TRADING PARTNER TERMS
These Trading Partner Terms (as may be updated from time to time by Blume Global) are incorporated into each Trading Partner’s “Agreement” that governs its access and use of Blume Global products or services.
1.1. General. Unless otherwise defined in the Agreement, terms with initial capital letters are either defined in Section 1.2 or in the section in which they are first used, whether used in the plural or singular, in any tense or part of speech, and regardless of gender. Additionally, the term “including” means “including, but not limited to” and “or” includes “and/or”.
1.2. Other Terms. The following terms shall have the meanings set forth below:
(b) “Applications” shall mean the proprietary software application(s) owned by Blume Global or its affiliates (or portions thereof) that are made available to Trading Partner on a software as a service basis or as a mobile application pursuant to the Agreement.
(d) “Data” shall mean any data or information that is provided or entered into or collected by the Applications by or on behalf Trading Partner and recorded on the Blume Global data repository.
(e) “Documentation” shall mean any written description of an Application and its functionality, release notes, training aids, and any other works of authorship relating to the use of the Application that are supplied or otherwise made available by Blume Global to Trading Partner.
(i) “Output” shall mean any data, information, and reports relating to Trading Partner’s operations that, in each case, are generated by the Applications and are provided or made available to Trading Partner.
(l) “Statistics” shall mean statistical, correlative, performance, or other information or data related to the operation of the Applications (including any measurable action or activity associated with a shipment or related asset that is recorded by the Applications), based in whole or in part on the Data, Output or any other information or data provided by Trading Partner.
2. ACCESS TO APPLICATIONS.
2.1. Generally. Blume Global shall use commercially reasonable efforts to make the Application available for use by Trading Partner. Subject to the terms of the Agreement, Blume Global grants to Trading Partner during the term of the Agreement a nontransferable, non-exclusive, non-sublicensable, limited license to access and use the Applications and Documentation for its internal business operations. Trading Partner acknowledges and agrees that, from time to time, Blume Global may modify the Applications, their names, their functionality or the manner in which they are made available.
2.2. Security. Blume Global may use security measures, including physical security measures, User identification, password control, and a firewall, to prevent the unauthorized access and use of the Applications. Blume Global shall not be responsible for unauthorized access or use of the Applications. Trading Partner shall assume sole responsibility for the security of its User identification and passwords and for all charges incurred and obligations arising through the use of such user identification and passwords.
2.3. Restrictions on Use. Access and use of the Applications is subject to the following terms:
(a) Trading Partner shall access and use the Applications only in accordance with applicable laws and the Documentation.
(c) Trading Partner shall not access or use the Applications and Documentation for any purpose outside of Trading Partners’ legitimate business purposes.
(d) Trading Partner shall not: (i) disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the Applications; (ii) modify, adapt, create derivative works based upon, or translate the Applications, Documentation or any part thereof; (iii) copy, install or use any components of the Applications on any of its computer systems, servers or networks; or (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in or access to the Applications or Documentation in any form to any party other than its authorized users.
(e) Trading Partner shall not: (i) use any device, software or technique to interfere with or attempt to interfere with the Applications, or interfere with any other party’s use and enjoyment of the Applications; (ii) attempt by any means to gain unauthorized access to the Applications, including access through other accounts not legally registered as an authorized user; (iii) pass User identification or passwords to any third party without written consent from Blume Global; (iv) use any robot, spider or other automatic device, process or means to access the Applications, or use any manual process to monitor or copy content from the Applications for any other unauthorized purpose without Blume Global’s prior express written permission; or (v) engage in any activity that could be construed to constitute unsolicited or unauthorized advertising or promotion.
(f) Trading Partner shall be liable for the acts and omissions of its personnel that use the Applications.
3. DATA AND OUTPUT.
3.1. Generally. Trading Partner is solely responsible for providing all Data necessary to use the Applications and authorizes Blume Global to access and use the same as needed to provide the Services. All Data should be provided in a format acceptable to Blume Global. Blume Global shall have no liability to Trading Partner arising from non-performance of an Application due to missing, incorrect, improperly formatted or incomplete Data. Trading Partner will take reasonable care to protect access to Output and shall make Output available only to authorized users of the Applications. If Trading Partner transfers Data electronically through a third-party network, transmission costs for such network are solely the responsibility of Trading Partner.
