UPS TECHNOLOGY AGREEMENT
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS
OF THIS UPS TECHNOLOGY 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 MARKET DRIVER, INC. (UPS).
This Agreement comprises (1) these
General Terms and Conditions
(including its attached
(Definitions - General Terms and Conditions ) and
(Country Specific Amendment to the General Terms and Conditions); (2) the
End User Rights
(including its attached
(Definitions - End User Rights),
(UPS Technology), and
available at <http://www.ups.com/content/ca/en/resources/ship/terms/technology_agreement.html>
(as such End User Rights may change from time to time in accordance with its
terms); and (3) the documentation referenced in any of the foregoing, which are
all incorporated by reference. You hereby confirm that You have read and fully
understand BOTH the General Terms and Conditions AND the End User Rights which
are available for Your review by accessing <http://www.ups.com/content/ca/en/resources/ship/terms/technology_agreement.html> INCLUDING
the documentation referenced therein. The Agreement may be presented to You more than
once in conjunction with Your access and use of UPS Technology. Unless the
version of the Agreement has changed, each instance serves to confirm the
Agreement as mutually entered into and not to create an additional or separate
For purposes of the Agreement:
Customer means the Person that
is your employer, but is not a Service Provider, (1) and that has been assigned
the UPS Account you use to register the first UPS Technology you access, if a
UPS Account is required for such registration, (2) and that has been assigned
the first UPS Account you use with the UPS Technology you access, if a UPS
Account is not required for registration but is required for use, or (3) when
the first UPS Technology you access does not require a UPS Account for
registration or use.
Service Provider means a third
party engaged by a UPS customer to assist such UPS customer in managing its
shipping activity with the UPS Parties, including Billing Data Service
Providers, that has been approved by UPS in writing to perform such services
for the UPS customer; provided however, UPS Affiliates may serve as Service
Provider without a written approval by UPS.
Service Provider Employee means
an employee of a Service Provider.
You or the possessive, Your,
means, as applicable: (i) you as an individual, if you are entering into this
Agreement as an individual on behalf of no other third party for your own
personal use of the UPS Technologies; (ii) you as an individual and Customer,
if you are accessing UPS Technology as part of your responsibilities as an
employee of Customer; or (iii) you as an individual and your employer, if your
employer is a Service Provider to a UPS customer and you are accessing UPS
Technology as part of your responsibilities as a Service Provider Employee to
perform services for the benefit of a UPS customer.
You represent and warrant You have reached the age of
legal majority and, if applicable, You can form legally binding contracts under
applicable law on behalf of Yourself, the Customer or Service Provider related
to the UPS Technology. If at any time You are no longer authorized to form
legally binding contracts under applicable law on behalf of Yourself, the
Customer or Service Provider, as applicable, You may no longer use UPS
Technology on Your own behalf or on behalf of such Customer or Service
General Terms and Conditions
Definitions. Capitalized terms used in
this Agreement have the meanings set forth on General Terms and Conditions
attached hereto and End User Rights
. In the case of any conflict between the terms
of the End User Rights and these General Terms and Conditions, these General
Terms and Conditions shall control.
Scope. UPS hereby grants to You and You
accept, subject to the terms and conditions of this Agreement, a limited,
revocable, non-sublicenseable, non-exclusive, non-transferable, license to use
the UPS Technology and associated Technical Documentation in the Permitted
Territory for such UPS Technology. The
End User Rights
contain additional general license rights and restrictions, as well as UPS
Technology-specific license rights and restrictions.
General Restrictions UPS Materials and Software.
You shall not, and shall cause Your employees and agents not to, sublicense,
disclose or transfer the UPS Materials to any third party without the written
consent of UPS. You agree not to modify (including corrections to the
Software), reproduce, rent, lease, lend, encumber, distribute, redistribute,
remarket or otherwise dispose of the UPS Materials or any part thereof without
the consent of UPS, and hereby waive such rights granted under applicable law,
except where such waiver is unenforceable. You agree not to duplicate the
Software, except as required for its use in accordance with this Agreement,
provided that You may make one (1) back-up copy of the Software solely for
archival purposes. Such back-up copy shall include UPSs copyright and other proprietary
notices, and shall be subject to all the terms and conditions of this
Agreement. Notwithstanding anything to the contrary in this Agreement, You may
not use the Software on an outsourced time-share or service bureau basis.
acknowledge that all UPS Materials provided hereunder are subject to the U.S.
