Terms of Use
Amber Road, Inc. Online Subscription Agreement
Your use of TradeWizards.com, including without limitation all software, trade content and any additions, corrections, updates, modifications, upgrades and releases thereto (collectively, the "Software") which is made available to you by Amber Road, Inc. ("Provider"), is governed by the following terms and conditions ("Terms"). Your use of the Software is expressly conditioned upon your acceptance of and compliance with these Terms. In order to access the Software, please scroll through and read the Terms below, then click the "I Agree" button below demonstrating your consent to these Terms.
ATTENTION: PLEASE READ THESE Terms CAREFULLY BEFORE USING THE Software. IF YOU DO NOT ACCEPT THESE Terms, YOU MAY NOT USE THE Software.
1. Acceptance. The following Terms apply to all users of the Software, and these Terms constitute a legal agreement between you and your company (collectively, "User"), on the one hand, and Provider, on the other hand. By using the Software, User represents and warrants that: (i) it has, or an appropriate representative of User has read, understands and agrees to be bound by the Terms, and such representative has the power, authority and legal right to use the Software in accordance with these Terms on behalf of User; (ii) the use of this Software on behalf of User has been duly authorized by all requisite action, corporate or otherwise; (iii) User is not a competitor to Provider in the Global Trade Management software, trade content and/or professional services industry; and (iv) these Terms are a valid, legal and binding obligation of User and its representatives, enforceable in accordance with its terms. If User or its representative does not agree to these Terms, neither User nor its representative can use the Software. Provider may amend these Terms from time to time, without prior notice to User, by either displaying the amended Terms in the form of a click-wrap agreement, or by posting the amended Terms on AmberRoad's website at www.AmberRoad.com. In the case of a click-wrap agreement, your continued use of the Software is expressly conditioned on your acceptance and compliance with the amended Terms. In the case of amendment by posting, your continued use of the Software after the amended Terms have been posted shall constitute User's acceptance and agreement to be bound by the amended Terms. The Terms supplement and are in addition to (x) the Provider privacy policy, which is applicable and located at http://www.AmberRoad.com/html/legal/privacy.shtml ("Privacy Policy"); and (y) and any applicable written agreement(s) between Provider and User. In the event there is any conflict between these Terms and the terms contained within any other applicable document (including without limitation, the Privacy Policy), the terms which are more favorable to Provider, as determined by Provider, shall apply. Reference to the terms "you" or "your" in these Terms refers to User and its representatives, collectively, unless otherwise expressly indicated.
2. Software License. Subject to the provisions of these Terms, Provider grants User, and User accepts, a limited, revocable, non-exclusive, non-transferable license to use the Software (in object code form) for the limited purpose of interacting and operating with Provider's Trade Wizard application and content that is made available through the TradeWizard.com website, in the manner for which the Software is designed by Provider, and for no other purpose whatsoever. Accordingly, User may not: (a) modify, distribute, publish or transmit the Software for any public or commercial purpose; (b) copy, replicate, or reproduce the Software, including the results of queries to the trade content, in any form, or by any means, without prior written permission from Provider; (c) reverse-engineer, decompile, disassemble, or translate the Software; (d) attempt to derive the source code of the Software; or (e) use the Software in any manner other than to operate with Provider's TradeWizard.com application in the manner for which the Software is designed. Provider expressly reserves the right, and User acknowledges and agrees that Provider may at any time, and without notice (i) make any change of any kind whatsoever to the Software, including, without limitation increasing or reducing functionality; (ii) discontinue or otherwise make the Software unavailable; (iii) charge fees for use of the Software; or (iv) terminate your access of the Software for Provider's convenience, with our without cause.
3. NO WARRANTY. THE Software IS PROVIDED "AS IS," "WITH ALL FAULTS," AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (i) OF MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE, (iii) CONCERNING INFRINGEMENT OR THE LIKE, (iv) OTHERWISE ARISING UNDER COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (v) THAT THE Software WILL BE UP-TO-DATE, ACCURATE, COMPLETE OR SUFFICIENT TO MEET YOUR REQUIREMENTS, OR THAT THE Software WILL OPERATE UNINTERRUPTEDLY OR ERROR-FREE, (vi) SUFFICIENCY OF MANUALS, TRAINING OR INSTRUCTIONS, (vii) THAT TO THE EXTENT DEFECTIVE, THE Software IS CORRECTABLE OR WILL BE CORRECTED, (viii) THAT THE Software WILL BE SECURE, (ix) THAT THE Software WILL OPERATE IN COMBINATION WITH User's COMPUTER SYSTEMS OR ANY OTHER HARDWARE, SOFTWARE, OR CONTENT, (x) THAT THE Software WILL ENABLE User TO COMPLY WITH EXPORT CONTROL LAWS AND REGULATIONS, OR (xii) REGARDING THE USE OF THE Software, OR RELATED CONTENT, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, ALL OF WHICH ARE HEREBY WAIVED.
