Effective Date: December 28, 2023
These Master Terms and Conditions replace and supersede all prior versions.
Welcome to Brocade Transportation Technologies, LLC, with principal offices at 1819 Main Street, Suite 302, Sarasota, Florida 34236, United States of America (“Brocade“, “our“, “we“, or “us“). By clicking a box indicating your acceptance of these Terms, by executing an order form or other agreement that references these Terms, by purchasing or using our products or services, or otherwise entering into any agreement for our products or services, or by accessing and/or using our website, products, or services, whichever occurs first, you (“User“, “you“, or “your“) agree to be bound by the following terms and conditions (the “Terms“)(each, a “Party,” and together, the “Parties”). If you do not agree to these Terms or you are not authorized to access and/or use our products or services, you shall not access or use them. If you are accessing and/or using our products or services on behalf of a company or other legal entity, you agree to these Terms on behalf of such entity and represent and warrant that you have the authority to bind such entity to these Terms.
1. In General. Under these Master Terms and Conditions (the “Terms”), we may provide you and/or your Affiliates with Software, Subscriptions and Professional Services under one or more Software Agreements. Each Software Agreement automatically incorporates by reference these Terms and any other mutually executed addendums, SOWs, or other written supplemental terms related to that Software Agreement, including all exhibits, amendments, and appendices related thereto (collectively, an “Agreement”). These Terms will have no independent force or effect except as incorporated by reference into a Software Agreement. Each Software Agreement, Order Form and SOW you initial or execute is conditioned upon, and confirms your acceptance of, these Terms and all other terms and documents which form part of the Agreement. Each Agreement will be independent of other Agreements that incorporate these Terms. All quotes and requests made by you for Software, Subscriptions, and/or Professional Services are non-binding unless and until accepted by us. Software Agreements, Order Forms, and SOWs are accepted as valid and binding only when signed by us in writing and when fully executed. While you may issue a purchase order for administrative purposes, no provisions of your purchase orders, invoices, associated purchase documentation, or other business forms will apply to, modify, supersede or otherwise alter the terms of an Agreement or your payment obligations thereunder, and any such provisions will be of no force or effect.
1.1. Definitions.
1.1.1. “Affiliate” means any entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party in question.
1.1.2. “Confidential Information” means the inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by us or you, which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.
1.1.3. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity, database rights and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
1.1.4. “Our Materials and Technology” means our Software (compiled or otherwise), and related documentation, and any written and electronic materials, proprietary information, documentation, code, technology, systems, infrastructure, equipment, and trade secrets developed, provided or used by us or our subcontractors to produce and provide Software, and Professional Services together with all Intellectual Property Rights therein, together with all modifications, improvements or changes thereto, including without limitation (i) proprietary electronic architecture and other non-literal elements of the Software, and Professional Services developed by us, (ii) functional and technical specifications and other technical, training, reference or service information, documentation and manuals and updates thereto, (iii) APIs, customized applications and computer programs, (iv) processes, methods, algorithms, ideas, and other “know how,” (v) data and information provided or sourced by us (specifically excluding Transportation Data), and (vi) network equipment and architecture.
1.1.5. “Order Form” means a written order form, sales order, quote, equipment schedule, or similar written agreement pursuant to a Software Agreement specifying Subscription rights granted to you, Software licensed to you, and/or Professional Services provided to you, together with quantities and pricing (and the initial Subscription term for each such Subscription).
1.1.6. “Professional Services” means any implementation, installation, and/or set-up services, training services, or other professional services provided by us to you as described a Software Agreement and/or a SOW.
1.1.7. “Software Agreement” means a mutually executed agreement setting forth the Parties’ agreement on terms and conditions applicable to the Software, and/or Subscriptions licensed, sold or otherwise provided to you.
1.1.8. “SOW” means a statement of work, schedule, work order, change order, or any other similar mutually agreed upon written agreement, governing the provision by us of support & maintenance, professional services, installation, or other Professional Services, which may include without limitation Professional Services methodology, deliverables and training, and fees.
1.1.9. “Software” means the object code version of any software, library, utility, tool, or other computer or program code as well as the related documentation, whether locally installed on your systems (“On-Premise Software”) or provided as a service through the Internet or other remote means such as websites, portals, and “cloud-based” solutions (collectively, “Hosted Software”). Software also includes (a) firmware or other software pre-installed on a Product sold to you, or licensed to you for use through a Subscription, under an Order Form and (b) software and firmware of Brocade or its licensors which may be later loaded to such Product (collectively, “Device Software”).
1.1.10. “Subscription” means a right to use Software (whether as a standalone application or as a service, a periodic allotment of Professional Services, and/or other service-based products (e.g., cloud hosting services) for a fixed term, which subscription right is purchased through a Software Agreement or Order Form.
1.1.11. “Transportation Data” means the freight, driver, location, audiovisual, load movement, and other transportation management system and vehicle and driver telematics data collected by or provided to us, or input by you or on your behalf, through your use of our service-based or licensed Software, and/or our Professional Services, which may include but is not limited to data specific to your shipper.
1.1.12. “User” means a person given the right to access and use service-based or licensed Software by you.
