Master Subscription Agreement
Master Subscription Agreement
TERMS AND CONDITIONS OF SERVICE
THESE TERMS AND CONDITIONS OF SERVICE (THE “TERMS”), TOGETHER WITH THE APPLICABLE SUBSCRIPTION FORM(S), (AND ANY API LICENSE, IF APPLICABLE), WHEN ENTERED INTO BY THE PARTIES, CONSTITUTE A LEGALLY BINDING AGREEMENT (COLLECTIVELY THE "AGREEMENT") BETWEEN 3PL CENTRAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“3PL CENTRAL”) AND THE SUBSCRIBER TO 3PL CENTRAL'S SERVICES ("CUSTOMER"). THESE TERMS GOVERN 3PL CENTRAL’S PROVISION OF SERVICES AND CONTENT TO CUSTOMER AND CUSTOMER’S USE OF THOSE SERVICES AND CONTENT. 3PL CENTRAL MAY MODIFY THESE TERMS IN ITS SOLE DISCRETION ON 60 DAYS’ ADVANCE NOTICE (BY WEBSITE POSTING OR OTHERWISE) TO BE EFFECTIVE UPON THE BEGINNING OF THE NEXT RENEWAL TERM AFTER SUCH 60 DAY PERIOD, AND CUSTOMER’S CONTINUED USE OF THE SERVICES AND CONTENT AFTER ANY SUCH MODIFICATIONS CONSTITUTES CUSTOMER’S ACCEPTANCE OF THEM EFFECTIVE UPON THE BEGINNING OF THE NEXT RENEWAL TERM AFTER SUCH 60 DAY PERIOD.
In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Grant of License for Services and Content (other than APIs). 3PL Central hereby grants to Customer a limited, non-exclusive, non-transferable, right and license to use the Services and the Content during the Term, solely for Customer’s own internal business purposes, subject to all of these Terms, and the provisions of the subscription form signed by Customer and 3PL Central (the “Subscription Form”). The access and use of the Services and Content are licensed not sold. All rights in and to the Services and Content that are not expressly granted to Customer in these Terms and a Subscription Form are hereby reserved by 3PL Central and its licensors. The term “Services” means the 3PL Central services that Customer has ordered from 3PL Central or an authorized reseller in the Subscription Form. The term “Content” means any and all audio and/or visual information, documents, and other products that 3PL Central makes available to Customer for use in the course of using the Services. 3PL Central may in its sole discretion provide Customer access to additional Content that customizes the Services for Customer. Such customized Content and Services shall be owned exclusively by 3PL Central and shall be governed by these Terms. Customer understands and agrees that 3PL Central and any authorized reseller are separate, independent contractors.
- No Sublicensing. Customer shall not (a) license, sublicense, sell, resell, rent, timeshare, transfer, assign, distribute, or otherwise commercially exploit or make available in any way to any third party any service or software or other materials or information included with the Services or the Content; (b) make derivative works of, or otherwise modify, any Services or Content; (c) create Internet "links" to any Services or Content or "frame" or "mirror" any Services or Content on any server or wireless or Internet-based device; or (d) reverse engineer or access any Services or Content in order to (i) build a competitive product or service, (ii) build a product using ideas, features, functions, or graphics similar to any Services or Content, or (iii) copy any ideas, features, functions, or graphics of the Services or Content. Customer shall not use any Services or Content in any way that infringes upon the intellectual property rights of any person, including without limitation 3PL Central.
- Customer Use. Customer is responsible for all activities relating to Customer’s access and use of the Services and Content and for compliance with all applicable laws, rules, and regulations (“Laws”) associated therewith, including without limitation those relating to data privacy, international communications, and transmission of technical or personal data. Customer agrees not to disclose or provide access to any Services or Content to any person or entity except on a need-to-know basis to employees and other persons or entities not direct competitors of 3PL Central who have contracted to provide related services to Customer and who have agreed in writing to abide by these Terms and not to use any Services or Content to compete with 3PL Central. Customer agrees to use its best efforts to ensure that all persons having access to any Services or Content protect them from unauthorized use and disclosure. Customer shall notify 3PL Central immediately of any unauthorized access or use of any Services or Content.
