During the Term (as defined in Section 5 below) of this Agreement, and subject to the terms and conditions hereof, Odyssey grants to Subscriber a limited, nonexclusive, nontransferable subscription to access and use Odyssey’s proprietary WIN (Web Integrated Network) software and transportation management system (the “System”) maintained on a server owned or controlled by Odyssey. The limited rights of access and use of the System provided herein are hereafter referred to as the “Subscription.” Subscriber acknowledges that, except for the rights expressly granted hereunder, all right, title, and interest in and to the System are and shall remain Odyssey’s sole and exclusive property, and agrees that the System shall not be used in any manner except as expressly permitted by this Agreement.
2. Scope of Use; Authorizations; Payment.
Subscriber’s use of the System is limited to access through Odyssey’s secure web-based portal for Subscriber designated users, each of whom must be an employee of Subscriber and whose use of the System is subject to the terms and conditions contained herein as in effect from time to time and published on the System website at www.gowithwin.com and subject to modification pursuant to Section 12(H) below. Subscriber may use the System only to process its own data to manage the transportation of its goods and materials between origin locations in North America to destinations in North America as required for its own business by (i) its incumbent motor carriers and transportation brokers pursuant to arrangements made directly by Subscriber using transportation data provided by Subscriber and input to the System and (ii) motor carriers and transportation brokers (such carriers and brokers, collectively, “WIN Carriers”) made available by Odyssey through the System. Subscriber’s use of its incumbent motor carriers and transportation brokers to transport its goods and materials hereunder shall be subject to Subscriber’s existing contractual terms and rates with such entities. Subscriber’s use of WIN Carriers to transport its goods and materials hereunder shall be subject to (i) day-1 “blanket” rates and (ii) spot-quote rates, in each case, as provided by WIN Carriers, and related shipping terms mutually agreed by or on behalf of Subscriber and the applicable WIN Carrier in the System or otherwise in writing and/or (iii) procured rates with WIN Carriers negotiated by Odyssey on behalf of Subscriber and shipping terms mutually agreed by or on behalf of Subscriber and the applicable WIN Carrier in the System or otherwise agreed in writing. Odyssey may elect to offer additional services to Subscriber hereunder, which shall be subject to a separate scope of services and associated fees, as mutually agreed with Subscriber in an amendment to this Agreement. Subscriber shall provide all necessary information related to its goods and materials transported hereunder (including any Material Safety Data Sheets) and all such goods and materials shall conform to the description provided by Subscriber and be adequately contained and packaged according to all applicable laws.
If Subscriber elects to receive transportation services provided by WIN Carriers, rates for such services shall be procured by Odyssey Transport LLC (No. 455401-B), or another Odyssey affiliate or subsidiary with proper operating authority. Odyssey Transport is licensed as a Broker of Property by the Department of Transportation (DOT), Federal Motor Carrier Safety Administration (FMSCA). Subscriber hereby grants Odyssey full power and authority to negotiate with WIN Carriers on behalf of Subscriber for the purpose of securing Odyssey-procured rates as described above and shall, upon request, provide to Odyssey written limited powers of attorney or letters of authorization when necessary to enable Odyssey to provide such service.
Subscriber is subject to initial and ongoing credit approval by Odyssey and WIN Carriers based upon Odyssey’s standard credit application process. All charges owed for transportation services received by Subscriber hereunder shall be billed directly to Subscriber by WIN Carriers and are payable in U.S. Dollars net thirty (30) days from Subscriber’s receipt of invoice unless otherwise agreed with such carriers. Subscriber acknowledges that freight cost estimates generated by the System from WIN Carriers are merely an estimate based upon information provided by Subscriber and that the actual charges incurred by Subscriber may vary. Shipments tendered by Subscriber and accepted by WIN Carriers through the System constitute Subscriber’s agreement to purchase such transportation services at the rates and under the terms set forth hereunder.
3. Neutral Venue; Carrier Qualifications.
The WIN System is a marketplace provided by Odyssey for Subscribers to interact and manage their transportation needs with incumbent motor truck carriers and transportation brokers and to engage and enter into agreements with WIN Carriers. In this capacity, Odyssey and the System do not function or serve as a shipper, carrier, broker, or other transportation provider. Odyssey shall qualify WIN Carriers in a limited fashion, prior to their admittance to the System to verify that at such time (i) such carriers possess the requisite broker or carrier licensing and/or operating authority, as the case may be, in compliance with U.S. laws and (ii) such carriers possess the requisite levels of insurance in compliance with U.S. laws. Odyssey does not guarantee the performance of any incumbent motor carrier or transportation broker nor any WIN Carrier utilized by Subscriber hereunder, nor does Odyssey have any control or influence over actions or decisions taken by such entities or Subscriber through the System. Subscriber acknowledges and agrees that it is solely responsible for determining and evaluating its incumbent motor carriers and transportation brokers and/or WIN Carriers prior to utilizing their services through the System.