Export Administration Regulations (EAR) administered by the U.S. Department
of Commerce's Bureau of Industry and Security, as well as other U.S. laws and
regulations. You agree to comply with the EAR and all applicable U.S. laws in
your handling and use of all UPS Materials provided hereunder and to not export
or reexport the UPS Materials except as authorized by the EAR, U.S. and other
applicable laws. Without limiting the generality of the foregoing, you agree,
represent and warrant that no UPS Materials will be accessed from, downloaded
in, released in, carried to, transferred to, transshipped through or to,
exported to, or reexported to (1) the Restricted Territory (or a national or
resident thereof) or (2) any person, entity or organization on the U.S.
Treasury Departments list of Specially Designated Nationals or the U.S.
Department of Commerces Denied Persons List or Entity List. The countries
considered Restricted Territory and the persons, entities or organizations on
the aforementioned lists may change from time to time. You agree to stay
current with and comply with this provision notwithstanding any such changes.
For convenient reference only, information on the Restricted Territory
countries and the persons, entities or organizations on the aforementioned
lists may be found at:
Ownership of Intellectual Property Rights. You
hereby acknowledge and agree that UPS owns all right, title and interest in and
to, or has the right to license to You, the UPS Materials. You acknowledge
that You have 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. You will not at any time do or knowingly permit to be done any act or
thing that would in any way impair the rights of UPS or its licensors in and to
the UPS Materials. UPS and its licensors reserve all rights pertaining to the
UPS Materials not specifically granted herein.
Changes to UPS Materials and UPS Technology.
UPS may update, alter, modify or supplement any or all of the UPS Materials
and/or UPS Technology at any time.
Support and Maintenance. From time to time
UPS, in its sole discretion, may, in response to Your request, choose to
provide support or maintenance for the Software (Support Services). You
hereby authorize UPS and its authorized agents (the Support Providers), in
order to provide Support Services, to access the Software, other applications
which You may be using in conjunction with the Software and Your computer
systems either (1) remotely, via the Internet or other means (which may require
the installation of additional software on Your computer systems by UPS or the
Support Providers) (Support Software), or (2) through on-site visits at
specific times as mutually agreed upon by the parties. Each support session
using Support Software will be separately approved by You. During such
sessions UPS may see the Software as operating on the Your computer system and
UPS may assist You in making modifications to Your computer systems. You
further grant UPS and Support Providers the right to manipulate and modify the
Software and Your computer systems, applications, files and data as reasonably
necessary to provide You with Support Services. However, You agree that any
Support Services will be provided at UPSs discretion and nothing in the
Agreement shall be interpreted to obligate UPS to provide any Support Services.
Access to Proprietary Information. You
acknowledge and agree that You may disclose, or that UPS or the Support
Providers may observe, Your information and data during the provision of
Support Services by UPS or the Support Providers; and that such information and
data shall be deemed non-confidential and thus, not covered by General Terms
and Conditions Article 7, unless UPS has agreed otherwise in a signed
confidentiality agreement separate from this Agreement. In addition, You
acknowledge that the remote communications sessions utilized by UPS or the
Support Providers may be implemented through the Internet, which is inherently
insecure, and You agree that UPS or the Support Providers shall not be liable
for any security breaches occurring on the Internet. You should take the
foregoing into account when requesting Support Services from UPS or Support
Suspension; Term and Termination.
Rights. UPS may suspend Your
rights to access any part of the UPS Systems through the UPS Technology
or as necessary in UPSs sole discretion including without limitation, to (1)
prevent access to any part of UPS Systems or the UPS Technology that is not in
compliance with the terms and conditions of this Agreement; (2) correct a
material error in the UPS Systems or the UPS Technology or (3) comply with a
law, regulation or rule or any ruling of a court or other body of competent
Term. This Agreement shall become effective
upon Your assent by clickthrough below and shall remain in full force and
effect thereafter until terminated as provided herein (the Term).
