Terms & Conditions

THESE CARRIER1 PLATFORM TERMS AND CONDITIONS(THE “TERMS AND CONDITIONS”) GOVERN YOUR ACCESS TO AND USE OF THE CARRIER1PLATFORM (AS DEFINED BELOW) AND IS BETWEEN CARRIER1 Corporation (ALSO REFERREDTO AS “CARRIER1,” “WE,” “US,” OR “OUR”) AND THE ENTITY YOU REPRESENT, OR, IF YOU DO NOT DESIGNATE ANENTITY, YOU INDIVIDUALLY (“CUSTOMER”,“YOU” OR “YOUR”). THESE TERMS AND CONDITIONS TOGETHER WITH THE ORDER FORM(DEFINED BELOW) CONSTITUTE THIS “AGREEMENT”.  THE SPECIFIC FEATURES AND USAGE OF THE CARRIER1PLATFORM THAT YOU ARE ENTITLED TO ACCESS HEREUNDER WILL BE SET FORTH IN ANORDER FORM SIGNED BY THE PARTIES OR WILL BE OTHERWISE AGREED TO BY THE PARTIESVIA A PURCHASE ORDER OR THROUGH OPTIONS IN AN ONLINE MENU MADE AVAILABLE BY CARRIER1AND SELECTED BY YOU IN AN ONLINE PORTAL HOSTED BY OR ON BEHALF OF CARRIER1 (THE“ORDER FORM”).  THIS AGREEMENTTAKES EFFECT ON THE DATE CUSTOMER EXECUTES OR OTHERWISE ASSENTS TO THE ORDERFORM (THE “EFFECTIVE DATE”). YOUREPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO THIS AGREEMENT. IF YOUARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT TO US THAT YOUHAVE LEGAL AUTHORITY TO BIND THAT ENTITY. EACH OF CUSTOMER AND CARRIER1 MAY BEREFERRED TO HEREIN AS A “PARTY” AND TOGETHER AS THE “PARTIES”.

CARRIER1MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT FROM TIME TO TIME BYPROVIDING THIRTY (30) DAYS’ PRIOR NOTICE TO CUSTOMER. CUSTOMER CAN REVIEW THECURRENT VERSION OF THIS AGREEMENT AT ANY TIME AT HTTP://WWW.CARRIER1.COM/TERMS-CONDITIONS.  IF CUSTOMER ACCESSES THE CARRIER1 PLATFORMAFTER THE DATE ON WHICH THE REVISED AGREEMENT BECOMES EFFECTIVE, CUSTOMER’SACCESS WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.  IF ANY CHANGE TO THIS AGREEMENT IS NOTACCEPTABLE TO CUSTOMER, CUSTOMER’S ONLY REMEDY IS TO STOP ACCESSING THE CARRIER1PLATFORM.

BACKGROUND

Carrier1 has developed a proprietary software-as-a-service platform designedto facilitate the operations of asset-based freight carriers (“Carriers”),including connecting those Carriers with the users of their services and theassociated vendor groups supporting their operations (“Tenants”) (suchplatform, the “Carrier1 Platform”). Carriers and Tenants, as well as anyweb or mobile app visitors, are referred to collectively as “Users”. TheCarrier1 Platform includes any updates that are made generally available by Carrier1to customers at no additional charge during the Term (as defined below), butexpressly excludes any upgrades or additional services, features or analyticsthat are made available by the Carrier1 for an additional charge.  These Terms andConditions are incorporated by reference into the Order Form to create thisAgreement and will be incorporated by reference into each Future Order Form tocreate separate future agreements for the rights and services described in theapplicable Future Order Form, in each case to the exclusion of any other termsor conditions that either party seeks to impose or incorporate or that areimplied by course of dealing.

