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General Terms & Conditions
If the Services, Devices, or Software is being provided or made available to Customer on a no charge, beta, trial, or evaluation basis, then, notwithstanding any other provision in this Agreement, such ServiceS, Devices, and/or Software is provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied.
These General Terms and Conditions are between Parsyl Inc., a Delaware corporation (“Parsyl”), and the customer receiving Services from Parsyl (“Customer”). Parsyl will provide cargo tracking and monitoring services for Customer and its Users through Parsyl’s Web Platform, Mobile Platform, and Devices on the terms and conditions set forth below in exchange for Customer’s payment of the Fees as set forth in this Agreement.
Table of Contents
1. DEFINITIONS
2. SOFTWARE LICENSE AND SUPPORT
3. DEVICES
4. OWNERSHIP, LICENSE AND USE OF DATA
5. CUSTOMER OBLIGATIONS
6. TERM AND TERMINATION
7. WARRANTY AND DISCLAIMERS
8. INDEMNIFICATION
9. LIMITATION OF LIABILITY
10. TAXES
11. CONFIDENTIAL INFORMATION
12. MISCELLANEOUS
1. DEFINITIONS.
Terms used in this Agreement that have their initial letter(s) capitalized, will have the meanings ascribed to such terms in this Agreement, including the following:
“Affiliate” means any entity that is controlling, controlled by, or under common control with Parsyl, including Parsyl Insurance Services, LLC.
“Agreement” means the Order, these General Terms and Conditions, and all annexes, appendices, exhibits, and schedules to any of the foregoing.
“Authorized Insuring Party” means any insurance broker, agent, underwriter, claims investigator, provider, or similar party authorized by Customer to receive Claims Data, including those identified in any Insurance Program Documentation with respect to any Insurance Program in which Customer participates.
“Authorized User” means any Person that accesses the Software through Credentials provided by or at the request of Customer, or that takes possession of or uses any Device with the consent or acquiescence of Customer.
“Claim” means a claim for coverage under an insurance policy submitted by or on behalf of Customer.
“Claims Data” means Shipment and Storage Data with respect to any Claim.
“Credentials” means a User’s authentication information used to access the Software, whether in the form of a username, password, token, certificate, biometric signature, or other authentication factor.
“Data” means all data and information collected by or provided to Parsyl in connection with Users’ access to or use of the Software, the Services, or the Devices, including, without limitation, Shipment and Storage Data and any information provided by any User when using the Software or the Devices.
“Dedicated Gateway” means a transmitter/router that transmits Data from the Sensing Devices to the servers utilized by Parsyl.
“Device” means any Sensing Device, Dedicated Gateway, or any other device or equipment used by Customer in connection with the Services, including any Third Party Device.
“Documentation” means any written instructions, user manuals, or support guides provided or made available by Parsyl to Customer and relating to the Services, Software, or Devices, whether in printed or electronic form.
“Effective Date” means the date that Customer first places an Order for or accesses or uses any of Parsyl’s Services, ancillary services, Leased Devices, or Software, or as otherwise agreed in writing by Parsyl and Customer.
“Equipment Fee” means the Fee charged by Parsyl to deliver and activate the Purchased or Leased Devices, if any.
“Fees” means the amounts payable by Customer to Parsyl pursuant to this Agreement, which may be set forth in an Order or in another written or electronic agreement, which Fees may be adjusted by Parsyl from time to time in accordance with this Agreement.
“General Terms and Conditions” means these General Terms and Conditions.
“Governmental Entity” means any federal, state, local or foreign government, any political subdivision thereof, any court, administrative or regulatory agency, department, instrumentality, body or commission, or other governmental authority or agency, domestic or foreign.
“Insurance Program” means any program underwritten by insurer(s), pursuant to which Customer is required to obtain the Services.
“Insurance Program Documentation” means any documentation provided to Customer in connection with an Insurance Program in which Customer participates.