2. Grant of Rights.
2.1. In General. For each Subscription purchased by you through an Order Form, for the Subscription term specified in that Order Form or the Software Agreement we grant to you a limited, non-exclusive, non-assignable and non-transferable (except in connection with a permitted assignment of an Agreement), non-sublicensable right to access and use the service-based and/or licensed Software governed by your Subscription for your own internal business operations in accordance with these Terms and the terms of the Software Agreement. This Subscription is restricted to use by you and your Users and does not include the right to use our Software by any third party unless expressly permitted under the terms of a Software Agreement or Order Form.
You and your personnel will generate unique login credentials for each User, will keep all login credentials confidential, and will not share login credentials between Users. You will immediately notify us if you believe any login credentials for any of your Users may have been disclosed or compromised, and you will hold us harmless from and against any unauthorized and/or harmful access to your accounts(s) and/or data, or breach of this Agreement, using login credentials issued to or by you. Transportation Data will be maintained in our systems during the term of the Agreement, except to the extent deleted by you, on your behalf, or at your request. You acknowledge that Transportation Data may be deleted from our systems following termination of the Agreement and that the Software Agreement sets forth terms governing such process. You will be solely responsible for archiving copies of Transportation Data if deemed necessary by you. We may access your and each of your users’ accounts, including Transportation Data, to respond to service or technical problems or at your request, or as otherwise permitted by these Terms and/or a Software Agreement.
Software is licensed to you or provided as a service and is not sold to you.
2.2. Restrictions. You agree and covenant that you will not (i) transfer, publish, disclose, display or otherwise make available any of Our Materials and Technology to any third party, except as necessary for you to use the Software for your business purposes; (ii) copy, modify, tamper with, alter, create derivative works of, sublicense, sell, lease, loan, rent, convey, pledge as security or otherwise encumber, or act as a service bureau with respect to any of Our Materials and Technology; (iii) reverse engineer, decompile, translate, adapt or disassemble any of Our Materials and Technology in an attempt to reconstruct or discover the design, source code or algorithms thereof for any other purpose, except and only to the extent expressly permitted by law; (iv) remove, delete or alter any trademarks or any copyright, trademark, patent or other Intellectual Property Rights notices from any of Our Materials and Technology; (v) use any of Our Materials and Technology in violation of applicable laws, rules, regulations, codes or ordinances; or (vi) cause or authorize any third party to do any of the foregoing.
2.3. Suspension Right. Notwithstanding anything to the contrary in an Agreement, we may suspend our performance under the Agreement, including without limitation suspending your use of our Software and administrative portals and our provision of Professional Services and warranty processing, (a) on five (5) business days prior notice to you if you fail to pay any amount not contested by you in good faith by the due date or fail to use diligent good faith efforts to resolve a good faith payment dispute (unless cured during such notice period), or (b) immediately if your or your Users’ acts or omissions threaten the integrity or security of our Software, systems, products or infrastructure (provided we will use commercially reasonable efforts to provide you with advance notice of such suspension where we determine exigent circumstances do not exist). We will lift such suspension once such issue or failure is cured to our reasonable satisfaction. You will continue to be charged for service and subscription fees during such suspension. During such suspension, you will be prohibited from entering new data or processing existing data. If you attempt to access or manipulate Transportation Data utilizing third party software during suspension, we disclaim and you hold us harmless from any responsibility or liability relating to lost or altered data or related damages.
3. Professional Services. We will use commercially reasonable efforts to perform for you, or on your behalf, Professional Services set forth in an Agreement or in one or more SOWs. Each SOW will automatically be incorporated by reference into and made a part of the Agreement. All SOWs will be in writing and shall be effective only when signed by both Parties. For each SOW, each Party will designate a person to be its designated representative concerning that SOW and will serve as the primary day-to-day point of contact between the Parties (the “Project Manager”). A Party may designate an alternative Project Manager upon notice to the other Party. The fees applicable to Professional Services performed will be set forth in each SOW. Fees will be on a time and materials basis at the hourly rate set forth in the SOW, billed to the actual number of hours of Professional Services performed by us personnel regardless of any estimate(s) set forth in the SOW, unless an alternative fee arrangement is expressly set forth in the SOW.
3.1. Change Orders. Professional Services provided will consist of the Professional Services set forth in a SOW. Additional or supplemental work beyond, or changes to, the Professional Services in a SOW will be handled via mutually agreed-upon change order (“Change Order”) which sets forth the change in scope, incremental fees for that additional or supplemental work, and any other impacts to the SOW such as timeframes. Either Party may request a Change Order; if the Parties mutually agree to move forward with the work contemplated in such Change Order, we will prepare such Change Order and provide it to you for review. Upon the parties’ mutual written execution of a Change Order, the Professional Services shall be modified or supplemented as set forth in such Change Order. All SOWs and Change Orders will be in writing and shall be effective only when signed by both Parties, and in no event shall any Professional Services work subject to a SOW be deemed altered, amended, enhanced, or otherwise modified except through a fully executed Change Order.