1       ACCESS TO PLATFORM

1.1   Carrier1 Platform.  Carrier1 willmake the Carrier1 Platform available to Customer via the Internet pursuant tothis Agreement during the Term.  Subject to the terms and conditions of this Agreement, Carrier1hereby grants Customer a limited, non-exclusive, non-transferable(except as set forth in Section 10), non-sublicensableright to access and use the Carrier1Platform during the Term solely for Carrier’soperational purpose as further discussed within the related Order Form.  

1.2   Limitations. The following limitations and restrictions will apply to the Carrier1Platform:

        a        Customer will not provide access to the Carrier1Platform to any person who is not an employee or contractor, unless otherwiseagreed to in writing by Carrier1 (“Authorized Users”).

        b        Exceptas expressly permitted hereunder, Customer will not and will not permit orauthorize any third party to: (i) reverse engineer, decompile, disassemble orotherwise attempt to discover the source code, object code or underlyingstructure, ideas or algorithms of the Carrier1 Platform; (ii) modify, translateor create derivative works based on the Carrier1 Platform; (iii) copy, rent,lease, distribute, pledge, assign or otherwise transfer or allow any lien,security interest or other encumbrance on the Carrier1 Platform; (iv) use the Carrier1Platform for timesharing or service bureau purposes or otherwise for thebenefit of a third party; (v) hack, manipulate, interfere with or disrupt theintegrity or performance of or otherwise attempt to gain unauthorized access tothe Carrier1 Platform or its related systems, hardware or networks or anycontent or technology incorporated in any of the foregoing; or (vi) remove orobscure any proprietary notices or labels of Carrier1 or its suppliers on the Carrier1Platform.

2       Ownership; Reservation of Rights  

2.1    Customer Data.  Customer or its licensors own the data input or uploaded byCustomer into the Carrier1 Platform (“Customer Data”).Customerhereby grants Carrier1 the non-exclusive, worldwide, royalty-free, fully paidup, sublicensable, nontransferable (except as set forth in Section 10) right and license to (a) copy, use, modify, distribute anddisplay Customer Data solely to the extent necessary to perform its obligationsunder this Agreement, (b) copy, modify and use Customer Datain connection with internal operations and functions, including, but notlimited to, operational analytics and reporting, internal financial reportingand analysis, audit functions, archival purposes and improving Carrier1’sproducts and services, and (c) copy, use, modify, distribute anddisplay Customer Data on an aggregate and/or anonymized basis, solely to theextent that the aggregate data does not include information that identifies orwould reasonably be expected to identify Customer.  As between the parties, Customer reserves any and all right, title and interest in andto the Customer Data other than the licenses therein expressly granted to Carrier1under this Agreement.  

2.2    Ownership; Reservation of Rights.  Customer acknowledges andagrees that, as between the parties, Carrier1 retains all rights, title, and interestin and to the Carrier1 Platform, all copies or parts thereof (by whomeverproduced), allimprovements, updates, modifications or enhancements thereto, and all intellectual property rights therein.  Carrier1 grants no, and reserves any and all, rights other than the rights expressly granted to Customer underthis Agreement with respect to the Carrier1 Platform.  

2.3    Feedback.  Customer may from time to time providesuggestions, comments for enhancements or functionality or other feedback (“Feedback”)to Carrier1 with respect to the Carrier1 Platform.  Carrier1 will have full discretion todetermine whether or not to proceed with the development of the requestedenhancements, new features or functionality. Customer hereby grants Carrier1 a royalty-free, fully paid up, worldwide,transferable, sublicensable, irrevocable, perpetual license to (a) copy,distribute, transmit, display, perform, and create derivative works of theFeedback; and (b) use the Feedback and/or any subject matter thereof, includingwithout limitation, the right to develop, manufacture, have manufactured,market, promote, sell, have sold, offer for sale, have offered for sale,import, have imported, rent, provide and/or lease products or services whichpractice or embody, or are configured for use in practicing, the Feedbackand/or any subject matter of the Feedback.

