HARVEY SOFTWARE, INC.
AUTHORIZED CPSTM
END-USER AGREEMENT
UPS®
CARRIER ADDENDUM
This End-User License Agreement (the "Agreement") is entered into by and
between Harvey Software, Inc. ("Licensor")
and you ("End-User") for the UPS Internet Services, Inc. and its
Affiliates ("UPS")
portion of the Licensor Product.
END-USER'S USE OF THE UPS PORTION OF THE LICENSOR PRODUCT IS SUBJECT TO THE TERMS AND CONDITIONS
SET FORTH BELOW. BY CLICKING THE "I AGREE" BUTTON, YOU AGREE TO BE BOUND BY
ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "I DECLINE" BUTTON AND YOU MUST CEASE
ALL FURTHER USE OF THE UPS PORTION OF THE LICENSOR PRODUCT.
1. Definitions.
1.1 Affiliates means parties that control, are controlled by, or under
common control with UPS.
1.2 Hosting Provider means (i) a third party service provider that has
contracted with the End-User to host the Licensor Product at the third party
service provider's location in the Territory and only for End-User's sole
benefit. The term "Hosting Provider" shall not include: (i) any UPS
competitors or (ii) Licensor or any of Licensor's distributors or any of
their affiliates.
1.3 Licensor Product or Licensor Products mean the software product(s),
Internet or on-line accessed services, associated media, printed material,
and/or any electronic documentation the Licensor distributes to End-Users
that contain UPS Licensed Materials.
1.4 OFAC Specially Designated Nationals List means that list found at
http://www.ustreas.gov/offices/eotffc/ofac/sdn/index.html, which may be
revised or supplemented from time to time.
1.5 Restricted Territory means any country subject to embargo or sanctions
by the United States Department of the Treasury's Office of Foreign Assets
Control ("OFAC"). As of September 29, 2004, the countries subject to embargo
or sanctions by OFAC include Cuba, North Korea, Libya, Sudan and Syria.
Countries subject to OFAC embargo or sanctions can change at any time.
1.6 Territory means the countr(y)ies for which End-User has received written
approval from Licensor to use the Licensor Product(s).
1.7 UPS means UPS Internet Services, Inc. and its Affiliates.
1.8 UPS License Agreement means that certain license agreement between UPS
and Licensor or licensor's supplier pursuant to which UPS grants to Licensor
a limited, revocable, non-exclusive, non-transferable right to sublicense
the UPS Licensed Materials as part of the Licensor Products to End-Users.
1.9 UPS Licensed Materials means the UPS proprietary technology contained in
the Licensor Product and the related Documentation.
1.10 UPS Services means UPS shipping services including the labeling,
rating, routing, recording and tracking of shipments tendered by or for
End-Users to UPS for delivery.
1.11 UPS Systems means the UPS proprietary network and computer systems
accessed by the Licensor Product, including, without limitation, the UPSnet,
the Package Tracking System, and the Tracer Information Processing System.
2. License Grant. Licensor hereby grants to End-User, subject to the terms
and conditions of this Agreement, a limited, revocable, non-exclusive,
non-assignable, nontransferable, right and license to use, in the Territory
only, the UPS Licensed Materials solely for its own internal business
purposes in order to gain access to the UPS Systems and provide UPS with
Package Level Detail ("PLD").
3. License Restrictions and Acknowledgements. End-User shall not, nor shall
it permit any other third party to: (a) translate, deactivate, decompile,
reverse engineer, disassemble, modify, reproduce, rent, lease, lend,
distribute or otherwise dispose of the UPS Licensed Materials or any part
thereof; (b) allow distribution of any information regarding the UPS
Services, through use of the Licensor Product or UPS Licensed Materials or
any other means by wireless or satellite delivery services or applications;
or (c) host or use, or allow any entity or person to host or use the UPS
Licensed Materials so that functions within the UPS Licensed Materials are
available to third parties, via an application service provider arrangement
or otherwise. Notwithstanding sub-section 3(c) above, End-User may (i) host
the Licensor Product at an End-User location in the Territory only for its
sole benefit, or (ii) contract with a Hosting Provider to host the Licensor
Product at the Hosting Provider's location in the Territory only, and only
for End-User's sole benefit. Further, End-User shall use the UPS Licensed
Materials only to communicate with the UPS Systems, and for no other
purpose. For each End-User location supported by a Licensor Product,
End-User must have a UPS Shipper Number and receive UPS Daily Pick-up
Service. All shipments manifested through the Licensor Product and received
by UPS Daily pick-up service must be billed to such six digit UPS Shipper
Number. End-User may not use a six digit shipper number which UPS has not
specifically assigned to End-User. End-User may not permit any third party
to use the six digit UPS Shipper Number which UPS has assigned to End-User.
