Ocean Rates Tariff Retrieval Agreement
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Descartes Systems Group is the developer and owner of proprietary computer software and a database known by the name Ocean Rates™ which allows for the storage of competitive tariff data in a proprietary database. Customer desires the right to electronically access from Customer's remote locations Descartes' Ocean tariff database from time to time to retrieve competitive tariff data for use by Customer.
1.1 "Descartes Ocean Database" means Descartes competitive database of United States and foreign Tariffs and/or other information with respect to certain Conferences and individual steamship lines maintained at a remote, secure Descartes Data Center.
1.2 "Tariffs" means tariffs, memorandum rate sheets/price lists, and service contracts, including all applicable tariff changes which Customer is permitted to access.
1.3 "Effective Date" means the date of Customer's signature of this Agreement.
2. RIGHT OF ACCESS
2.1 Retrieval. Descartes hereby grants to Customer, for the charges set forth in Section 3.2 a non-exclusive, nontransferable, restricted right for individuals to link electronically with the Software and to access and retrieve from the Descartes Ocean Database competitive Tariff information by following the procedures set forth in Section 2.2.
2.2 Access Requirements. Customer will access Ocean Rates via a Customer-provided, internet network connection between the Customer's desktop personal computer or internal network and a link provided on Descartes' website. It is Customer's responsibility to obtain compatible telecommunications / internet software necessary to access the Software. Descartes will provide Customer with a computer ID and password. Descartes does not accept any responsibility for the performance of Internet communications between Customer's desktop PC or internal network and the Descartes Ocean Proprietary database.
2.3 Security. Customer agrees to comply with the rules of operation and security procedures established by Descartes from time to time. Customer agrees not to attempt to gain access or in any way use or modify any data, files, or programs to which it is not specifically entitled under this Agreement. Further, Customer agrees that it is Customer's responsibility to safeguard access to terminals at Customer's locations and Customer will take all steps necessary to prevent unauthorized access of the Software and Database.
2.4 Ownership of Software. Descartes retains all right, title and interest in and to the Software, Documentation, and Database, including to any Fixes and New Versions, and to all copies of the Software and Documentation, authorized or unauthorized, in whole or in part, and in all intellectual property related to all of the foregoing.
2.5 Trademark. Customer may not use Descartes' trade name or any of Descartes' trademarks, whether or not registered, or any translation or equivalent thereof, in any language, with a product or service, with another trademark, in a corporate title or business name, or in any advertising or other materials, without the written consent of Descartes.
2.6 Additional Terms. Descartes does not accept and objects to any different or additional terms and conditions contained in any purchase order or other writing received from Customer.
3. FEES AND PAYMENT
3.1 Telecommunications. All telecommunications charges related to the connection to the database are the responsibility of Customer.
3.2 Fees. Each Customer billing address will be charged for each minute of connect time per the fees listed below. Fixed monthly minimum fees will be billed in advance for the term of this agreement and all other fees and expenses will be billed by Descartes on a monthly basis.
Provided below are the public rates access options:
- Option 1 - $ 0.95 per minute, $50 monthly minimum.
- Option 2 - 6 hours (360 minutes), $ 250.00 flat fee minimum Each additional minute over 360 $ 0.95 per minute.
- Option 3 - 13 hours (780 minutes), $ 500.00 flat fee minimum Each additional minute over 780 $ 0.95 per minute.
- Option 4 - Access to governing rules for licensed NVOCC(s) utilizing NRAs and/or NSAs. Cost: $0.00*
- Option 5 - Access to tariffs for water carriers operating in the noncontiguous US domestic trade. Cost: $0.00**
*As required by Part 531.4 and 532.4 of the CFR. **As required by Part 1312.3 of the CFR.