Hosted UPS Technology. Certain UPS Technology is hosted by UPS, UPS Affiliates
or vendors of UPS or UPS Affiliates. Hosted UPS Technology is hosted on servers
in the United States of America and is scheduled to be available twenty-four
(24) hours a day, seven (7) days a week (other than when unavailable for
maintenance); however, UPS does not guarantee the availability of hosted UPS
Technology, or that access will be uninterrupted or error-free. UPS reserves
the right to interrupt, limit, or suspend hosted UPS Technology from time to
time for purposes of maintenance, upgrades and similar reasons. You agree that
neither UPS nor UPS Affiliates shall be held responsible or liable for any
damages arising from any interruption, suspension or termination of hosted UPS
Technology, regardless of the cause.
Either party may terminate this Agreement, and UPS may terminate any or
all licenses to the UPS Technology granted hereunder, for convenience at any
time upon written notice to the other party.
Notwithstanding the foregoing, this Agreement shall terminate
without any further action needing to be taken by UPS (1) upon a breach of
General Terms and Conditions Article
, or General
Terms and Conditions
; (2) in the event of
Your bankruptcy, commencement of bankruptcy, corporate reorganization, civil
rehabilitation, concordat, special liquidation or any other insolvency
proceeding with respect to You, or if You shall
have a receiver, administrator, administrative receiver or liquidator appointed
or shall pass a resolution for winding up, or a court shall make an order to
that effect, or (3) if You are a partner in or Customer or Service
Provider is a partnership and such
partnership is dissolved.
Effect of Termination.
Upon the termination of this Agreement for any reason whatsoever all
licenses granted hereunder shall immediately terminate and You shall
immediately cease and desist from all access to and use of the UPS Materials,
and destroy all UPS Materials in Your possession or control.
Upon termination of any license to a UPS Technology, You shall
immediately cease and desist from access to and use of such UPS Technology and
associated UPS Materials and destroy all such associated UPS Materials in Your
possession or control.
Survival of Terms upon Termination. General
Terms and Conditions Articles
and the Articles and those Sections of the End
User Rights identified in End User Rights
shall survive the termination of this Agreement for any reason.
Confidential Information, Trade Secrets, Information.
Disclosure. During the Term and thereafter,
You shall not use (except as permitted in connection with Your performance
hereunder), disclose or permit any Person access to any Trade Secrets
(including, without limitation, any Trade Secrets contained in the UPS
Materials). During the Term and for a period of five (5) years thereafter,
except as otherwise mandated by law, You shall not use, disclose, or permit any
Person access to any Confidential Information, except as permitted in
connection with Your performance hereunder. You acknowledge that if You breach
this General Terms and Conditions Article 7, UPS may have no adequate remedy at
law available to it, may suffer irreparable harm, and will be entitled to seek
equitable relief. You agree to protect such Confidential Information and Trade
Secrets with no less diligence than You protect Your own confidential or
proprietary information. If disclosure to Confidential Information is required
under provisions of any law or court order, You will notify UPS sufficiently in
advance so UPS will have a reasonable opportunity to object.
Aggregation. You shall not aggregate the
Information or derive or develop information, services or products that use the
Information, other than as expressly permitted under this Agreement.
Data Export. You may not export, whether by
(i) data export functionality built into the Software; (ii) extraction from the
Software interface (e.g. screen scraping); or (iii) otherwise, any data from
the UPS Databases and use such data for comparing shipping rates or delivery times
with the shipping rates or delivery times of any third party that is not a
member of the UPS Parties.
