UPS Internet Tools™ End User Agreement
Version ITC00205162001
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT.
BY INDICATING BELOW THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF
THIS AGREEMENT, YOU HAVE ENTERED INTO A LEGALLY BINDING AGREEMENT WITH UPS
INTERNET SERVICES, INC. ("UPS"). IF YOU DO NOT AGREE TO THESE TERMS AND
CONDITIONS, CLICK HERE (http://www.ups.com/)
TO RETURN TO THE UPS HOMEPAGE.
End User (as defined below) desires to develop one or more Interfaces (as
defined herein) to the UPS Internet Tools (as defined herein) to facilitate the
use by End User of UPS package shipping and delivery services. UPS is authorized
to consent to the use of the UPS Mark (as defined herein) by End User. UPS is
willing to consent to the use by End User of the intellectual property and other
rights necessary to facilitate such development and use pursuant to the terms
and conditions set forth below. Accordingly, for good and valuable consideration
the receipt and sufficiency of which is acknowledged, UPS agrees to grant
permission and its consent, and End User agrees to accept such permission and
consent, to develop Interfaces to access and use the UPS Internet Tools as
limited and restricted herein, and in strict accordance with the terms and
conditions and any exhibits and addenda referenced herein, which are hereby
incorporated by reference as if fully set forth herein (collectively, the "Terms
and Conditions").
- Definitions. Defined terms used herein shall have the meanings ascribed to
them below:
- "Application(s)" means the software product(s) or Web site(s) developed by
End User solely for its own business purposes and not for use by or on behalf of
any third party.
- "Confidential Information" means any data or information, other than Trade
Secrets, that is of value to UPS and is not generally known to third parties.
- "End User" means you individually and the entity for whom you intend to
obtain UPS's permission and consent hereunder, and for whom you act as an
authorised representative, employee or agent.
- "Information" means information regarding UPS package shipping and delivery
services or other information provided from the UPS Systems through use of the
Interfaces.
- "Interfaces" means the interfaces to the UPS Systems developed by End User
in accordance with the UPS Technical Documentation.
- "Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or other legal entity.
- "Trade Secret" means any information of UPS (which shall be deemed to
include its associated companies) which is not commonly known by or available to
the public, which (i) derives economic value, actual or potential, from not
being generally known to and not being readily ascertainable by proper means by
other persons who can obtain economic value from its disclosure or use, and (ii)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
- "Update(s)" shall mean error corrections, modifications, updates,
enhancements or revisions to the Application or the UPS Materials.
- "UPS Internet Tools" means that functionality identified on UPS Internet
Tools List (Exhibit A) that provides UPS functionality on an Application.
- "UPS Mark" means the following mark provided by UPS under this Agreement:
The UPS Mark should be reproduced using the files
LOGO_S.GIF, LOGO_M.GIF and LOGO_L.GIF found on the UPS Internet Tools Web site.
- "UPS Materials" means the UPS Technical Documentation, UPS Mark, UPS
Systems, UPS Internet Tools, UPS Web site content and Information, collectively.
- "UPS Systems" means those UPS computer and network systems to which the
Interfaces provide access for the purpose of obtaining Information.
- "UPS Technical Documentation" shall mean the instructions, including any
sample code, for creating an interface to the UPS Systems made available by UPS
and any Updates thereto.
- "Usage Requirements" means (a) the requirements for use of the UPS Mark as
described in the Usage Requirements (Exhibit B), and (b) any other requirements
for usage of the UPS Mark as may be provided by UPS to End User from time to
time.
- Consent to Use.
- Consent to Use of UPS Technical Documentation. UPS hereby permits and
consents to the use by End User of the UPS Technical Documentation for the sole
purpose of developing the Interfaces and incorporating the Interfaces into the
Application during and in accordance with the terms hereof. This permission and
consent by UPS is limited, revocable, non-exclusive and non-transferable. End
User must include in every copy of the Application a prominent reproduction of
UPS's copyright and proprietary notices in a form and format specified by UPS
from time to time. The Interfaces shall not allow or be part of any distribution
of Information by wireless or satellite delivery services or applications. Under
no circumstances may the Interfaces be used, or End User headquartered, in Cuba,
Iran, Iraq, Libya, Sudan, the Taliban-controlled areas of Afghanistan, or any
other country subject to embargo or sanctions by the United States Department of
the Treasury's Office of Foreign Assets Control.
