Terms AND CONDITIONS
LAST UPDATED: MONDAY, DECEMBER 18TH, 2023
Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the MyCarrier Platform (as defined below) operated by MyCarrier, LLC ("MyCarrier", "us," "we", or "our").
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
MyCarrier Platform Terms and Conditions
THESE MYCARRIER PLATFORM TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) GOVERN YOUR ACCESS TO AND USE OF THE MYCARRIER PLATFORM (AS DEFINED BELOW) AND IS BETWEEN MYCARRIER, LLC (ALSO REFERRED TO AS “MYCARRIER,” “WE,” “US,” OR “OUR”) AND THE ENTITY YOU REPRESENT, OR, IF YOU DO NOT DESIGNATE AN ENTITY, YOU INDIVIDUALLY (“CUSTOMER”, “YOU” OR “YOUR”). THESE TERMS AND CONDITIONS TOGETHER WITH THE ORDER FORM (DEFINED BELOW) CONSTITUTE THIS “AGREEMENT”. THE SPECIFIC FEATURES AND USAGE OF THE MYCARRIER PLATFORM THAT YOU ARE ENTITLED TO ACCESS HEREUNDER WILL BE SET FORTH IN AN ORDER FORM SIGNED BY THE PARTIES OR WILL BE OTHERWISE AGREED TO BY THE PARTIES VIA A PURCHASE ORDER OR THROUGH OPTIONS IN AN ONLINE MENU MADE AVAILABLE BY MYCARRIER AND SELECTED BY YOU IN AN ONLINE PORTAL HOSTED BY OR ON BEHALF OF MYCARRIER (THE “ORDER FORM”). THIS AGREEMENT TAKES EFFECT ON THE DATE CUSTOMER EXECUTES OR OTHERWISE ASSENTS TO THE ORDER FORM (THE “EFFECTIVE DATE”). YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. EACH OF CUSTOMER AND MYCARRIER MAY BE REFERRED TO HEREIN AS A “PARTY” AND TOGETHER AS THE “PARTIES”.
MYCARRIER MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT FROM TIME TO TIME BY PROVIDING THIRTY (30) DAYS’ PRIOR NOTICE TO CUSTOMER. CUSTOMER CAN REVIEW THE CURRENT VERSION OF THIS AGREEMENT AT ANY TIME AT HTTPS://GO.MYCARRIER.IO/TERMS-AND-CONDITIONS. IF CUSTOMER ACCESSES THE MYCARRIER PLATFORM AFTER THE DATE ON WHICH THE REVISED AGREEMENT BECOMES EFFECTIVE, CUSTOMER’S ACCESS WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS. IF ANY CHANGE TO THIS AGREEMENT IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER’S ONLY REMEDY IS TO STOP ACCESSING THE MYCARRIER PLATFORM.
BACKGROUND
MyCarrier has developed a proprietary software-as-a-service platform designed to connect providers of shipping services (“Carriers”) with the customers that rely on those carriers to transport their products and other critical materials (“Shippers”) (such platform, the “MyCarrier Platform”). The MyCarrier Platform includes any updates that are made generally available by MyCarrier to customers at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by the MyCarrier for an additional charge. These Terms and Conditions are incorporated by reference into the Order Form to create this Agreement and will be incorporated by reference into each Future Order Form to create separate future agreements for the rights and services described in the applicable Future Order Form, in each case to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing.
1 ACCESS TO PLATFORM
1.1 MyCarrier Platform. MyCarrier will make the MyCarrier Platform available to Customer via the Internet pursuant to this Agreement during the Term. Subject to the terms and conditions of this Agreement, MyCarrier hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right to access and use the MyCarrier Platform during the Term solely for Customer’s purpose of securing the services of Carriers or making carrier services available to Shippers.
1.2 Limitations. The following limitations and restrictions will apply to the MyCarrier Platform:
a Customer will not provide access to the MyCarrier Platform to any person who is not an employee or contractor of Customer, unless otherwise agreed to in writing by MyCarrier (“Authorized Users”).
b Except as expressly permitted hereunder, Customer will not and will not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the MyCarrier Platform; (ii) modify, translate or create derivative works based on the MyCarrier Platform; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the MyCarrier Platform; (iv) use the MyCarrier Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the MyCarrier Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of MyCarrier or its suppliers on the MyCarrier Platform.
