End User License Agreement
THIS SITE IS NOT INTENDED FOR USE BY INDIVIDUALS UNDER 18 YEARS OLD.
This End User License Agreement (“Agreement”) sets forth the terms and conditions upon which you may use MY SHIPPING POST software, software as a service, related services, and all updates, enhancements, and upgrades provided to you (collectively, “Software”) by My Shipping Post, Inc. (hereinafter “MSP”) and/or its authorized distributors or Licensees. “You”, “your”, “yourself” means you, as an individual, and the legal entity on behalf of which you are acting as the authorized agent or legal representative as identified by you during registration with the Software, if applicable.
PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE USING THE SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE SOFTWARE. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT MSP’s LIABILITY TO YOU. BY USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE PROVISIONS, DISCLOSURES, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE, AND YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT IS VOLUNTARY AND IS NOT THE RESULT OF FRAUD, DURESS, OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.
1. In General. The terms of this Agreement will govern the Software and any software updates, enhancements, and upgrades that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You agree to comply with all terms, conditions, and restrictions set forth in this Agreement. You acknowledge that any use of the Software not in compliance with this Agreement invalidates this license and may result in termination of access, civil action, and be prosecuted to the full extent of the law. By downloading, accessing, or otherwise using this Software, you represent and warrant that you are at least 18 years old.
2. Permitted Use and Restrictions.
a. Grant of License and Reservations. Subject to the terms of this Agreement, MSP grants you a limited, non-exclusive, revocable, non-transferable license to use the Software and any future fixes, updates and upgrades provided to you solely for use in connection with your services to a MSP licensee. This Software is licensed, not sold or leased, to you by MSP for use only under the terms of this Agreement. MSP reserves all rights not expressly granted to you. The rights granted in this Agreement are limited to MSP’s intellectual property rights in the Software only and do not include any other patents or intellectual property rights. You may download and possess the Software, or some portion of it, on media owned by you for temporary storage only but MSP retains ownership of the Software itself.
b. Reverse Engineering. Except as expressly set forth in this Agreement, you agree not to reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the Software, in whole or part, or transmit or communicate the Software over a network or to any third party. You agree not to lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the Software, except as expressly permitted in this Agreement. Further, you agree not to develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, the Software or content accessed through the Software without MSP’s express written permission.
c. Further Restrictions. You further agree to not use the Software to do the following:
i. Transmit, access, or communicate any data that you do not have the right to transmit under applicable law;
ii. Transmit, access or communicate any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
iii. Transmit or communicate any data that contains software viruses or any other computer code, files, or programs designed, intended, or likely to interrupt, destroy, capture data not associated with your account, or limit the functionality of any computer software or hardware or any telecommunications equipment;
iv. Interfere with or disrupt or circumvent the Software;
v. Intentionally or unintentionally violate any applicable local, state, national or international law, including securities exchange and any regulations, requirements, procedures or policies in force from time to time relating to the Software;
vi. Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable;
vii. Use the Software while driving; or
viii. Endanger yourself or others.
4. Third Party Technology. Any and all third party technology provided, made available, linked to, used by MSP, or otherwise accessible through the Software (“Third Party Technology”) is provided solely as a convenience to you and is not under the control of MSP. MSP does not endorse, recommend, or otherwise make any representations or warranties with respect to any Third Party Technology. MSP does not have any responsibility or liability to you for any Third Party Technology which you access and you use at your own risk. Further, you agree to comply with any and all terms and conditions applicable to the use of Third Party Technology and otherwise ensure that you have obtained all rights, licenses, and clearances that may be necessary to use such Third Party Technology.
5. Third Party Websites. This Software may contain links to other independent third party websites (“Linked Websites”). These Linked Websites are provided solely as a convenience to our visitors. Such Linked Websites are not under the control of MSP, and MSP is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. MSP does not have any responsibility or liability for any information, data, communications or materials available on such Linked Websites. You therefore access these Linked Websites at your own risk.
