TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Trabex agree as follows:
This Addendum, along with any applicable additional terms contained in the Agreement, govern Licensee’s use of and access to Licensor’s “Trabex” export compliance application (“Trabex” or the “Product”) and its website, customer support, or other interactive areas or services (collectively, the “Services”).
(a) “Intellectual Property Rights” shall mean rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including but not limited to: moral rights and similar rights.
(b) “Licensor” shall mean Export Internet Trade Systems, Inc., a Florida corporation d/b/a TRABEX
(c) “Licensee” shall mean company signing for and purchasing Trabex license.
(d) “License Fee” shall be as specified in the Quote and/or Invoice.
(e) “Term” shall mean the time and duration of the Agreement.
(f) “Data” shall mean the information created by Licensor for use in the Trabex application.
(g) “Transactional Data” shall mean the results of any use of the Product by Licensee.
- USE OF APPLICATION
(a) Licensor hereby grants to the Licensee a limited, non-exclusive, revocable and non-transferable license to use the Trabex application, which is the exclusive intellectual property of Licensor, via access to the Product website. This License is granted for the Licensee’s internal business only. The Licensee shall not use the Product for the benefit of any third party, including without limitation, in a time-sharing arrangement or in the operation of any type of service arrangement. Licensee shall not modify the Product, as it is referred to above, nor attempt to translate, decompile, and reverse engineer or otherwise attempt to derive or interpret the Product source code. Furthermore, Licensee shall in no way attempt to adapt or modify the Product in a desire or effort to use the Product to create a derivative work therefrom.
(b) Licensor grants Licensee access to use the Product as specified in the Quote and/or Invoice.
(c) Licensor will support the Product, its implementation, and customization, when required, as well as any upgrades thereof in accordance with normal business practices. Support time is during the normal business hours of 8:00AM – 6:00PM EST, Monday through Friday.
III. OWNERSHIP OF PRODUCT
(a) Licensee acknowledges and agrees that, as between the Licensor and the Licensee, the Product and Data (in all languages, formats, and media), and all improvements, enhancements, modifications, and derivative works that are embodied in, related to, or represented by the Product and Data (and all the Intellectual Property Rights of the Product and Data) are, and at all times shall be, the sole and exclusive property of the Licensor. The Licensee understands and agrees that the Licensee is not purchasing the Product, but rather obtaining a license only to access and use the Product in accordance with the Agreement.
(b) Licensor hereby acknowledges and affirms that all Licensee Transactional Data for each export transaction is confidential information and to be used only by the Licensee, that Licensor will not reveal the Transactional Data in any form to any party unless so directed by the Licensee, that Licensor will continuously apply – as part of its responsibilities – precautionary steps to safeguard the proprietary data being used to transact export clearance, that the Transactional Data will not under any circumstances be for use or for resale or accessible or be disclosed to any third party. Notwithstanding anything herein to the contrary, Licensor may reveal data (including the Transactional Data) if and to the extent required by order of a court with proper jurisdiction or as required to comply with applicable laws and regulations.
(c) Licensor reaffirms that ownership of all Transactional Data during the term of this license is the property of the Licensee and will be transferred to the Licensee when so directed.
- LICENSE, FEES, AND TAXES
Unless otherwise specified in the Quote, Licensee agrees to pay Licensor the License Fees specified in the Quote and/or Invoice, plus any applicable sales, use, value-added, personal property, or other governmental tax imposed on the Licensee. Unless otherwise specified in the Quote, License Fees are payable, in advance, on an annual basis for the Term. In addition to Licensor’s other rights set forth elsewhere herein, Licensor may terminate license and/or service granted to Licensee immediately and automatically for accounts past due. Past-due accounts must have payment settled prior to renewal, unless otherwise negotiated.
Licensee agrees to provide payment information (credit card or ACH) prior to the start of any services, including those with a free trial or promotional period. If Licensee’s authorizes, the Licensor will take payment from form of payment on file (credit card or ACH) upon renewal.
Licensee acknowledges and agrees that the Product contains confidential information and proprietary trade secrets of the Licensor and its third-party suppliers (the “Confidential Information”). Licensee shall not (nor permit any party to) sell, lease, transfer, publish, disclose, or otherwise make available any portion of the Product to others, except as expressly authorized in the Agreement. Further, Licensee agrees to assist Licensor in identifying and preventing any unauthorized use, copying, or disclosure of the Product or any of the algorithms or logic contained therein. In the event Licensee breaches any of its confidentiality obligations hereunder, Licensor may immediately deny Licensee further access to the Product and terminate the Agreement upon written notice to Licensee, including all license rights granted herein. In such event, no further License Fee for any period after the effective termination date shall be due to Licensor by Licensee.