- Payment of Fees and Charges. Customer shall timely pay to 3PL Central all subscription fees, charges, and other amounts required by these Terms, any API License, as set out in the Subscription Form. All subscription fees are due in advance as described in the Subscription Form. All other fees and charges, such as late fees or charges for excess or additional usage beyond the usage specified in the Subscription Form, will be charged by the 10th of the subsequent month if paying by credit card, and, if paying by check or wire, is due on receipt of invoice by 3PL Central, or as otherwise specified on the invoice. All amounts that Customer does not pay when due shall bear interest at the rate of one and on-half percent (1.5% percent) per month or the maximum legal rate, whichever is less. 3PL Central may increase any of its fees upon notice, after the Initial Term (defined in Section 11), upon any Renewal Term (defined in Section 11), by five percent (5%) to take effect at the beginning of the Renewal Term. Payments made using checks shall incur a convenience fee of $50 per check. Payments made using a credit or debit card shall incur a convenience fee of three percent (3%) of the total bill due. There shall be NO fees charged for payments made using bank automated clearing house (“ACH”) or wire payments. Additional feature(s) and or service(s) added and/or accessed by Customers during a Term shall after an initial thirty (30) day grace-period become non-cancellable and all fees are non-refundable through the end of the Term.
If Customer signed the Subscription Form with an authorized reseller, Customer shall pay all subscription fees and amounts required by the Subscription Form directly to the reseller. 3PL Central shall have the right to suspend Customer’s access to the Services and Content for non-payment of fees or any other amounts due from Customer to 3PL Central or the reseller, in addition to any other remedies 3PL Central may have, including without limitation terminating the parties’ Agreement. In addition to any other remedies to which it may be entitled, 3PL Central shall have the right to charge Customer a reconnection fee if its access to the Services and Content are suspended for non-payment. All prices are exclusive of any and all taxes. Customer agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and Content, but excluding any taxes on 3PL Central’s net income or gross receipts. Once access is given to Customer for Services, any and all fees and charges shall become non-refundable. All pricing information is confidential information of 3PL Central or the authorized reseller, and Customer shall not disclose it to any third party unless required by law, after giving notice to 3PL Central or the authorized reseller.
- Customer System. Customer is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Customer to access and use the Services and the Content. If Customer fails to do so, Customer’s access to or ability to use the Services and the Content may be negatively affected or non-existent.
- Feedback. 3PL Central owns and shall own any suggestions, ideas, enhancement requests, recommendations, or other information (including identifying potential errors and improvements) that Customer provides to 3PL Central concerning the 3PL Central Services, Content, or API, or any aspects thereof (“Feedback”), To the extent that ownership in any Feedback does not automatically vest in 3PL Central, Customer hereby assigns to 3PL Central all right, title, and interest in and to the Feedback, and 3PL Central is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Services, Content, and API and to create other products and services. Customer will not submit any Feedback that Customer considers confidential or proprietary or that is covered by any third-party intellectual property rights.
- Proprietary Rights. The Services, Content, and all software, documentation, information, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, modifications, improvements, derivative works, and any additional intellectual or other property used by or on behalf of 3PL Central or its licensors, or otherwise related to the Services, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and related thereto (collectively, “3PL Central Property”) are and will remain the sole and exclusive property of 3PL Central. Customer does not acquire ownership of any rights in the 3PL Central Property. Customer and Customer’s affiliates covenant not to assert patent infringement claims against 3PL Central or 3PL Central Property, products or services, including the 3PL Central API.
The rights granted herein and in a signed Subscription Form are a license, not a sale and do not convey to Customer any rights of ownership in or related to the Services, the Content, or any intellectual property rights owned by or licensed to 3PL Central. The 3PL Central name and logo and the product names associated with the Services and Content are trademarks of 3PL Central, and no right or license is granted to Customer to use or reproduce them.
- Customer Data. 3PL Central will not own any data, information, or material that Customer submits in the course of using the Services or the API ("Customer Data"), except 3PL Central has rights to Anonymized Statistics as set forth below, and except 3PL Central has rights to Feedback as set forth above. Customer, not 3PL Central, shall have the sole responsibility for all aspects of the Customer Data, including, without limitation, its accuracy, legality, ownership, transmission, and use. 3PL Central shall have no obligation to retain any copy of Customer Data for longer than ninety (90) days after termination of this Agreement.
Third-party vendors may communicate electronically with 3PL Central's Services to provide functions related to the Services and to make the other 3PL Central products and services more effective.
Notwithstanding anything in this Agreement to the contrary, during and after the Term, 3PL Central is free to use and disclose Customer Data and any other data and information relating to Customer’s use of the Services in any aggregated or de-identified form (“Anonymized Statistics”). As between 3PL Central and Customer, all right, title and interest in the Anonymized Statistics and all intellectual property rights therein, belong to and are retained solely by 3PL Central. Customer acknowledges that 3PL Central will be compiling Anonymized Statistics based on Customer Data and information input by other customers into the Services. Without limiting the foregoing, Customer agrees that 3PL Central may (a) make Anonymized Statistics publicly available, (b) disclose Anonymized Statistics to third parties, and (c) use Anonymized Statistics for any purpose, including any analysis, service enhancement or marketing.
