3G TERMS OF SERVICE
PLEASE READ THIS USER AGREEMENT (THE “3G TOS AGREEMENT” or the “TOS AGREEMENT”) CAREFULLY PRIOR TO YOUR USE OF THIS WEB SITE, THE 3G SERVICE OR ANY OTHER SERVICE OR MATERIALS PROVIDED ON THIS SITE.
BY SIGNING THE AGREEMENT LINKED TO THIS DOCUMENT AND THEREAFTER TRANSACTING BUSINESS, ENTERING DATA ON THE 3G WEBSITE, USING 3G OR ANY OTHER SERVICE ON THE 3G WEBSITE, YOU (“USER”) HEREBY AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT WHICH INCORPORATES BY REFERENCE ANY ADDITIONAL LICENSES FOUND ON THE 3G WEBSITE, WHICH MAY BE AMENDED FROM TIME TO TIME. IF THIS AGREEMENT IS NOT ACCEPTABLE AND YOU ARE UNWILLING TO BE BOUND BY IT, PLEASE DO NOT ENTER ANY INFORMATION ABOUT YOURSELF OR YOUR COMPANY OR TRANSACT ANY BUSINESS THROUGH THIS SITE.
3Gtms, LLC. (is the owner and operator of this cloud solution/website and the products and services licensed thereon.
Contacts for questions or assistance
For questions, concerns, or requests regarding this policy or any 3G policy or service, please contact us at 877-722-3538 or firstname.lastname@example.org
ARTICLE I DEFINITIONS
1.01 – Definitions: The following definitions shall apply:
Carrier: The term “Carrier” shall mean those providers of transportation services Customer contracts with for a given rate.
Customer Content: The term “Customer Content” shall mean any data that Customer enters into the Website, Software and/or Services, and/or any data Customer provides to 3G to enter into the Website, Software and/or Services on behalf of and solely for the use of Customer. Customer Content will remain the property of Customer. Customer Content will not contain individually identifying personal information as defined by law.
Intellectual Property Rights: The term “Intellectual Property Rights” shall mean any and all patents, trademarks, and copyrights of the parties of this TOS Agreement and any third party products contained in the Website, Software and/or Services or Documentation.
3G Agreements: The term “3G Agreements” shall mean the collection of 3G agreements provided or referenced by 3G to Customer. This may include any or all of the following:
3G Terms of Service – https://www.3gtms.com/about-us/terms-of-service/
Any and all statements of work (“SOW”s) or other documents 3G may provide in connection with the services.
Services: The term “Services”: shall mean the 3G Website, products, materials and services provided thereon, including the 3G Cloud TMS Solution.
Software: The term “Software” shall mean any and all software or computer programs created by 3G and/or 3G affiliated companies.
Users: The term “Users” shall mean any of Customer’s own employees, clients, customers and/or affiliates to whom Customer gives access to the 3G Software.
User Information: The term “User Information” shall mean any information or other material Customer and/or Users provide to 3G in connection with the 3G Website and the Services.
Website: The term “Website” or “3G Website” shall mean the 3G website and/or any of the websites created and distributed by 3Gtms, LLC.
ARTICLE II SCOPE OF SERVICES
2.01 – Grant of Rights: 3G grants to Customer, during the Term as set forth in the 3G Order Form and incorporated herein, a non-assignable, nontransferable, non-sublicensable, nonexclusive, revocable, limited right for Customer, through its Users, to access and use the Services. Such use shall be for Customer’s internal use and subject to the rights and restrictions of this TOS Agreement. Customer is granted a limited, revocable and nonexclusive right to create a hyperlink to the home page of the 3G website. Customer warrants that said hyperlink will not portray 3G or any projects or services offered on the 3G Website in a false, misleading, derogatory, or other manner which 3G may deem offensive.
2.02 – Limitations on Use of 3G Website: Customer may not resell or redistribute any part of the 3G Website or its contents or Services. Any collection and use of any Services, descriptions or prices, any derivative use of the 3G Website or its contents, any downloading or copying of account information for the benefit of any third party, or any use of data mining, robots, or similar data gathering and extraction tools is expressly forbidden. The 3G Website or any portion thereof may not be reproduced, duplicated, copied, sold, resold, modified, or otherwise exploited for any commercial purpose without the express advanced written permission of 3G. Except expressly set forth herein, no express or implied license or right of any kind is granted herein regarding the Services and/or Software, including any right to obtain possession of any source code, object code or other technical material relating to the Services and/or Software. All rights not expressly granted to Customer in writing are reserved to 3G. Any unauthorized use of the 3G Website shall terminate the license granted to Customer.