2.4    Customer Responsibilities.  OnlyCustomer’s authorized employees who have been assigned a unique login to the Carrier1Platform will be entitled to access and use the Carrier1 Platform under thisAgreement.  Customer will (a) usecommercially reasonable efforts to prevent unauthorized access to or use of theCarrier1 Platform and notify Carrier1 promptly of any such unauthorized accessor use, and (b) use the Carrier1 Platform only in accordance with thedocumentation, this Agreement and any applicable laws and regulations.  Customer will be solely liable for any usesof accounts linked to Customer’s login credentials.

2.5    Privacy; Data Security.  Carrier1 will implementand maintain reasonable administrative, physical and technical safeguards whichattempt to prevent any collection, use or disclosure of, or access to Customer Datathat this Agreement does not expressly authorize, including, withoutlimitation, an information security program that meets commercially reasonable industrypractice to safeguard Customer Data. Such information security program would include: (i) physical securityof all premises in which Customer Data will be processed and/or stored; and (ii)reasonable precautions taken with respect to the employment of, access givento, and education and training of any and all personnel furnished or engaged byCarrier1 to perform any part of the services hereunder.  

3       PROFESSIONAL SERVICES

3.1    Statements of Work.  From time to time, Carrier1 and Customer mayenter into statements of work, each of which will be executed by an authorizedrepresentative of each party and will reference and be governed by thisAgreement (each, an “SOW”).  EachSOW will set forth the professional services to be performed by Carrier1,including, without limitation, professional services related to theintegration, implementation and use of the Carrier1 Platform (the “ProfessionalServices”), and the fees payable by Customer to Carrier1 in connectiontherewith.  Each SOW will also includethe period of time that such SOW will remain in effect (subject to earliertermination as set forth therein), and any applicable (a) payment terms and (b)acceptance criteria and process with respect to any Professional Services.  Customer will pay to Carrier1 the fees setforth in each SOW in accordance with the terms set forth therein.  In addition, Customer will reimburse Carrier1for its travel and accommodation expenses incurred in connection with theperformance of the Professional Services, unless otherwise set forth in theapplicable SOW.

3.2    Professional Services.  Customer understands that Carrier1’sperformance of the Professional Services is dependent in part on Customer’sactions.  Accordingly, Customer willprovide Carrier1 with the necessary items and assistance specified in theapplicable SOW in a timely manner.  Anydates or time periods relevant to performance by Carrier1 hereunder shall beappropriately and equitably extended to account for any delays or change inassumptions due to Customer.  If aCustomer delay or change would materially change the economics of Carrier1’sperformance or materially extends the time for performance, Carrier1 mayterminate the applicable SOW upon thirty (30) days’ written notice, unlesswithin the notice period the parties agree on mutually acceptable changes tothis Agreement or the applicable SOW.

3.3    Change Orders.  Upon the receipt of a proposal from Customer tochange the terms of an SOW (a “Change Proposal”), Carrier1 will promptlyprovide (a) an impact analysis of such Change Proposal and (b) its financialimpact (if any) and, upon mutual agreement, it shall be signed by the partiesin the form of a mutually agreed written amendment to an SOW.  The parties agree that material changes to anSOW shall require a new SOW.

4       FEES; PAYMENT TERMS

4.1   Fees;Payment Terms.  Customer will pay to Carrier1 the fees set forth in the OrderForm in accordance with the payment terms set forth in the Order Form.  If payment of any fees is not made when dueand payable, a late fee will accrue at the rate of the lesser of one andone-half percent (1.5%) per month or the highest legal rate permitted by lawand Customer will pay all reasonable expenses of collection.  In addition, if any past due payment has notbeen received by Carrier1 within ten (10) days from the time such payment isdue, Carrier1 may suspend Customer’s access to the Carrier1 Platform until suchpayment is made.