By Customer. You represent and warrant that
(1) Customer is not headquartered in the Restricted Territory; (2) You will not
use the UPS Technology in the Restricted Territory; and (3) You are not, nor is
Customer under the control of any Person on the U.S. Treasury Department list
of Specially Designated Nationals, or the U.S. Department of Commerce Denied
Persons List or Entity List (as they may be amended from time to time and
which, for convenient reference only, may be found at
or incorporated in, a national resident of or government of the Restricted
UPS PARTIES WARRANT THAT FOR NINETY (90) DAYS FROM THE DELIVERY TO YOU
OF SOFTWARE THAT SUCH SOFTWARE SHALL MATERIALLY OPERATE AS DESCRIBED IN THE
SOFTWARES CORRESPONDING TECHNICAL DOCUMENTATION. UPSS SOLE LIABILITY FOR A
BREACH OF THE FOREGOING WARRANTY SHALL BE TO REPLACE ANY SUCH SOFTWARE. EXCEPT
AS STATED IN THE WARRANTY OF THE FOREGOING TWO SENTENCES, THE UPS MATERIALS ARE
PROVIDED "AS IS WITH ALL FAULTS" AND IN THEIR PRESENT STATE AND
CONDITION. NO WARRANTY, REPRESENTATION, GUARANTEE, CONDITION, UNDERTAKING OR
TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY,
DURABILITY, ACCURACY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR
PURPOSE OR USE OF THE UPS MATERIALS IS GIVEN OR ASSUMED BY UPS AND ALL SUCH
WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY
EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, AS ARE ANY WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE. UPS DOES NOT WARRANT THAT DEFECTS IN THE UPS
MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY
UPS OR ANY UPS REPRESENTATIVE SHALL CREATE A WARRANTY.
You furthermore acknowledge and agree that access by UPS or the Support
Providers to Your computer systems, files and associated data pursuant to
General Terms and Conditions Article 5 hereof is merely to facilitate Support
Services on Your behalf, and You remain solely responsible for backing up Your
computer systems, applications, files and data. ANY SUPPORT SERVICES OR
SUPPORT SOFTWARE PROVIDED BY UPS OR A SUPPORT PROVIDER PURSUANT TO THIS
AGREEMENT ARE PROVIDED AS IS WITH ALL FAULTS, AND UPS MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY SUCH SUPPORT SERVICES OR SUPPORT SOFTWARE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UPS HEREBY EXPRESSLY
DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FITNESS FOR A
PARTICULAR PURPOSE, RELATED TO SUPPORT SERVICES OR SUPPORT SOFTWARE PROVIDED
UNDER THE AGREEMENT AND ALL ASSOCIATED ADVICE, DIAGNOSES AND RESULTS. YOU ACKNOWLEDGE
AND AGREE THAT UPS WILL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFAULT,
DEFICIENCY, OR NONCONFORMITY IN THE SUPPORT SERVICES.
THE UPS PARTIES DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE
ACCESS TO THE UPS SYSTEMS AND ACCESS TO SUCH UPS SYSTEMS MAY BE INTERFERED WITH
BY NUMEROUS FACTORS OUTSIDE OF UPSS CONTROL. THE UPS PARTIES ARE 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. THE AGREEMENT
GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY
FROM JURISDICTION TO JURISDICTION. YOU AGREE AND ACKNOWLEDGE THAT THE
LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT
ARE FAIR AND REASONABLE.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
THE UPS PARTIES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE, MULTIPLE, INCIDENTAL, OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF DATA
OR DATA USE, LOST SAVINGS, OR COSTS OF PROCURING SUBSTITUTE GOODS ARISING OUT
OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
DELICT, USE OF THE UPS MATERIALS OR OTHERWISE, EVEN IF THE UPS PARTIES HAVE
BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. 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 THE UPS PARTIES OR IN THE
EVENT OF PERSONAL INJURY OR DEATH. EXCEPT FOR THE LIMITATIONS OF LIABILITY SET
FORTH IN END USER RIGHTS SECTION 1.7 AND GENERAL TERMS AND CONDITIONS SECTION
8.2, IN NO EVENT SHALL THE LIABILITY OF ALL THE UPS PARTIES 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 OF
ANY TYPE EXCEED, IN THE AGGREGATE, ONE THOUSAND UNITED STATES DOLLARS (USD
$1,000), ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY WAIVED BY YOU.