Confidential Information maintained in the Product is secured both physically and logically. Physically, it is maintained at the Exits, Inc. hosting facilities in the United States. The Product provides data redundancy and secured physical access to ensure that only Exits-authorized personnel have access to maintain and/or access the servers that run the Product. Exits, Inc. staff are the only authorized users able to see and otherwise administer Licensee’s data at Licensee’s request.
The restrictions on disclosure set forth in Section V(a) of this Addendum shall not apply when, and to the extent that, such information: 1) is, at the time of its disclosure, or thereafter becomes part of the public domain through a source other than Licensee; 2) is made available to the general public by Licensor or a third party who is lawfully in possession of such information, not as a result of any act or failure to act on the part of the Licensee or a breach of a confidentiality obligation to Licensor; 3) was previously known to Licensee free of any obligation to keep it confidential; 4) or is independently developed by Licensee without regard to any information or access to the Product provided by Licensor.
- DISCLAIMERS; REPRESENTATIONS; LIMITATION OF LIABILITY
(a) Licensor Disclaimers
Licensor endeavors to provide up-to-date, accurate, reliable and complete Data and information for the Product, but does not guarantee or warrant the accuracy, reliability, or completeness of the Data or information embodied in the Product. Licensor does not warrant that the Product will operate in an uninterrupted or error-free manner.
The Product, Services, and all Data and information (including third party information, products, and content) included in or accessible from the Product website and any additional website as may be accessed and relevant, are provided “as is” and “as available” without warranty of any kind, express or implied (including, but not limited to, all warranties of merchantability and fitness for a particular purpose) and are subject to change at any time without notice to Licensee. Except as expressly provided below, under no circumstance shall Licensor be liable for any damages resulting from the use of the Product, including but not limited to, any direct, indirect, incidental, special, punitive, or consequential damages. With respect to any mistake or inaccuracy of the Data, Licensor’s liability shall be limited to correcting the mistake or error without charge upon written notification.
To the fullest extent permitted by law, Licensor disclaims all representations and warranties (expressed, implied and statutory, including, but not limited to the warranties of merchantability and fitness for a particular purpose) other than those set forth above as to the services and all information, products and other content (including third party information, products, and content) included in or accessible from the Product, Licensor’s website and/or any other relevant website.
(b) Licensee Responsibilities and Representations
Licensee acknowledges and agrees that use of the Product, Licensor’s website, and related Services are entirely at the Licensee’s own risk. Licensee is solely and entirely responsible for the results of Licensee’s use of the Product. Licensee is solely responsible for verifying the accuracy of the Transactional Data.
Licensee also acknowledges and agrees that Licensee’s use of the Product does not require Licensor to receive or maintain any data or information that would qualify as “protected health information” (“PHI”) subject to the U.S. Health Insurance Portability and Accountability Act of 1996 Privacy and Security Rules, 45 C.F.R. Parts 160-164 (“HIPAA”), and that Licensee and its agents are forbidden from providing Licensor with PHI. Licensee represents and agrees that it and its agents will not input into the Product or otherwise provide Licensor with any information or data that qualifies as PHI. Licensee also represents and agrees (1) that all information and data that Licensee or its agents input into the Product or otherwise provide Licensor will not include any PHI and (2) that prior to inputting or transmitting such data to Licensor, Licensee will have obtained all consents required by any applicable laws, regulations and contracts to the transmission and disclosure of such information and data to Licensor.
(c) Limitation of Liability
In no event shall Licensor or any of its affiliates, partners, or content providers be liable for any indirect, special, consequential, punitive, or incidental damages, or damages for loss of use, profits, data, or other intangibles, or the cost of procurement of substitute goods and services arising out of or related to the use, inability to use, unauthorized use, performance or non-performance of the Product, services, or subcontractors, any Licensor site or services, even if Licensor has been advised previously of the possibility of such damages and whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise.
VII. NOT LEGAL ADVICE. The Product is not intended to provide and does not constitute legal advice and no attorney-client relationship is formed between Licensor and Licensee.
Licensee shall defend, indemnify and hold harmless Licensor, its officers, directors, employees, agents, licensors, suppliers and any third party information providers from and against all claims, losses, liability, expenses, damages and costs, including but not limited to reasonable attorneys’ fees, resulting from any violation by Licensee of the Agreement (including but not limited to any addenda, exhibits, and amendments thereto).
- TERM AND TERMINATION
The license granted to Licensee hereunder shall continue for the period identified as the “Term” in the Agreement, unless sooner terminated by either Party in accordance with the provisions of these License Terms and Conditions.
In addition to Licensor’s other rights set forth elsewhere herein, Licensor may terminate this license granted to Licensee immediately and automatically upon a breach of Section V(a) by Licensee, its employees, or any third party acting on behalf of Licensee. Licensee understands that any termination of the license shall, without further action by Licensor, automatically terminate Licensee’s right to use of the Product, and all obligations of Licensor shall be deemed to be revoked by Licensor and waived by Licensee.