4.2    Net of Taxes.  All amounts payable by Customer to Carrier1hereunder are exclusive of any sales, use and other taxes or duties, howeverdesignated, including without limitation, withholding taxes, royalties, know‑howpayments, customs, privilege, excise, sales, use, value‑added and propertytaxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except forthose taxes based on the income of Carrier1. Customer will not withhold any Taxes from any amounts due to Carrier1.   Notwithstanding the foregoing, if Carrier1 is required by law to collect any Taxes applicableto amounts paid by Customer in connection with use of the Carrier1 Platform orProfessional Services, then Carrier1 may state such amount as a separate line item on the invoiceand Customer will pay such amount to Carrier1; provided, that, Carrier1 will provide Customer with an official taxcertificate or other evidence of payment submitted to the applicable tax authority.

4.3   Overages.  Customer acknowledges that itsrights to access the Carrier1 Platform is on a metered basis as set forth inthe applicable Order Form (the “Baseline Usage”).  In the event Customer’s use of the Carrier1Platform exceeds the Baseline Usage then Carrier1 will have the right toequitably modify the fees set forth in the applicable Order Form.  

5       TERM, TERMINATION

5.1   Term.  The initialterm of this Agreement will commence on the Effective Date and continue for theinitial term set forth in the Order Form, unless earlier terminated as setforth herein (the “Initial Term”). Thereafter,this Agreement will automatically renew for additional periods of the sameduration (each, a “Renewal Term”, and together with the Initial Term,the “Term”), unless either party provides the other party with writtennotice of non-renewal at least thirty (30) days’ prior to the end of the then-currentterm.  

5.2   Termination;Effect of Termination.  Inaddition to any other remedies it may have, either party may terminate thisAgreement if the other party breaches any of the terms or conditions of thisAgreement and fails to cure such breach within thirty (30) days (or ten (10)days in the case of non-payment) of receiving notice thereof.  Upon any earlytermination of this Agreement, any fees committed under an Order Form for asubscription term shall remain due and payable as and when due following anytermination.  For example, if thesubscription term is 12 months, and Carrier1 terminates the applicable OrderForm at the end of the sixth (6^th) month, the fees for months seven(7) through twelve (12) shall remain due and payable as and when due. Uponany termination or expiration of this Agreement for any reason, Customer mayrequest an export of the Customer Data in a mutually agreed upon format withinthirty (30) days of the effective date of such termination or expiration. Thereafter, Carrier1 may, but is not obligatedto, in its sole discretion and without delivery of any notice to Customer, deleteany Customer Data stored or otherwise archived on the Carrier1 Platform or on Carrier1’snetwork. Upon any expiration or termination of the Agreement, all rightsgranted hereunder and all obligations of Carrier1 to provide the Carrier1Platform will immediately terminate and (a) Customer willcease use of the Carrier1 Platform; and (b) each party will returnor destroy all copies or other embodiments of theother party’s Confidential Information (subjectto Carrier1’s rights under Section 2.1(b) and (c)).  

5.3   Survival.  Upon expiration ortermination of this Agreement, all obligations in this Agreement willterminate, provided that Sections  2,4, 5.2, 5.3, 6, 7.4,8, 9 and 10 will survive.

