This Agreement is between ONTARIO MADE (“ONTARIO MADE,” “We,” “Our,” "Us"), and other Person or Entity, (collectively referred to as “You,” “Customer,” “Client,” “Organization”).
This Agreement governs access to any and all services (collectively “Services”) provided by Us and use of Our Web Applications, data and/or Software known as “ONTARIO MADE” and all features thereof, including, without limitation, all computer code or programming, content, data, pricing, freight information, customer information, location, vendor information, text, all software code in any language and transactions offered via the Web Applications (collectively “Web Apps”), by Us. The Web Apps, Software, and the Services are collectively referred to as the “Products.” Products are subject to change at any time without notice or liability to Customer.
1. Proper Use of Products.
(a) Subject to the terms and conditions of this Agreement, We grant You, as an authorized user, access with a limited right to use the Products during the term of this Agreement as long as you have purchased required licenses/subscriptions, for which payments are up to date, and only for the permitted purposes and not for commercial reproduction or, distribution. Customer is NOT authorized or permitted to grant third-party access to or use of the Products and/or Services except as expressly permitted in this Agreement. Any web sites associated with the Products may not be taken apart, modified, used or published with other means. Customer’s access to or use of the Products must cease immediately upon revocation or termination. Further, We may elect to monitor Customer’s use of Products, and Customer shall not use Products to generate any competing product to Our Products.
(b) Except as allowed by applicable law, Customer may not copy, modify, disassemble, duplicate, reverse engineer, decompile, distribute, sell, provide, lease, translate, or otherwise alter the data content, source code, object code, specification or any other portion of the Products. Further, unless expressly approved in writing from ONTARIO MADE, Customer may not use any automated means (for example scraping and robots) to access, query or otherwise collect content or data. Customer shall not use the Products in any way that impairs the use and enjoyment of the Products by other Users, as determined by Us in Our sole discretion. The Products and associated servers are not an archive, and We shall have no liability to Customer or any other person for loss, damage, or destruction of any data. It is Customer’s sole responsibility to maintain adequate business records including shipping, ordering, freight, driver data, financial, or other information.
(c) Customer shall not or attempt to use the Products to: (i) engage in violation of any law or governmental regulation; (ii) impersonate any person or entity, or violating the rights of any third party; (iii) provide any false or misleading data; (iv) infringe any intellectual property right of another person; (v) distribute unsolicited or unauthorized advertising, surveys, contests, content; (vi) distribute computer viruses or other code that interrupts or limits the functionality of any computer; (vii) access or copy Our or a third party’s proprietary or confidential data (viii) violate this Agreement. Customer warrants that all user activity complies with this Agreement.
2. Customer Obligations.
Customer is entirely responsible for the accuracy, user privileges and access, and effects and ramifications of User Account Administration. Customer represents and warrants that Customer has the full right, and authority to permit the use of: (i) potential carrier and driver data; (ii) mileage, fuel, other costs and pricing information; (iii) fuel card, credit card or ACH transfer information; (iv) freight information; or (v) bills of lading, specifications, (vi) quotes, load data and activity logs, (vii) proof of delivery and other load or transaction documents or details (hereinafter collectively referred to as “Data”). Customer only provides Data that does not infringe or violate the rights of any party, and complies with applicable laws and regulations, and Customer grants Us a limited license to use the Data, for Customer’s account or for archival, training, data aggregation reporting or administrative purposes. Customer’s user activity shall be limited to Our Data, and in the unexpected case where Customer accesses another organization’s Data, or Customer finds any errors in the Products, Customer shall immediately notify Us of the same and not use any other organization’s Data for any purpose. Customer warrants that Customer is solely responsible for all acts, omissions, and use under Customer’s account by any user whatsoever.
We shall take reasonable steps, in good faith, to prevent unauthorized access to Customer’s Data and to allow it to be viewed only by its proper users.
Customer acknowledges and agrees that the Products may be provided over a third party cloud environment through software, servers or other hardware located elsewhere, subject to separate terms and conditions, including disclosure, to the cloud provider or its designees, and to which You also agree. Upon the termination of this Agreement by either party, We will take reasonable steps to prevent further use of Customer’s Data, Customer acknowledges that archival or other back-up copies of Data may continue to reside in Our environment and/or the cloud.
We are not responsible for the privacy, integrity, security, or misuse of any existing or newly created Data, or any information or part(s) contained therein, once Data is received by Customer, or the acts or omissions of Customer with respect to same. We specifically reserve the right to remove any Data or terminate Customer’s access to or use of the Products, in Our sole discretion, for any reason and without notice. In the event Customer’s account, use, or access is removed or terminated, We are under no obligation to transfer or manage Data for You and any rights granted to Us with regard to Data shall survive. Customer acknowledges that termination, interruption or loss of use of the Products and the effects thereof shall not impair Customer’s ability to continue Customer’s operations.