3.2. Scoping Activities and Information. You agree and acknowledge that our ability to successfully complete Professional Services is dependent on accurate and complete scoping of the integration and implementation effort required (“Scoping Activities”), and on your identification of non-standard systems, newly-released or older versions of software used by you that may require custom integration efforts, or similar non-standard requirements (“Scoping Information”). You will promptly provide to us all relevant Scoping Information. You agree and acknowledge that changes in the scope of implementation and set-up efforts, or additional Professional Services, may from time to time be required despite the Parties’ cooperation on Scoping Activities and your provision of Scoping Information, and the Parties agree to work together in good faith to mutually agree upon a supplemental SOW or change order with the additional Professional Services required to account for such change in scope, together with associated fees and other related terms.
3.3. Required Assistance; External Factors. You (and to the extent you utilize third parties to assist with implementation and set-up of the Professional Services (“Third Party Consultants”), your Third Party Consultants) will (a) provide us with reasonably requested and timely information, access, resources and approvals to assist us with its provision of Professional Services, and (b) will use diligent efforts to work with us to ensure timely completion of Professional Services (collectively, “Required Assistance”). You acknowledge that the Required Assistance requires collaboration between us and you and/or Third Party Consultants and will require your active and sustained participation in order to be completed in a timely, effective and complete manner. You will assign a point of contact within your organization within five (5) days of contract execution to work with us as our primary point of contact for Professional Services. You agree and acknowledge that the failure to provide Required Assistance by you or any of your Third Party Consultants, or non-standard requirements requested by you, may result in delays in the completion of Professional Services (which delays will not be our responsibility), and may require additional Professional Services to correct issues or usability. You also agree and acknowledge that you will hold us harmless from any delays, incremental costs, or other liability resulting from the acts or omissions of Third Party Consultants.
You agree and acknowledge that our ability to meet the anticipated timelines set forth in a SOW or Change Order is dependent in part on the timely provision by you of Required Assistance (“External Factors”). In the event either Party determines that External Factors are likely to cause a delay in our ability to meet anticipated timelines or result in additional costs to complete performance, that Party’s Project Manager shall notify the other Party’s Project Manager, and the Parties shall work together in good faith to enter into a Change Order to account for the impact caused by the External Factors.
3.4. Acceptance. If a SOW states that Professional Services provided thereunder are subject to acceptance testing, then the terms of this paragraph shall apply with respect to the Professional Services provided under that SOW. If so specified in a SOW, Professional Services are subject to your acceptance to verify that the results of the Professional Services performed by us under the SOW (“Work Product”) substantially conforms to the written specifications set forth in the SOW (the “Acceptance Criteria”). Upon completion of the Professional Services set forth in a SOW (or portion thereof subject to separate acceptance testing if set forth in the SOW), we will notify you of completion, and you will promptly review and inspect the Work Product based on the Acceptance Criteria and notify us within ten (10) calendar days of its receipt of our completion notice or a different period if set forth in the SOW (the “Review Period”) whether the Work Product is accepted or rejected. If you reject the Work Product, you will provide written notice of rejection to us specifying the reasons for the rejection and the specific failures under the Acceptance Criteria. Following our receipt of a rejection notice, we will use commercially reasonable efforts to correct the Work Product and resubmit it for additional testing, in which case you will re-inspect the revised Work Product using the procedures set forth above. If you do not respond to us by the end of the Review Period, the Work Product will be deemed accepted by you as if you had provided a written notice of acceptance.
4. Fees and Charges. Fees and charges for Subscriptions and Professional Services will be set forth in each Software Agreement, Order Form or SOW. Subscription fees and other recurring fees are invoiced in advance at the start of the billing cycle. Professional Services fees, usage-based charges (e.g., on-demand services), and service fees that are prorated by us for usage less than the full billing cycle are billed in arrears at the end of the billing cycle. Invoices are sent electronically, by electronic mail or facsimile; will be due thirty (30) calendar days from date of invoice; and will be paid in the currency specified in the Software Agreement, Order Form or invoice (or USD if no currency is specified), by check or wire transfer. No credit, carryover or refund will be given for data paid for but not used in a billing cycle, or for other intangibles (e.g., Professional Services hours) allocated or available for use during, but not utilized by you by the end of, a usage or Subscription period. We charge a Twenty-Five Dollar ($25) fee for each check returned for insufficient funds. Delinquent payments not contested by you in good faith will bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law. We have the right to periodically review your credit and, if determined reasonably necessary by us, to change your payment terms, and/or demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation. If you do not object in writing to an invoiced amount within thirty (30) calendar days of date of invoice, you will be deemed to have acknowledged the correctness of that invoice and to have waived your right to dispute that invoice. A dispute as to a portion of any invoice or amount owed will give you the right only to withhold or delay payment of only the disputed portion of that invoice or amount owed. You agree to be liable to us for all costs of collection of past due amounts (including attorneys’ fees). You will use diligent good faith efforts to resolve any payment dispute within thirty (30) calendar days of raising the dispute.
4.1. Increases; Taxes and Charges. The fee for each active Subscription may be increased effective as of the commencement of a renewal Subscription term and may thereafter be increased no more than once every twelve (12) months during each renewal Subscription term. Without limiting the foregoing, with respect to Subscriptions with discounted or promotional pricing, as of the end of that term the discount or promotional rate on the Subscription fee will cease to apply unless otherwise mutually agreed by the Parties on a renewal Order Form. We may periodically adjust the price or fee of Subscriptions, Software and Professional Services available to you for subsequent purchase, license or subscription. Our stated prices and fees for Software, Subscriptions and Professional Services do not include applicable sales taxes, value added taxes, goods and services taxes, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes, surcharges and fees, or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or a valid exemption certificate for the appropriate jurisdiction, you will pay us all such taxes, charges and fees invoiced by us in connection with the sale, delivery or provision of Software, Subscriptions, Professional Services.