- System Maintenance; Downtime. The Services and Content will be inaccessible at certain times for scheduled system maintenance (“Maintenance Time”). While 3PL Central seeks to schedule Maintenance Time during non-peak hours and to provide 24 hours advance notice to customers, those practices cannot be guaranteed. In addition, the Services and Content may be subject to limitations, interruptions, outages, and other problems inherent in the use of the Internet and electronic communications (“Outages”). 3PL Central is not responsible for any such Outages or any damage(s) resulting from any such Outages or any Maintenance Time. If the Services and Content become inaccessible for reasons within 3PL Central’s control, other than for Maintenance Time, and excluding any time associated with Outages, 3PL Central will provide Customer, upon Customer’s written request, the following monthly service fee credit for any such downtime in excess of a total of 45 minutes during a calendar month (“Downtime”): 3PL Central will provide Customer a credit of five percent (5%) of Customer’s monthly service fee for each 30 minutes of Downtime (i.e., downtime beyond a monthly total of 45 minutes) up to a maximum credit of twenty-five percent (25%) of Customer’s monthly service fee. THIS CREDIT SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR OUTAGES AND/OR DOWNTIME. If 3PL Central's performance is otherwise delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facilities, material or labor, delay or lack of communication, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond 3PL Central's control, 3PL Central shall have such additional time to perform its obligations as may be reasonably necessary under the circumstances. However, Customer’s obligation to pay for the Services and Content shall not be suspended.
- Term and Termination. These Terms will take effect when signed by both parties (or by an authorized reseller of 3PL Central) and will remain effective, until earlier terminated as provided herein or a Subscription Form, for the period specified in the Subscription Form, or if no period is specified, for the period of twelve months (the “Initial Term”). These Terms and the Subscription Form shall automatically renew for the period specified in the Subscription Form or, if no such period is specified in the Subscription Form, for additional twelve-month periods (each, a “Renewal Term”) unless either party gives the other party notice of its intent not to renew at least 60 days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. Termination will be effective at the end of the applicable term in which such notice is received. The Initial Term and all Renewal Terms are referred to herein as the "Term." A party may terminate this Agreement upon written notice to the other party in the event the other party commits a material breach of this Agreement and does not remedy such breach within 30 days after receipt of written notice of such breach. Any and all claims and payment obligations that arose before termination shall survive such termination. In addition, upon any termination for cause by 3PL Central, Customer shall pay any unpaid fees covering the remainder of the term of this Agreement after the effective date of termination. The following Sections shall also survive termination: 3, 4, 6, 7, 8, 9, 12 through 22, 24, and 25. Upon termination of the Agreement between 3PL Central and Customer, Customer shall promptly cease accessing and using the Services and Content.
- Export Restrictions. No Services, Content or API may be accessed, used, exported, or redistributed in any form in or to any country prohibited by U.S. export Laws or to residents or nationals of any such countries. Customer agrees to comply with all applicable national and international Laws that apply to the Services and Content, including without limitation U.S. export Laws. By accessing the Services, Content, and/or APIs, Customer (a) represents and warrants to 3PL Central that Customer not restricted from receiving or using U.S. products and agrees to comply with all applicable U.S. export Laws and all host country import Laws; and (b) agrees that Customer will not export, redistribute, or re-export any Services, Content, API, or any process or service that is a direct product of any Services, Content, or an API in violation of any applicable Laws of the U.S. or the country in which Customer accessed or used such Services or Content.
- U.S. Government Restricted Rights. Any software associated with the Services and the Content is commercial computer software developed at private expense and is provided with Restricted Rights. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be governed by these Terms and FAR § 52-227-14 Alternative III(g)(3) (June 1987), as applicable, subject to FAR § 52.227.19(c) (June 1987). Use, duplication, and disclosure by agencies of the U.S. Department of Defense shall be governed by these Terms, as provided in 830 S. Pacific Coast Hwy, Suite D208, El Segundo, CA 90245
- Waiver. Any waiver by 3PL Central of any breach of these Terms or the Subscription Form shall not be construed as a waiver of any other or future breach. No failure by 3PL Central to insist upon the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of any other covenant, agreement, term, or condition.
- Governing Law. These Terms and the Subscription Form shall be governed by and interpreted in accordance with the laws of California, excluding conflicts of law rules. Customer agrees that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to the Services or Content or to the API License. In any legal proceeding instituted with respect to these Terms or the Subscription Form or the API License, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees, including but not limited to those incurred in any and all appeals, review proceedings, and collection proceedings. Any and all legal proceedings between the parties shall be brought and pursued exclusively in the federal or state courts sitting in Los Angeles County, California, USA. Customer hereby irrevocably submits to the personal jurisdiction of such court(s).
- Rights and Remedies. No right or remedy herein conferred upon or reserved to 3PL Central is exclusive of any other right or remedy, at law or in equity.