FOR THE AVOIDANCE OF DOUBT AND CONSISTENT WITH THE SECOND PARAGRAPH OF
THESE GENERAL TERMS AND CONDITIONS, THE PRESENTMENT OF THIS AGREEMENT (VERSION
UTA05072014) MORE THAN ONCE TO YOU DOES NOT CHANGE THE UPS PARTIES TOTAL
AGGREGATE LIABILITY ABOVE ONE THOUSAND UNITED STATES DOLLARS (USD $1,000).
CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER THE FIRST EVENT GIVING RISE
TO A CLAIM SHALL BE DEEMED WAIVED.
Use of Name and Publicity. Except as expressly provided in this Agreement,
You agree that You shall not, without separate prior written consent of UPS in
each instance, use in advertising, publicity or otherwise the name of the UPS
Parties (including without limitation United Parcel Service of America, Inc.), or any partner or employee of the UPS
Parties, nor any trade name, trademark, trade dress or simulation thereof owned
by the UPS Parties.
Notices. Except as specifically provided in
this Agreement, all notices, demands or other communications required or
permitted hereunder shall be in writing and shall be given as follows:
If by You: by personal delivery, UPS Next Day Air®
delivery (notice deemed effective one
business day after dispatch); by facsimile or telecopier transmission if a
transmission confirmation is received by the sending party (notice deemed
effective on date confirmation is received); or by certified mail, return
receipt requested, postage prepaid (notice deemed effective on tenth business
day following placement in mail) to UPS, 55 Glenlake Parkway, Atlanta, Georgia
30328, attention: UPS Legal Department, facsimile: (404) 828-6912;
If by UPS: by each
method available to You as well as electronic mail (notice deemed effective on
date of transmission); to the address, email address or facsimile number, as
applicable, (1) of Your registration information for the UPS Technology as
provided to UPS, (2) of a UPS Account You use with the UPS Technology or (3) if
neither (1) nor (2) above apply, then to the address, email address or
facsimile number, as applicable, that You have otherwise provided to UPS.
Either party may
change its address, email address or facsimile number for notice through thirty
(30) days prior written notice to the other party.
Independent Parties. The parties are
independent parties and nothing herein shall be construed as creating an
employment or agency relationship, partnership, and/or joint venture between
the parties. Neither party is granted any right or authority to assume or to
create any obligation or responsibility, express or implied, on behalf of or in
the name of the other party, or to bind such other party in any manner.
Waiver. No waiver of any provision of this
Agreement, or any rights or obligations of either party under this Agreement,
shall be effective, except pursuant to a written instrument signed by the party
or parties waiving compliance, and any such waiver shall be effective only in
the specific instance and for the specific purpose stated in such writing.
Severability of Provisions. In the event that
any provision of this Agreement is found to be invalid or unenforceable
pursuant to judicial decree or decision, the remainder of this Agreement shall
remain valid and enforceable according to its terms.
Assignment. This Agreement, including any
rights, licenses or obligations under this Agreement, may not be assigned by
You to any other Person or entity without the prior written consent of UPS.
UPS may assign, delegate or transfer all or any part of this Agreement or any
rights hereunder to any member of the UPS Parties without the need for any
approval or consent from You. For these purposes, Assignment shall include,
but is not limited to, any merger or sale of all or substantially all of the
assets of the assigning party or any transfer of this Agreement, or any portion
hereof, by operation of law or otherwise, or any sale or other transfer of
thirty percent (30%) or more of the voting shares/interests of the assigning
party or control thereof. In the event of any permitted Assignment of this
Agreement, this Agreement shall be binding upon and inure to the benefit of
each of the parties and their respective legal successors and permitted
Taxes. Any fees payable under this Agreement
do not include any taxes and fees (including, but not limited to, any
applicable withholding taxes and VAT or any other tax or fee) levied by any
duly constituted taxing authority against the fees payable to UPS hereunder.
You shall be solely responsible for the calculation of and payment of any such
taxes to the relevant taxing authority, and shall not reduce the amount of the
fees payable for such tax payment.