“Implementation Fee” means the Fee charged by Parsyl for initial consulting and/or deployment services provided by Parsyl to Customer with respect to the Services, if any.
“Leased Devices” means Devices leased by Parsyl to Customer.
“Mobile Platform” means the Parsyl mobile application available for installation on mobile phones and other portable devices.
“Monthly License Fee” means a per Device license Fee charged by Parsyl to Customer on a monthly basis, if any.
“Order” means any written or electronic order for Services or Devices accepted by Parsyl.
“Parsyl Intelligence” means all aggregated non-Customer specific insights, metrics, or analyses provided or made available by Parsyl to Customer.
“Per Shipment Fee” means the Fee charged by Parsyl to Customer for each Shipment, if any.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization, other entity, or any Governmental Entity.
“Personal Information” means information that can be used on its own or with other information to identify, contact, or locate a natural person, or to identify an individual in context.
“Platform Fee” means the Fee, if any, payable in quarterly or annual installments for access to the Services.
“Post-Paid Per Shipment Fees” means the Per Shipment Fee, if any, applicable to any Shipment during a month or quarter, as applicable, in excess of the number of Shipments covered by the Pre-Paid Per Shipment Fees for such month or quarter.
“Pre-Paid Per-Shipment Fee” means the Per Shipment Fee, if any, charged by Parsyl to Customer for each of pre-determined number of Shipments per month or quarter, as applicable.
“Purchased Devices” means Devices purchased by Customer from Parsyl.
“Replacement Fee” means the Fee charged by Parsyl to replace any Leased Device that is lost, stolen, damaged, or inoperable and for which Customer is responsible pursuant to this Agreement.
“Sensing Device” means a sensing device that tracks one or more of the following: temperature, humidity, light, impact, and geographical positioning.
“Services” means the cargo tracking and monitoring and User Data access and Claims Data sharing services provided by Parsyl pursuant to this Agreement.
“Shipment” means the transport of one or more Sensing Devices with a shipment of cargo from its origin to its destination.
“Shipment and Storage Data” means geolocation and environmental data related to a particular Shipment or the storage thereof, including the temperature, humidity, light, impact, and geographical positioning data recorded by Devices.
“Software” means Parsyl’s tracking and monitoring software and web software hosted and accessed through the Web Platform and the Mobile Platform, and the software residing on the Devices, including any updates, enhancements, translations, modifications, and derivatives of any of the foregoing.
“Standard Enhancement” means any enhancement of or change to the Software or the Devices, or any revision to the Documentation, that Parsyl makes available to its Customers generally, without additional charge.
“Taxes” means any sales, use, value added, and other taxes (other than taxes on Parsyl’s income), export and import fees, customs duties, and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government, governmental agency or other authority.
“Third-Party Device” means any Sensing Device not provided by or leased to Customer by Parsyl.
“User” means Customer and any other Person who accesses the Web Platform or the Mobile Platform or uses or takes possession of any Device provided to Customer.
“User Data” means the Customer specific Data made available to Customer and its Users through the Services, including Shipment and Storage Data and Claims Data. User Data does not include Parsyl Intelligence.
“User Materials” means all images, content, information, creative works, and other materials that are provided by Customer or its Users to Parsyl in connection with Parsyl’s provision of the Services, but specifically excluding the Data.
“Web Platform” means the Software available for use through the Parsyl website located at https://app.parsyl.com/ or any successor URL.
2. SOFTWARE LICENSE AND SUPPORT
2.1 Right to Access.
Subject to the terms and conditions of this Agreement, Parsyl grants to Customer and its Authorized Users a non-exclusive, non-transferable right and license to access and use the Software and the User Data during the Term.
2.2. Authorized Users.
Customer’s Authorized Users may access the Software for the purposes of tracking and monitoring the conditions of Shipments using Credentials provided by Customer or by Parsyl at Customer’s request. Customer shall be responsible for ensuring the security and confidentiality of such Credentials. All Users of the Software will be bound by the terms of use, privacy policy, and any other agreements applicable to the use of the Software and made available on the Web Platform or the Mobile Platform, as applicable, as the same may be amended from time to time.