3.2. Statistics. Trading Partner grants Blume Global a perpetual, irrevocable, worldwide, nonexclusive, royalty-free, fully paid-up license to use Data, Output, and any other information provided by Trading Partner to create Statistics. Blume Global shall own and retain all right, title, and interest in and to any Statistics, including any worldwide intellectual property rights therein. Blume Global may use Statistics for any purpose (including to improve machine learning and artificial intelligence technologies used in connection with the Applications), provided that it will only disclose information related to Trading Partner’s use of the Applications on an aggregated basis that will not identify individual users or Trading Partner.
3.3. Data Restrictions. Trading Partner shall not:
(a) post, upload or otherwise transmit any Data that (i) is unlawful, harmful or otherwise objectionable or violates any applicable laws; (ii) violates any contractual or fiduciary relationship; (iii) infringes, violates or misappropriates any intellectual property right or other publicity or privacy rights of any party; (iv) contains viruses, bugs, Trojan horses, malware, spyware or any other harmful or deleterious programs; or (v) is defamatory in any way or of an obscene nature.
(b) disguise or misrepresent any Data or the origin of such material including by impersonating any person or entity, creating a false identity or falsely stating or otherwise misrepresenting affiliation with a person or entity or by manipulating headers or other identifiers.
4. OWNERSHIP. The licenses granted in Section 3 are not a sale and do not convey any rights of ownership in or to the Applications, Documentation, or in any portion, copies or derivative works thereof. All right, title, and interest in and to the Applications and Documentation, any works of authorship, ideas, inventions (whether patentable or not), techniques, know-how, and programs (including source code) embodied therein, and any derivative works of the foregoing are and will remain the sole and exclusive property of Blume Global or its affiliates, and Trading Partner hereby irrevocably assigns to Blume Global any right, title or interest it may acquire in any of the foregoing.
5. TERMINATION AND SUSPENSION.
5.1. Termination for Convenience; Suspension. Blume Global and Trading Partner are each entitled to terminate the Agreement for its convenience immediately upon written notice to the other Party. Additionally, in the event of a breach by Trading Partner of the Agreement, in addition to any other remedies available to Blume Global, may (in its sole discretion) suspend Trading Partner’s access to the Applications.
5.2. Effect of Termination or Expiration. Upon termination or expiration of the Agreement for any reason: (a) Trading Partner shall have no further right to access or use the applicable Applications and (b) Trading Partner shall pay to Blume Global all accrued Fees due under the Agreement.
5.3. Survival of Certain Terms. The provisions of the Agreement which by their nature are intended to survive termination or expiration of the Agreement shall survive termination or expiration, including Sections 4, 6, 7, and 8 of these Trading Partner Terms.
6. DISCLAIMER. THE APPLICATIONS AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND USE THEROF IS AT TRADING PARTNER’S OWN RISK. BLUME GLOBAL, ITS AFFILIATES, LICENSORS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, AND AGENTS (COLLECTIVELY, THE “BLUME PARTIES”) MAKE NO WARRANTIES, AND HEREBY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, ARISING FROM OR RELATED TO THE AGREEMENT, THE APPLICATIONS, AND THE DOCUMENTATION. WITHOUT LIMITATION, THE BLUME PARTIES DISCLAIM (I) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE APPLICATIONS AND DOCUMENTATION; (II) ANY WARRANTIES THAT THE APPLICATIONS FOR CONFORM TO THE DOCUMENTATION OR THAT ACCESS TO THE APPLICATIONS WILL BE CONTINUOUS, UNINTERRUPTED AND/OR ERROR-FREE; (III) ANY WARRANTIES AS TO THE ACCURACY OF POSTINGS ON, OR SUBMISSIONS TO, THE APPLICATIONS BY OR ON BEHALF OF USERS OF THE APPLICATIONS; OR (IV) ANY OTHER WARRANTIES RELATING TO THE APPLICATIONS AND DOCUMENTATION THAT MAY ARISE FROM TRADE, USAGE, PERFORMANCE OR CUSTOM WITH REGARD TO THE APPLICATIONS, DOCUMENTATION, AND SERVICES.