7. Authorized Use. Except as expressly set forth in this Agreement, you will protect the confidentiality of the Software, and will not distribute or otherwise make available the Software, or any portion of the Software, in any form to any third party. Any rights you may possess in the Software expire upon expiration or termination of this Agreement. You will employ industry standard security measures to prevent unauthorized users from accessing the Software, including specifically user ID(s) and password(s) (“Login Information”). You are solely responsible for the maintenance and protection of all Login Information associated with Your Organization and authorized users. You accept responsibility for, and will be liable for all access to the Software in connection with your Login Information. Without the prior written consent of MSP, you will not utilize the services of any third party to assist you in using the Software. Further, you will be responsible for all activities that occur under or in connection with your account and your use of the Software.
8. Export Law Assurances. You will not use or otherwise export or re-export this Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software will not be exported or re-exported (1) into (or to a national or resident of) any U.S. embargoed countries, or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons’ List or Entity List. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
9. Territory. Presently, the Software is available to residents of the United States only. You understand and acknowledge that you may not sign up for, access or attempt to access or use the Software from countries outside of the United States. MSP may use technologies to verify your compliance. You agree to abide by United States and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
10. Trademarks. Trademarks, service marks, graphics and logos used in connection with the Software are the trademarks of their respective owners. MyShippingPost™ and the trademarks related to the Software are trademarks of MSP. You are not granted any right or license with respect to any of the trademarks mentioned above and any use of such trademarks.
11. Copyright Infringement. MSP respects copyright and other laws. MSP requires all Software users to comply with copyright and other laws. MSP does not, by providing or providing access to the Software, authorize you to infringe the copyright or other rights of third parties. As a condition to use the Software, you agree that you must not use the Software to infringe upon the intellectual property or other rights of others in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright. You are entirely responsible for your conduct and for ensuring that it complies with all applicable copyright and data-protection laws. In the event you fail to comply with laws regarding copyrights or other intellectual property rights, data protection and privacy, you may be exposed to civil and criminal liability, including possible fines.
12. Ownership and Title. All title to and the rights in the Software, including ownership rights to patents (registrations, renewals, and pending applications), copyrights, trademarks, service marks, domain names, trade dress, trade secrets, MSP’s or third party other technology, any derivatives of and all goodwill associated with the foregoing is the exclusive property of MSP and/or third parties.
13. Representations & Warranties. In addition to the other representations and warranties contained in this Agreement, you further represent, warrant, and covenant to MSP the following:
a. All information you provide to MSP as part of the registration process or otherwise will be truthful, accurate and complete, irrespective of any independent verification or other determination made by MSP;
b. You, your work, and all goods and services provided in connection with your use of the Software will comply with all applicable national, federal, state, and local laws, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction within the United States (collectively, “Law”);
c. You and your authorized are legally authorized in accordance with applicable Law to provide any and all information that you provide to the Software for all uses contemplated under this Agreement;
d. This Agreement has been duly and validly authorized, accepted, agreed to, and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with this Agreement. You represent that you have full power, capacity and authority to enter into this Agreement. If you are accepting on behalf of your employer or an entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement; and
e. The performance by you of this Agreement and your use of the Software does not and will not conflict with or violate (1) any law, rule, regulation, order, judgment, decree, agreement, instrument, or obligation applicable to you, or (2) if you are an entity, any provision of your organizational or governing documents.