2.3. Unauthorized Use.
Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software and Data. Customer shall promptly notify Parsyl of any unauthorized access to or use of the Software or Data of which it becomes aware. Upon Parsyl’s request, Customer shall (a) promptly furnish to Parsyl all information available to Customer regarding any unauthorized access to or use of the Software or Data, (b) implement reasonable precautions recommended by Parsyl to prevent the recurrence of any unauthorized access to or use of the Software or Data, and (c) cooperate with Parsyl at Customer’s expense in any litigation or other proceeding against third parties deemed necessary by Parsyl to protect the Software, the Data, or any of its proprietary rights. Customer’s compliance with this Section will not be construed in any way as a waiver of any right by Parsyl to recover damages or obtain other relief against Customer for any act or omission which may have resulted in the unauthorized access to or use of the Software or Data.
2.4. Modifications.
Parsyl reserves the right to modify the Software, to change access procedures, types of equipment utilized in the Parsyl computing environment, system interfaces, operating and other system and network software, utilities, and database software, and to implement Standard Enhancements at any time. Whenever practicable, Parsyl will give Customer advance notice of the scheduled implementation of any such activity if such activity is reasonably likely, in Parsyl’s sole discretion, to cause a disturbance to Customer’s access to or use of the Software or Data for a material period of time.
2.5. Support and Maintenance.
Parsyl shall use commercially reasonable efforts to support, maintain, and update the Software. Customer or its Authorized Users may request technical or operational support (“Customer Support”) by submitting a support request with Parsyl as provided in the Documentation. Parsyl will use commercially reasonable efforts to respond to such Customer Support requests within the periods indicated in the Documentation.
3. DEVICES
3.1. Purchased or Leased Devices.
Parsyl shall sell or lease to Customer the type and quantity of Devices identified in any Order as Purchased Devices or Leased Devices, as applicable, for the Equipment Fee set forth therein, subject to the terms and conditions of this Agreement. Leased Devices shall at all times remain the property of Parsyl.
3.2. Initial Shipping and Recirculation of Devices.
At the beginning of the Term, Parsyl shall deliver the Purchased Devices or Leased Devices to Customer in accordance with Customer’s reasonable direction. Initial shipping costs will be billed to Customer at cost. Parsyl may provide recirculation services (for example providing pre-paid envelopes for returning Sensing Devices to their origin). All shipping costs associated with recirculation of Devices will be billed to Customer at cost unless Parsyl has agreed otherwise in writing.
3.3 Use of Devices; Alterations and Additions.
Customer shall use the Devices and instruct all Users to use the Devices only as instructed by and in accordance with the Documentation. Customer shall not make or allow to be made any alteration, addition or attachment to any Leased Device or alter or deface or allow to be altered or defaced any identifying mark or number on any Leased Device.
3.4 Control of Devices.
Customer shall at all times keep the Leased Devices under its control or the control of its Authorized Users and shall not purport to sell, assign, transfer, sublease, sublicense, or in any way encumber the Leased Devices or its interest in the Leased Devices except as contemplated by this Agreement or otherwise expressly authorized by Parsyl.
3.5 Notification of Seizure.
Customer shall immediately notify any person seizing any Leased Devices of Parsyl’s rights thereto and immediately notify Parsyl in writing of any such seizure.