6       CONFIDENTIALITY

Asused herein, “Confidential Information” means, subject to the exceptionsset forth in the following sentence, any information or data, regardless ofwhether it is in tangible form, disclosed by either party (the “DisclosingParty”) that the Disclosing Party has either marked as confidential orproprietary, or has identified in writing as confidential or proprietary withinthirty (30) days of disclosure to the other party (the “Receiving Party”);provided, however, that a Disclosing Party’s business plans,strategies, technology, research and development, current and prospectivecustomers, billing records, and products or services will be deemedConfidential Information of the Disclosing Party even if not so marked oridentified. Carrier1’s Confidential Information includes, without limitation,the Carrier1 Platform and the terms of this Agreement.  Information will not be deemed “ConfidentialInformation” if such information: (a) is known to the Receiving Party prior toreceipt from the Disclosing Party directly or indirectly from a source otherthan one having an obligation of confidentiality to the Disclosing Party; (b)becomes known (independently of disclosure by the Disclosing Party) to theReceiving Party directly or indirectly from a source other than one having anobligation of confidentiality to the Disclosing Party; or (c) becomes publiclyknown or otherwise ceases to be secret or confidential, except through a breachof this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of theother party solely to perform its obligations or exercise its rights under thisAgreement.  Neither party will disclose,or permit to be disclosed, the other party’s Confidential Information directlyor indirectly, to any third party without the other party’s prior writtenconsent, except as otherwise permitted hereunder.  Each party will use reasonable measures toprotect the confidentiality and value of the other party’s ConfidentialInformation.  Notwithstanding any provisionof this Agreement, either party may disclose the other party’s ConfidentialInformation, in whole or in part (i) to its employees, officers, directors, consultantsand professional advisers (e.g., attorneys, auditors, financial advisors,accountants and other professional representatives) who have a need to know andare legally bound to keep such Confidential Information confidential byconfidentiality obligations or, in the caseof professional advisors, are bound by ethical duties to keep such Confidential Information confidentialconsistent with the terms of this Agreement; and (ii) as required by law (inwhich case each party will provide the other with prior written notificationthereof, will provide such party with the opportunity to contest suchdisclosure, and will use its reasonable efforts to minimize such disclosure tothe extent permitted by applicable law). Each party agrees to exercise due care in protecting the ConfidentialInformation from unauthorized use and disclosure.  In the event of actual or threatened breachof the provisions of this Section, the non-breaching party will be entitled toseek immediate injunctive and other equitable relief, without waiving any otherrights or remedies available to it.  Eachparty will promptly notify the other in writing if it becomes aware of anyviolations of the confidentiality obligations set forth in this Agreement.  

7       REPRESENTATIONS, WARRANTIES AND DISCLAIMER

7.1    Representations and Warranties.  Each partyrepresents and warrants to the other partythat (a) such party has the required power and authority toenter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of itsobligations thereunder do not and will not violate any other agreement to whichit is a party; and (c) this Agreement constitutes a legal, valid and binding obligationwhen signed by both parties.  

7.2    Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and allrights necessary to provide the Customer Data to Carrier1 hereunder, andCustomer’s provision of the Customer Data to Carrier1 hereunder does not andwill not violate or conflict with or result in a breach of any terms,conditions, duties or obligations Customer has to any third party or any otherrights of any third party or any applicable law, rule or regulation.

7.3    Uptime.   Carrier1 will use reasonable effortsconsistent with prevailing industry standards to provide the Carrier1 Platformin a manner that minimizes errors and interruptions in accessing the Carrier1Platform. The Carrier1 Platform may be temporarily unavailable for scheduledmaintenance or for unscheduled emergency maintenance, either by Carrier1 or bythird-party providers, or because of other causes beyond Carrier1’s reasonablecontrol, but Carrier1 will use reasonable efforts to provide advance notice in writingor by email of any scheduled service disruption within Carrier1’s control.  Carrier1 will provide telephone, webbasedchat/messaging, and e-mail support Monday through Friday, 6 a.m. through 5 p.m.Arizona Time.

7.4    Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CARRIER1 PLATFORM ISPROVIDED ON AN “AS-IS” BASIS AND CARRIER1DISCLAIMS ANY AND ALL WARRANTIES.  CARRIER1DOES NOT WARRANT THAT THE CARRIER1 PLATFORM ISERROR-FREE OR THAT OPERATION OF THECARRIER1 PLATFORM WILL BE UNINTERRUPTED. CARRIER1DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE CARRIER1 PLATFORM AREACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND CARRIER1 EXPRESSLYDISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS.  EXCEPT AS OTHERWISEEXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONALREPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER INFACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  ALL OTHER EXPRESS OR IMPLIED CONDITIONS,REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BYAPPLICABLE LAW.  EACH PARTY EXPRESSLYDISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.