2 OWNERSHIP; RESERVATION OF RIGHTS
2.1 Customer Data. Customer or its licensors own the data input or uploaded by Customer into the MyCarrier Platform (“Customer Data”). Customer hereby grants MyCarrier the nonexclusive, worldwide, royalty-free, fully paid up, sublicensable, nontransferable (except as set forth in Section 9) right and license to (a) copy, use, modify, distribute and display Customer Data solely to the extent necessary to perform its obligations under this Agreement, (b) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving MyCarrier’s products and services, and (c) copy, use, modify, distribute and display Customer Data on an aggregate and/or anonymized basis, solely to the extent that the aggregate data does not include information that identifies or would reasonably be expected to identify Customer. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to MyCarrier under this Agreement.
2.2 Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, MyCarrier retains all rights, title, and interest in and to the MyCarrier Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. MyCarrier grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the MyCarrier Platform.
2.3 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to MyCarrier with respect to the MyCarrier Platform. MyCarrier will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants MyCarrier a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
2.4 Customer Responsibilities. Only Customer’s authorized employees who have been assigned a unique login to the MyCarrier Platform will be entitled to access and use the MyCarrier Platform under this Agreement. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the MyCarrier Platform and notify MyCarrier promptly of any such unauthorized access or use, and (b) use the MyCarrier Platform only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s login credentials.
2.5 Privacy; Data Security. MyCarrier will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data. Such information security program would include: (i) physical security of all premises in which Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by MyCarrier to perform any part of the services hereunder.
3 PROFESSIONAL SERVICES
3.1 Statements of Work. From time to time, MyCarrier and Customer may enter into statements of work, each of which will be executed by an authorized representative of each party and will reference and be governed by this Agreement (each, an “SOW”). Each SOW will set forth the professional services to be performed by MyCarrier, including, without limitation, professional services related to the integration, implementation and use of the MyCarrier Platform (the “Professional Services”), and the fees payable by Customer to MyCarrier in connection therewith. Each SOW will also include the period of time that such SOW will remain in effect (subject to earlier termination as set forth therein), and any applicable (a) payment terms and (b) acceptance criteria and process with respect to any Professional Services. Customer will pay to MyCarrier the fees set forth in each SOW in accordance with the terms set forth therein. In addition, Customer will reimburse MyCarrier for its travel and accommodation expenses incurred in connection with the performance of the Professional Services, unless otherwise set forth in the applicable SOW.
3.2 Professional Services. Customer understands that MyCarrier’s performance of the Professional Services is dependent in part on Customer’s actions. Accordingly, Customer will provide MyCarrier with the necessary items and assistance specified in the applicable SOW in a timely manner. Any dates or time periods relevant to performance by MyCarrier hereunder shall be appropriately and equitably extended to account for any delays or change in assumptions due to Customer. If a Customer delay or change would materially change the economics of MyCarrier’s performance or materially extends the time for performance, MyCarrier may terminate the applicable SOW upon thirty (30) days’ written notice, unless within the notice period the parties agree on mutually acceptable changes to this Agreement or the applicable SOW.
3.3 Change Orders. Upon the receipt of a proposal from Customer to change the terms of an SOW (a “Change Proposal”), MyCarrier will promptly provide (a) an impact analysis of such Change Proposal and (b) its financial impact (if any) and, upon mutual agreement, it shall be signed by the parties in the form of a mutually agreed written amendment to an SOW. The parties agree that material changes to an SOW shall require a new SOW.
4 FEES; PAYMENT TERMS
4.1 Fees; Payment Terms. Customer will pay to MyCarrier the fees set forth in the Order Form in accordance with the payment terms set forth in the Order Form. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by MyCarrier within ten (10) days from the time such payment is due, MyCarrier may suspend Customer’s access to the MyCarrier Platform until such payment is made.
4.2 Net of Taxes. All amounts payable by Customer to MyCarrier hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of MyCarrier. Customer will not withhold any Taxes from any amounts due to MyCarrier. Notwithstanding the foregoing, if MyCarrier is required by law to collect any Taxes applicable to amounts paid by Customer in connection with use of the MyCarrier Platform or Professional Services, then MyCarrier may state such amount as a separate line item on the invoice and Customer will pay such amount to MyCarrier; provided, that, MyCarrier will provide Customer with an official tax certificate or other evidence of payment submitted to the applicable tax authority.