3.3 Invoicing and Payments. Beginning on the Effective Date of this Agreement, Descartes will invoice Customer monthly for all Fees under this Agreement which Customer has incurred. All Fees are due and payable in U.S. dollars, within ten (10) days of the date of Descartes' invoice. If Customer is based outside of the United States, all payments must be made by wire transfer in immediately available funds. Fees do not include costs of postage, shipping and administrative fees or user fees imposed by various regulatory bodies with regard to tariff filing, modem, telecommunications or other communications fees, which costs and fees will be separately billed by Descartes to Customer and which Customer agrees to pay. In addition, Descartes may terminate this Agreement in accordance with Sections 7.2 and 7.3.
3.4 Late Payments. In the event that any payment of any invoice is overdue, Descartes may bill Customer a late payment charge on the unpaid balance at the rate of 1 and 1/2% per month or the highest legal rate, whichever is lower.
3.5 Creditworthiness. Descartes reserves the right to assess Customer's creditworthiness and to modify these payment terms in Descartes' sole discretion based on Customer's credit history.
3.6 Taxes. All Fees are exclusive of and Customer is responsible for (a) all applicable federal, state or local taxes, user fees or other assessments on the sale, license or use of the Software, Documentation, and/or services provided under this Agreement, (b) any access fees charged by any governmental agency. Customer is not responsible for taxes based upon Descartes' net income, or any gross receipt, capital stock, franchise, net worth or similar taxes imposed upon Descartes.
3.7 Pricing. All prices and Fees set forth in this Agreement, and Exhibits hereto, shall be at Descartes' then current rates. Descartes may increase prices and fees on thirty (30) days written notice to Customer.
4. SUPPORT SERVICES
4.1 Basic Support Services.
(a) Descartes will provide to Customer, through its "Hotline" service, telephone consultation and advise with respect to the use and operation of the Software and the resolution of routine Software-related problems. Descartes will use commercially reasonable efforts to return such calls from Customer during Descartes' normal business hours, 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday.
(b) Basic Support Service that is available through the "Hotline" consists of application support to end-users regarding Customer's access to the Database and use of the Software and limited technical support to resolve routine malfunctions and to make routine resets of Customer's modems.
5. WARRANTY AND REMEDIES
5.1 Limitation on Damages. DESCARTES WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSSES OR DAMAGES ARISING OUT OF ANY ACT OR OMISSION OF CUSTOMER WITH RESPECT TO CUSTOMER'S USE OF TARIFF INFORMATION. DESCARTES WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITIES CAUSED DIRECTLY OR INDIRECTLY BY FAILURE OR ERRONEOUS PERFORMANCE OF THE SOFTWARE OR PERFORMANCE OF SERVICES HEREUNDER, WHETHER A CLAIM ARISES OUT OF CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY).
5.2 Entire Liability. Descartes' entire liability to Customer for any cause whatsoever, whether arising from Software or services is limited to a refund of all Fees Customer has paid under this Agreement for the three (3) month period immediately prior to the date liability accrues.
5.3 Customer Indemnification. Customer indemnifies and holds harmless Descartes, its officers, directors, employees and agents from and against any claims, losses, liabilities or expenses (including reasonable attorney's fees) arising out of injury or damage (including death) to Customer's or Descartes' employees, consultants, agents, other third parties or the property of any of them arising out of Customer's (a) negligence or willful misconduct, or b) infringement of another's patent or copyright or misappropriation of a trade secret, unless such claims, losses or liabilities are solely caused by the negligence of Descartes.
5.4 Disclaimer. DESCARTES MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND THE WARRANTY AGAINST NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
6.1 Indemnification. Customer agrees to indemnify and hold harmless Descartes, its officers, directors and employees, from any and all liabilities, losses or damages, including reasonable attorney's fees, incurred by Descartes as a result of claims, demands, lawsuits, or judgments arising from or in connection with this Agreement, unless Descartes is negligent, reckless or engages in willful misconduct in its performance of this Agreement or if such Descartes liabilities, losses or damages result from a material breach of this Agreement by Descartes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective for a period of one (1) year from the Effective Date shown on page one (1), with a minimum ninety (90) day commitment. Each party must give ninety (90) days written notice to the other prior to the expiration of a term of its election not to renew. If no such notice is given, this Agreement will automatically renew for additional terms of one (1) year at Descartes' then-current prices and fees for service. Either party may terminate this Agreement at any time with sixty (60) days prior written notice.