5. Term and Termination. The term of each Software Agreement is set forth therein. Each SOW will commence on the effective date set forth therein and continue until completion of the Professional Services set forth in that SOW, unless otherwise specified therein. Sections 2.2 and 5 through 10, your payment obligations, and any term or provision that applies to events occurring following termination or expiration, will survive termination or expiration of this Agreement.
A Party may terminate this Agreement upon written notice to the other Party in the event the other Party materially breaches any of its representations or warranties made hereunder or materially fails to perform its obligations under this Agreement, provided that written notice of such breach or failure has been provided by the non-breaching Party specifying such breach or failure, and if such breach or failure is capable of cure, the breaching Party fails to cure such breach or failure or provide a written plan of cure reasonably acceptable to the non-breaching Party within thirty (30) calendar days of the breaching Party’s receipt of such notice. Such written plan of cure must cure the breach within sixty (60) calendar days after the date on which the non-breaching Party communicates its acceptance of the written plan to the breaching Party. Further, we may terminate all Software Agreements, Order Form(s) and SOWs then in effect immediately and without notice to or opportunity to cure by you in the event (i) you intentionally use Software or Professional Services in a fraudulent manner or in violation of any applicable laws, rules or regulations; (ii) there is a change of law, statute, or regulation that prevents us from providing our Software or Professional Services to you; or (iii) you are a person or entity listed on listed on one or more export screening lists maintained by the U.S. Department of Commerce, the U.S. Department of State, and the U.S. Department of Treasury, or other similar lists.
Upon termination or expiration of a Software Agreement, Order Form or SOW, (i) each Party will cease performance of its obligations under that Software Agreement, Order Form or SOW; (ii) all fees and expenses due to us for Software and Professional Services provided and expenses incurred on or prior to the effective date of termination or expiration will be come immediately due and payable by you; and (iii) each Party will promptly destroy any of the other Party’s Confidential Information or other materials in its possession or control provided in connection with that Software Agreement, Order Form or SOW and will provide a written certification of destruction executed by an officer upon request, provided, however, that (a) we will maintain Transportation Data in our systems in accordance with our standard data retention cycle, and (b) neither Party will be required to destroy or return digitally archived data stored as part of its standard network back-up practices provided that the data is secured and not readily accessible and is destroyed in accordance with its regular backup retention cycle, provided that while in its possession such Party continues to treat the data in accordance with its confidentiality obligations set forth in this Agreement.
6. Confidentiality. Each Party (“Recipient”) agrees (a) to hold Confidential Information disclosed to it by the other Party (“Discloser”) strictly confidential and to not share, disclose, or provide Discloser’s Confidential Information to any third party except as expressly set forth herein; (b) to maintain the confidentiality and security of Discloser’s Confidential Information using the same care as it uses with its own confidential information of like importance, but no less than reasonable care; and (c) to restrict access to Discloser’s Confidential Information to those of its and its Affiliates’ employees, contractors, consultants, agents, and legal and financial advisors (“Representatives”) who have a need to know the information in connection with the exercise of Recipient’s rights and performance of Recipient’s obligations under this Agreement who (i) have been notified of the confidential nature of the disclosure and (ii) are under an enforceable obligation to hold the Confidential Information in confidence under terms and conditions at least as restrictive as the terms and conditions of this Agreement. Recipient will be responsible for any breach of this Agreement by the Representatives of Recipient or its Affiliates. For the avoidance of doubt, the terms of this Agreement, and Our Materials and Technology, are our Confidential Information. Confidential Information will not include information that Recipient can reasonably demonstrate through written evidence (A) is or becomes generally publicly available other than due to the acts or omissions of the Recipient, its Affiliates, or their Representatives; (B) is rightfully in Recipient’s possession on a non-confidential basis prior to receipt from Discloser; (C) is lawfully received, without obligation of confidentiality, by Recipient from a third party; or (D) is independently developed by or for Recipient without use of or reference to Discloser’s Confidential Information. We will be entitled to disclose Transportation Data if required pursuant to judicial, governmental or administrative process, requirement, order or disclosure demand. The Parties’ confidentiality obligations hereunder will survive the termination or expiration of this Agreement for a period of two (2) years, except that each Party will maintain the confidentiality of any Confidential Information which constitutes a trade secret indefinitely until it becomes part of the public domain through no act or omission of Recipient, its Affiliates, or their Representatives. Recipient acknowledges that remedies at law may be inadequate to protect Discloser against any actual or threatened breach of this Agreement by Recipient or its Representatives and, without prejudice to any other rights and remedies otherwise available to Discloser, Recipient agrees that in the event of such actual or threatened breach Discloser may seek injunctive or other equitable relief in Discloser’s favor, without proof of actual damages or the requirement of posting a bond or other security.