8       limitations of liability

8.1    Disclaimer of Consequential Damages.  THE PARTIES HERETO AGREE THAT,NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A)CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 6, AND (C) LIABILITYARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9.1 AND 9.2 BELOW, IN NO EVENT WILLEITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE,INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOSTPROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDINGNEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITYTHEREOF.  

8.2    General Cap on Liability.  NOTWITHSTANDING ANY OTHER PROVISION OF THISAGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTIONS 2, (B) EITHERPARTY’S BREACH OF SECTION 6, AND (C) LIABILITY ARISING FROM A PARTY’SINDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9.1 AND 9.2 BELOW, UNDER NOCIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER ORRELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS),REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASEDON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO CARRIER1 UNDER THISAGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ORCIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY ISCUMULATIVE AND NOT PER INCIDENT.  

8.3    Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THATPROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSIONOF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE ANDINDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESEPROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

9       INDEMNIFICATION

9.1    Indemnification by Carrier1.  Carrier1 will defend Customer and theofficers, directors, agents, and employees of Customer (“CustomerIndemnified Parties”) againstany third party claim, allegation or legal action (a “Claim”) arising from anallegation that Customer’s authorized use of the Carrier1 Platform infringesany intellectual property right of a third party. Further, Carrier1 will indemnify the CustomerIndemnified Party against any damages actually awarded or paid in connectiontherewith, including any reasonable attorneys’ fees.  Notwithstanding the foregoing, Carrier1’sindemnification obligation will not apply to claims to the extent arising from (a) modification of the Carrier1 Platform by any party otherthan Carrier1 without Carrier1’s express consent; (b) the combination,operation, or use of the Carrier1 Platform with otherproduct(s), data or services where the Carrier1 Platform would notby itself be infringing; or (c) unauthorized or improper use of the Carrier1 Platform.  Ifthe use of the Carrier1 Platform by Customer has become, or in Carrier1’s opinion is likely to become,the subject of any claim of infringement, Carrier1 may at its option andexpense (i) procure for Customer the right to continue using the Carrier1 Platform as set forth hereunder, (ii)replace or modify the Carrier1 Platform to make it non-infringing so long as the Carrier1Platform has at least equivalent functionality, (iii)substitute an equivalent for the Carrier1 Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminatethis Agreement.  This Section 9.1 states Carrier1’s entire obligation and Customer’s sole remedies inconnection with any claim regarding the intellectual property rights of anythird party.

9.2    Indemnification by Customer.   Customer will defend Carrier1 and theofficers, directors, agents, and employees of Carrier1 (“Carrier1Indemnified Parties”) againstany Claims arising from (a) any use or disclosure by Customer of the Carrier1 Platform in violation of this Agreement or (b) arising from or related to any claim that Customer does not havethe right to use the Customer Data as permitted by thisAgreement, (c) the performance of any shipping services, (d) any breach ofagreement between Tenants or (e) a breach by Customer of Section 2.5. Further, Customer will indemnify the Carrier1 Indemnified Party againstany damages actually awarded or paid in connection therewith, including anyreasonable attorneys’ fees.  

9.3     Indemnification Procedure.If a Customer Indemnified Party or a Carrier1 Indemnified Party (each, an “IndemnifiedParty”) becomes aware of any matter it believes it should be indemnifiedunder Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation,arbitration or other proceeding against the Indemnified Party by any thirdparty (each an “Action”), the Indemnified Party will give the other party (the “IndemnifyingParty”) prompt written notice of such Action.  The Indemnified Party will cooperate, at theexpense of the Indemnifying Party, with the Indemnifying Party and its counselin the defense and the Indemnified Party will have the right to participatefully, at its own expense, in the defense of such Action with counsel of itsown choosing.  Any compromise orsettlement of an Action will require the prior written consent of both Partieshereunder, such consent not to be unreasonably withheld or delayed.