7.2 Termination. Descartes may terminate this Agreement immediately upon written notice to Customer (a) if Customer fails to pay any invoice when due or (b) in the event of transfer of a substantial portion of Customer's assets or control of its business by sale, reorganization, or merger. Either party may terminate this Agreement immediately upon written notice to the other (i) if the other party materially breaches any other obligation under this Agreement and has failed to cure such breach to the other's satisfaction within thirty (30) days of receipt of notice of the breach, or (ii) in the event of bankruptcy, insolvency, dissolution or receivership proceedings filed by or against the other party.
7.3 Re-Connect Fee. Rather than terminating this Agreement in the event Customer fails to pay any invoice when due, Descartes may, after notice to Customer, suspend services to Customer until Customer's account is made current. If Descartes terminates this Agreement or suspends services and Customer later requests reinstatement of services, Customer will be required to reinstate the existing Ocean Rates Tariff Retrieval Agreement, or enter into a new Ocean Rates Tariff Retrieval Agreement with Descartes. In addition, Customer will be required to pay any and all past due amounts and a Re-Connect Fee equal to the greater of 2.5% of all past due amounts or $25.00.
7.4 Survival of Obligations. All obligations of Customer to pay all amounts still due and owing to Descartes will survive the termination of this Agreement for any reason.
8.1 Justifiable Delays. Descartes shall be excused from performance or delays under this Agreement to the extent such performance is prevented or delay is due to causes beyond the control of Descartes, including without limitation acts of God, strikes, or other labor disputes, wars, governmental restrictions, failure of transportation, failure of utilities or telecommunications transmission lines or service, and failure of equipment. In such event Descartes' time for performance shall be extended by the extent of any such delay or where practical shall be excused.
8.2 No Third Party Beneficiaries. No customer, agent, authorized employee, or affiliate of Customer, is or will be deemed a third party beneficiary under this Agreement.
8.3 Severability. If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be severed and the remaining provisions will remain in effect.
8.4 Waiver. The failure by any party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. No waiver by any party will be valid unless given in an appropriate writing signed by that party.
8.5 Governing Law. This Agreement will be governed and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. This Agreement will be deemed to have been entered into in Pennsylvania. The parties agree that this Agreement primarily involves the sale of services and that the provisions of the Uniform Commercial Code shall not apply.
8.6 Jurisdiction and Venue. Customer agrees that any legal actions concerning this Agreement will be brought only in the U.S. District Court for the Western District of Pennsylvania or the Commonwealth of Pennsylvania courts in the County of Allegheny. Each party hereby consents to the jurisdiction of such courts and to venue therein.
8.7 Modification and Assignment. This Agreement may not be modified except by an instrument in writing signed by both parties. This Agreement may not be assigned by Customer without the written consent of Descartes. Any attempted assignment by Customer without consent will be void and of no effect.
8.8 Headings. The headings in this Agreement in no way define, limit, expand or interpret the scope of this Agreement or of any provision hereof.
8.9 Independent Contractors. Both parties are independent contractors with respect to all matter arising out of this Agreement. For purposes of this Agreement, neither of the parties will be considered an employee, agent or joint venturer of the other.
8.10 Integration. This Agreement, together with any Exhibits and/or attachments referenced herein, constitutes the entire and exclusive agreement between Descartes and Customer relating to the subject matter hereof and supersedes all prior written or oral agreements, representations, or communications between the parties relating to the subject matter of this Agreement. All Exhibits attached to this Agreement are incorporated by reference as if fully set forth herein.
8.11 Limitation of Actions. All claims against Descartes must be brought within one (1) year after the cause or action arises and Customer waives any statute of limitations which might apply by operation of law or otherwise.
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