3.6. Loss, Damage or Failure of Devices.
Customer shall not damage or allow any damage to the Devices, normal wear and tear excepted. Customer shall promptly return to Parsyl any damaged, failed, or inoperable Leased Devices. Except as provided herein, all risk of loss, theft, damage, or failure of the Devices rests with Customer. If any Devices are damaged, stolen, lost, or otherwise fail or cease to function for any reason, all replacements shall be at Customer’s sole cost and expense. Notwithstanding the foregoing, Customer will not be responsible for the replacement of Leased Devices that are Sensing Devices if the total number of lost, stolen, or inoperable units of such Sensing Devices is less than 5% of the aggregate number of such Leased Devices or if such Sensing Devices become inoperable as a result of ordinary use (i.e. use in conformance with the Documentation), battery failure, or any manufacturing or design defect. Parsyl shall use commercially reasonable efforts to repair or replace lost, stolen, or inoperable Leased Devices that are Sensing Devices within 10 days after notification thereof by Customer, provided, however, if the total the number of lost, stolen, or inoperable units of such Sensing Devices is less than 5% of the aggregate number of such Leased Devices, then Parsyl shall have no obligation to provide replacements for such inoperable Devices. Parsyl will invoice Customer and Customer shall pay the Replacement Fee and all shipping costs for any replacement Leased Devices for which Customer is responsible under this Agreement.
3.7. Device Refresh.
If at any time Parsyl provides written notice to Customer that the Leased Devices must be replaced with new Devices, Customer shall promptly return all Leased Devices to Parsyl in accordance with Parsyl’s reasonable direction and at Parsyl’s sole cost and expense, provided that Parsyl makes replacement Devices available to Customer.
3.8 Return of Devices.
At the end of the Term, Customer shall promptly return all Leased Devices to Parsyl in good condition, normal wear and tear excepted, in accordance with Parsyl’s reasonable direction at Customer’s sole cost and expense unless otherwise agreed in writing by Parsyl.
3.9 Third-Party Devices.
Customer may use only those Third-Party Devices that Parsyl has approved for use with the Services. Customer assumes all risk associated with using Third-Party Devices and shall be solely responsible for ensuring that such Third-Party Devices are compatible for use with the Services and capable of operating in accordance with any Documentation. Parsyl shall not be responsible for any errors, disruptions, or other issues arising out of the use of any Third-party Devices.
OWNERSHIP, LICENSE AND USE OF DATA
4.1 Parsyl Property.
The Leased Devices, the Software, all Data (other than User Data), including all Parsyl Intelligence, and all intellectual property rights in or with respect to any of the foregoing, are owned by and shall remain the sole and exclusive property of Parsyl. Parsyl shall own all right, title and interest in and to any suggestion or idea for any upgrade, modification, or revision
4.2. Parsyl Intelligence.
The Parsyl Intelligence is made available to Customer and its Authorized Users as part of the Services, but it is owned by Parsyl. Parsyl grants to Customer and its Authorized Users a non-exclusive, non-transferable, without rights to sublicense, royalty-free, worldwide basis, license to use any Parsyl Intelligence made available to Customer or its Authorized Users during the Term solely for its internal business purposes and to download, make and store, for internal use only, a reasonable number of copies of such Parsyl Intelligence. Customer shall not (i) modify, alter, decompile, disassemble, reverse-engineer, or create Derivative Works from, any Parsyl Intelligence, (ii) commercialize in any respect any Parsyl Intelligence, or (iii) sublicense, transfer or otherwise make available to any third party (other than to extent required for Customer’s legitimate internal business purposes) any Parsyl Intelligence.
4.3. User Data.
User Data will be owned by Customer. User Data will be made available to Customer and its Authorized Users in accordance with the Documentation, which may allow Customer to set permission levels for Authorized Users that limit the Users’ access to the User Data and functionality of the Software. User Data may be exported or downloaded in accordance with the Documentation and such permissions. Parsyl will retain the User Data for a period of 6 years after it is generated, after which time Parsyl may delete, destroy, or purge the User Data. Parsyl will have no liability to Customer if Customer fails to download and retain the User Data during the period in which it is available to Customer in accordance with this Agreement. Customer grants to Parsyl and its Affiliates a perpetual, nonexclusive, transferable, sub-licensable, worldwide, royalty-free, fully paid-up, irrevocable license to use, publish, perform, reproduce, display, and prepare derivative works of, the User Data subject only to the limitations set forth in Section 4.5.