2.03 – Trademark Use: Customer shall not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information including images, text, page layout or form, of 3G’s or any third party, from the 3G Website without 3G’s express written consent. Customer shall not use any meta tags or other “hidden text” utilizing 3G’s name or trademarks without the advance written consent of 3G. Customer may not use any logo or other proprietary graphic or trademark from the Website as part of any hyperlink without 3G’s express written permission.
2.04 – Modifications: Customer acknowledges that any and all modifications to the Software and/or Service, including custom modifications which may be made on Customer’s behalf, remain the property of 3G. Customer will not and will not permit Users or any other party to (i) disassemble, decompile, decrypt or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the Service or Software; (ii) alter, modify, or prepare derivative works based on the Services, Software or other Intellectual Property of 3G as defined herein; or (iii) use any part of the Services or Software or any other 3G Intellectual Property to create, invent, or develop any computer program or other invention, work or device that performs, replicates, or utilizes the same or substantially similar functions as the Services or Software. 3G reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change any design or specification of the Software and/or Services as well as the 3G Website. 3G acknowledges that any such changes shall not materially degrade the functionality of the 3G Services.
2.05 – 3G Exclusivity: Nothing in this TOS Agreement shall prohibit 3G from developing, making, using, improving, modifying, marketing, distributing, licensing, selling, producing, providing or otherwise commercializing the Software and Services. 3G acknowledges that such activities will not utilize or infringe any of Customer’s intellectual property rights or Confidential Information as defined in Section 4.05 herein.
2.06 – Lawful Purpose: Without limiting any other remedies, 3G reserves the right to suspend or terminate Customer’s account in the event Customer is found, by conviction, settlement, insurance, escrow investigation or otherwise to have engaged in fraudulent activity in connection with the 3G Website or to have otherwise violated the TOS Agreement.
2.07 – Hosting Servers: Customer will not use any device, software or routine to interfere or attempt to interfere with the proper working of the 3G Website and/or 3G servers. Customer shall not take any action that imposes an unreasonable or disproportionately large load on the 3G infrastructure.
2.08 – Hardware: Unless otherwise specified in a separate written agreement signed by both parties, Customer acknowledges that Customer is responsible for the provision of any computer hardware or other equipment necessary to exercise this TOS Agreement. 3G will host the 3G Services and/or Software on 3G servers. Customer shall be solely responsible for providing a proper environment to utilize the Software and Services.
2.09 – Support Services: 3G will provide the following support services to Customer:
Phone and Email Support: 3G will provide reasonable consultation and support over the Internet and/or phone regarding the operation of the Services, including both technical and user issues, as set forth in the 3G Maintenance and Support Guidelines. Telephone support is offered during times as established in the Maintenance and Support Guidelines.
Error Correction: In the event Customer encounters a material bug or malfunction in the Services, 3G will use reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of 3G’s, 3G’s sole obligation shall be to use its reasonable efforts to correct the reported problem, as set forth in the 3G Maintenance and Support Guidelines.
2.10 – Training: 3G will conduct training sessions as set forth in the 3G Order Form. Customer will be responsible for its own travel, living and other expenses associated with any such training.
ARTICLE III TERM OF AGREEMENT
3.01 – Term: The term of this Agreement is one (1) year; the “Initial Term” unless otherwise agreed by both parties in the 3G Order Form.
3.02 – Renewal: Upon completion of the Initial Term, this Agreement will automatically renew for additional, consecutive twelve (12) month terms (“Renewal Terms”). In any Subsequent Term, Customer may terminate this Agreement by providing written notice thirty (30) days prior to the expiration of the then current term. Additional Order Forms, and/or SOWs may be executed at any time during the Initial Term, Renewal Term(s) or as part of the Renewal. The Initial Term and any Renewal Term(s) shall be referred to herein as the Term.
3.03 – Termination: Either party may terminate this TOS Agreement and the Services and rights granted herein if the other party materially breaches any of the provisions of this TOS Agreement and fails to remedy such breach within thirty (30) days after receiving written notice thereof. Termination of this TOS Agreement shall not constitute either party’s exclusive remedy for breach or non-performance by the other party, and each party shall be entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
3.04 – Bankruptcy: Should either party (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated for a voluntary bankruptcy; (iv) consent to the filing of a petition of bankruptcy against it; (v) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (vi) seek reorganization under any bankruptcy act; (vii) consent to the filing of a petition seeking such reorganization; or (viii) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all such party’s property or providing for the liquidation of such party’s property or business affairs; then, in any such event, the other party at its option and without prior notice may terminate this TOS Agreement effective immediately.