7. LIMITATION OF LIABILITY.
7.1. Data and Access. THE BLUME PARTIES WILL NOT BE LIABLE TO TRADING PARTNER FOR CLAIMS OR DAMAGES ARISING FROM OR RELATING TO (a) THE CORRUPTION, UNAUTHORIZED DISCLOSURE OR ERASURE OF DATA TRANSMITTED OR RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS; (b) THE LOSS OF DATA, INABILITY TO ACCESS THE APPLICATIONS, INABILITY TO TRANSMIT OR RECEIVE DATA, OR DELAYS, NON-DELIVERY OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF THE BLUME PARTIES, INCLUDING, SUPPLIER PROBLEMS, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS; OR (c) ERRORS, DEFECTS OR NON-CONFORMITIES IN THE APPLICATIONS CAUSED, DIRECTLY OR INDIRECTLY, BY NETWORKS, COMPUTERS, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT OR OTHER DEVICES USED BY TRADING PARTNER.
7.2. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL THE BLUME PARTIES BE LIABLE TO TRADING PARTNER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF BLUME GLOBAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO THE AGREEMENT. THE BLUME PARTIES’ MAXIMUM, CUMULATIVE LIABILITY TO TRADING PARTNER ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE GREATER OF (i) SIX (6) TIMES THE AVERAGE MONTHLY AMOUNT PAID BY TRADING PARTNER DURING THE TERM OF THE AGREEMENT OR (ii) $5,000, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON SUCH CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE.
8. INDEMNIFICATION. Trading Partner shall defend, indemnify, and hold the Blume Parties harmless from and against any and all third party costs, losses, judgments, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (a) its breach of the Agreement, (b) any claim arising from or related to its use of the Applications; and (c) any other acts or omissions of Trading Partner or its personnel.
9. DISPUTE RESOLUTION. Any dispute, disagreement or claim arising out of the Agreement will be finally settled and determined by arbitration administered by the American Arbitration Association (the “AAA”) under its then-current International Arbitration Rules (the “AAA Rules”). The written award of the arbitrators is final and binding upon the Parties, and judgment on or enforcement of the award may be sought, had or entered in any court having jurisdiction. Each Party is entitled to appoint one arbitrator, and after consultation with the Parties, the AAA shall appoint a third arbitrator. The seat of arbitration is San Francisco, California, U.S.A. The arbitrators may hold hearings at such other locations, as the arbitrators shall determine, after consultation with the Parties. The arbitral proceedings and all pleadings and written evidence will be in the English language. Notwithstanding the foregoing, nothing in the Agreement prohibits a Party from seeking equitable relief in any court of competent jurisdiction without complying with the terms of this section.
10.1. Governing Law. The Agreement is governed by and construed in accordance with the laws of the State of Delaware, U.S.A. without regard to its conflict of law provisions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to the Agreement.
10.2. Entire Agreement. The Agreement (including these Trading Partner Terms) constitute the entire understanding and agreement of the Parties with respect to the subject matter and supersede all prior and contemporaneous agreements or understandings, whether written or oral, between the Parties with respect to the Services provided by Blume Global.
10.3. Independent Contractors. Blume Global and Trading Partner are independent contractors and the Agreement will not establish any relationship of partnership, joint venture or agency between Blume Global and Trading Partner. Neither Party has the power or authority to bind the other.
10.4. No Third Party Beneficiaries. No provisions of the Agreement are intended, nor shall they be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any other party with respect to the terms of the Agreement.
10.5. Severability. The unenforceability of any provision of the Agreement shall not impair the enforceability of any other part of the Agreement. If any provision of the Agreement is invalid or unenforceable, in whole or in part, then the Agreement is deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties.
10.6. Waiver. A Party’s failure at any time to require performance of any obligations of the other Party will not be deemed a waiver and will not affect its right to enforce any provision of the Agreement at a subsequent time.
10.7. Export Laws. The Agreement (and Trading Partner’s right to use the Applications) is expressly made subject to all laws, regulations, orders and other restrictions on the export from the United States of software, hardware or technical information which may be imposed from time to time by the United States government.
10.8. Amendment. Written agreement by both Parties is required to amend any term or provision of the Agreement or to waive the observance of any term of the Agreement.
10.9. Force Majeure. Neither Party will be deemed to be in default under the Agreement for any delays or failures in its performance of its obligations hereunder (except for Trading Partner’s performance of its payment obligations) to the extent such failures or delays result from acts beyond either Party’s reasonable control, including fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, strikes, walkouts, riots, civil disorders, rebellions, quarantines, epidemics, strikes or shortages of utilities or materials, embargoes or other similar governmental action (a “Force Majeure Event”), provided that the affected Party promptly notifies the other Party and takes commercially reasonable steps to remedy the effects of the Force Majeure Event.