4.4 User Materials.
Customer or its Users, as applicable, will continue to own all right, title and interest (including copyrights) in and to all User Materials. Customer hereby grants to Parsyl and its Affiliates a perpetual, nonexclusive, transferable, sub-licensable, worldwide, royalty-free, fully paid-up, irrevocable license to use, publish, perform, reproduce, display, and prepare derivative works of, all User Materials solely to the extent necessary to perform the Services and any services provided by Parsyl’s Affiliates.
4.5 Use of Data.
Parsyl and its Affiliates may use, copy, disclose, distribute, sell, license, and transfer the Data for any and all purposes, including for purposes of providing the Services, facilitating the provision of ancillary services by Parsyl’s Affiliates, analysis, analytics, benchmarking, improving the Services, preparing statistics, marketing, and any other purposes, provided that Parsyl shall (a) use Personal Information only in accordance with its privacy policy and applicable law, and (b) disclose the Data to non-Affiliate third parties only in an aggregated or anonymized fashion and only in a manner that is not reasonably likely to permit identification of the Customer or its Authorized Users as the source of such Data, or as otherwise authorized by Customer. Notwithstanding anything to the contrary herein, Parsyl and its Affiliates may disclose Claims Data to Authorized Insuring Parties in order to process and adjudicate Claims, and, if Customer participates in an Insurance Program, Shipment and Storage Data to Authorized Insuring Parties (regardless of whether a Claim has been made) to modify or improve its product or service offerings and for other commercial insurance related activities, or as otherwise authorized by Customer.
5. CUSTOMER OBLIGATIONS.
5.1. Authorized User Consents; No Personal Information.
Customer shall obtain all necessary rights and consents from its Authorized Users to allow Parsyl to perform the Services and to use, collect, store, transmit, and own the Data collected in connection therewith. Customer shall not submit or permit any Authorized User to submit any Personal Information except such Personal Information as is necessary to obtain or use Credentials to access the Services. Parsyl shall have no obligations with respect to any Personal Information provided by any User that was not required or requested by Parsyl to be provided in order to use the Services.
5.2. Restrictions.
Customer is responsible for all activities that occur using Customer’s or its Authorized Users’ Credentials or under Customer’s user accounts. Except as expressly permitted in this Agreement or as otherwise authorized by Parsyl in writing, Customer may not, and may not permit any third party to, (a) modify, adapt, alter, translate, or create derivative works from the Software, Leased Devices, or Documentation; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Software, Leased Devices, or Documentation to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or Leased Devices; (d) communicate or reveal the Software, or Documentation to any third party; (e) remove or alter any legends, copyright or trade secret notices from the Software, Leased Devices, or Documentation; or (f) otherwise copy the Software or Documentation.
5.3. Compliance with Laws.
Customer shall observe and comply in all respects with all laws, rules, regulations, and ordinances applicable to Customer’s collection and use of User Data and use of the Devices, Software, or Services.
6. TERM AND TERMINATION.
6.1. Term.
The initial term of this Agreement will begin on the Effective Date and shall continue for a period of one year (the “Initial Term”). At the end of the Initial Term and each Renewal Term, this Agreement will automatically renew for an additional period of one year (each, a “Renewal Term” and all such Renewal Terms together with the Initial Term, the “Term”) unless this Agreement is terminated in accordance with Section 6.2.
6.2. Termination.
Either party may terminate this Agreement (a) at any time after the expiration of the Initial Term by providing at least 60 days prior written notice of termination to the other party, or (b) immediately upon written notice of termination to the other.