ARTICLE IV FEES AND VOLUMES
4.01 – Pricing and Payment: Customer will pay all fees pursuant to this TOS Agreement and as set forth in the 3G Order Form. All payments will be made per the terms of the 3G Order Form without withholding, deduction or offset. For services contracted to be conducted on Customer’s worksite, Customer will reimburse 3G for costs including 3G’s reasonable out-of-pocket (including travel and living) expenses incurred in performing 3G’s obligations hereunder. If Customer in good faith disputes any amount set for the on an invoice, Customer will provide written notice of such dispute to 3G within ten (10) days of receipt of such invoice, and shall pay any undisputed portion of such invoice when due. Customer’s failure to comply with this process shall constitute approval of such invoice.
4.02 – Transactional Allowances: Customer fees are determined based on the services invoked and volume allowances noted in the 3G Order Form. If at any time during a then current 12-month subscription period, Customer has exceeded or will exceed its volume thresholds (“Excess”) for such subscription period, 3G shall invoice Customer for the incremental fees associated with Excess. In addition, Excess will be incorporated into Customer’s future subscription period fees.
4.03 – Reimbursement: Customer will reimburse 3G for all costs of fee collection, including reasonable attorney’s fees. Customer will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less. In addition to any other right or remedy available to 3G at law or equity or under this TOS Agreement, 3G reserves the right to suspend or terminate any or all of the Services for non-payment.
4.04 – Renewal Term(s) Price Increases: Customer pricing shall be subject to a standard 5% increase per line item per Renewal Term.
4.05 – Taxes: The fees for the Services may not include any charges for taxes and Customer is solely responsible for paying any and all federal, state and local taxes (including without limitation any and all sales or use taxes or export/import taxes and custom duties) attributable for the Services, excluding only taxes based upon 3G’s net income.
ARTICLE V INTELLECTUAL PROPERTY
5.01 – Third Party Websites, Carriers and Services: 3G may provide links to web pages, including links or integration to third party carriers or other services which are not part of the 3G web family. These sites are not under 3G control and 3G is not responsible for the information, links or functionality Customer may find there. As part of the Services Customer will receive standard processing with third party carrier services, therefore Customer must acquire and maintain appropriate third party authorization to access said carrier services in order to maintain Customer access to those same services through the 3G Services. Under 3G’s agreements with third party carriers, 3G reserves the right to terminate Customer’s access to carrier services accessed through the 3G service, upon request of third party carriers. 3G is provides these links strictly as a convenience to Customers. The presence of these links on any 3G websites is not intended to imply 3G’s endorsement of any site but rather to provide a convenient link to relevant sites which Customer acknowledges are managed by other organizations, companies or individuals. Accordingly, this TOS Agreement does not apply to Customer’s use of unaffiliated sites to which the 3G website only provides links.
5.02 – Ownership and Title: Title to the Software and 3G Website (excluding licensed content, Customer Content and third party links and/or services), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of 3G. Customer acknowledges that all Intellectual Property Rights (i) are and shall remain the exclusive property of the respective party to this TOS Agreement or its third party licensors and neither the other party nor any Users nor any prospective Users shall have any rights, title or interest therein other than as expressly set out in this TOS Agreement; (ii) are entitled to protection under applicable laws protecting Intellectual Property Rights; and (iii) are valuable assets, trade secrets and proprietary rights of the respective parties.
5.03 – Customer Content: Customer owns and shall retain all right, title and interest in and to the intellectual property rights of Customer Content. Customer assumes full responsibility for the Customer Content provided, which will be stored or transmitted by means of the Services, as well as the use of such content, including the results obtained therefrom. Carrier and other service providers connected through the Service shall retain the Intellectual Property Rights in their data as well as any proprietary information.
5.04 – Nondisclosure: Each party may have access to information that is proprietary to the other party (“Confidential Information”). Confidential Information shall include any information that is identified as proprietary or confidential in writing at the time of disclosure, as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe it to be proprietary. Confidential Information shall include, but not be limited to, all software, source and object code, specifications, metrics, customizations, designs, processes, techniques, concepts, improvements, discoveries and inventions, including without limitation any modifications, improvements or derivative works thereof and all works of authorship or inventions created, invented, reduced to practice by 3G or any third party either solely or jointly with others, arising from this TOS Agreement, including all copies thereto, whether made by or under the direction of Customer or 3G regardless of whether that information is identified as proprietary. Confidential Information includes all information received from third parties that either party is obligated to keep as confidential, and oral information that is identified by either party as confidential. Confidential Information shall not include Customer Content.