4. Prohibited Use.
Subscriber shall not, nor shall it permit any other party to: (i) use the System except as specifically provided by this Agreement and in compliance with all applicable laws and regulatory requirements; (ii) disassemble, decompile, decrypt, or reverse engineer the System or any software included therein, or in any way attempt to discover or reproduce source code for the software in the System, or any part thereof; (iii) remove, alter, cover, or obscure the copyright or other proprietary notices placed on or embedded in the System; (iv) alter, modify, or prepare derivative works based on the System; (v) use the System in any manner for the purpose of creating any computer programs, including any program that performs functions substantially similar to the functions performed by the System, (vi) permit any third parties (including subsidiaries or affiliates unless approved by Odyssey in writing) to access or use the System, (vii) process or permit to be processed the data of any other party except for processing Subscriber’s clients’ data incidental to its use in management of Subscriber’s transportation activities, or (viii) use the System in the operation of a service bureau or otherwise in support of a third party’s business. Subscriber is responsible for obtaining and maintaining all hardware and software, including internet browser software, and internet service as required to access and use the System. Subscriber may not lease, rent, lend, or otherwise transfer any rights in or use of the System.
5. Term and Termination.
The term of this Agreement shall commence on the date of Subscriber’s first use of the System and, unless sooner terminated in accordance with this or any other provision of this Agreement, shall continue indefinitely thereafter unless terminated by either Odyssey or Subscriber by giving not less than thirty (30) days prior written notice to the other party specifying an effective date of termination (the contract duration, being hereafter referred to as the “Term”). Odyssey may terminate this Agreement and the Subscription upon ten (10) days prior written notice if Subscriber fails to comply with any of the terms and conditions of this Agreement, and such noncompliance is not cured during said ten (10) day period. Promptly upon termination of this Agreement, Subscriber must immediately return to Odyssey all Odyssey Confidential Information (as defined in Section 6 below) delivered by Odyssey to Subscriber including all copies, if any. Rights and obligations accruing prior to termination of Agreement shall survive termination of Agreement.
(i) Subscriber acknowledges and agrees that the System and all related computer software and documentation (including, without limitation, screen and report formats) pertaining to the System or that are used or made available to Subscriber by Odyssey are proprietary and confidential information of Odyssey (“Odyssey Confidential Information”). During and subsequent to the Term of this Agreement, Subscriber shall protect such Confidential Information to the same degree that it protects confidential information pertaining to its own business and shall not disclose Odyssey Confidential Information to any third party except consultants or auditors that sign a nondisclosure agreement which similarly protects such information from further disclosure. Subscriber shall not, either directly or through any third party, use any Odyssey Confidential Information to create, modify or enhance any computer software, program or user documentation that is substantially similar to the System.
(ii) Odyssey acknowledges and agrees that the Subscriber’s credit application information, contract, freight rate and other transportation data input to and maintained in the System are proprietary and confidential information of Subscriber (“Subscriber Confidential Information”). During and subsequent to the Term of this Agreement, Odyssey shall protect Subscriber Confidential Information to the same degree that it protects confidential information pertaining to its own business and shall not disclose Subscriber Confidential Information to any third party except WIN Carriers, consultants, partners, or auditors that sign a nondisclosure agreement which similarly protects such information from further disclosure; provided, however, that any Subscriber Confidential Information consisting of its incumbent motor carriers’ and transportation brokers’ freight rates and related data will not be disclosed to WIN Carriers without prior authorization by Subscriber. Subscriber acknowledges and agrees that Odyssey and its affiliated companies are engaged in the business of providing transportation and logistics management services and that Odyssey may review and analyze Subscriber Confidential Information for the purpose of providing certain services hereunder and preparing proposals to Subscriber for the provision of additional services by Odyssey or its affiliated companies. Subscriber further agrees that it will provide Odyssey with its Confidential Information to be loaded into the System within thirty (30) days from the effective date and agrees that time is of the essence with respect to this provision. Any delay by Subscriber in providing such Confidential Information shall be deemed a material breach of this Agreement and Odyssey may terminate this Agreement at its sole option pursuant to Section 5 above.