End-User acknowledges that, concurrently with an End-User initiated
connection to the UPS Systems, the Licensor Product may be remotely accessed
for a limited period of time by UPS in order to provide updates and changes
relating to the UPS Licensed Materials and other UPS software and related
information. End-User further acknowledges that (a) it may be asked by its
consignees to include a location identifier ("LID"), which is used by the
consignee to participate in the UPS Quantum View InboundTM
Service, in the PLD upload to UPS for certain packages shipped by End-User
to such consignee using the UPS shipping system; and (b) if End-User chooses
to include the consignee LID in its PLD records, UPS may, at the request of
a consignee, distribute to the consignee or a third party the information of
such PLD records which include the consignee LID and such recipient may
further use and distribute such information to other parties.
4. Limited Access. End-User shall not, nor shall it permit any other third
party to, gain or attempt to gain access to any UPS computer system or data
base, other than the UPS Systems, by any means, including by use of the UPS
Licensed Materials or the Licensor Products.
5. Third-Party Beneficiary. Licensor and End-User agree that UPS is an
intended third-party beneficiary of this Agreement and any amendments
thereto.
6. Changes to UPS Services and Materials. End-User understands and
acknowledges that the UPS Services, UPS Licensed Materials, and UPS Systems
may be updated, altered, terminated, modified or supplemented at any time.
7. Ownership and Other Rights. End-User hereby acknowledges and agrees that
UPS or its parent or Affiliate is the owner of all right, title and interest
in and to the UPS Licensed Materials and the UPS trademarks, service marks
and logos (the "UPS Marks"). End-User further does not acquire any right of
ownership in the UPS Licensed Materials or UPS Marks. UPS reserves all of
its rights pertaining to the subject matter hereof not specifically granted
herein to End-User.
8. Smart Labels. For all packages shipped via UPS, End-User must use the UPS
Smart Labels. "Smart Labels" mean labels generated by an application
certified or provided by UPS which comply with the then current version of
the UPS Guide to Labeling. End-User's production and use of Smart Labels
produced for shipping via UPS are subject to the following restrictions: (i)
only one unique Smart Label may be printed for a package and such unique
Smart Label may only be used in connection with the unique package for which
such unique Smart Label was generated; (ii) no Smart Label may be copied,
photocopied, reproduced, modified, altered, distributed, transferred,
stored, sold, leased, transmitted, or disclosed, electronically or
otherwise, to any third party; (iii) Smart Labels may only be used by
End-User in connection with shipments tendered by End-User to UPS for
delivery and for no other purpose; (iv) all shipments for which Smart Labels
are generated must have their PLD electronically transmitted to UPS via the
Licensor Product by the time of pickup by the UPS Daily Pick-up service; (v)
End-User represents that it has all necessary rights to provide to UPS all
personally identifiable information through End-User's use of the Licensor
Product; (vi) End-User consents to the transfer of personally identifiable
information provided to UPS through End-User's use of the Licensor Product
to jurisdictions that may not have the same level of data protection as the
country of origin of End-User or End-User's customers, and (vii) End-User
shall not interfere with or disable features of the Licensed Materials which
cause shipments for which Smart Labels are generated not to have their
package level detail electronically transmitted to UPS.
9. Limitations on Branding. End User shall not allow any third party to
brand, re-brand or co-brand the Licensor Products which incorporate the UPS
Licensed Materials in connection with the trademark, service mark, trade
name, logo, symbol, or mark of any third party.