7. Ownership; Suggestions. You agree that all right, title and interest in and to Our Materials and Technology and all service-based or licensed Software provided hereunder, including all changes, modifications and improvements thereto, belongs exclusively to, and will remain the sole property of, us, our Affiliates, and our and their respective licensors or partners. You will take reasonable precautions to prevent unauthorized access and use of service-based and licensed Software by third parties. Work performed and deliverables created by us under this Agreement, including without limitation via Professional Services, will constitute Our Materials and Technology, and for the avoidance of doubt will not be considered “works made for hire” owned by you. You have no rights in or to Software source code under these Terms or any Agreement. We reserve all rights in Our Materials and Technology not specifically and expressly granted to you under these Terms. Our Materials and Technology (including without limitation our Software) are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. We agree that as between you and us, you will own your Transportation Data. We reserve the right to modify, expand, update or otherwise change portions of our Software and offerings and the platform(s) on which they are provided, provided such changes do not adversely affect in a material manner your ability to use our Software, and offerings for their intended purpose. Notwithstanding anything in this Agreement to the contrary, you grant to us a royalty-free, worldwide, irrevocable, perpetual non-exclusive license to use and incorporate into our services and technology, make available to our customers and commercially use any suggestions, enhancement requests, recommendations, or other feedback provided by you, your Affiliates, or their representatives relating to or resulting from the use of the Software or Professional Services.
7.1. Collection and Use of Transportation Data. You authorize us to remotely and automatically collect Transportation Data that is input by you or on your behalf into service-based or licensed Software or is otherwise provided to us, for the purposes(s) authorized in these Terms and in a Software Agreement. This authorization is in addition to, and does not replace or alter, any other data collection or like agreement(s) between the Parties. You authorize and consent to our collection and use of Transportation Data (1) to operate, manage and provide the Software and Professional Services, including without limitation providing you and your Users with requested technical support and addressing and preventing service or technical issues; (2) to transmit such data for use by you and your designees for your respective business operations; (3) to provide data to third-party vendors, if applicable and as authorized by you; and (4) as otherwise requested and/or approved by you. This Agreement will not, and will not be construed to, limit or impair our ability to use data independently received from a carrier or other third party. Further, notwithstanding anything in this Agreement to the contrary you give us the royalty-free, perpetual right (i) to use Transportation Data and other data collected by us as set forth above, or provided to us by you or on your behalf, to improve, enhance, and support the nature, quality and features of our products, software and services subject to our confidentiality obligations set forth hereunder, and (ii) to aggregate and anonymize Transportation Data and other data collected by us as set forth above, or provided by you or on your behalf, in connection with this Agreement and to use such aggregated and anonymized data, as well as data regarding your use of our Software and Professional Services and summary or derivative information based thereon, for our analytical and other business purposes during and following the term of the Agreement, provided that you will not be identified as the source of such information.
7.2. Data Protection Laws. Our processing of personal information, and your use of our Software and Professional Services, will comply in all material respects with applicable laws, rules, regulations, and directives relating to data privacy, trans-border data flows, and data protection (collectively, “Data Protection Laws”). In order to use our Software and Professional Services, you warrant and covenant that prior to providing us with any personal information or by using our Software purchased by or licensed to you through which we collect such personal information, you have provided or, where necessary, obtained consent or have another valid legal basis under applicable Data Protection Laws to provide such personal information to us to or allow such personal information to be collected by us, and further you acknowledge that we are permitted to process and use such personal information in accordance with this Agreement.
7.2.1 Definitions. For the purposes hereof, (a) “Customer Personal Information” means Customer data processed by Brocade on Customer’s behalf that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, to the extent that such information is protected as personal information under applicable US Data Protection Laws; and (c) “US Data Protection Laws” means any United States laws and regulations applicable to the processing of personal information which are also applicable to Brocade.
7.2.2. Processing of Customer Personal Information. To the extent that in connection with its performance of this Agreement Brocade processes Customer Personal Information on Customer’s behalf that is subject to applicable US Data Protection Laws, Brocade (i) acknowledges and agrees that it is, and will act as, a “service provider” with respect to Customer Personal Information provided to Brocade by Customer or on Customer’s behalf in accordance with the applicable terms of such US Data Protection Laws; (ii) will maintain reasonable security procedures and practices appropriate to the nature of the Customer Personal Information provided to Brocade by Customer or on Customer’s behalf to protect Customer Personal Information from unauthorized access, use or destruction, in accordance with the terms of the Agreement and the applicable requirements of US Data Protection Laws; (iii) will not retain, use, or disclose Customer Personal Information provided to Brocade by Customer or on Customer’s behalf for any purpose (including any commercial purpose) other than for the business purposes specified in the Agreement, the direct business relationship with Customer, as otherwise instructed by Customer, or as otherwise permitted under applicable US Data Protection Laws; (iv) will not combine Customer Personal Information it receives from Customer or on Customer’s behalf with personal information it receives from a third party, except to the extent otherwise permitted under applicable US Data Protection Laws; and (v) will not transfer or disclose Customer Personal Information provided to Brocade by Customer or on Customer’s behalf to a third party in a manner that constitutes “selling” or “sharing” such information under applicable US Data Protection Laws, except to the extent such transfer or disclosure is otherwise permitted under applicable US Data Protection Laws. To the extent required by applicable US Data Protection Laws, Customer may take reasonable and appropriate steps as mutually agreed upon with Brocade to verify that Brocade’s processing of Customer Personal Information is in a manner consistent with Brocade’s obligations under US Data Protection Laws and the terms of the Agreement and this Agreement. Brocade will promptly notify Customer if it determines that it can no longer meet its obligations under this Agreement and/or applicable US Data Protection Laws with respect to Customer Personal Information provided to Brocade by Customer or on Customer’s behalf. To the extent required by applicable US Data Protection Laws, if Customer reasonably determines that Brocade is using Customer Personal Information in a manner not authorized under the Agreement and this Agreement, Customer will have the right to direct Brocade to stop and remediate such unauthorized use. Customer acknowledges and agrees that Brocade may use sub-processors to process personal information for the purposes of the Agreement in compliance with applicable subcontracting requirements set forth under US Data Protection Laws. If Brocade substantiates any unauthorized access to and exfiltration, theft, or disclosure of Customer Personal Information, Brocade will notify Customer as soon as is reasonably possible, provided that Brocade’s notification of or response to such event will not be construed as an acknowledgement by Brocade of any fault or liability with respect to such event. The Parties agree that Customer’s provision or other transfer of Customer Personal Information to Brocade does not constitute a sale of such information to, or sharing of such information with, Brocade.