THE STATEMENTS MADE HEREIN RELATING TO THE Software ARE NOT EXPRESS WARRANTIES BUT ARE MERELY Provider's OPINION OR COMMENDATION OF THE Software. ANY DESCRIPTION OF THE Software SPECIFIED HEREIN OR DESCRIPTIONS CONTAINED ON Provider's Website OR WITHIN ANY AND ALL BROCHURES, PAMPHLETS OR OTHER LITERATURE OF Provider, WHETHER DELIVERED BEFORE OR AFTER THE DATE HEREOF, ARE NOT INTENDED TO BE GUARANTEES OR WARRANTIES, AND ARE INSTEAD FOR THE SOLE PURPOSE OF IDENTIFYING THE Software; AND SUCH DESCRIPTIONS DO NOT CONSTITUTE WARRANTIES THAT THE Software WILL CONFORM TO SUCH DESCRIPTIONS.
Provider is not responsible for the completeness, accuracy, and reliability of the Software or the technical results or data derived from the Software, or the use of such Software or the technical results or data derived therefrom. User's use of the Software is done so at User's sole discretion and risk and User is solely responsible for any loss of data or damage to any computer that may result from the use of such Software by User. Provider does not guarantee or warrant that the Software is compatible with, will interface with, or will perform in accordance with, User's computers, products, systems, or operating systems and Provider hereby waives any and all liability in connection therewith. In addition, Provider does not guarantee or warrant that the Software is free of viruses, time bombs, Trojan horses, worms, and other damaging computer programming routines or harmful components.
4. WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES. UNDER NO CIRCUMSTANCES WILL Provider BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL DAMAGES, COVER DAMAGES, LOST PROFITS, OR DAMAGES RELATING TO OR RESULTING FROM BUSINESS INTERRUPTION, DOWNTIME, LACK OF AVAILABILITY OR ACCESS TO THE Software, LOSS OF GOODWILL, LOSS OF DATA, OR COMPUTER FAILURE OR MALFUNCTION, OR EXPENSES OR LOSSES, DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE Terms, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE USE OF THE Software, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH Provider KNEW OR SHOULD HAVE KNOWN OF AND REGARDLESS OF WHETHER THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE. IN THE EVENT THAT ANY TERM OF THESE Terms IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
5. LIMITATION OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF Provider ARISING OUT OF OR RELATING TO THESE Terms OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT EXCEED THE PROCEEDS ACTUALLY COLLECTED BY Provider UNDER Provider's INSURANCE POLICIES FOR THE CLAIM IN QUESTION, REGARDLESS IF THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE.
6. Proprietary Rights. User hereby acknowledges and agrees that the Software, related documentation, source code, object code, and any related intellectual property, are the sole and exclusive property of Provider and that User has no right, title, or interest therein. Accordingly, by agreeing to these Terms, you are merely granted a license to use the Software subject to the provisions hereof and are not transferred any other interest nor is there any transfer of title. User further agrees to keep the Software and all related documentation of any of the foregoing confidential and not to disclose, make available or otherwise distribute such Software to any third party. Except and only to the extent expressly provided herein, Provider shall not be deemed to have granted to User any right, license, or other intellectual or proprietary interest, express or implied, in or to the Software. All applicable rights to patents, copyrights, trademarks, and trade secrets in and to the Software shall be and remain the sole and absolute property of Provider.
7. Privacy Policy. User acknowledges that User has read, understands, and agrees to Provider's Privacy Policy, which is available at http://www.AmberRoad.com/html/legal/privacy.shtml.
8. Use of Software. The Software is provided to User with the express understanding that any results or data generated by the Software does not constitute any professional advice or opinions rendered by Provider, nor a guarantee of the accuracy of same, and accordingly, Provider assumes no liability in connection with the use of such results or data.
9. Governing Law. The parties acknowledge and agree that these Terms shall be a contract made in the United States, State of New Jersey. All questions pertaining to the validity, construction, execution and performance of these Terms shall be construed and governed in accordance with the domestic laws of the State of New Jersey (including, without limitation, the UCC), without giving effect to principles of (i) comity of nations or (ii) conflicts of law, and these Terms shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods.
