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.
This Agreement comprises (1)
General Terms and Conditions
(Definitions - General Terms and
Conditions )); (2) the
End User Rights
attached Exhibit A (Definitions - End User Rights),
(UPS Technology), and
(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 the End User Rights
. 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 agreement.
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
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 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
the Customer or Service Provider, as applicable, You may no longer use UPS Technology
on behalf of such Customer or Service Provider.
Terms and Conditions
Capitalized terms used in this Agreement have the meanings set forth on
General Terms and Conditions
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.
2. License Grant.
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
End User Rights
general license rights and restrictions, as well as UPS Technology-specific
license rights and restrictions.
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.
3. Export Law Assurances. You 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:
4. UPS Materials.
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.
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.
5. Support Services.
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.
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 Providers.
6. Suspension; Term and Termination.
6.1 Suspension of 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 jurisdiction.
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).
6.3 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.
a. 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.
b. 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.
a. 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.
b. 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.
of Terms upon Termination. General Terms and Conditions Articles
, 6.5 and
Articles and those Sections of the End User Rights identified in End User
shall survive the termination of this
Agreement for any reason.
Information, Trade Secrets, Information.
7.1 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.
7.2 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
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
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.
9. Limitation of Liability.
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.
b. FOR THE AVOIDANCE OF DOUBT AND CONSISTENT WITH
THE SECOND PARAGRAPH OF THESE GENERAL TERMS AND CONDITIONS, THE PRESENTMENT OF
THIS AGREEMENT (VERSION UTA04072012) MORE THAN ONCE TO YOU DOES NOT CHANGE THE
UPS PARTIES TOTAL AGGREGATE LIABILITY ABOVE ONE THOUSAND UNITED STATES
DOLLARS (USD $1,000).
c. CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER THE
FIRST EVENT GIVING RISE TO A CLAIM SHALL BE DEEMED WAIVED.
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.
11. 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
If by You: by
personal delivery, UPS Next Day AirŽ 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.
12.1 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.
12.2 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
12.3 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.
12.4 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
12.5 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.
12.6 Governing Law; Jurisdiction and Language.
To the full extent permitted by law, this Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, United States of
America, 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 clicking
THE EXCLUSIVE JURISDICTION FOR ANY ACTION 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.
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.
Any remedies provided herein are non-exclusive.
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.
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
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.
12.12 Entire 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
and the 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.
12.13 Waiver: 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
GENERAL TERMS AND CONDITIONS
means third parties that control, are
controlled by, or under common control with, whether direct or indirect, a
is defined in the second paragraph of these General Terms and Conditions.
Alternate Billed Shipments
shipments tendered to the UPS Parties on Your behalf by another Person where
such shipments are charged against Your UPS Account.
has the definition provided in General Terms and Conditions
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.
is defined 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.
Terms and Conditions
means this document.
tendered to the UPS Parties for delivery to You.
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
means any individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or other legal entity.
has the definition provided in
General Terms and Conditions
has the 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 Conditions.
Provider Employee has the definition provided in the fourth paragraph
of the General Terms and Conditions.
Parties has the definition provided in General Terms and Conditions
means those 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.
Services has the definition provided in General Terms and Conditions
Software has the definition provided in General Terms and Conditions
Providers has the definition provided in General Terms and Conditions
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
means 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.
shall mean maintenance, error
corrections, modifications, updates, enhancements or revisions to the UPS
means UPS Market Driver, Inc..
Account means 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
means databases of
proprietary information related to the shipping services of the UPS Parties and
distributed with or for use with Software.
UPS Delivery Co.
has the definition
provided in General Terms and Conditions
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.
means collectively the UPS
Technology, the UPS Databases, the Technical Documentation, the Information,
the Software, the UPS Marks, and the UPS Systems.
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.
means those products
identified on End User Rights
You is defined in the
third paragraph of this Agreement.