7.2.3. Data Subject Requests. If Brocade receives a consumer request that identifies Customer in connection with Customer Personal Information under applicable US Data Protection Laws, Brocade will notify that consumer of its role as a service provider to Customer and will direct the consumer to resubmit such request to Customer, and Brocade will not otherwise respond to such request directly unless otherwise required by applicable law. Customer (and not Brocade) will be responsible for responding to such request using the tools and information provided or made generally available by Brocade, e.g., Brocade’s online portals or APIs, its Privacy Policy, standard documentation regarding Brocade’s products, software and services, etc. To the extent such tools and information do not enable Customer to respond to a verified consumer request, upon Customer’s request Brocade will provide Customer with reasonable assistance in responding to a verified consumer request with respect to Customer Personal Information in Brocade’s systems subject to such request.
7.2.4. Changes. US Data Protection Laws remain subject to amendment and regulations that have not yet been promulgated, and other states and the federal government are considering similar laws (all of the foregoing, “New Privacy Laws“). Brocade will have the right to modify this Agreement upon thirty (30) calendar days prior notice to Customer in writing or by email as reasonably determined by it to be necessary for continued compliance with US Data Protection Laws, including without limitation New Privacy Laws. If Company objects to such modifications in writing during such notice period, the Parties shall work together in good faith to discuss and resolve such concerns.
8. Indemnity.
8.1. By You. You shall defend us and our officers, directors and employees from and against any and all claims, demands, actions, proceedings and suits brought or commenced by a third party to the extent resulting or arising from (i) your breach of the material terms of this Agreement, (ii) your actual or alleged use or modification of any Software, Subscriptions, or Services, in breach of this Agreement, or in any manner not authorized by this Agreement; and (iii) your failure to comply in all material respects with laws, rules, or regulations applicable to you, your business, or your use of our Software, or your violation of the rights of a third party and you will pay defense costs (including reasonable attorneys’ fees), fines and penalties, Customer-negotiated settlement amounts, and court-awarded damages resulting therefrom.
8.2. By Us. We shall defend you, your Affiliates, and their respective officers, directors and employees from and against any and all claims, demands, actions, proceedings and suits brought or commenced by a third party to the extent resulting or arising from (i) our breach of the material terms of this Agreement, (ii) our failure to comply in all material respects with laws, rules, or regulations applicable to our provision of our Software, or (ii) an assertion that our Software purchased or licensed by you from us, when used in accordance with the Agreement and applicable documentation in the form delivered, infringes any United States patent, copyright, or other intellectual property right of a third party, and we will pay defense costs (including reasonable attorneys’ fees), Brocade-negotiated settlement amounts, and court-awarded damages resulting therefrom. In the event that the use of our Software is, or in the opinion of our legal counsel is likely to be, enjoined due to the type of intellectual property infringement described in this Section, then we, at our option and expense, will use commercially reasonable efforts to (A) procure for you the right to use the affected Software under such patent or copyright; (B) modify the affected components or portions of the Software so that it becomes non-infringing; or (C) replace the infringing components or portions of the Software with functionally equivalent non-infringing software. If we determine that the foregoing alternatives are not reasonably available, we will terminate the Agreement, in which case we will refund any prepaid but unaccrued fees to you. Notwithstanding the foregoing provisions of this paragraph, we will have no liability or indemnification obligation under this Agreement to the extent that the alleged infringement (1) involves any patents issued by any country other than the United States, or (2) is caused by (A) any modification of our Software not expressly authorized by us in advance, (B) any combination of our Software with any program, data, product, device or service not provided by us (excluding generic and non-customized commercial components required for use with our Software) if such infringement claim would have been avoided by use of our Software alone, and/or (C) incorporation of our Software into any of your own product(s) or service(s). THE FOREGOING PROVISIONS OF THIS SECTION STATE OUR ENTIRE LIABILITY AND OBLIGATIONS, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY OUR SOFTWARE, OR ANY PART THEREOF.