- Development and Access. UPS hereby permits and consents to the End User's
exchanging information with the UPS Systems via the Interfaces as reasonably
needed during the term and in accordance with the terms of the Access User Terms
(Exhibit C) and each of the other terms hereof. This permission and consent by
UPS is limited, revocable, non-exclusive and non-transferable.
- Consent to Use of UPS Mark. UPS hereby permits and consents to the use by
End User of the UPS Mark to display in the Application solely in the manner
described in the Usage Requirements. This permission and consent by UPS is
limited, revocable, non-exclusive and non-transferable. Subject to Section 11(b)
hereof, UPS may revoke its permission and consent to the use of the UPS Mark at
any time with or without cause upon ninety (90) days' written notice to End
User.
- Ownership. End User hereby acknowledges that UPS owns the UPS Materials. End
User agrees that the essence of this Agreement is founded on the goodwill
associated with the UPS Materials and the value of the goodwill in the minds of
the consuming public, and on the continued ability of UPS to protect and
maintain such goodwill. End User acknowledges that it has not acquired any
ownership interest in the UPS Materials and will not acquire any ownership
interest in the UPS Materials by reason of this Agreement. End User will not at
any time do or knowingly permit to be done any act or thing which would in any
way impair the rights of UPS in and to the UPS Materials or which would affect
the validity of the UPS Mark or which would depreciate the value of the UPS Mark
or the reputation of UPS. End User hereby agrees that all use of the UPS Mark by
End User shall inure to the benefit of UPS. End User agrees never to challenge
the validity or ownership of the UPS Mark or any applications or registrations
for the UPS Mark. Upon termination or expiration of this Agreement, End User
will cease and desist from all use of the UPS Mark in any way. Furthermore, End
User shall at no time adopt or use any word, company name, mark or design which
is similar to or confusing with the UPS Mark, without the prior written consent
of UPS. This Agreement does not constitute a licence and only conveys limited
rights of use of the UPS Materials in accordance with the terms of this
Agreement. End User agrees to comply with each of the terms of the Usage
Requirements throughout the term hereof.
- End User Cooperation. End User shall promptly report to UPS (i) any attempt
by a Person to access the UPS Systems via the Application improperly or in a
manner that could damage the UPS Systems; (ii) any infringement or attempted
infringement of UPS's intellectual property rights in the UPS Materials or (iii)
any activity which could expose UPS to any loss or liability of any type, and
thereafter cooperate with UPS to prevent such attempts and activity.
- Access to Books and Records. Upon written request therefor, End User shall
provide UPS or its representatives with access to all books and records
associated with this Agreement for the purpose of ensuring End User's compliance
with the terms of this Agreement.
- Access to Applications. Upon written request therefor, End User shall
provide to UPS, at the election of UPS, access to or a copy of the Application
(and/or any Update(s) thereto) and the URL for each location of the Application
on the Internet (if the Application is used or made available through the
Internet). If reviewed by UPS, End User shall not use the Interfaces until such
time as UPS has provided End User a written statement which states that the
Interfaces and their use in connection with the Application are compatible with
the UPS Systems and in compliance with the terms of this Agreement. UPS's right
to review pursuant to this Section shall include, without limitation, the right
to test the Interfaces, individually and as incorporated into the Applications
to verify that the Applications have been designed in compliance with this
Agreement. End User shall make any changes to the Interfaces requested by UPS.
- Support; Changes; Laws.
- Support. Except for issues related to the provision of products and services
by UPS (e.g., package and tracking information), End User shall provide all
maintenance and support for the Application. End User shall promptly notify UPS
of any defects or malfunctions in the UPS Materials of which it learns from any
source.
- Changes to UPS Materials. UPS may terminate, update, alter or supplement any
or all of the UPS Materials, UPS Systems and services, and Information available
from the UPS Systems at any time. UPS has waived the charges for access to or
use of the UPS Technical Documentation, Information or UPS Systems. However, UPS
may assess charges for any or all of such items (including services included
therein) in the future, in its sole discretion, by providing notice of such
charges to End User.