The Software, source code, object code, xml code, scripts, processes and non-public information about the functionality and features of the Products are Our confidential information, along with the terms of this Agreement. Customer shall use Data solely for Customer’s own internal business purposes as intended under this Agreement and shall make no further disclosure or use of Data or other confidential information concerning the Web Apps or Software, or portions thereof. Customer shall not use or disclose any confidential information except as expressly permitted herein, and shall safeguard all confidential information to at least a reasonable degree of care. Notwithstanding the foregoing, a Party’s rights of confidentiality hereunder shall not apply to information that is: (i) in the public domain other than by reason of a wrongful disclosure by the other Party, or (ii) shown by documentary evidence to have been independently developed or obtained by the other Party without use of any confidential information of the first party and without breach of any duty owed to the first Party. A Party may disclose confidential information of the other Party when required to do so by law and with notice to the other party
Customer grants to Us, a non-exclusive, worldwide, right and license and consent to use Customer's name, trademarks, text or other information that is not reasonably determined to be confidential or proprietary, for training, marketing and other purposes.
4. Fees and Billing
Customer agrees to pay fees associated with transactions made on the platform. Customer’s use and access of the Products shall be subject to Customer paying our periodic invoices, or fees. Failure to make a required payment may result in suspension of services and/or termination of your account. You shall be responsible for all amounts, including reasonable attorneys’ fees and costs that we incur to collect amounts due under this Agreement. Recurring monthly fees shall be due net 30 days from invoice and shall be billed one month in advance. Fees are non-refundable. Customer shall be responsible for all taxes, governmental fees, or surcharges. Any Accounts with amounts more than fifteen (15) days overdue shall be subject to suspension. Monthly fees shall continue to accrue during suspension and all past-due amounts shall be required to be paid in full before the suspension will be lifted. Suspension for more than sixty (60) days shall result in termination. Early termination by Customer or due to Customer’s breach shall not relieve Customer from its obligation to pay all amounts accrued prior to termination.
5. Warranty Disclaimer; Limitation of Liability
Although We use commercially reasonable efforts to maintain the security of the Products, the Products are provided to CUSTOMER on an “AS IS” and “AS AVAILABLE” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, DATA ACCURACY, AND SYSTEM INTEGRATION. WE DO NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PRODUCTS WILL OPERATE WITH ANY OTHER SOFTWARE OR EQUIPMENT, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO REPRESENTATION OR WARRANTY CAN BE GIVEN THAT THE DATA IS CURRENT. We do not guarantee the accuracy, completeness, efficacy, reliability, or veracity of the Products. We make NO WARRANTY as to the security of the Products or the security or effectiveness of measures involved in user account administration. We neither warrant nor represent that Customer’s use of the Products is legal under all applicable laws and regulations or will not infringe rights of other parties.
The Products are intended as a convenience and reference for Customer to assist in its business operations. Customer shall have the ultimate responsibility for verifying all transactions and information described in the Products. USE OF THE PRODUCTS IS ENTIRELY AT CUSTOMER’S OWN RISK. We assume no responsibility for consequences resulting from the use of the Products, including, but not limited to, use of the Products which may relate to permits, load limits, privacy, financial, safety procedures, checks, or other compliance. No advice or information obtained by Customer, whether written or oral, from Us shall create any warranty whether express or implied.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). This limitation of liability applies without limitation to losses or damages RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PRODUCTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE WEB PORTAL AND/OR SERVICES OR DATA; (iv) RELEASE OR DISCLOSURE OF DATA; OR (v) ANY OTHER MATTER RELATING TO THE PRODUCTS. This limitation of liability applies, without limitation, to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of THE PRODUCTS AND/OR SERVICES, whether for breach of contract, tortious behavior, negligence, or under any other cause of action.
If at any time Customer is dissatisfied with the Products, does not agree with any portion of this Agreement, or has any other claim against Us relating to either this Agreement or the Products, then Customer’s sole, exclusive remedy is to discontinue using the Products. IN NO EVENT SHALL OUR LIABILITY WITH RESPECT TO ANY ACT, OMMISSION, DEFAULT OR BREACH UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER CONTEMPLATED HEREBY EXCEED THE TOTAL AGGREGATE AMOUNTS ACTUALLY PAID TO US BY CUSTOMER UNDER THIS AGREEMENT FOR THE IMMEDIATELY PRECEEDING CALENDAR YEAR.
Neither Party shall be liable for failure to perform the party’s obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or any failure of electricity, internet or telephone services.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to Customer.
Customer agrees to indemnify, defend, and hold harmless Us, our parent, subsidiaries, affiliates, licensors, and their respective officers, directors, shareholders, employees, representatives and agents from and against any and all claims, demands, liabilities, expenses (including reasonable attorneys’ fees and costs) and damages arising out of claims resulting from Customer’s user account administration and user activity, including, without limitation, claims arising out of Data, Customer’s violation of a third party’s intellectual property or other rights, or any claims alleging facts that if true would constitute a breach by Customer of the terms and conditions of this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, and in such case, Customer agrees to cooperate with Our defense of such claims.
