Manifold Freight Incorporated
Terms and Conditions
These Manifold Terms and Conditions (“Terms”) set forth the terms and conditions that govern the use by the customer identified in the Manifold Order Form (“Customer”) of the Manifold software-as-a-service platform and related products and services (the “Manifold Services”). These terms are a legally binding contract between Manifold Freight Incorporated (“Manifold”) and Customer. In consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
- SAAS SERVICES AND SUPPORT
- Subject to these Terms, Manifold will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Manifold account. Manifold reserves the right to refuse registration of or cancel passwords it deems inappropriate.
- Subject to the terms hereof, Manifold will provide Customer with reasonable technical support services in accordance with Manifold’s standard practice.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, and shall not permit any other person to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Manifold Services or any software, documentation or data related to the Manifold Services (“Software”); (ii) modify, translate, or create derivative works based on the Manifold Services or any Software (except to the extent expressly permitted by Manifold or authorized within the Manifold Services); (iii) rent, lease, lend, broker, sublicense, assign, distribute, publish, transfer, use the Manifold Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels from the Manifold Services; (v) attempt to gain unauthorized access to the Manifold Services; (vi) access the Manifold Services for benchmarking purposes, attempt to replicate the Manifold Services, or otherwise use the Manifold Services for the purpose of building a competitive product or service.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Manifold Services, Software 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. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
- Customer represents, covenants, and warrants that Customer will use the Manifold Services only in compliance with Manifold’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold Manifold harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Manifold Services. Although Manifold has no obligation to monitor Customer’s use of the Manifold Services, Manifold may do so and may prohibit any use of the Manifold Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Manifold Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without Customer’s knowledge or consent.
- Customer will be responsible for the acts or omissions of its employees, consultants, contractors, representatives, and agents who are authorized by Customer to access and use the Manifold Services (“Authorized Users”). Manifold has no obligation to verify the identity of or monitor any person who gains access to the Manifold Services by means of Customer’s authorized access. Customer shall (a) restrict access to and use of the Manifold Services to those Authorized Users who are required to access and use the Manifold Services as part of their official duties for Customer; (b) take reasonable measures to ensure that none of its Authorized Users i) obtain and/or use any information from the Manifold Services for any personal reasons, or (ii) transfer any information received through the Manifold Services to any party except as expressly permitted hereunder; (c) keep all user identification numbers, and related passwords, or other security measures (collectively, “User IDs”) confidential and prohibit the sharing of User IDs among Authorized Users or otherwise; (c) immediately deactivate the User ID of any Authorized User who no longer requires access to the Manifold Services, or for terminated Authorized Users on or prior to the date of termination; and (e) immediately inform Manifold if Customer suspects or becomes aware of any compromise in the security of Authorized User IDs or passwords, or if unauthorized use of the Manifold Services is known or suspected by Customer.
- Manifold and Customer are independent contractors, and neither Manifold nor Customer is an agent, representative, employer, employee, or partner of the other. As between Manifold and Customer, it is Customer’s obligation to (i) inform Manifold of any restrictions regarding the use of Customer Data and any other data made available through the Manifold Services; and (ii) obtain necessary rights and consents for Manifold to access and use the Customer Data.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Manifold includes non-public information regarding features, functionality and performance of the Manifold Services. Proprietary Information of Customer includes non-public data provided by Customer to Manifold or otherwise obtained by Manifold from the Customer systems to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Notwithstanding anything to the contrary, Manifold shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Manifold Services and related systems and technologies (including, without limitation, information concerning Customer Data, Customer’s use of the Manifold Services, and data derived therefrom) (collectively, “Derived Data”), and Manifold will be free (during and after the term hereof) to (i) use such Derived Data to improve and enhance the Manifold Services and for other development, diagnostic and corrective purposes in connection with the Manifold Services and other Manifold offerings, and (ii) disclose such Derived Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Customer shall own all right, title and interest in and to the Customer Data. Manifold shall own and retain all right, title and interest in and to (a) the Manifold Services, Software and Derived Data, together with all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Manifold Services, or the implementation or support thereof, and (c) all intellectual property rights related to any of the foregoing.
- PAYMENT OF FEES
- Customer will pay Manifold the applicable fees described in the Manifold Order Form for the Manifold Services (including implementation of the Manifold Services, if applicable, which implementation services shall constitute “Manifold Services” for purposes of these Terms) (the “Fees”) in accordance with the terms therein. If Customer’s use of the Manifold Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of these Terms), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
- Manifold reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Manifold has billed Customer incorrectly, Customer must contact Manifold no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Manifold’s customer support department.
- Manifold may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Manifold thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service.
- Customer shall be responsible for all taxes associated with Manifold Services other than U.S. taxes based on Manifold’s net income.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, these Terms are in effect for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may also terminate these Terms upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms and fails to cure such breach within thirty (30) days of receipt of such notice. Customer will pay in full for the Manifold Services up to and including the last day on which the Manifold Services are provided. Upon any termination, Manifold will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Manifold may, but is not obligated to, delete stored Customer Data. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Manifold shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation and support for the Manifold Services in a professional and workmanlike manner. The Manifold Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Manifold or by third-party providers, or because of other causes beyond Manifold’s reasonable control, but Manifold shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, MANIFOLD DOES NOT WARRANT THAT THE MANIFOLD SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MANIFOLD SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE MANIFOLD SERVICES ARE PROVIDED “AS IS” AND MANIFOLD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- INDEMNITY
Manifold shall defend and indemnify Customer from liability to third parties resulting from any third party claim that the Manifold Services infringe any United States patent or copyright or misappropriate any trade secret, provided Manifold is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and settlement of such claim. Manifold will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Manifold Services (i) not supplied by Manifold, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Manifold, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Manifold Services is not strictly in accordance with these Terms. If Manifold has reason to believe a claim of infringement is likely or, due to a claim of infringement, the Manifold Services are held by a court of competent jurisdiction to be infringing, Manifold may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate these Terms and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. THE FOREGOING STATES THE ENTIRE OBLIGATION AND LIABILITY OF MAINFOLD, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE MANIFOLD SERVICES ARISING OUT OF OR RELATED TO THESE TERMS AND MANIFOLD’S PERFORMANCE HEREUNDER.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON (INCLUDING DEATH), NEITHER MANIFOLD NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; (C) FOR ANY MATTER BEYOND MANIFOLD’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO MANIFOLD FOR THE MANIFOLD SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT MANIFOLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- MISCELLANEOUS
If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sublicensable by Customer except with Manifold’s prior written consent. Manifold may transfer and assign any of its rights and obligations under these Terms without consent. These Terms are 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 these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms and Customer does not have any authority of any kind to bind Manifold in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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. These Terms shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Manifold to serve as a reference account upon request.