8.3. Indemnification Procedures. The Parties’ respective indemnification obligations regarding a claim for which indemnity is sought under Section 8.1 or 8.2 above (a “Claim”) are conditioned on and shall apply to the extent that the applicable party seeking defense and payment with respect to a Claim against it (such party, the “Defended Party”): (i) provides to the other party (the “Defending Party”) written notice of any such Claim within ten (10) days after Defended Party’s receipt of notice of such Claim (provided that failure to provide such notice shall not relieve the Defending Party of its obligations, except to the extent such Defending Party has been prejudiced by such failure); (ii) grants to the Defending Party, such that the Defending Party has, the sole and exclusive right to defend any such Claim and make settlements thereof (except that the Defending Party will obtain the Defended Party’s express prior written approval for any settlement that requires any action or forbearance, payment, ongoing performance or any admission of liability on the part of the Defended Party); and (iii) gives, at the Defended Party expense, such assistance and information as the Defending Party may reasonably require to settle or oppose such Claim. The Defending Party will not be liable for any costs or expenses incurred by the Defended Party in connection with an indemnified claim or proceeding under this Section 8 without the Defending Party’s express prior written authorization. However, the Defended Party may participate in the defense or settlement of such Claim at its own expense and with its own choice of counsel.
9. Disclaimers; Risk Allocation. EXCEPT AS EXPRESSLY SET FORTH HEREIN (AND, FOR THE AVOIDANCE OF DOUBT, EXCEPT AS EXPRESSLY SET FORTH IN ANY SCHEDULE(S) TO THIS AGREEMENT, INCLUDING THE ENTERPRISE SUBSCRIPTION SCHEDULE EXECUTED CONTEMPORANEOUSLY WITH THESE MASTER TERMS), OUR SOFTWARE, SUBSCRIPTIONS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND WE MAKE NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, SUBSCRIPTIONS OR SERVICES, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SUBSCRIPTIONS AND SERVICES, INCLUDING UPDATES, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE, AND WE GRANT NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM. WE ARE NOT RESPONSIBLE FOR ISSUES WITH OUR SOFTWARE ARISING OUT OF ITS USE ON OR IN CONJUNCTION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US. FMCSA AND OTHER LAWS, RULES AND REGULATIONS ARE SUBJECT TO CHANGE. THE ABILITY TO TRANSMIT MESSAGES AND/OR TRANSPORTATION DATA ARE SUBJECT TO WIRELESS PROVIDER COVERAGE AREAS AND MAY BE TEMPORARILY INTERRUPTED OR OTHERWISE LIMITED BY EVENTS BEYOND OUR CONTROL. USE OF SOFTWARE, SUBSCRIPTIONS OR SERVICES MAY BE IMPACTED IF YOUR SYSTEMS ARE NOT PROPERLY CONFIGURED AND/OR IF VEHICLES ARE OPERATED OUTSIDE OF LICENSED WIRELESS CARRIER SERVICE AREAS. IF YOU UTILIZE DATA FIELDS AVAILABLE IN OUR SOFTWARE TO STORE DATA NOT REQUIRED FOR THE NORMAL USE AND OPERATION OF OUR SOFTWARE FOR THEIR INTENDED PURPOSE, (i) YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR COMPLIANCE WITH LAWS, RULES AND REGULATIONS SPECIFIC TO SUCH DATA (E.G., HIPAA OR PCI RULES); AND (ii) YOU ASSUME ALL RISKS ASSOCIATED WITH, AND AGREE TO HOLD US HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RELATED TO OR ARISING FROM, YOUR USE OF DATA FIELDS TO STORE SUCH DATA.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR DATA, LOSS OF USE, COSTS OF COVER, DOWNTIME AND USER TIME REGARDLESS OF THE LEGAL THEORY ASSERTED OR WHETHER A CLAIM IS BROUGHT IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO LIABILITY RESULTING FROM A PARTY’S OBLIGATIONS RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ASSERTED OR WHETHER A CLAIM IS BROUGHT IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHER THEORY, EXCEED THE PURCHASE PRICE OR FEES PAID BY YOU FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY, OR FOR THE SOFTWARE, SUBSCRIPTION OR SERVICE DURING THE __________ MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR PROVISION OF SUBSCRIPTIONS, SOFTWARE AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY OR MAY NOT FULLY APPLY TO YOU.
10. Other Provisions.
10.1. Publicity. You agree that (a) we may issue a press release in the form approved by the Parties regarding the Parties’ entry into this Agreement, and (b) we may identify you (including through use of your name and logo) as our customer, including on our website, and may include you in our customer list and marketing materials.
10.2. Export Control. You acknowledge that our Software, proprietary information, and derivatives thereof may be subject to United States and international export control, embargo, and sanctions laws, regulations, and licensing requirements, including those administered by the U.S. Department of Treasury, U.S. Department of State, and others (“collectively, “Export Control Laws”). You will strictly comply with such laws, and will not export, re-export, transfer, divert, or disclose any of our Software, proprietary information, or derivatives thereof to any individual, entity, or destination in violation of any U.S. and international Export Control Laws.