4.3 Overages. Customer acknowledges that its rights to access the MyCarrier Platform is on a metered basis as set forth in the applicable Order Form (the “Baseline Usage”). In the event Customer’s use of the MyCarrier Platform exceeds the Baseline Usage then MyCarrier will have the right to equitably modify the fees set forth in the applicable Order Form.
5 TERM, TERMINATION
5.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional periods of the same duration (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least thirty (30) days’ prior to the end of the then-current term.
5.2 Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving notice thereof. Upon any early termination of this Agreement, any fees committed under an Order Form for a subscription term shall remain due and payable as and when due following any termination. For example, if the subscription term is 12 months, and MyCarrier terminates the applicable Order Form at the end of the sixth (6th) month, the fees for months seven (7) through twelve (12) shall remain due and payable as and when due. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, MyCarrier may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the MyCarrier Platform or on MyCarrier’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of MyCarrier to provide the MyCarrier Platform will immediately terminate and (a) Customer will cease use of the MyCarrier Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to MyCarrier’s rights under Section 2.1(b) and (c)).
5.3 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 4, 5.2, 5.3, 6, 7.4, 8, 9 and 10 will survive.
6 CONFIDENTIALITY
As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. MyCarrier’s Confidential Information includes, without limitation, the MyCarrier Platform and the terms of this Agreement. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
7 REPRESENTATIONS, WARRANTIES AND DISCLAIMER
7.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
7.2 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to MyCarrier hereunder, and Customer’s provision of the Customer Data to MyCarrier hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
7.3 Uptime. MyCarrier will use reasonable efforts consistent with prevailing industry standards to provide the MyCarrier Platform in a manner that minimizes errors and interruptions in accessing the MyCarrier Platform. The MyCarrier Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MyCarrier or by third-party providers, or because of other causes beyond MyCarrier’s reasonable control, but MyCarrier will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within MyCarrier’s control. MyCarrier will provide telephone, webbased chat/messaging, and e-mail support Monday through Friday, 6 a.m. through 5 p.m. Arizona Time.
7.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MYCARRIER PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND MYCARRIER DISCLAIMS ANY AND ALL WARRANTIES. MYCARRIER DOES NOT WARRANT THAT THE MYCARRIER PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE MYCARRIER PLATFORM WILL BE UNINTERRUPTED. MYCARRIER DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE MYCARRIER PLATFORM ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND MYCARRIER EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
8 LIMITATIONS OF LIABILITY
8.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5 , AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
8.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTIONS 1, (B) EITHER PARTY’S BREACH OF SECTION 5, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO MYCARRIER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9 INDEMNIFICATION
9.1 Indemnification by MyCarrier. MyCarrier will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the MyCarrier Platform infringes any intellectual property right of a third party. Further, MyCarrier will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, MyCarrier’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the MyCarrier Platform by any party other than MyCarrier without MyCarrier’s express consent; (b) the combination, operation, or use of the MyCarrier Platform with other product(s), data or services where the MyCarrier Platform would not by itself be infringing; or (c) unauthorized or improper use of the MyCarrier Platform. If the use of the MyCarrier Platform by Customer has become, or in MyCarrier’s opinion is likely to become, the subject of any claim of infringement, MyCarrier may at its option and expense (i) procure for Customer the right to continue using the MyCarrier Platform as set forth hereunder, (ii) replace or modify the MyCarrier Platform to make it non-infringing so long as the MyCarrier Platform has at least equivalent functionality, (iii) substitute an equivalent for the MyCarrier Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 9.1 states MyCarrier’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
9.2 Indemnification by Customer. Customer will defend MyCarrier and the officers, directors, agents, and employees of MyCarrier (“MyCarrier Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the MyCarrier Platform in violation of this Agreement or (b) the Customer Data. Further, Customer will indemnify the MyCarrier Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
9.3 Indemnification Procedure. If a Customer Indemnified Party or a MyCarrier Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
10 GENERAL
Customer agrees that MyCarrier may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on MyCarrier’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the MyCarrier Platform. Customer may not remove or export from the United States or allow the export or re-export of the MyCarrier Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order Form and these Platform Terms and Conditions, the terms and conditions set forth in these MyCarrier Platform Terms and Conditions will govern unless expressly stated otherwise in the Order Form. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of Arizona without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Scottsdale, Arizona and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the MyCarrier Platform may cause irreparable harm and injury to MyCarrier for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that MyCarrier may be entitled to injunctive relief in the event Customer uses the MyCarrier in any way not expressly permitted by this Agreement.