- Compliance with Laws. End User shall strictly comply with all applicable
laws, rulings and regulations and shall take no actions which would cause UPS to
be in violation of any laws, rulings or regulations applicable to it. End User
shall comply to the extent applicable with the United States Export
Administration regulations, the International Traffic in Arms regulations and
any regulation or licences administered by the Department of Treasury's Office
of Foreign Assets Control.
- Information, Confidential Information and Trade Secrets. During the term of
this Agreement and for so long as the Trade Secrets maintain their status as
trade secrets under applicable law, End User shall not use, disclose or permit
any third party access to any Trade Secrets except as required by law or
permitted in connection with its performance hereunder. During the term of this
Agreement and for a period of five (5) years thereafter, End User shall not use,
disclose or permit any third party access to any Information or Confidential
Information (including, without limitation, the UPS Technical Documentation and
the UPS Internet Tools), except as otherwise required by law or permitted in
connection with its performance hereunder. End User acknowledges that if it
breaches this Section or the Usage Requirements, UPS will have no adequate
remedy at law available to it, will suffer irreparable harm, and will be
entitled to equitable relief.
- Representation and Warranty. End User represents and warrants that all
information provided to UPS in connection with this Agreement, including without
limitation the registration information, is true, correct, accurate and current.
End User shall promptly provide UPS an update if any such information changes.
- Disclaimer of Warranties. THE UPS MATERIALS ARE PROVIDED "AS IS" AND IN
THEIR PRESENT STATE AND CONDITION. NO WARRANTY, REPRESENTATION, CONDITION,
UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
CONDITION, QUALITY, AVAILABILITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE UPS MATERIALS
OR OTHERWISE IS GIVEN OR ASSUMED BY UPS OR ITS AGENTS AND ALL SUCH WARRANTIES,
REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE
FULLEST EXTENT PERMITTED BY LAW. UPS MAKES NO WARRANTY WITH RESPECT TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION. UPS DOES NOT GUARANTEE CONTINUOUS,
UNINTERRUPTED, OR SECURE ACCESS TO THE UPS SYSTEMS AND ACCESS TO SUCH SYSTEMS
MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF UPS'S CONTROL; UPS IS NOT
LIABLE FOR ANY DAMAGES OF ANY TYPE CAUSED BY SUCH INTERFERENCE. SOME
JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS
AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. THIS CONTRACT GIVES YOU
SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
JURISDICTION TO JURISDICTION. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY
RIGHTS WHICH CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. END
USER AGREES AND ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY
AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
- Indemnification. End User shall indemnify and hold harmless, and at UPS's
option defend, UPS and its affiliates, and their respective officers, directors,
employees, agents, successors and assigns from and against any and all claims,
damages and expenses, including legal fees, incurred directly or indirectly by
UPS, its parent or its affiliates, and their respective officers, directors,
employees, agents, successors and assigns that arise out of or relate to (i) any
performance, non-performance or malperformance issues related to the Application
and any negligence on the part of End User or its employees, contractor or
agents; (ii) breach or non-performance of this Agreement by End User; or (iii)
any claim that the Application (excluding the UPS Materials) infringes the
intellectual property rights of a third party.
- Limitation of Liability.
- UPS SHALL NOT BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY PUNITIVE,
EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PENALTIES
(INCLUDING LOST PROFITS, LOST SAVINGS AND THE ABILITY TO USE THE UPS SYSTEMS OR
INFORMATION) ARISING OUT OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, OR USE OF THE UPS MATERIALS EVEN IF UPS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. THIS LIMITATION OF
LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF UPS OR IN THE EVENT OF PERSONAL
INJURY OR DEATH. IN NO EVENT SHALL UPS'S LIABILITY FOR ANY DAMAGES (DIRECT OR
OTHERWISE) OR PENALTIES OR LOSS, REGARDLESS OF THE FORM OF ACTION OR CLAIM,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), DELICT OR OTHERWISE EXCEED
US$1,000, ANY CLAIM FOR SUCH DAMAGES OR PENALTIES BEING HEREBY WAIVED BY END
USER OR ANY SUCH THIRD PARTY.
- CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER THE FIRST EVENT GIVING RISE TO A
CLAIM SHALL BE DEEMED WAIVED.