6.3. Effects of Termination.
Termination of this Agreement by one party as a result of the other party’s breach of this Agreement shall be in addition to, and not a waiver of, any other remedy that may be available to the terminating party at law or in equity. Upon termination of this Agreement for any reason: (a) any amounts owed by Customer to Parsyl through the end of the then-current fiscal quarter under this Agreement will be immediately due and payable, (b) all rights granted to Customer and its Authorized Users with respect to the Software, Leased Devices, and the Services will immediately terminate, (c) Customer shall immediately cease to use the Services, Leased Devices, and Software, (d) Customer shall return all Leased Devices to Parsyl, or, at the election of Parsyl, make the Leased Devices available for collection or pick-up by Parsyl, and (e) Customer shall return to Parsyl all Documentation and other Parsyl Confidential Information in Customer’s possession or control. Sections 4 through 12 of this Agreement, and all other provisions of this Agreement that must survive termination or expiration of this Agreement in order to give full effect to the rights and obligations of the parties hereunder, including, without limitation, any accrued payment obligations, shall survive termination of this Agreement.
7. WARRANTY AND DISCLAIMERS.
7.1. Warranty.
During the Term, Parsyl warrants that the Services, when used in accordance with the Documentation, will operate in all material respects as described in the Documentation. Parsyl will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reasonably verifiable continuing or repeating error in the Services reported to Parsyl by Customer in writing during the Term. Parsyl’s warranty obligations shall be void if the Software or Devices are modified by anyone other than Parsyl. Parsyl shall not be responsible for the performance or operation of any Third-Party Devices, including any failure of any such Third-Party Devices (or Services to the extent that they rely on such Third-Party Devices) to operate in accordance with the Documentation.
7.2. Telecommunications Coverage and Capacity.
Customer acknowledges that the Services are dependent upon a number of key operating requirements that are outside of the scope of Parsyl’s control, including the coverage and capacity of the telecommunications and cellular networks on which the Devices and Software rely. Parsyl does not warrant that Services will not be interupted and Parsyl will not be liable for any interruption of the Services due to failure of third party equipment, coverage, or capacity.
7.3. Warranty Disclaimer.
THE EXPRESS WARRANTIES GIVEN IN THIS AGREEMENT ARE GIVEN IN LIEU OF, AND PARSYL HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, DATA ACCURACY, SYSTEMS INTEGRATION, PERFORMANCE, OPERATION, AND UP-TIME, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. cUSTOMER expressly acknowledgeS AND AGREES that: (1) the serviceS do not report the Tracking and monitoring of any shipment in real time; (2) THe ServiceS ARE not intended to be used by customer to store customer data and parsyl will have no liability for the loss of any data; and (3) because of the complex nature of global position systems, THE DEVICES, and THE software, Parsyl cannot and does not warrant that the operation of the DEVICES AND THE software will be without interruption or error-free. Customer acknowledges that it has exercised its independent judgment in entering into this Agreement and has not relied on any representation made by Parsyl which has not been stated expressly in this Agreement.
8. INDEMNIFICATION.
8.1. Indemnification by Parsyl.
Parsyl shall, at its own expense, defend (or at its option settle) any third-party claim, suit or action against Customer alleging that the Software or Leased Devices infringe any intellectual property rights of such third party (each, an “Infringement Claim”) and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement by Parsyl. Customer shall (a) promptly provide Parsyl with notice of any Infringement Claim within a reasonable period of time after learning of it; (b) allow Parsyl sole control over the claim’s defense and settlement; and (c) reasonably cooperate in response to Parsyl’s requests for assistance. Customer may not settle or compromise any Infringement Claim without Parsyl’s prior written consent.
8.2. Remedies.
If the Software or Leased Devices is or are, or is or are in Parsyl’s opinion likely to become, the subject of an Infringement Claim, then Parsyl may (i) procure for Customer, at no cost to Customer, the right to continue using the Software or Leased Devices, (ii) replace or modify the infringing Software or Leased Devices to make it non-infringing, at no cost to Customer, or (iii) if the right to continue using the infringing Software or Leased Devices cannot be procured for Customer for a reasonable cost, or cannot reasonably be modified to make it non-infringing, terminate this Agreement, and refund to Customer any prepaid Fees.