Governing Law; Jurisdiction and Language. To
the full extent permitted by law, this Agreement and any claim, case, or
controversy arising out of or relating to this Agreement (whether for breach of
contract, tort or otherwise) shall be governed by and construed in accordance
with the laws of the State of New York, excluding (1) its conflict of law
principles; (2) the United Nations Convention on Contracts for the
International Sale of Goods; (3) the 1974 Convention on the Limitation Period
in the International Sale of Goods; and (4) the Protocol amending the 1974
Convention, done at Vienna, April 11, 1980. 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 qu'elles exigent que cette entente et tous les documents y
afférents, soit pour le présent ou lavenir, soient rédigés en langue anglaise
seulement. To the full extent permitted by law and consistent with
valid entry into a binding agreement, the controlling language of this
Agreement is English and any translation You have received has been provided
solely for Your convenience. To the full extent permitted by law, all
correspondence and communications between You and UPS under this Agreement must
be in the English language. In the event You have entered into this Agreement
by means of the Internet display of a translated version of this Agreement in a
language other than U.S. English, You may view the U.S. English language
version of this Agreement by accessing <http://www.ups.com/content/ca/en/resources/ship/terms/technology_agreement.html>.
THE EXCLUSIVE JURISDICTION FOR ANY CLAIM, CASE, OR CONTROVERSY ARISING OUT
OF OR RELATING TO THIS AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT OR
OTHERWISE) SHALL BE A FEDERAL OR STATE COURT IN ATLANTA, GEORGIA, AND THE
PARTIES HEREBY CONSENT TO SUCH EXCLUSIVE JURISDICTION AND IRREVOCABLY WAIVE AND
SHALL NOT ASSERT ANY DEFENSES BASED ON LACK OF IN PERSONAM JURISDICTION,
IMPROPER VENUE OR INCONVENIENT FORUM. Notwithstanding the foregoing, if
and to the extent subsequent separate or ancillary proceedings in another U.S.
or foreign court are necessary in order to enforce a judgment of the court in
Atlanta, Georgia, or otherwise as is necessary to provide complete relief and
full resolution of all issues in dispute, the Parties may institute such
subsequent separate or ancillary proceedings in any such U.S. or foreign court,
and the Parties hereby consent to the non-exclusive jurisdiction of such court
and hereby waive any defenses therein based on lack of in personam
jurisdiction, improper venue or inconvenient forum. Notwithstanding anything
herein to the contrary, UPS shall be entitled to interim relief or provisional
remedies before any court having jurisdiction. You agree to the admissibility
of computer records and electronic evidence in any dispute herein.
Force Majeure. Neither party hereto shall be liable for the failure to perform any of
its obligations under this Agreement or for any damages or other liability if
such failure is caused by any reason beyond its reasonable control including
without limitation, any occurrence of any act of God, labor strike or dispute,
industrial disturbance, governmental emergency order, judicial or government
action, emergency regulations, sabotage, riots, vandalism, electronic failure,
major computer hardware or software failures, equipment delivery delays, acts
of third parties, or act of terrorism.
Remedies. Any remedies provided herein are
Compliance with Laws. Each party, in
connection with its performance hereunder, shall strictly comply with all
applicable laws, rulings, and regulations and shall take no actions which would
cause the other party to be in violation of any laws, rulings or regulations
applicable to it, including, where required, You as a licensee filing this
Agreement with a governmental entity. You
specifically acknowledge that the UPS Materials provided hereunder may contain
encryption functionality. You acknowledge and agree that by downloading,
importing or using the UPS Materials in any country outside the United States
you, not UPS, assume full responsibility for compliance with all the laws and
regulations of such country, including, without limitation, all laws and
regulations governing the import, use, distribution, development, or transfer
of encryption software or technology and all requirements of registration or
licensing related to same.
12.10. Data Practices. In order to perform pickup and delivery
services, and in connection with Your use of the UPS Technology, the UPS package delivery company in Your jurisdiction,
whose name and address may be found under Contact UPS on the UPS Web Site
for Your jurisdiction (UPS Delivery Co.), collects, processes and uses personal
information. UPS Market Driver, Inc., 55 Glenlake Parkway, N.E., Atlanta,
Georgia, USA 30328 and the other UPS Parties receive personal information and
use it for the Purposes defined below.