14. Disclaimer of Warranties. THE SOFTWARE, AND ANY THIRD PARTY TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON- INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MSP, ITS LICENSORS, AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, OR GUARANTY: 1) AS TO THE SEQUENCE, ACCURACY, TIMELINESS, RELEVANCE, OR COMPLETENESS OF THE SOFTWARE; 2) AS TO ANY INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SOFTWARE; 3) THAT THE SOFTWARE MAY BE RELIED UPON FOR ANY REASON, THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 4) FURTHER, YOUR USE OF THE SOFTWARE, AND ANY THIRD PARTY TECHNOLOGY IS AT YOUR OWN RISK. MSP DOES NOT WARRANT THAT THE SOFTWARE OR THIRD PARTY TECHNOLOGY WILL MEET YOUR SPECIFIC REQUIREMENTS. TO THE EXTENT THAT MSP MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF SOFTWARELICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
15. Limitation of Liability. EXCEPT WHERE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL MSP BE LIABLE TO YOU OR ANY OTHER PERSON FOR DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES OR LOST PROFITS IN CONNECTION WITH THE SOFTWARE OR OTHERWISE RELATED TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION WILL SOFTWARELY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. MSP WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF CIRCUMSTANCES BEYOND ITS CONTROL, WHICH CIRCUMSTANCES INCLUDE NATURAL DISASTER, TERRORISM, THIRD PARTY LABOR DISPUTES, WAR, DECLARATIONS OF GOVERNMENTS, TRANSPORTATION DELAYS, FAILURE OF HARDWARE, EQUIPMENT, OR TELECOMMUNICATIONS FAILURE. MSP WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF YOUR MISUSE OF THE SOFTWARE BY YOU OR ANY OTHER PERSON. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY EXCLUSIVE REMEDY PROVIDED HAS FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT WILL MSP BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF ANY USE OR MISUSE OF ANY THIRD- PA R T Y TECHNOLOGY. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF MSP FOR ANY LOSS RELATED TO USE OR INABILITY TO USE THE SOFTWARE EXCEED THE TOTAL PRICE PAID TO MSP FOR ACCESS AND USE OF THE SOFTWARE.
16. Indemnification. YOU WILL INDEMNIFY, DEFEND, AND HOLD INDEMNITEES (AS DEFINED BELOW) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES ARISING FROM OR ATTRIBUTABLE TO (1) YOUR USE OF THE SOFTWARE OR OTHERWISE; (2) YOUR BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER AGREEMENTS MADE UNDER THIS AGREEMENT; (3) ANY CLAIMS BY OR DISPUTES RELATED TO YOUR USE OF THE SOFTWARE; (4) ANY CONTENT YOU PROVIDE TO THE SOFTWARE OR OTHERWISE TRANSMIT USING THE SOFTWARE; AND (5) BREACH OF CONFIDENTIALITY RELATED TO YOUR USE OF THE SOFTWARE.
a. Procedures. The Indemnitee will give you written notice of any Claim for which indemnification is sought. However, failure to provide such notice will not relieve you from your liability or obligations under this Agreement, except to the extent you are materially prejudiced as a direct result of such failure. The Indemnitee will cooperate with you at your expense in connection with the defense and settlement of the Claim. You may not settle any indemnified Claim in a manner that adversely affects the Indemnitee without its prior written consent. Further, the Indemnitee may participate in the defense of the Claim through counsel of its own choosing at its own cost and expense. If you fail to promptly assume the defense and employ counsel reasonably satisfactory to Indemnitee, or the Indemnitee has been advised by counsel that there exist actual or potential conflicting interests between you or your counsel and such Indemnitee, the Indemnitee may employ separate counsel, in addition to local counsel, to represent or defend such Indemnitee in such action or proceeding, and you agree to pay the fees and disbursements of such separate counsel as incurred. To the extent indemnification requires the payment of monies owed, such indemnification will occur as soon as reasonably possible after the determination of monies owed, and payment to the Indemnitee will be made within 30 days of a final determination of monies owed. Your obligations under this Section are in addition to any rights that any Indemnitee may have at common law or otherwise.
b. Defined Terms. “Claim” means each and every claim, request, accusation, allegation, assertion, complaint, petition, demand, suit, action, proceeding, and cause of action of every kind and description. “Indemnitee” means MSP, its affiliates, and its and their respective officers, directors, shareholders, managers, members, agents, employees, representatives, successors, and assigns. “Loss” means each and every liability, loss, damage, and injury (including injury or damage to any property right, and injury, damage, or death to any Person), wound, wrong, hurt, harm, expense, deficiency, diminution in value, obligation, expenditure and disbursement of any kind or nature (including all fees, costs, and expenses of investigation, travel expenses, and value of time expended by personnel), settlement, fine, fee, cost, cost of court, and all expenses of litigation (including reasonable attorneys’ fees) incident to any of the foregoing.