8.3. Exclusions.
Notwithstanding the foregoing, Parsyl will have no obligation under this Section 8 or otherwise with respect to any Infringement Claim based upon: (1) any use of the Software, Devices, or Services in a manner not in accordance with this Agreement or the applicable Documentation; (2) any use of the Software, Devices, or Services in combination with products, equipment, or software not supplied by Parsyl if such infringement would have been avoided without the combination with such other products, equipment, or software; or (3) any modification of the Software, Devices, or Services by any person other than Parsyl or its authorized agents or subcontractors; (4) any Software, Devices, or Services provided on a no charge, beta, trial or evaluation basis; or (5) the use or operation of any Third-Party Devices. Parsyl’s obligations under Sections 8.1 and 8.2 are Parsyl’s sole obligations and Customer’s exclusive remedy for any Infringement Claim.
8.4. Indemnification by Customer.
Customer shall, at its own expense, defend (or at its option settle) any third party claim, suit or action against Parsyl to the extent that such claim, suit or action is based on Customer’s or its Authorized Users’ use of the Services, Devices (including Third-Party Devices), or Software not in accordance with the Documentation and this Agreement, Parsyl’s use of User Materials or User Data in accordance with this Agreement or the applicable Documentation, or for Customer’s misrepresentation or breach of this Agreement (“Customer Indemnified Claim”), and indemnify and hold Parsyl harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and disbursements) suffered or incurred by Parsyl arising from such Customer Indemnified Claim or those costs and damages agreed to in a monetary settlement of such Customer Indemnified Claim. Parsyl will (a) promptly provide Customer with notice of any Customer Indemnified Claim within a reasonable period of time after learning of it; and (b) reasonably cooperate in response to Customer’s requests for assistance. Customer may not settle or compromise any Customer Indemnified Claim without Parsyl’s prior written consent.
9. LIMITATION OF LIABILITY
9.1. PARSYL SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. PARSYL’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO FEES ACTUALLY PAID BY CUSTOMER TO PARSYL DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.10. PAYMENTS AND TAXES.
10.1. Payment.
Customer shall pay all Fees in accordance with this Agreement. The Implementation Fee, if any, the initial Platform Fee, if any, the initial Monthly License Fees, if any, the Equipment Fees, if any, and the initial Pre-Paid Shipment Fees, if any, will be invoiced and paid by Customer promptly following the Effective Date. The amounts and frequency of any such Fees shall be provided to Customer in the Order or otherwise in writing on or before the Effective Date. Parsyl will have no obligations under this Agreement until such payment is made. Thereafter, any Platform Fees, Monthly License Fees, and Pre-Paid Per Shipment Fees shall be paid quarterly or annually, as specified the Order or otherwise by Parsyl to Customer, in advance through ACH or another automatic payment mechanism acceptable to Parsyl. Pre-Paid Per Shipment Fees that are not used in the applicable month or quarter are not refundable and do not rollover to the next month or quarter. Parsyl will invoice Customer monthly or quarterly in arrears for any Post-Paid Per Shipment Fees for Shipments originating in the preceding month or quarter, as applicable, and any other Fees due hereunder. Customer shall pay the invoiced Fees within 30 days of the date of the corresponding invoice. Parsyl may amend or increase the Fees from time to time, in its sole discretion, with 90 days’ notice to Customer. Except as expressly set forth in this Agreement, Fees are non-refundable and amounts not paid when due shall incur a late fee equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Fee is overdue, Parsyl may suspend provision of the Services until payment of the overdue Fees has been paid in full. Customer agrees to pay all costs incurred by Parsyl in collecting overdue charges, including reasonable attorneys’ fees. All payments shall be made in U.S. dollars.