A party’s Confidential Information shall not include any information which: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction on its disclosure or use at the time of the disclosure; (iii) is disclosed by the receiving party with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the disclosing party’s Confidential Information; (v) becomes lawfully known to the receiving party, without restriction, from a source other than the disclosing party, (vi) is part of aggregated data that is not specific to individual users and may be used by 3G for shipper or carrier analytics. In addition, this Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is (a) compelled pursuant to a legal proceeding or (b) is otherwise required by law, provided however, that the party being compelled to disclose Confidential Information shall, if requested, provide the other party with all reasonable assistance to resist such disclosure at the expense of the party that owns the Confidential Information, and shall not disclose the Confidential Information until the other party has exhausted all rights of appeal under the laws of the jurisdiction in which disclosure is compelled.
The parties agree, unless required by law, not to make each other’s Confidential Information in any form, available to any third party (except to a party’s directors, officers, employees, agents or representatives, including, without limitation, its attorneys, accountants, consultants, advisors, auditors, banks and financial advisors being bound to a similar duty of confidentiality) or use each other’s Confidential Information for any purpose other than in the performance of this TOS Agreement. Each party agrees to take all responsible steps to ensure that Confidential Information is not disclosed or distributed by its directors, officers, employees, agents representatives, attorneys, accountants, consultants, advisors, auditors, banks and financial advisors in breach of this TOS Agreement. The parties agree to hold each other’s Confidential Information in confidence during the Term of this TOS Agreement and for a period of three (3) years thereafter, provided however that the expiration of such period shall not limit any obligations of the parties that may exist for as long as Confidential Information constitutes Trade Secrets under applicable law. “Trade Secrets” shall mean any information which (a) derives economic value, actual or potential, from not having been generally known to third parties who can derive economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain secrecy. Termination of this TOS Agreement shall not relieve the receiving party of any of the obligations set forth in this TOS Agreement with respect to disclosing party’s Confidential Information and Trade Secrets.
Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this TOS Agreement.
This Section constitutes the entire understanding between the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
Article VI WARRANTY
6.01 – Warranty: 3G hereby represents and warrants that the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.
6.02 – Warranty Exclusions and Limitations: In the event of a breach of the foregoing limited warranty, as Customer’s sole and exclusive remedy, 3G will repair or replace the applicable Services or any portion thereof, with conforming Services. Repair or replacement may take the form of: (i) corrections to software; (ii) instructions or procedures to bypass the problem until a more permanent correction can be implemented; or (iii) correction/clarification of the functional definition of the 3G Service. This limited warranty shall not apply to problems that result from: (a) factors outside of 3G’s reasonable control including but not limited to delays and other problems inherent in the use of the internet and electronic communications; (b) any failure by Customer’s Users to comply with this TOS Agreement and/or use the Services in accordance with the documentation, 3G’s instructions or any actions or inactions by third parties; (c) Customer’s hardware, software, equipment, and/or those of third parties, or errors in entering data; (d) the fault or negligence of Customer, Users, operator error, improper use or misuse of the Services, or any other causes external to 3G or the Services or (e) Scheduled Maintenance as defined in the 3G Maintenance and Support Guidelines or other relevant 3G maintenance agreements.
6.03 – 3G Sandbox Service Level Agreement
Usage – A 3G sandbox provides an isolated test environment, separate from a customer’s production environment. All transactions in the sandbox environment are isolated to sandbox data and have no impact on the customer’s production environment data.
While a sandbox environment begins with the same configuration, data, and customization as the customer’s production environment, it can be used only for non-production purposes including:
- Employee training
- Configuration testing
- Customizations validation
- Verifying upgrades
ERP Configuration – If the 3G sandbox will be connected to an ERP environment, it must be connected to a non-production (sandbox) ERP and cannot be connected to the customer’s production ERP environment. Attempting to connect a 3G sandbox to a production ERP environment will lead to data loss and/or corruption.
Uptime And Exclusions – While we expect sandbox environments to be available 24/7, 3G does not provide a Monthly Uptime Percentage Guarantee (MUPG) for 3G sandbox environments.
Data Retention – 3G does not provide a guarantee against data loss in sandbox environments. Data backups and archive processes are designed to retain data for up to 13 months, allowing data resets for time specific testing.