- Term and Termination
- Term. This Agreement shall have a term of one (1) year, commencing on the
date End User signifies acceptance of this Agreement below (the "Effective
Date"), and shall automatically renew for up to four (4) one (1) year terms
unless earlier terminated in accordance with this Section.
- Termination. Except as provided in the second sentence of this Section
11(b), either party may terminate this Agreement at any time with or without
cause on thirty (30) days' written notice to the other party. UPS may terminate
this Agreement without UPS having to take any additional action upon (i) the
breach of the Usage Requirements or Section 6 hereof or (ii) the subsequent
entering into of a UPS Internet Tools End User Agreement, or any successor
agreement thereto, by End User and UPS.
- Consequences of Termination or Expiration. Within five (5) business days
after termination or Expiration of this Agreement for any reason, End User shall
(i) return to UPS all materials provided to End User by UPS, including without
limitation, all copies of the UPS Materials and all other UPS Confidential
Information and Trade Secrets, (ii) cease any and all access to the UPS Systems
via the Application or otherwise and (iii) delete all copies of materials stored
on electronic media and certify in writing the deletion of same. Sections 2(d),
2(e) and 3-13 (inclusive) shall survive any termination or Expiration of this
Agreement for any reason.
- Prior Agreements. By entering into this Agreement, UPS and End User agree
that all prior agreements by End User with respect to UPS Internet Tools,
including without limitation the UPS Logo and Interface License Agreement and
UPS Internet Tools Agreement for end users, are terminated, and this Agreement
shall apply with respect to such UPS Internet Tools; provided, however, that
termination of such agreements shall not abridge UPS's rights against End User
as a result of any violation or breach of such agreements prior to the date of
termination. End User shall have ninety (90) days from the Effective Date to
modify the Application to remove all UPS trademarks, logos, service marks and
trade names from the Application with the exception of the UPS Mark End User is
permitted to use hereunder.
- Use of Information. End User acknowledges and agrees that any information
End User provides to UPS may be used by UPS in a manner consistent with the UPS
Privacy Policy and for purposes of this Agreement. End User consents to the
transfer of any personal information provided to UPS by End User from End User's
country of origin to the United States.
- General.
- Governing Law, Jurisdiction and Language. This Agreement shall be governed
by and construed in accordance with the laws of the State of Georgia, United
States of America, excluding (i) its conflicts of laws principles; (ii) the
United Nations Convention on Contracts for the International Sale of Goods;
(iii) the 1974 Convention on the Limitation Period in the International Sale of
Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April
11, 1980. To the full extent permitted by law, the controlling language of this
Agreement is English and any translation End User has received has been provided
solely for End User's convenience. To the full extent permitted by law, all
correspondence and communications between End User and UPS under this Agreement
must be in the English language. The exclusive jurisdiction for any action
relating to this Agreement shall be a federal or state court in Atlanta,
Georgia, and the parties consent to such jurisdiction and waive and agree not to
plead or claim that any such action or proceeding has been brought in an
inconvenient forum. Notwithstanding anything herein to the contrary, UPS shall
be entitled to interim relief or provisional remedies before any court having
jurisdiction. End User agrees to the admissibility of computer records and
electronic evidence in any dispute herein.
- Modification. UPS reserves the right to modify the Terms and Conditions of
this agreement in its sole discretion at any time by posting a revised version
hereof or by otherwise making such revised terms available for review to End
User. Any such modifications will supersede all prior versions and shall be
effective as to subsequent translations by End User upon its continued use of
the UPS Systems, which continued use constitutes End User's agreement to the
revision. End User has the right to terminate this Agreement by notice to UPS
within thirty (30) days after End User receives notification of any such
modification.
- Waiver. UPS's failure to insist upon or enforce strict performance of any
provision of this Agreement shall not be construed as a waiver of any provision
or right.
- Assignment. End User may not assign any of its rights or delegate any of its
duties under this Agreement without UPS's prior written consent, and any attempt
to do so shall be void. UPS may assign, delegate or transfer all or any part of
this agreement or any rights hereunder without the need for any approval or
consent from End User.