17. Release. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS AUTHORIZED BY YOU OF THE SOFTWARE FOR ANY REASON, YOU RELEASE MSP (AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, SUBSIDIARIES, REPRESENTATIVES, AND EMPLOYEES) FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
18. Term. Unless otherwise terminated by MSP as provided for in this Agreement, this Agreement will remain in effect for so long as MSP licenses the use of the Software to you.
19. Termination. MSP may, in its sole discretion and without prior notice, terminate your access to the Software for violations of this Agreement or other agreements or guidelines, which may be associated with your use of the Software, or if MSP deems it necessary in its sole discretion. Further, your organization may terminate, or request that MSP terminate your access to the Software. In any such event, you must destroy all copies of the Software and all of its component parts. Failure to abide by this Agreement is a material breach of this Agreement for which MSP may pursue all rights and remedies it has pursuant to this Agreement, and any other rights and remedies it may have at law or in equity. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice and will cause irreparable harm to MSP, for which monetary damages would be inadequate, and you consent to MSP obtaining any injunctive or equitable relief that MSP deems necessary or appropriate in such circumstances without the need to post a bond or satisfy any similar requirements. These remedies are in addition to any other remedies MSP may have at law or in equity.
20. U. S. Government End Users. The Software is a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government End Users acquire the Software with only those rights expressly set forth in this Agreement.
21. General Provisions.
b. Assignment. This Agreement, and any rights or obligations in this Agreement will not be assigned by You without the prior written consent of MSP. Any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void. Subject to the forgoing, this Agreement and its terms and provisions inure to the benefit of and are binding upon the parties and their respective successors, heirs, personal representatives, and assigns. MSP may assign this agreement to another party through acquisition or merger, or change, conversion, or merger by MSP which alters the corporate entity, structure, or state residence of MSP. You hereby waive any objections to such assignment and agree to execute such documents as necessary to continue this agreement under the terms and conditions specified herein.
c. Governing Law/Waiver of Trial by Jury.
i. You agree that all matters relating to your access to or use of the Software, including all disputes, will be governed by the laws of the United States and by the laws of the State of Montana without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Gallatin County and, for federal courts, Yellowstone County, Montana, and waive any objection to such jurisdiction or venue. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion of any provision, to be unenforceable, the remainder of this Agreement will continue in full force and effect.
ii. EXCEPT WHERE PROHIBITED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
d. Notices. All notices, requests, or consents sent to MSP that are required or permitted under this Agreement must be in writing (including electronic form) and must be delivered to the address designated below in a notice served in the manner provided for below. Each notice, request, consent, or other communication will be given and will be effective: (1) if delivered by hand, when so delivered; (2) if delivered by nationally recognized overnight courier service or sent by United States Express Mail, upon confirmation of delivery; (3) if delivered by certified or registered mail, on the third following day after deposit with the United States Postal Software; or (4) if delivered by facsimile, upon confirmation of successful transmission, and if delivered by email, upon confirmation of receipt by the other party in writing by return email. MY SHIPPING POST, LLLP PO Box 3031 Bozeman, Montana 59772-3031
e. Severability. The provisions of this Agreement are severable. The invalidity, in whole or in part, of any provision of this Agreement will not affect the validity or enforceability of any other of its provisions. If one or more provisions of this Agreement are declared invalid or unenforceable, the remaining provisions will remain in full force and effect and will be construed in the broadest possible manner to effectuate the purposes of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions that will achieve, to the extent possible, the economic, business, and other purposes of the void or unenforceable provisions.
f. Captions. The headings and captions of this Agreement are inserted for reference convenience and do not define, limit, or describe the scope or intent of this Agreement or any particular section, paragraph, or provision of this Agreement. Unless otherwise expressly provided, the words “include(s),” “included,” or “including” do not limit the preceding words or terms. Pronouns will refer to the masculine, feminine, neuter, singular, or plural as the context will require.
g. Waiver. The failure or delay of MSP to exercise or enforce any rights or provision of this Agreement does not constitute a waiver of such right or provision.
h. Survival. All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation, Sections 2(b), 16, 17, 18 and 19 and all of your representations, warranties and indemnification obligations, which will survive any expiration or termination of this Agreement indefinitely.
September 10, 2019