7. Term & Termination
This Agreement shall commence upon execution and continue for an initial term of one year, and shall then automatically renew for successive one year terms unless either party provides written notice of cancelation within thirty (30) days prior to the expiration of the then-current term. Customer may terminate this Agreement early only upon the occurrence of a material breach if We fail to cure within thirty (30) days of written notice thereof.
We may suspend, terminate, or deny Customer’s access to and use of the Products and/or Services in whole or in part, and/or terminate or revoke any or all of Customer’s other rights granted under this Agreement if Customer fails to comply with this Agreement, including failure to make any payment required herein. Automatic termination results if Customer ceases its business operations or becomes subject to insolvency proceedings. Any termination of this Agreement shall not affect the respective rights and obligations of the parties arising before the date of termination, and all license rights to Data loaded, posted, or published through the Products as granted herein to Us shall survive in perpetuity.
8. Intellectual Property
We are the owners of all right, title, and interest in and to the Products, and all portions thereof (including, but not limited to, all U.S. and international copyrights, trademarks, patentable inventions, trade secrets, and other intellectual and proprietary rights) and any revisions or derivatives thereof, whether or not authorized; provided, however, that Customer shall retain all right, title, and interest in and to its Data loaded, posted, or otherwise provided via the Products.
All content, software, software code, associated media, documentation, data, databases, and script forming a part of Products, and all trademarks, service marks, trade dress, logos, and tag lines displayed on the Products and/or Services, as well as all trade secrets, patents and patentable inventions (collectively, the “Intellectual Property”), are the sole and exclusive property of Us. Customer shall not challenge the Intellectual Property rights associated with the foregoing or do anything that might impair or damage those rights. Customer is not granted any right or license, either express or implied, to Our Intellectual Property. Customer shall not remove any copyright, trademark, or other proprietary legends or notices that appear on, in, or as part of the Products. Customer acknowledges and agrees that We shall continue to own all rights to the revised or customized Products and access to Data generated by Customer for us in the creation of aggregation information and that upon termination We can treat any Customer unique trucking carrier capacity information as general trucking carrier capacity information to the benefit of Our network.
We will use commercially reasonable efforts to make the Web Apps and Software available to Customer twenty-four hours a day, every day, including weekends and holidays, but exclusive of maintenance and repair periods. Should the system become unavailable, We will act in good faith to expediently restore service and functionality.
10. Third Party Components & Links To Other Internet Sites
Customer is responsible for providing all equipment, Internet connections and software necessary to operate and access the licensed Products, including any necessary or desirable third party software or services, operating systems, databases, or other components. Links to Internet sites owned, operated, or maintained by third parties not under Our control may be available through the Products. Such links are not and shall not be deemed to be Our endorsement of the organization or individual associated with the linked site. We are not responsible for third party data, content, quality, security, or accuracy of any materials received through Products. Customer assumes sole responsibility and liability for such items.
11. Governing Law; Limit on Commencing Actions
This Agreement is governed by the laws of the Ontario, Canada without regard to the conflicts of laws principles thereof. Customer must commence any cause of action or claim against Us within one (1) year after the cause of action or claim arises, otherwise Customer agrees that Customer’s cause of action or claim shall be barred.
12. Injunctive Relief; Remedies
Customer agrees that Our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that We shall be entitled to injunctive relief in addition to any other legal or equitable remedies, including damages, that We may be legally entitled to recover. In any action to enforce this Agreement, or collect past due amounts whether a court proceeding, settlement, mediation, arbitration or otherwise, We shall be entitled to recover Our reasonable expenses, including attorneys' fees. All rights and remedies granted to Us under this Agreement are cumulative and not alternative, and are in addition to all other rights and remedies available to Us at law or in equity.
13. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes.
Customer is expressly WAIVING AND GIVING UP CUSTOMER’S RIGHT TO GO TO COURT to assert or defend Customer’s rights under this contract. Customer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. Customer is entitled to a FAIR HEARING, BUT arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
The parties agree that the arbitrator’s ruling is binding and confidential, and not merely advisory. ANY CLAIMS BROUGHT BY CUSTOMER OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
With the exception of subparts in the paragraph above prohibiting arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. In the event this agreement to arbitrate is held unenforceable by a court, all controversies, disputes, demands, counts, claims, or causes of action between Us and Customer shall be exclusively brought in the state or federal courts located in Ontario, Canada for such purpose and for any other action contemplated in this Section.
14. Binding Agreement, Interpretation & Severability
If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Customer shall not assign or otherwise transfer this Agreement or Customer’s rights, duties, and obligations under this Agreement. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of said right or provision and any single waiver shall not constitute a future waiver of any similar provision or obligation. We many assign this agreement at our sole option. Any notice shall be deemed given if provided in writing via overnight carrier, certified mail, or an email address designated for such notification purposes. If to Us, notification can be made by email to email@example.com, and if to You, notification can be made at the addresses or email designated in Customer's accounts. No other third party beneficiaries are created by or shall be implied under this Agreement.
16. Entire Agreement
This Agreement, together with any amendments, exhibits, and other addenda, if any, constitute the entire agreement and understanding of the parties relating to the Products and supersedes all prior representations, communications, or agreements.