10.2. Taxes.
Fees are exclusive of Taxes and except as expressly provided in this Agreement, Customer shall pay or reimburse Parsyl for all Taxes arising out of this Agreement or the transactions contemplated by this Agreement and reflected on any invoice sent to Customer within 30 days of the date of the applicable invoice. If Customer is required to pay or withhold any Tax in respect of any payments due to Parsyl hereunder, Customer shall gross up payments actually made such that Parsyl shall receive sums due hereunder in full and free of any deduction for any such Tax.
11. CONFIDENTIAL INFORMATION.
11.1. Confidential Information.
“Confidential Information” means information that is disclosed by one party (“Discloser”) to the other party (“Recipient”), or which Recipient has access to in connection with this Agreement, and that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, whether disclosed in written or other tangible form (including on magnetic media) or by oral, visual or other means. “Confidential Information” includes, without limitation, information of or relating to the Discloser’s present or future products, know-how, formulas, designs, processes, ideas, inventions and other technical, business and financial plans, processing information, pricing information, specifications, research and development information, forecasts and any other information relating to any work in process, future development, marketing plans, strategies, financial matters, or personnel matters of the Discloser.
11.2. Protection of Confidential Information.
Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Nothwitstanding anythning to the contrary herein, Parsyl may disclose certain Confidential Information to Authorized Insuring Parties in accordance with this Agreement.
11.3. Exceptions.
Recipient’s obligations under Section 11.2 with respect to any Confidential Information of Discloser will terminate if such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without restrictions or breach of any duty or obligation; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is (i) approved in writing by Discloser, (ii) necessary for Recipient to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
11.4. Return of Confidential Information.
Except as otherwise expressly provided in this Agreement, Recipient will return to Discloser or destroy all Confidential Information of Discloser in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of Discloser upon the expiration or termination of this Agreement. If requested by Discloser, Recipient will certify in writing signed by an officer of Recipient that it has fully complied with its obligations under this Section 11.
12. MISCELLANEOUS.
12.1. Assignment.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without Parsyl’s prior written consent, which consent will not be unreasonably withheld or delayed. Any attempted assignment or transfer in violation of the foregoing will be null and void, and considered a material breach of this Agreement.
12.2. Costs.
Each party shall pay and bear its own costs incurred in connection with the preparation, negotiation and execution of this Agreement.
12.3. Governing Law and Venue.
This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. Any action or proceeding arising from or relating to this Agreement shall be brought only in a federal or state court in Denver, Colorado, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
12.4. Further Assurances.
Each party to this Agreement shall do all things and sign, execute and deliver all documents that may be legally necessary or reasonably requested by the other party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve such party’s rights under this Agreement.
12.5. Force Majeure.
Except for payment obligations, neither party shall be liable for any failure or delay in the performance of its obligations hereunder resulting from any cause which is beyond the reasonable control of such party.
12.6. Notices.
All notices, consents, and approvals under this Agreement must be delivered in writing by e-mail, by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth beneath such party’s signature, and will be effective upon receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party.
12.7. Remedies.
Subject to the limitations on liablities and remedies set forth herein, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges and agrees that the Software and Data contains valuable trade secrets and proprietary information of Parsyl, that any actual or threatened breach of this Agreement by Customer will constitute immediate, irreparable harm to Parsyl for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
12.8 Waivers.
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.9 Severability.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.10 Interpretation.
In the interpretation of this Agreement, unless the context or subject matter otherwise require: (a) singular includes plural and vice versa; (b) any gender includes every gender; (c) a reference to a person includes corporations, trusts, associations, partnerships, a government authority, and other legal entities, and where necessary, includes successor bodies; (d) references to months mean calendar months; (e) headings are used for convenience only and are to be disregarded in the interpretation of this Agreement; (f) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning; (g) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and (h) a reference to a party includes that party’s executors, administrators, successors and permitted assigns.
12.11 Entire Agreement.
This Agreement (including all exhibits and attachments) constitutes the entire, final, and exclusive agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or other document submitted by Customer to Parsyl will not affect or alter the terms of this Agreement.