All sandbox data is removed and non-retrievable when a sandbox license expires.
Support – Support for all 3G sandbox environments is available during our standard support hours. Sandboxes are not eligible for Urgent or High priority support status.
6.04 – Warranty Limitation: THE WARRANTY SET FORTH IN SECTION 6.01 IS IN LIEU OF ALL OTHER WARRANTIES BY 3G, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. ACCEPTING THE WARRANTY SET FORTH IN SECTION 5.01, 3G HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. 3G DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SOFTWARE OR SERVICES. 3G DOES NOT MAKE ANY WARRANTY AND CUSTOMER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE SOFTWARE. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND THE POLICY STATEMENT GOVERNING THE SERVICES. 3G SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF CUSTOMER INABILITY TO USE THE SERVICES.
6.05 – Indemnification: Each party will indemnify, defend and hold the other, its affiliates and subsidiaries and their respective directors, officers, employees and representatives (but not their Users), (collectively “Indemnitees”) harmless from any and against any claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorney’s fees and court costs arising out of or resulting from any third party claims resulting from or alleging (i) any breach of its obligations, representations or warranties set forth in this TOS Agreement; or (ii) that such party acted willfully or in violation of any laws or rights of third parties (including Intellectual Property Rights).
Customer agrees to indemnify, defend and hold 3G, its subsidiaries and strategic partners, and each of their and 3G’s officers, directors, agents, owners, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorney’s fees, due to or arising out of the following events: (i) Customer giving 3G any information which is inaccurate; (ii) Customer negligence or willful misconduct; (iii) Customer violation of any law, regulation or right of any third party; (iv) any dispute or action between Customer and any third party, including parties selling goods or services through the 3G Website; and (v) Customer’s use of the Website or the products and services of 3G or any third party, except from claims resulting solely from 3G’s gross negligence or willful misconduct.
Indemnification is contingent on the indemnifying party being notified promptly of such action, claim, suit or proceeding in writing and being given authority, control and full and proper information and assistance in the defense and settlement of such action, claim, suit or proceeding. In addition to its aforesaid indemnification obligations, in the event that any of the Services or Software become, or in 3G’s opinion are likely to become, the subject of such a claim of infringement, 3G may at its option and expense: (i) secure for Customer the right to continue using the allegedly infringing items, (ii) replace or modify the allegedly infringing items to make them non-infringing, (iii) litigate with the alleged infringer, or (iv) terminate this TOS Agreement. The foregoing is Customer’s sole and exclusive remedy relating to any such infringement claim. 3G shall have no obligation in connection with any claim or allegation to the extent resulting from (a) the improper, unauthorized or negligent use of the Services or other services provided by 3G; (ii) the use of the Services or other services provided by 3G other than in accordance with this TOS Agreement or the documentation, manuals or other written instructions or specifications; (iii) modifications or alterations to any of the Services or other services which are made pursuant to specifications or instructions provided by Customer, (iv) modifications or alterations to any of the Services which are made by Customer or any other person or entity other than 3G, or (v) any software, content, data or services provided by 3G, as used in combination or conjunction with third party software.
6.06 – Limitations of Damages: NEITHER PARTY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES, SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS TOS AGREEMENT, WHETHER SUCH DAMAGES OR CLAIMS ARE BASED ON THE BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. 3G’S MAXIMUM LIABILITY FOR ANY DAMAGES OR INJURIES UNDER THIS TOS AGREEMENT SHALL NOT EXCEED THE TOTAL MONTHLY FEES PAID BY CUSTOMER FOR THE 3G SERVICES PROVIDED HEREUNDER FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE MONTH IN WHICH THE CLAIM AROSE. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIABILITIES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER AND CUSTOMER MIGHT HAVE ADDITIONAL RIGHTS.
6.07 – Force Majeure: No party shall be liable for failure to perform or delay in performance all or part of its obligations under this TOS Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, epidemic, pandemic, government requirement or civil or military authority. The party effected by such an event shall promptly notify the other party in writing. The party so effected shall take reasonable steps to resume performance with the least possible delay.
ARTICLE VII GENERAL PROVISIONS
7.01 – Compliance: Customer is responsible for its own as well as its Users’ continual compliance with this TOS Agreement and all other related 3G guidelines which may be released from time to time. Customer will not and will not permit others to engage in activities prohibited by 3G. Customer agrees to investigate any alleged violations by its Users including without limitation: (i) the intentional access of data not intended for use by Customer or Users; (ii) attempts to breach security or authentication measures without proper authorization or any interference with Services; (iii) attempts to obtain Services to which Customer and/or Users are not entitled, and/or; (iv) assisting or permitting any persons or entities in engaging any of the activities described above.