10. Confidentiality. Any information received from the UPS Licensed
Materials, the UPS Systems or the UPS Services is "Confidential
Information". End-User shall (a) hold in confidence, and not disclose to any
person or entity, any Confidential Information of UPS; and (b) not use or
disclose any of the UPS Confidential Information for any purpose at any time
other than for the limited purpose of performance under this Agreement.
These obligations shall continue indefinitely for so long as the
Confidential Information is a trade secret under applicable law and, with
respect to Confidential Information that is not a trade secret, shall
continue for so long as such information maintains its status as
Confidential Information.
11. No Warranty. THE UPS LICENSED MATERIALS ARE PROVIDED "AS IS" AND IN
THEIR PRESENT STATE AND CONDITION. NO WARRANTY, REPRESENTATION, CONDITION,
UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
CONDITION, QUALITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE UPS
LICENSED MATERIALS IS GIVEN OR ASSUMED BY UPS OR ITS AGENTS AND ALL SUCH
WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY
EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. UPS DOES NOT GUARANTEE
CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE UPS SYSTEMS AND ACCESS TO
SUCH SYSTEMS MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF UPS'S
CONTROL; UPS IS NOT LIABLE FOR ANY DAMAGES OF ANY TYPE CAUSED BY SUCH
INTERFERENCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED
WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO
END-USER. THIS CONTRACT GIVES END-USER SPECIFIC LEGAL RIGHTS. END-USER MAY
ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
END-USER AGREES AND ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF
LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
12. Disclaimer of Third-Party Liability and Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, UPS
SHALL NOT BE LIABLE TO END-USER OR ANY THIRD PARTY, TO THE EXTENT PERMITTED
UNDER APPLICABLE LAW, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE,
MULTIPLE, INCIDENTAL, OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS,
ARISING OUT OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), DELICT OR OTHERWISE, OR USE OF THE UPS LICENSED MATERIALS OR TO
THE EXTENT PERMITTED BY APPLICABLE LAW, DAMAGES RESULTING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF UPS OR IN THE EVENT OF DEATH OR INJURY
TO ANYONE, SUFFERED BY END-USER OR ANY SUCH THIRD PARTY ARISING OUT OF THIS
AGREEMENT EVEN IF UPS HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
OCCURRING. IN NO EVENT SHALL UPS'S LIABILITY UNDER THIS AGREEMENT FOR ANY
DAMAGES OF ANY TYPE EXCEED $100. CLAIMS NOT MADE WITHIN SIX (6) MONTHS
AFTER THE FIRST EVENT GIVING RISE TO A CLAIM SHALL BE DEEMED WAIVED.
13. Indemnification. End-User will, at End-User's sole cost and expense,
indemnify and hold UPS and its officers, directors, employees, agents,
successors, and assigns harmless from and against any and all claims,
losses, damages, judgments, costs and expenses, including attorneys' fees
(any of the above being a "Claim") arising out of or related to (a)
End-User's violation of the terms of this Agreement; or (b) any wrongful act
or omission of End-User and/or End-User's employees, agents, or contractors.
14. Termination. End-User acknowledges and agrees that this Agreement may be
terminated by Licensor for any reason or no reason upon thirty (30) days
prior written notice. Notwithstanding the foregoing, this Agreement may be
terminated immediately upon a breach of the Confidentiality provision; the
License Restrictions; or the Limitations on Branding provision. Upon
expiration or termination of the UPS License Agreement, UPS reserves the
right within its sole discretion to (a) allow this Agreement to continue
pursuant to its terms, (b) require Licensor to terminate the portion(s) of
this Agreement that involve the UPS Licensed Materials, or (c) require
Licensor to terminate the portion(s) of this Agreement that involve the UPS
Licensed Materials, and replace such portions with license agreements by and
between the End-User and UPS or one of its affiliates. Sections 3, 4, 5, 7,
10, 11, 12, 13, 14, 15, 16, 17 and 18 shall survive termination or expiration of
this Agreement.