10    GENERAL

Customer agrees thatCarrier1 may(a) list and/or identify Customer’sname (including by displaying any Customer trademark) to identify thebusiness relationship between the parties on Carrier1’s website and in othermarketing and advertising collateraland (b) publish a case study with respect to Customer’s use of the Carrier1Platform.  Customer may not remove or export from the United States or allow theexport or re-export of the Carrier1 Platform or anything related thereto, orany direct product thereof in violation of any restrictions, laws orregulations of the United States Department of Commerce, the United StatesDepartment of Treasury Office of Foreign Assets Control, or any other UnitedStates or foreign agency or authority.  If any provision of this Agreement is found to be unenforceable orinvalid, that provision will be limited or eliminated to the minimum extentnecessary so that this Agreement will otherwise remain in full force and effectand enforceable.  Neither party may assign thisAgreement or assign or delegate its rights or obligations under the Agreementwithout the other party’s prior written consent; provided however, that either party may assign thisAgreement to an acquirer of or successor to all or substantially all of itsbusiness or assets to which this Agreement relates, whether by merger, sale ofassets, sale of stock, reorganization or otherwise.  Any assignment or attempted assignment byeither partyotherwise than in accordance with this Section will be null and void.  Both parties agree that this Agreement is thecomplete and exclusive statement of the mutual understanding of the parties andsupersedes and cancels all previous written and oral agreements, communicationsand other understandings relating to the subject matter of this Agreement, andthat all waivers and modifications must be in a writing signed by both parties,except as otherwise provided herein.  In the event of a conflict between the Order Formand these Platform Terms and Conditions, the terms and conditions set forth inthese Carrier1 Platform Terms and Conditions will govern unless expresslystated otherwise in the Order Form.  No agency, partnership, joint venture, or employment is created asa result of this Agreement and a party does not have any authority of any kind to bind the other party in any respectwhatsoever.  In any action or proceedingto enforce rights under this Agreement, the prevailing party will be entitledto recover costs and attorneys’ fees.  Allnotices under this Agreement will be in writing and sent to the addresses set forth in the Order Form and will bedeemed to have been duly given when received, if personally delivered; whenreceipt is electronically confirmed, if transmitted by facsimile or email; theday after it is sent, if sent for next day delivery by recognized overnightdelivery service; and upon receipt, if sent by certified or registered mail,return receipt requested.  Each party will be excusedfrom performance for any period during which, and to the extent that, it isprevented from performing any obligation or service, in whole or in part, as aresult of a cause beyond its reasonable control and without its fault ornegligence, including, but not limited to, acts of God, acts of war, epidemics,fire, communication line failures, power failures, earthquakes, floods,blizzard, or other natural disasters (but excluding failure caused by a party'sfinancial condition or any internal labor problems (including strikes,lockouts, work stoppages or slowdowns, or the threat thereof)) (a “ForceMajeure Event”).  Delays inperforming obligations due to a Force Majeure Event will automatically extendthe deadline for performing such obligations for a period equal to the durationof such Force Majeure Event.  Except asotherwise agreed upon by the parties in writing, in the event such non-performance continues fora period of thirty (30) days or more, either party may terminate this Agreement by givingwritten notice thereof to the other party.  Upon the occurrence ofany Force Majeure Event, the affected party will give the other party written noticethereof as soon as reasonably practicable of its failure of performance,describing the cause and effect of such failure, and the anticipated durationof its inability to perform. This Agreement will be governed by the laws of theState of Arizona without regard to its conflict of laws provisions.  For all disputes relating to this Agreement,each party submits to the exclusive jurisdiction of the state and federal courts located in Scottsdale, Arizonaand waives any jurisdictional, venue, or inconvenient forum objections to suchcourts.  Customer acknowledges that anyunauthorized use of the Carrier1 Platform may cause irreparable harm and injury to Carrier1for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at lawor in equity, Customer agrees that Carrier1 may be entitled to injunctive relief in theevent Customer uses the Carrier1 in any way not expressly permitted by thisAgreement.

‍