions with Members; and
    • any materials marked “confidential” or “proprietary” or with words or designations of similar import.
  • Non-Disclosure.  At all times prior to termination of this Agreement, throughout the Term or any Renewal Term of License Agreement (as “Term” and “Renewal Term” are defined therein), or prior to the termination of any other agreements made and entered into between the Parties (collectively, the “Term”), and for a period of twenty-four (24) months immediately following the Term, Customer covenants and agrees that it will treat as confidential and will not, use, disclose, divulge or make available to any third parties any Confidential Information then in Customer’s knowledge, custody, control or possession, without the prior written consent of the Corporation.  The rights herein specified are cumulative and not exclusive of any other rights which the Corporation may otherwise have. 
  •  Assignment.  To the extent permitted by law, the Customer does hereby assign to the Corporation, all right, title, and interest in and to whatever Confidential Information Customer produces throughout the Term.  Customer does further agree, without further consideration, to cause to be performed such other lawful acts and to be executed such further assignments and other lawful documents that the Corporation may from time to time reasonably request to effect fully the assignment of rights in and to the Confidential Information.
  • Trade Secrets. In addition to the foregoing and not in limitation thereof, Customer agrees that it will not directly or indirectly use or disclose (except as authorized by the Corporation) or misappropriate any Trade Secrets concerning the Corporation, its business, or the business or needs of other Members, or any particular products that have been developed, are being developed, or are anticipated to be developed for the use by any of the Customer or other Members, that the Customer may have or acquire (whether or not developed or compiled by the Customer and whether or not the Customer has been authorized to have access to such Trade Secrets).  For purposes of this Agreement, “Trade Secrets” means technical and non-technical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans and lists of actual or potential customers, suppliers, or Members (whether such lists are embodied in written or electronic form), and any other information that would constitute a “trade secret” within the meaning of the Georgia Trade Secrets Act of 1990, as now or hereafter amended.  These rights of the Corporation are cumulative and in addition to those rights each party may have under the common law or any statutes for protection of trade secrets and other confidential information.
  •  Exclusion.  Notwithstanding the foregoing Sections in this Paragraph 8, Trade Secrets and Confidential Information do not include any information which:
    • Becomes publicly known without any breach by any person of any obligation of confidentiality;
    • Must be disclosed under governing laws; or
    • Becomes available to the Customer on a non-confidential basis from a source other than the Corporation or any other customer or Member, or the employees, contractors, or agents of the Corporation or any other Member.
  • Non-Solicitation.  Customer hereby covenants and agrees that, at all times throughout the Term, and for a period of twenty-four (24) months following termination of same, Customer shall not:
    • Solicit, attempt to solicit, or otherwise contact any former, active, or prospective customer or Member with whom the Customer had actual contact during the Term, for the purpose of using the Software or the Services in circumvention of this Agreement, the License Agreement, or any other agreements made and entered into between the Parties;
    • Recruit or hire, or attempt to recruit or hire, directly or by assisting others, any person who is or was an employee or contractor of the Corporation at any time within the twelve (12) month period immediately prior to the termination of this Agreement, the License Agreement, or any other agreements made and entered into between the Parties.
  • Specific Performance.  Customer acknowledges and agrees that a breach of any of the covenants contained in this Paragraph 8 will result in irreparable and continuing damage to the Corporation and any such breach shall be subject to specific performance by temporary as well as permanent injunction and/or other equitable or legal remedies of any court of competent jurisdiction.  Notwithstanding, Customer understands and agrees that such specific performance shall not be the Corporation’s exclusive means of relief.
  • Invalidity or Unenforceability.  The Parties intend and desire that the provisions of this Paragraph 8 shall be enforced to the fullest extent permissible under applicable law.  Accordingly, if any provision thereof is held to be invalid or unenforceable for any reason, such provision shall be reformed to the maximum extent permitted to preserve the Parties’ original intent, failing which it shall be deemed to be severed from this Agreement with the remaining provisions thereof continuing in full force and effect.
  • Costs and Expenses of Action. If any action at law or in equity is initiated by the Corporation to enforce any provision of this Paragraph 8, the Customer shall pay to the Corporation all costs and expenses thereof, including without limitation reasonable attorneys’ fees.
  •  Reasonableness.  Customer hereby agrees that the covenants and agreements contained in this Paragraph 8 (i) are reasonably necessary to protect the interests of the Corporation in whose favor said covenants and agreements are imposed; and (ii)  are not greater than are necessary for the protection of the Corporation in light of the substantial harm that the Corporation will suffer should the Customer breach any of the provisions of this Paragraph 8.  The Customer further agrees that the covenants and agreements contained in this Paragraph 8 are material inducements for the Corporation to engage the Customer for its performance hereunder, and that each covenant and agreement set forth in this Paragraph 8 shall survive the termination of this Agreement, the License Agreement, or any other agreements made and entered into between the Parties.