- Independent Parties. Nothing in this Agreement or elsewhere shall be
construed to make the parties partners, joint venturers, representatives or
agents of each other, nor shall either party, directly, indirectly, in writing
or otherwise, so represent to any third person. The parties hereunder are acting
in performance of this Agreement as independent contractors engaged in the
operation of their own respective businesses.
- Subcontractors. End User may employ a subcontractor, at End User's sole
expense, to develop Interfaces solely for the purpose of incorporating such
Interfaces into the Application, so long as (i) End User remains fully
responsible to UPS for such subcontractor's compliance with this Agreement; (ii)
End User enters into an agreement with such subcontractor requiring the
subcontractor's compliance with this Agreement, and (iii) nothing contained in
any agreement between the End User and the subcontractor, or under this
Agreement, shall bind UPS. All use by a subcontractor of the UPS Mark shall
inure to the benefit of UPS.
- Severability. If one or more provisions of this Agreement shall be held to
be invalid or unenforceable, the remaining provisions shall not be affected
thereby.
- Force Majeure. UPS shall not be liable or responsible for any delay or
failure in performance if such delay or failure is due to causes beyond its
reasonable control, including but not limited to, work stoppages.
- Authority. End User represents and warrants that the person accepting this
Agreement has full right and authority to enter into this Agreement on behalf of
End User.
- Remedies. Any remedies provided herein are non-exclusive.
- Written Document. End User may preserve this contract in written form by
printing it for End User's records, and End User waives any other requirement
that this contract be evidenced by a written document.
- Notices. Except as otherwise noted herein, all notices, demands or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be given as follows:
If by UPS: by use of a UPS
Document Exchange® service, such as UPS OnLine CourierSM or a successor service
(notice deemed effective on date of transmission); personal service (notice
deemed effective on date delivered); UPS or other recognized international or
overnight courier (notice deemed effective on date delivered); electronic mail
(notice deemed effective on date of transmission); by facsimile or telecopier
transmission if a transmission confirmation is received by UPS (notice deemed
effective on date confirmation is received); or by United States certified mail,
return receipt requested, postage prepaid (notice deemed effective on tenth
business day following placement in mail) to the address, e-mail address or
facsimile number provided by End User through the End User registration process
or such other address, e-mail address or facsimile number as changed through
thirty (30) days' prior written notice to UPS.
If by End User: by use
of a UPS Document Exchange® service, such as UPS OnLine CourierSM or a successor
service (notice deemed effective on date of transmission); personal service
(notice deemed effective on date delivered); UPS Next Day Air® (notice deemed
effective one business day after dispatch); or by United States certified mail,
return receipt requested, postage prepaid (notice deemed effective on tenth
business day following placement in mail) to UPS Internet Services, Inc., 55
Glenlake Parkway, N.E., Atlanta, Georgia 30328, attention: Electronic Commerce
Group, or such other address as changed through thirty (30) days' prior written
notice to End User. All such notices shall reference this Agreement and shall
include a copy to UPS's Legal Department at the UPS address set forth above.
- Headings. The headings in this Agreement and in any exhibits attached hereto
are solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
- Canada. The parties declare that they have required that this Agreement and
all documents related hereto, either present or future, be drawn up in the
English language only. Les parties déclarent par les présentes qu'elles exigent
que cette entente et tous les documents y afférents, soit pour le présent ou le
futur, soient rédigés en langue anglaise seulement.
- Entire Agreement. This Agreement, including UPS Internet Tools List (Exhibit
A), Usage Requirements (Exhibit B) and Access User Terms (Exhibit C) contains
the entire agreement of the parties with respect to the subject matter hereof
and supersedes any prior written or oral agreements between them with respect
thereto, except that End User's use of the UPS Systems and the Information is
further subject to the UPS Rate and Service Guide and Tariff. In the event of
any conflict between the terms hereof and such documents, this Agreement shall
control.
DO YOU AGREE TO USE THE UPS MATERIALS AND ACCESS AND USE THE UPS SYSTEMS IN
ACCORDANCE WITH AND BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH
ABOVE?
Yes, I Accept with the terms and conditions represented by this UPS Internet
Tools End User Agreement, including UPS Internet Tools List (Exhibit A), Usage
Requirements (Exhibit B), and Access User Terms (Exhibit C) (see links to
exhibits below).
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