(iii) Notwithstanding the foregoing, Odyssey Confidential Information or Subscriber Confidential Information shall not include information which: (1) is at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission of the receiving party or any of its employees or agents; or (2) was in the receiving party’s possession as shown by written records prior to the disclosure prior to having been obtained by the receiving party either directly or indirectly from the other party; or (3) is hereafter lawfully disclosed to the receiving party by a third party who did not acquire the information in confidence directly or indirectly from the other party.
Odyssey warrants that it is the owner and licensor of the System and that it has the authority to permit access to the System and grant the rights set forth in this Agreement. Odyssey further warrants that the System shall operate substantially in accordance with the provisions of this Agreement.
ODYSSEY DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY THE SYSTEM WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE SYSTEM WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ODYSSEY MAKES NO WARRANTY, REPRESENTATION, PROMISE, OR GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SYSTEM, USER DOCUMENTATION OR RELATED TECHNICAL SUPPORT, INCLUDING THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY OTHER WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, FREEDOM FROM ERROR OF THE OPERATION, USE, AND FUNCTION OF THE SYSTEM.
8. Infringement Indemnification.
Odyssey shall indemnify and hold Subscriber harmless from and against any claim by a third party of infringement of a United States patent or copyright based solely upon the use by Subscriber of the System in accordance with instructions provided by Odyssey and not in combination with any other software, system or process, provided Subscriber gives Odyssey prompt written notice of and opportunity to defend any such claim and reasonable assistance in so doing. Odyssey shall have the right to (i) settle the claim, (ii) provide Subscriber a license or subscription to non-infringing functionally equivalent software; or (iii) terminate the Agreement, all at Odyssey’s sole option. The foregoing states the entire liability of Odyssey with respect to alleged infringements of any patents or copyrights by System.
9. Loss or Damage; Limitation of Liability.
(i) The obligations of Odyssey shall be limited to providing access and use of the System to Subscriber for Subscriber’s use in accordance with this Agreement, and Odyssey does not assume or undertake any obligation or liability under any transportation or other contracts or agreements of Subscriber or otherwise in respect of Subscriber’s transportation activities or operations. Subscriber will look exclusively to WIN Carriers or other third parties contracted by Subscriber (including, but not limited to, Subscriber’s incumbent motor carriers and transportation brokers as set forth in subsection (ii) below) for loss, damage to, or destruction of materials or goods or other liabilities arising while in transit. Odyssey will have no liability for any loss or damage to the materials or goods, or for any other loss, damage or injury (including personal injury and property damage) incident to the transportation, storage or handling of materials or goods, or for any claims or liabilities for failure to deliver or delays in delivering materials or goods, and Subscriber hereby releases and agrees to indemnify, defend, and hold Odyssey harmless from any such liability, loss, damage or injury, and claims or suits arising therefrom (including attorney’s fees and costs of defending same).
(ii) Loss or Damage to Subscriber’s goods and materials, as managed by and while under the care, custody, and control of Subscriber’s incumbent carriers and brokers will be subject to and governed by Subscriber’s contractual terms, or otherwise, with such carriers and brokers.
(iii) Loss or Damage to Subscriber’s goods and materials in the United States pursuant to this Agreement, as managed by and while under the care, custody, and control of a WIN Carrier shall be subject to and governed by the provisions of the Carmack Amendment (49 U.S.C. § 14706) and any additional WIN Carrier terms and conditions not in conflict with the same, as made available by WIN Carriers and mutually agreed with Subscriber through the System or as otherwise mutually agreed in writing between Subscriber and such carriers. Further, all claims for loss or damage to such goods and materials hereunder shall be processed with the applicable WIN Carrier in accordance with the provisions of 49 C.F.R. § 370 and any additional or different WIN Carrier terms and conditions not in conflict with the same, as made available by such carriers and mutually agreed with Subscriber as set forth above. In the event of a conflict, the terms of this Agreement shall prevail.
(iv) Subscriber will be solely responsible for payment of freight and other charges to its incumbent motor carriers and transportation brokers and WIN Carriers associated with the transportation services engaged by Subscriber through the System. Subscriber shall indemnify, defend, and hold harmless Odyssey from any and all claims, suits, liabilities, or losses, including claims for payment from its incumbent motor carriers and transportation brokers and WIN Carriers and other third parties (and including attorneys’ fees and other costs of defending same), arising from Subscriber’s failure or delay in providing funds for payment of freight and other charges as herein provided.
IN NO EVENT SHALL ODYSSEY BE LIABLE FOR LOSS OF PROFIT, GOODWILL OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF ODYSSEY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN SECTION 8, ODYSSEY’S TOTAL LIABILITY FOR ALL CLAIMS THAT ARISE OUT OF THIS AGREEMENT SHALL NOT EXCEED THE SUM OF TWENTY-FIVE THOUSAND U.S. DOLLARS IN THE AGGREGATE.