• Miscellaneous.

1. Customer Prohibitions.Customer agrees to not interfere with or disrupt the Services (including accessing the Services through any automated means, like scripts or web crawlers), or any servers or networks connected to the Services, or any policies, requirements or regulations of networks connected to the Services (including any unauthorized access to, use, or monitoring of data or traffic thereon); plan or engage in any illegal activity; and/or gather and store personal information of any third parties to be used in connection with any of the foregoing prohibited activities.
   1. Customer Indemnity and Waiver.Customer agrees to defend, indemnify, and hold Corporation, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party, relating to or arising from: (1) any data, content, or Cleansed Data Customer submits, transmits, or otherwise makes available through the Services; (2) Customer’s use of the Services; (3) any violation by Customer of this Agreement; (4) any action taken by Corporation as part of an investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; or (5) Customer’s violation of any rights of another entity. Customer understands and accepts that Customer cannot sue Corporation, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors as a result of its decision to remove or refuse to process any information or Cleansed Data, to warn Customer, to suspend or terminate Customer’s access to the Services, or to take any other action during the investigation of a suspected violation or as a result of Corporation’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement. This obligation shall survive the termination or expiration of this Agreement and/or Customer’s use of the Services. Customer acknowledges that Customer is responsible for all use of the Services using Customer’s Account, and that this Agreement applies to any and all usage of Customer’s Account. Customer agrees to comply with this Agreement and to defend, indemnify and hold harmless Corporation from and against any and all claims and demands arising from usage of Customer’s Account.
   1. Corporation Access to Account.Corporation reserves the right to take steps Corporation believes, in its sole discretion, are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. Customer acknowledges and agrees that Corporation may, without liability to Customer, access, use, preserve and/or disclose Customer’s Account information and Content to law enforcement authorities, government officials, and/or a third party, as Corporation believes is reasonably necessary or appropriate, if legally required to do so, or if Corporation has a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (1) comply with legal process or request; (2) enforce this Agreement, including investigation of any potential violation thereof; (3) detect, prevent, or otherwise address security, fraud, or technical issues; or (4) protect the rights, property, or safety of Corporation, its users, a third party, or the public as required or permitted by law.
   1. Software Updates and Notices.Corporation reserves the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Software, and/or Services. In order to continue Customer’s use of the Services, such updates may be automatically downloaded and installed onto Customer’s device(s) or computer(s). These updates may include bug fixes, feature enhancements or improvements, and/or entirely new versions of the Software. Customer acknowledges and understands that during such deployments, certain functionality of the Software may be unavailable and outages may occur. Corporation may provide Customer with notices regarding the Services, including changes to this Agreement, by email to any known Customer email address (and/or other alternate email address associated with Customer’s Account if provided), by regular mail, or by postings on Corporation’s website and/or the Services.

1. General Contract Terms.

This Agreement complements and supplements any other written agreements executed by the parties regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia applicable to agreements made and to be entirely performed within the State of Georgia, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Georgia. The Parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Corporation, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Corporation may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect to the maximum extent allowed by law. Nothing in these Terms shall be construed as to convey to Customer any interest, title, or license in any intellectual property owned by Corporation, or other resource(s) used by Corporation in connection with the Services. Throughout this Agreement, the masculine, feminine, or neuter genders shall be deemed to include the masculine, feminine, and neuter and the singular, the plural, and vice versa. The section headings of this Agreement are for convenience of reference only and do not form a part hereof and do not in any way modify, interpret, or construe the intentions of the Parties.

1. Relationship.

The relationship of the Parties to each other shall at all times be that of independent contractors.  Nothing in this Agreement shall be deemed or construed by the Parties as creating the relationship of principal and agent, partnership or joint venture between the Parties, it being understood and agreed that no provision contained herein, and no act of the Parties, shall be deemed to create any relationship between the Parties other than the relationship set forth herein.

1. Waiver

The Corporation’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights.

1. Changes.

The Corporation reserves the right, at its sole discretion, to modify or replace these Terms at any time; provided, however, that if any such revision is material, as determined in the Corporation’s sole and absolute discretion, the Corporation shall provide advanced written notice to Customer of any such modifications.  No change made to the Terms will amend or modify any term in any written agreement executed by the Parties.

By continuing to access or use the Services after any revisions become effective, Customer agrees to be bound by any such revised Terms. Any failure of Customer to agree or abide by such revised Terms will result in termination of this Agreement, and Customer’s ability to use the Software and/or the Services.

1. Contact.

Any and all questions about these Terms shall be directed to the Corporation’s attention at the following email address:  support@dfmdata.com