The UPS Parties process personal information in accordance
with applicable data protection laws. The personal information is used for the
purposes (the Purposes) set forth in, and is subject to, the UPS Privacy
Notice published on UPSs web site at <
> (hereby incorporated by reference into this
Agreement). The personal information may be disclosed to certain
recipients (Recipients) as described in the UPS Privacy Notice. You
acknowledge You have read and fully understand the UPS Privacy Notice.
You represent and warrant to UPS that when You or Your
employees, agents or contractors (Shipper Parties) provide UPS Delivery Co.
with personal information: (1) the Shipper Parties have the right and authority
to do so; (2) You or another Shipper Party have notified each individual
identified by the personal information (including all package addressees) that
UPS will be processing the personal information for the Purposes set forth
above, that the personal information may be provided by UPS to the Recipients
set forth above, and that the personal information may be transferred to
countries other than the country in which the UPS Parties originally collected
the information (which countries may not have the same data protection laws as
the country in which You originally provided the information); and (3) You have
obtained the agreement of each such individual to the processing described in
these General Terms and Conditions Section 12.10.
Nothing in this Agreement shall be construed to preclude or restrict UPS in
any way from entering into similar arrangements with any other Person or from
dealing or contracting directly with mutual customers of the parties.
Agreement; Amendment. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the subject
matter of this Agreement and supersedes any and all (1) prior or
contemporaneous representations, understandings and agreements related thereto
and (2) any prior versions of the UPS Technology Agreement between UPS and You,
all of which are merged in this Agreement. Such merger will not be effective as
to Software. The UPS Technology Agreement current at the time You receive a
particular version of the Software will govern Your use of such Software
version at all times. Any Corporate Technology Agreement between UPS and
Customer, whether entered into before or after the date of this Agreement,
shall supersede this Agreement. Any UPS Technology Agreement between UPS and
You having a version more recent than Version UTA04072012 shall supersede this
Agreement. The superseding of any prior agreement shall not abridge UPSs
rights against You as a result of any violation or breach of such prior
agreement before the date of this Agreement. This Agreement may not be modified
or amended except by a writing signed by authorized representatives of the
parties to this Agreement; provided, however, UPS may modify the End User
Rights pursuant to End User Rights
UPS Materials and UPS Technology pursuant to these General Terms and Conditions
. A writing with electronic signatures shall
not qualify to modify or amend the Agreement.
European Union Notices. To the fullest extent permitted by law, if You
are located in a member state of the European Union, You waive all notices,
acknowledgements and confirmations relative to contracting by electronic means
which may be required under Articles 10(1), 10(2), 11(1) and 11(2) of EU
Directive 2000/31/EC as implemented in Your jurisdiction in respect of Your use
of the UPS Technology.
Consent to Processing of Personal Information. Except as You choose to indicate to the contrary pursuant
to the methods specified in the UPS Privacy Notice (which preferences may be
changed by You at any time), You hereby consent to the processing of personal
information for the Purposes as set forth in General Terms and Conditions
. You also agree
that where You are the package addressee or recipient, You have received notice
of, and consent to, the processing and use of personal information as described
in General Terms and Conditions
12.15. Country-Specific Terms. If You are a resident of or Your registered office is
located in one of the countries listed below, the terms of Exhibit B shall
apply to You. In the case of conflict or ambiguity between any provision
contained in the body of these General Terms and Conditions and any provision
contained in Exhibit B, the provision contained in Exhibit B shall prevail if
Exhibit B applies to You.
Middle Eastern Countries: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia,
UAE, Jordan, Tunisia, Algeria, Djibouti, Sudan, Syria, Somalia, Iraq,
Palestine, Lebanon, Libya, Morocco, Mauritania and Yemen.
DEFINITIONS- GENERAL TERMS AND CONDITIONS
Affiliates means third parties that control, are controlled by, or under
common control with, whether direct or indirect, a Person.
defined in the second paragraph of these General Terms and Conditions.
means shipments tendered to the UPS Parties on Your
behalf by another Person where such shipments are charged against Your UPS
definition provided in General Terms and Conditions
means any information or material, other than Trade
Secrets, that is of value to UPS and is not generally known to third parties,
or that UPS obtains from any third party (including without limitation the UPS
Parties) that UPS treats as proprietary whether or not owned by UPS.