10.3. Anti-Corruption Compliance. You, and any third party acting on your behalf, will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others (collectively, “Anti-Corruption Laws”). You, and any third party acting on your behalf, will not directly or indirectly offer, promise, or give any payment or anything of value to a government official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage for you or us. You, and any third party acting on your behalf, also will not solicit or accept any sort of payment or anything of value from anyone, where the intent is to improperly influence any of your acts, our acts, any the acts of any third party acting on your behalf.
10.4. Disputes. If any dispute arises between the Parties relating to, arising out of or in any way connected with this Agreement or any term or condition of it, or the performance by either Party of its obligations under or related to this Agreement, the Party raising such dispute will provide written notice of the dispute to the other Party and the Parties’ primary points of contact for the Agreement will work diligently and in good faith to resolve such dispute. If such dispute is not resolved after thirty (30) days following the date of the written notice of such dispute, each Party will promptly appoint a representative holding the title Division Vice President or higher and having the decision-making authority to resolve the dispute on behalf of such Party. Such representatives will promptly meet and will work diligently and in good faith to resolve such dispute. In the event such dispute is not resolved by the appointed representatives described above within another fifteen (15) days thereafter, then each Party will be free to pursue any and all remedies available to such Party, at law or in equity. No Party may bring an action or claim against the other at law or in equity in any forum without first completing the dispute process set out in this Section, except a Party may file such an action or claim at any time if (a) the Party is legally required to file the action or claim at that time so as not to lose a legal right (including the ability to file the claim); (b) the action or claim is one to enforce confidentiality obligations or Intellectual Property Rights, or to recover unpaid fees; or (c) the action or claim is an equitable action to prevent imminent and irreparable harm with no adequate remedy at law.
10.5. Governing Law and Venue; Waiver of Jury Trial. This Agreement will be governed exclusively by, and construed and enforced exclusively in accordance with, the laws of the State of Maryland, United States of America without regard to or application of its conflicts-of-laws provisions. Any legal proceeding arising out or relating to this Agreement will be subject to the sole and exclusive jurisdiction of the United States District Court for the District of Maryland or any state court sitting in Baltimore County Maryland, to the exclusion of all other courts and venues, and each Party irrevocably consents to the sole and exclusive jurisdiction and venue of the United States District Court for the District of Maryland or any state court sitting in Baltimore County Maryland and waives any right to object thereto. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.6. Force Majeure. Except for payment obligations, neither Party will be liable for a failure to perform hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, which include without limitation (i) disruptions in a wireless provider’s network or infrastructure; (ii) failures of, changes, modifications, or alterations to your network facilities, equipment or software; (iii) misuse of or damage to a Product; or (iv) any accident involving any of your vehicles. Delays or failures that are excused as provided in this paragraph will result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure. No such excused delay or failure will constitute a default, or, except to the extent a related performance obligations is incomplete or unperformed, be a basis for disputing or withholding amounts payable hereunder, provided that the Party whose performance is delayed or suspended will use commercially reasonable efforts to resume performance of its obligations hereunder as soon as feasible.
10.7. Assignment. You may not assign or otherwise transfer this Agreement to any third party without our express prior written consent. Notwithstanding the foregoing, you may assign the Agreement (in whole, but not in part) upon written notice to us to (i) any Affiliate or (ii) to a successor in interest as a result of an acquisition of your business (including by stock sale, asset sale or merger) or corporate reorganization or restructuring, provided that if requested by us, you and your successor-in-interest execute an assignment amendment in a form reasonably requested by us. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the Parties and their successors and permitted assigns. Any actual or attempted assignment or transfer by you in violation of the terms of this Agreement will be void and of no force or effect and will constitute a material breach of this Agreement.
10.8. Miscellaneous. This Agreement sets forth the entire understanding between the Parties in connection with this Agreement, and supersedes all prior or contemporaneous proposals, communications, agreements, negotiations, and representations, whether written or oral, regarding the subject matter thereof. No amendment to this Agreement will be valid unless made in writing and physically signed by the Parties. There are no third-party beneficiaries under this Agreement. We may utilize subcontractors in the performance of our obligations under a Software Agreement, Order Form or SOW, and we will be responsible for the acts and omissions of our subcontractors in their performance of our obligations thereunder. No waiver of any provision or breach of this Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. Regardless of which Party may have drafted this Agreement, no rule of strict construction will be applied against either Party. In the event any portion of this Agreement is held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made, such provision or portion thereof will be severable from this Agreement, provided that the same will not affect in any respect whatsoever the remainder of this Agreement. Any notification of any event required pursuant to this Agreement will be in writing, will reference this Agreement, and will be personally delivered or sent by nationally or internationally recognized express courier to the other Party at the address set forth on the first page of the Software Agreement, ATTN: Legal. Notice will be deemed effective upon delivery or refused delivery attempt (as evidenced by the delivery receipt). Each Party is an independent contractor of, and is not an employee, agent, fiduciary or authorized representative of, the other Party. This Agreement may be executed in several counterparts and by each Party on a separate counterpart, each of which, when so executed and delivered will be an original, but all of which together will constitute but one and the same instrument. A fax signature, digital signature, or electronic signature delivered through other means (e.g., email) shall have the same force and effect as an original ink signature.