10. Hosting and Support.
During the Term, Odyssey will host, update, and manage the System. Subscriber shall be responsible for input and management of its content comprised of Subscriber’s transportation data input to order templates prepared by Odyssey. Odyssey will operate and maintain the System to achieve 99.5% uptime over a 12 month period (other than due to failures of the Internet or other systems outside the control of Odyssey), regardless of the duration of individual outages, and other than scheduled or unscheduled maintenance for up to eight (8) hours per month, using reasonable efforts whenever possible to do so during low-usage times of the day.
11. Telephone Support.
Odyssey will maintain a telephone and email “help desk” with a toll free number for access by Subscriber’s designated employee users to provide reasonable telephone consultation on technical issues relating to the use of the System.
A) Governing Law and Dispute Resolution. This Agreement will be governed by and interpreted in accordance with the laws of the State of Connecticut, U.S.A., excluding its conflict of law principles. Any action to enforce this Agreement or which in any way deals with this Agreement must be brought in a state or federal court of competent jurisdiction located in the State of Connecticut, and Subscriber irrevocably submits to the jurisdiction of the federal and state courts located in Connecticut for such purpose.
B) Restricted Rights. Subscribed Programs acquired with United States Federal Government funds or intended for use within or for any United States federal agency are provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable. Subscriber acknowledges that none of the System is subscribed for use in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications.
C) Assignment. This Agreement shall be binding upon the successors and assigns of the parties hereto. Neither party may assign this Agreement, nor any part thereof, without the prior written consent of the other party which shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to a successor in interest to all or substantially all of the business and assets to which this Agreement relates. Any purported or attempted assignment in contravention hereof shall be void.
D) Notices. Any notice required or permitted to be sent under this Agreement shall be sent by certified mail, return receipt requested, to Odyssey as follows:
Odyssey Logistics & Technology Corporation
39 Old Ridgebury Road
Danbury, CT 06810
Attn: General Counsel
or to Subscriber at the address first set forth above in this Agreement, or in each case as changed by notice to the other party in accordance with this provision. Such notices shall be effective when received.
E) Severability. Any provision of this Agreement that is held to be invalid by a court of competent jurisdiction shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
F) Force Majeure. Neither party shall be liable to the other party for failure or delay in fulfilling its obligations under this Agreement (other than the obligation to pay money) to the extent that such failure or delay is due to causes beyond its reasonable control.
G) Waiver. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
H) Entire Agreement. This Agreement as it may be supplemented or amended from time to time by Odyssey (including updates to these terms and conditions on the System website) constitutes the entire agreement between the parties with regard to the subject matter of this Agreement and supersedes all previous communications, whether oral or written, as well as any side letters, between the parties with respect to such subject matter. Neither the course of conduct between the parties nor trade usage shall modify or alter this Agreement. If Subscriber issues a purchase order or other writing addressing the subject matter of this Agreement, such purchase order or writing shall be for Subscriber’s internal purposes only, and the terms and conditions contained therein shall have no force or effect. Odyssey reserves the right to revise these terms and conditions from time to time. Odyssey will date and post the most current version of these terms and conditions on the System website (www.gowithwin.com). Any changes will be effective upon posting the revised version of these terms and conditions. If, in Odyssey’s sole discretion, it deems a revision to these terms and conditions to be material, it will notify Subscriber by email to the email address associated with Subscriber’s account. Subscriber shall then have ten (10) days from such email notice to accept or reject such material revision. If Subscriber rejects a material revision to these Terms of Service, it must provide written notice to Odyssey and this Agreement and Subscription will automatically terminate upon Odyssey’s receipt of such notice. Absent such notice, Subscriber’s continued access or use of any portion of the System constitutes acceptance of such revisions.
I) Independent Parties. Odyssey and any third party providing software, equipment or services in conjunction with this Agreement, if applicable, are independent parties. Regardless of whether such third party software is incorporated in the System, neither Odyssey nor such third party shall be liable for the performance or failure to perform of the other.
J) Compliance with Law. Subscriber shall comply with all international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its undertakings with respect to the System. Without limiting the foregoing, Subscriber acknowledges that the laws, rules and regulations of the United States and its respective agencies and departments prohibit or restrict the export or re-export of technical data or products of the United States and certain other transactions involving United States persons to or with proscribed countries listed in export control regulations of the United States (and the aiding, abetting or facilitation of such prohibited or restricted transactions) unless properly licensed or authorized by the United States government, and agrees that in its use of the System it will comply in all respects with any such applicable laws, rules and regulations.