7.02 – Survival: All provisions of this TOS Agreement which by their nature are intended to survive the termination of this TOS Agreement shall survive, including obligations regarding Confidential Information.
7.03 – Notice: Except as explicitly stated otherwise or in a separate written agreement between Customer and 3G, any notices shall be given by postal mail to:
3G: 4 Armstrong Road, Suite 210, Shelton, CT 06484
Customer: email address provided to 3G on the 3G Order Form
Notice shall be deemed given twenty-four (24) hours after email is sent unless 3G is notified that the email address is invalid. Alternatively, 3G may give Customer notice by certified mail, postage paid and return receipt requested, to the address provided by Customer to 3G on the 3G Order Form. In such case, notice shall be deemed given three (3) days after the date of the mailing.
7.04 – Dispute Resolution: In the event of a dispute between the parties, the parties agree that an executive from each company will meet and negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such meeting, then the parties shall arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving Intellectual Property Rights or Confidential Information, the parties agree to arbitrate any dispute arising as a result of this TOS Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA”) and shall be administered by AAA in Columbus, Ohio.
7.05 – Severability: The invalidity of any portion of this TOS Agreement will not affect the validity of any other provision and any such finding of invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event that any provision of this TOS Agreement is held to be invalid or unenforceable, the parties agree that the remaining provisions will be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. It is expressly understood, however, that the parties hereto intend each and every provision of this TOS Agreement to the full extent permitted by law. Accordingly, if any part of this TOS Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision(s) will, rather than be striken in their entirety, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the TOS Agreement shall continue in effect.
7.06 – Waiver: The failure of either party at any time to require performance by the other party of any provision hereof is not to effect in any way the full rights of such party to require such performance at any time thereafter, nor is the waiver by either party of a breach of any provision hereof to be taken of held to be a waiver of the provision itself or any future breach.
7.07 – Relationship of the Parties: The parties hereto are independent contractors, and nothing in this TOS Agreement is to be construed to create a partnership, joint venture, or agency relationship.
7.08 – Breach: Without limiting other rights or remedies set forth in this TOS Agreement or as otherwise available by law, 3G may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Customer’s access to the 3G Website and the Services in whole or in part: (a) if Customer breaches this TOS Agreement; (b) if 3G is unable to verify or authenticate any information Customer provides to 3G should 3G elect to engage in such verification; or (c) if 3G believes in its sole discretion that Customer’s actions may cause legal liability for Customer, other Users, 3G or third parties.
ARTICLE VIII MISCELLANEOUS
8.01 – Publicity: Notwithstanding anything in the TOS Agreement to the contrary, and subject to the confidentiality obligations of this TOS Agreement and without disclosing the specific terms of this TOS Agreement, 3G may refer to the fact that Customer is a customer of 3G, on 3G customer lists, advertising and marketing materials, in press releases, presentations and on the 3G Website (including use of Customer’s name and logos), or use Customer as a reference to prospective customers unless Customer specifies otherwise.
8.02 – Entire Agreement: This TOS Agreement along with the 3G Order Form and any and all 3G Agreements contain the entire agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements, negotiations, correspondence, understandings or communications, whether oral or written. 3G reserves the right to make changes to this TOS Agreement at any time and in its sole discretion. 3G will notify Customer of any changes to this TOS Agreement and/or any 3G Agreements as they occur. Customer’s and/or User’s use of the 3G Websites after notification of any changes to the TOS Agreement will be deemed as acceptance of said changes. In the event Customer rejects changes to the TOS Agreement, Customer will refrain from using the 3G Websites. Customer may then contact 3G per the terms of the 3G Order Form termination clause.
8.03 – Continuing Cooperation: The parties agree to execute any documents or perform such other and further acts as are reasonably necessary to comply with the letter and spirit of this TOS Agreement.
8.04 – Choice of Law: This TOS Agreement shall be exclusively construed, interpreted, governed and enforced in accordance with the laws of the State of Ohio without regard to rules governing conflict of laws. The parties further agree that this TOS Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of Ohio. Any action related to or arising out of this TOS Agreement shall be in a venue solely in a State or Federal court of competent jurisdiction located in the State of Ohio, Franklin County and the parties irrevocably commit to the jurisdiction and venue of said courts and waive any right to object thereto. The United Nations Convention on the International Sale of Goods shall not apply to this TOS Agreement.