Confidential Information shall include Information. Confidential Information
shall not include information that You can show is: (1) known by You at the
time of receipt from UPS and not subject to any other nondisclosure agreement
between the parties; (2) now, or which hereafter becomes, generally known to
the public through no fault of You; (3) otherwise lawfully and independently
developed by You without reference to Confidential Information; or (4) lawfully
acquired by You from a third party without any obligation of confidentiality.
in the third paragraph of the General Terms and Conditions.
End User Rights
means the document
and described in the second paragraph of these General Terms and Conditions.
General Terms and Conditions
means shipments tendered to the UPS Parties for delivery to You.
information provided from the UPS Systems related to services provided by the
UPS Parties or generated in connection with You shipping with the UPS Parties,
including without limitation, Tendered Shipments.
means a shipment tendered to the UPS Parties by You.
means for any UPS Technology those countries associated with such UPS
Technology on End User Rights
individual, corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or other
definition provided in General Terms and Conditions
definition provided in General Terms and Conditions
means those countries subject to a comprehensive economic sanctions program
administered by the U.S. Department of the Treasury, Office of Foreign Assets
Control (OFAC) or to any other general prohibition on the use, exportation,
or reexportation of the UPS Technology under U.S. sanctions or export control
laws. Countries subject to OFAC embargo or sanctions can change at any time.
For Your convenient reference only, the following links provide information
pertaining to such countries:
has the definition provided in the third paragraph of the General Terms and
Service Provider Employee has the definition
provided in the third paragraph of the General Terms and Conditions.
Shipper Parties has the definition provided
in General Terms and Conditions
items of UPS Technology that (i) are software and that are provided by UPS to
You under this Agreement, (excluding sample computer software code) and any
associated Technical Documentation, and (ii) any Updates thereto to the extent
provided by UPS to You under this Agreement.
Support Services has the definition provided
in General Terms and Conditions
Support Software has the definition provided
in General Terms and Conditions
Support Providers has the definition
provided in General Terms and Conditions
means collectively any and all documentation and/or
sample computer software code regarding the UPS Technology or the UPS Marks
provided or made available to You by UPS hereunder.
means a shipment tendered (i) by or for You to the UPS Parties for delivery or
(ii) by a third party to the UPS Parties for delivery to You, which can be an
Outbound Shipment, Alternate Billed Shipment or Inbound Shipment.
has the definition
provided in General Terms and Conditions
any information of UPS or that UPS acquired from a third party (including
without limitation the UPS Parties) which is not commonly known by or available
to the public, which (1) 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 (2)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
maintenance, error corrections, modifications, updates, enhancements or
revisions to the UPS Materials.
UPS means UPS Market Driver, Inc.
any shipping account assigned to You by a member of the UPS Parties, including,
without limitation, those accounts assigned to users of UPS.com shipping known
as temporary accounts and UPS Freight shipping accounts.
databases of proprietary information related to the shipping services of the
UPS Parties and distributed with or for use with Software.
has the definition provided in General Terms and Conditions
Marks means the word mark UPS as shown in various trademark
registrations including but not limited to U.S. Trademark Registration No.
966,724, and the mark UPS & Stylized Shield Device as shown below and as
shown in various trademark registrations, including but not limited to U.S.
Trademark Registration Nos.: 2,867,999, 2,965,392, 2,973,108, 2,978,624,
3,160,056 and European Community Trademark Registration Nos.: 3,107,026,
3,107,281, and 3,106,978.
collectively the UPS Technology, the UPS Databases, the Technical
Documentation, the Information, the Software, the UPS Marks, and the UPS
means UPS, and its then current Affiliates, and
their respective shareholders, officers, directors, employees, agents,
partners, third party suppliers and third party licensors.
UPS Privacy Notice
means the privacy notice available at
UPS Systems means
the UPS computer and network systems accessed by the UPS Technology.
those products identified on End User Rights
You is defined in the third paragraph of