GENERAL TERMS AND CONDITIONS
Welcome to Enqlare! This Agreement is between Enqlare AB, Stockholm, Sweden (the “Company”) and you. This Agreement governs your access to, and use of, Enqlare’ services platform, which is available at Enqlare.com and its subdomains and related domains (the “Site”) and through our mobile apps (“Enqlare App”). The platform, Site and Enqlare App are collectively called the “Enqlare Platform”.This Agreement was last updated on 2018-08-01. It is effective between you and Enqlare as of the date of your acceptance of this Agreement.
1.ENTERING INTO THIS AGREEMENT WITH ENQLARE
By using the Enqlare Platform, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement (the “Customer”). In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, we regret that you cannot use the Enqlare Services.
2.RELATIONSHIP TO OTHER AGREEMENTS
3.ENQLARE SAAS SERVICES AND SUPPORT
Through the Enqlare Platform, we offer different types of services as described in this Section. All ofthe services are referred to collectively as “Services”. Our Services may assist your own internal operations and/or may connect you with different stakeholders in the business of shipping cargo from one location to another, and/or associated services.
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
4.RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect including the Enqlare PrivacyPolicy and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
5.CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information,and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in itspossession or known by it prior to receipt from the Disclosing Party, or (c) was rightfullydisclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications,inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services andother Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
6.PAYMENT OF FEES
Unless otherwise agreed, you don’t pay to use the Enqlare Services (the “Fees”). You may need to pay for any extra and optional services you have selected.
Unless otherwise agreed, Company reserves the right to change the Fees or applicable charges andto institute new charges and Fees at the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
7.TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the service term of one year(the Service Term) and shall be automatically renewed for additional periods of the same, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval fora period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination willsurvive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
We may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Agreement on the Site, posting a notice on the Enqlare App, or through other communications, and the change will be effective 30 days after such communication.It’s important that you review this Agreement whenever we modify it because if you continue to use the Enqlare Services after we have told you that this Agreement has been modified, you are indicating to us that you agree to be bound by the modified Agreement. If you don’t agree to be bound by the modified Agreement, then you can’t use the Enqlare Services anymore.
8.WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You will indemnify, defend and hold the Company and its officers, directors, employee and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Enqlare Platform or Enqlare Services, (ii) the use of any of your AuthorizedUsers of the Enqlare Platform or Enqlare Services (if applicable), (iii) your Customer Content, or (iv) your violation of this Agreement.
10.LIMITATION OF LIABILITY
Neither Enqlare nor any other party involved in creating, producing, or delivering the Enqlare services or Enqlare platform will be liable for any incidental, special, exemplaryor consequential damages, including lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services arising out of or in connection with this agreement or from the use of or inability to use the Enqlare services or Enqlare platform, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Enqlare has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
You agree not to do any of the following in connection with your use of the Enqlare Services:
Post, upload, publish, submit or transmit any Customer Data that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive;(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Enqlare Platform or any individual element within the Enqlare Platform, Enqlare’ name, any Enqlare trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;
Access, tamper with, or use non-public areas of the Enqlare Platform or Enqlare computer systems;
Attempt to probe, scan or test the vulnerability of any Enqlare system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Enqlare or any of Enqlare’ providers or any other third party (including another user) to protect the Enqlare Platform or Enqlare Content;
Attempt to access or search the Enqlare Platform, Enqlare Content or Customer Data, or download Enqlare Content or Customer Data from the Enqlare Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Enqlare or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Enqlare Platform;
Collect or store any personally identifiable information from the Enqlare Platform from other users of the Enqlare Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation;
or Encourage or enable any other individual to do any of the foregoing
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of Sweden. Any dispute, controversy or claim arising out ofor in connection with this contract, or the breach, termination or invalidity thereof, shallfirst be referred to Mediation in accordance with the Mediation Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, unless one of the parties objects. If one of the parties objects to Mediation or if the Mediation is terminated, the dispute shall be finally resolved by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
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