15. Compliance with Laws. End-User shall strictly comply with all applicable
laws, rulings, and regulations and shall take no actions which would (i)
cause UPS to be in violation of any laws, rulings or regulations applicable
to it; or (ii) negatively reflect on the goodwill or reputation of UPS.
End-User will comply, to the extent applicable, with the United States
Export Administration regulations, the International Traffic in Arms
regulations and any regulations or licenses administered by the Department
of Treasury's Office of Foreign Assets Control ("OFAC"). Under no
circumstances may the UPS Licensed Materials be distributed to any
individual or entity listed on OFAC's Specially Designated Nationals List.
16. Canada. The parties declare that they have required that this Agreement
and all documents related hereto, either present or future, be drawn up in
the English language only. Les parties d'larent qu'elles exigent que cette
entente et tous les documents y aff'ents, soit pour le pr'ent ou l'avenir,
soient r'g' en langue anglaise seulement.
17. Governing Law and Language. EXCEPT AS SET FORTH IN SECTION 18 BELOW, TO
THE FULL EXTENT PERMITTED BY LAW, WITH RESPECT TO MATTERS REGARDING THE UPS
LICENSED MATERIALS, THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO BREACHES OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) AND MISCONDUCT OF THE PARTIES) SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
GEORGIA, UNITED STATES OF AMERICA, EXCLUDING (I) ITS CONFLICT OF LAW
PRINCIPLES; (II) THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS; (III) THE 1974 CONVENTION ON THE LIMITATION
PERIOD IN THE INTERNATIONAL SALE OF GOODS; AND (IV) THE PROTOCOL AMENDING
THE 1974 CONVENTION, DONE AT VIENNA, APRIL 11, 1980. To the full extent
permitted by law and consistent with valid entry into a binding agreement,
the controlling language of this Agreement is English and any translation
End-User has received has been provided solely for End-User's convenience.
18. Arbitration and Jurisdiction. With respect to matters relating to the
UPS Licensed Materials, and except for the right of either party hereto to
apply to a court of competent jurisdiction for an injunction or other
interim or equitable relief or provisional remedies available under
applicable Territory law to preserve the status quo, or prevent irreparable
harm or related to End-User's use of the UPS Licensed Materials in breach of
this Agreement pending the selection and confirmation of the arbitrators,
and to enforce the award of the arbitrators, any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall
be settled exclusively by arbitration in Atlanta, Georgia, United States of
America (the parties hereby consenting to such venue and waiving and
agreeing not to plead or claim that any such action or proceeding has been
brought in an inconvenient forum) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The award of the arbitrators shall be final and
binding, and the parties hereto explicitly waive request for review under
Article V Section 1 of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. Arbitration shall be conducted by a
panel of three members, one member selected by Licensor, one member selected
by End-User and the third member, who shall be chairman, selected by
agreement between the other two members. The arbitrators shall be attorneys
with a background or training in computer law, computer science, or
marketing of computer industry products. The language of arbitration shall
be English.
19. Miscellaneous. If any portion of this Agreement is found to be invalid
or unenforceable, the remainder of the agreement shall remain in full force
and effect. Use, duplication or disclosure of the UPS Licensed Materials by
the United States Government is subject to the restrictions set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software - Restricted Rights at 48 CFR- 52-227.19, as
applicable. This Agreement shall constitute the entire agreement between
Licensor and End-User with respect to the subject matter hereof and
supersedes all prior or contemporaneous representations and agreements
related thereto.
(At the time of installing this carrier option the user is required to enter
"YES" that they agree or "NO" that they do not agree to this agreement. If they
select "NO", they will not be able to use that carrier service.)
Harvey Software, Inc.
800-231-0296
FAX 828-492-0832
http://www.HarveySoft.com
Copyright (c) 1997-2023 Harvey Software, Inc. All rights reserved.
The Harvey Software Logo is a registered trademark of Harvey Software, Inc.
UPS® service marks used by permission. UPS, UPS brand mark, UPS Ready®, UNITED PARCEL SERVICE® and the Color Brown are registered trademarks of United Parcel Service of America, Inc. All Rights Reserved. UPS service marks used by permission.