- Severability. If any provision of these Terms, the Subscription Form or the API License is determined by a court to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified, or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability, or illegality, and all remaining provisions shall remain unaffected and continue in full force and effect.
- Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative or related entity of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
- Notices. Any notices to us must be sent to 3PL Central's corporate headquarters address at 222 N. Pacific Coast Hwy, Suite 1500, El Segundo, CA 90245 or available at firstname.lastname@example.org and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from 3PL Central. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the 3PL Central Services, Content, or API. Customer agrees that any notices, agreements, disclosures, or other communications that we send to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
- Entire Agreement. These Terms, together with any Subscription Form and API License, signed by Customer and 3PL Central, contain the entire understanding and agreement between Customer and 3PL Central and supersede all prior communications, proposals, representations, and agreements, whether written or oral, express or implied, with respect to the Services, Content, API, and any other subject matter covered by this Agreement. 3PL Central objects to and rejects all additional or different terms proposed by Customer, whether contained in any purchase order or any other Customer document. 3PL Central reserves the right to modify these Terms or its policies relating to the Services, Content, and API at any time, effective upon the beginning of the next Renewal Term. Continued use of any Services, Content, or API after any such modifications shall constitute Customer's consent to such modifications. These Terms otherwise may not be modified except by mutual written agreement of the Parties. Customer’s rights and obligations under these Terms, the Subscription Form, and the API License may not be assigned or otherwise transferred, by operation of law or otherwise, without the prior written consent of 3PL Central. 3PL may assign any of its rights and obligations. NO SALESPERSON, RESELLER, OR SIMILAR PERSON IS AUTHORIZED TO MODIFY THESE TERMS OR MAKE ANY REPRESENTATION, WARRANTY, OR PROMISE WITH RESPECT TO ANY SERVICES OR CONTENT THAT IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND LIMITED WARRANTY THAT ARE EXPRESSLY SET FORTH IN THESE TERMS.
- Priority. In the event of a conflict between the Terms and Conditions of Service, any API License, and a Subscription Form, the order of priority shall be: (1) the Subscription Form, (2) the API License, and (3) these Terms and Conditions.
- Limited Warranty. 3PL Central warrants to Customer that the Services identified in Customer’s Subscription Form will substantially conform in material respects to 3PL Central’s online training information about them, which 3PL Central may modify in its discretion. Customer must notify 3PL Central in writing of any nonconformity with the foregoing warranty within thirty (30) days from the date Customer first receives access to the Services or any major revision of the Services. If Customer gives such notice to 3PL Central, 3PL Central will use reasonable efforts to remedy the nonconformity. THIS REMEDY SETS FORTH CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THIS LIMITED WARRANTY. This Limited Warranty is also subject to the Disclaimers and Limitations of Liability set forth below.
- DISCLAIMERS AND LIMITATIONS OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY STATED ABOVE, THE SERVICE, CONTENT, THE 3PL CENTRAL API, AND THE 3PL CENTRAL TRADEMARKS ARE PROVIDED “AS-IS”. 3PL CENTRAL MAKES NO WARRANTIES HEREUNDER, AND 3PL CENTRAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, 3PL CENTRAL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED) THAT (1) USE OF ANY SERVICES OR CONTENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR- FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (2) THE SERVICES OR CONTENT WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (4) ANY ERRORS OR DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR (5) THE SERVICES OR THE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- LIMITATION OF LIABILITY
3PL CENTRAL SHALL HAVE NO LIABILITY WITH RESPECT TO THE SERVICES OR CONTENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSSES OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING IN ANY WAY FROM THE SERVICES, CONTENT, API, EVEN IF 3PL CENTRAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, 3PL CENTRAL'S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF AND RELATING TO THESE TERMS, THE SUBSCRIPTION FORM, AND THE SERVICES AND CONTENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OR NATURE OF THE CLAIMS OR CAUSES OF ACTION (WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY), SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO 3PL CENTRAL, OR RECEIVED BY 3PL CENTRAL FROM AN AUTHORIZED RESELLER, FOR THE SERVICES AND CONTENT PROVIDED TO CUSTOMER THAT ARE THE SUBJECT OF THE CLAIMS OR CAUSES OF ACTION IN THE SIX MONTHS PRIOR TO CUSTOMER BRINGING SUCH CLAIM OR CAUSE OF ACTION. IN NO EVENT SHALL 3PL CENTRAL BE LIABLE FOR ANY LOSS, THEFT, OR CORRUPTION OF DATA, COST OF COVER, LOST PROFITS, LOSS OF USE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY SERVICES OR CONTENT, WHETHER OR NOT 3PL CENTRAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES AND ARE REFLECTED IN THE PRICING OF THE SERVICES, WHICH DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISKS AND BENEFITS. ALL OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.