10. Arbitration. (i) Any controversy or claim arising out of or relating to these Terms, or the breach hereof, shall be settled by arbitration in accordance with the United States Arbitration Act and administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators. The place of the arbitration shall be in New Jersey. Any award in an arbitration initiated under these Terms shall be in accordance with New Jersey law, as more particularly specified in subparagraph (a) of this section. The successful party will be entitled to be awarded all costs, including reasonable attorney's fees, paid or incurred by such prevailing party during the course of the arbitration proceedings.
In any arbitration initiated under these Terms, the arbitrators will have no authority to award (i) injunctive or other equitable relief, or (ii) consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing party's actual direct damages, except as may be required by statute and then only to the extent such requirement cannot, as a matter of law, be waived. Any award shall include no injunction or direction to any party other than the direction to pay damages in accordance with the provisions hereof. Notwithstanding anything to the contrary contained herein, the limitations on damages and awards stated in the two immediately preceding sentences shall not apply to User with respect to any breach by User of Sections 2 or 6 of these Terms. Any award shall include no injunction or direction to any party other than the direction to pay damages in accordance with the provisions hereof.
(ii) Except as required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Provider and User.
(iii) If either party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys' fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
11. Export Control. User agrees to be bound by all applicable laws and regulations that may pertain to the Software including without limitation United States export laws and regulations. User agrees that the Software will not be used, exported, re-exported, or released (a) to any of the following countries or a national thereof: Cuba, Iran, North Korea, Sudan, Syria or any other country specified in Country Groups D:1 or E (as specified in the then current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations), (b) to any entity or person specified in the then current Treasury Department Specially Designated Nationals and Blocked Persons List available at the U.S. Department of Treasury website (www.treasury.gov), (c) to any entity or person on the then current Unverified List available at the Bureau of Industry and Security website (www.bis.doc.gov), (d) to any entity or person on the then current Denied Persons List also available at the Bureau of Industry and Security website, (e) to any entity as specified in Entity List Supplement No. 4 to Part 744 of the U.S. Export Administration Regulations, or (f) in any manner, to any person, entity or country, or for any use, except in compliance with, and with all applicable licenses, license exceptions and approvals required under all applicable United States and foreign laws, rules, restrictions and regulations, including, without limitation, the U.S. Export Administration Regulations, the Arms Export Control Act, and the International Traffic In Arms Regulations. Diversion therefrom contrary to U.S. law is prohibited.
12. Entire Agreement. These Terms constitute and contain the entire agreement between Provider and User with respect to User's use of this Software and supersedes and replaces all prior agreements, prepared or otherwise, whether written or oral, concerning User's use of this Software.
13. Waiver. Failure or delay by Provider to enforce compliance with any term or condition of these Terms shall not constitute a waiver of such term or condition.
14. Modification. No waiver of modification of any of the provisions hereof shall be binding unless in writing signed by duly authorized representatives of the party against who enforcement is sought.
15. Limitation of Action. No arbitration, action, or proceeding at law, in equity or otherwise shall be commenced by User against Provider for Provider's alleged breach under these Terms or other breach of any obligation or duty owed by Provider under applicable law, unless: (i) User notifies Provider in writing at One Meadowlands Plaza, East Rutherford, NJ 07073, USA, within thirty (30) days from the date of such alleged breach, provided Provider does not remedy or correct the breach within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by User within twelve (12) months from the date the breach or non-conformity occurs for any action whether in contract, negligence, strict products liability, tort or otherwise, regardless of the User's lack of knowledge or.
16. Headings. Headings and captions used in these Terms are for convenience of reference only and shall not be used in the interpretation of these Terms. Words used in the singular may import the plural and vice versa.
17. Survival. Sections 3-17 shall survive the termination, cancellation, or expiration of these Terms and the rights granted hereunder.
NOTE: THE Terms REFERENCED ABOVE CONTAIN IMPORTANT INFORMATION ABOUT User's RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO USER. THEY CONTAIN LIMITATIONS OF LIABILITY AND INFORMATION ON DISCLAIMER OF WARRANTIES. BY CLICKING THE "I AGREE" BUTTON BELOW USER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THE Terms. BY CLICKING THE "I DO NOT AGREE" BUTTON BELOW User ACKNOWLEDGES THAT IT DOES NOT AGREE TO THE TERMS, AND User WILL BE PREVENTED FROM USING ANY INFORMATION, DATA, OR CONTENT FROM Provider COMPRISING THE Software.
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