On monthly payment plans only, early termination of services by Licensee will result in a cancellation fee equal to three months maximum usage for selected tier.
All quotes are valid for 30 days unless otherwise specified.
(c) Automatic Renewal
The license granted to Licensee shall renew automatically, upon payment by Licensee of the applicable License Fee or upon Licensee’s use of the Product after the end of the then current Term, for additional successive periods of one-year each, unless either party terminates the license by providing notice of termination to the other party at least 30 days prior to the expiration of the then-current license year.
- RESTRICTED USE
Any use, duplication, or disclosure of the Product to the United Sates Government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software Clause at DFARS 252.227.7013 and the Rights in Data-General Clause at FAR 52.227.14. Use, duplication, or disclosure by the governments of any other countries is subject to restrictions of similar applicable laws.
- NO UNLAWFUL USE. Licensee may not use the Product for any improper or illegal purpose. Any attempt to gain unauthorized access to, or to damage or impair, the Product or Licensor’s website, computer systems and/or networks, or to otherwise gain access to another user’s account through password mining, hacking, cracking, or other improper means is strictly prohibited and will be prosecuted to the fullest extent of the law. Licensor reserves the right to investigate complaints or reported violations of these License Terms and Conditions and to take any action Licensor deems appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.
XII. REMEDIES FOR VIOLATIONS. Licensor reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including but not limited to the right to block access from a particular internet address to the Product web site and its features.
XIII. GENERAL PROVISIONS
(a) No Assignment
The license herein granted to Licensee may not be assigned by Licensee, voluntarily or by operation of law, to any other person(s), entities, firm, or corporation, in whole or in part, without the prior express written approval of Licensor (which may be withheld or conditioned by Licensor in its discretion). Any attempt to do so shall be a violation of the Agreement and be null and void ab initio.
(b) Governing Law, Interpretation; Arbitration; Waiver of Jury Trial
The Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida, notwithstanding any conflict of laws principles or laws. Any dispute arising out of or relating to the Agreement or any Invoice (including, without limitation, any issue relating to the enforcement or interpretation of any of the terms and conditions of the Agreement, as well as the question as to whether any particular matter is arbitrable) (a “Dispute”) shall be subject to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and shall take place in Pinellas County, Florida, unless the parties agree otherwise. The arbitrator’s decision and award will be final and binding, and any party may enforce it in any court with jurisdiction. Any dispute (or portion thereof) arising out of or relating to the Agreement that is determined not to be subject to arbitration shall be resolved exclusively in the Circuit Court for the 6th Judicial Circuit of the State of Florida in and for Pinellas County, or for actions based on diversity jurisdiction, in the U.S. District Court located in Tampa, Florida, and in such event all parties hereby consent to, elect and waive any objection to the laying of venue in such courts with respect to the portion of the dispute, if any, that is not subject to arbitration. Nothing contained herein shall be construed, however, as prohibiting any party from enforcing any judgment entered by such courts in any other court of competent jurisdiction. Each of the Parties shall keep all disputes, arbitration proceedings and litigation strictly confidential, except for disclosures of information required by applicable law or regulation, and any legal proceedings shall be sealed. IN ANY CASE, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A JURY TRIAL IN RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND THE SUBJECT MATTER HEREOF. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THE AGREEMENT. If any party shall commence an action to enforce any of the provisions of the Agreement, the prevailing party (as is determined by a judgment in favor of one party or the other) shall be entitled to recover from the other all reasonable attorney’s and paralegal fees and costs incurred by the prevailing party, whether for arbitration, negotiation, trial, appeal or bankruptcy as a result of such breach.
(c) Force Majeure
Licensor’s performance under the Agreement is subject to interruption and delay to the extent due to causes beyond its reasonable control, including but not limited to acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor disputes, inability to obtain necessary supplies, and the like.
Except as otherwise provided herein, all notices must be in writing sent by certified mail to the addresses set forth in the Quote and/or Invoice. If applicable, a change of address must be sent to the other Party in writing by certified mail.
(e) Joint Press Releases
Upon Licensee’s prior review and written approval (which may be granted or withheld in Licensee’s sole discretion), Licensor may use Licensee’s name and logo in its marketing materials. The parties agree to work to jointly develop press releases announcing the relationship as well as future developments and milestones. All press releases are to be approved in writing by Licensee before being issued.
XIV. MODIFICATIONS TO LICENSE TERMS AND CONDITIONS. Licensor reserves the right to change these License Terms and Conditions at any time. Updated versions of the License Terms and Conditions will appear on the Product’s website and are effective immediately. Licensee is responsible for regularly reviewing the License Terms and Conditions. Continued use of the Product after any such changes constitutes Licensor’s consent to such changes.
- These License Terms and Conditions incorporate by reference any notices contained on the Product website, and, along with the remainder of the Agreement, constitute the entire agreement with respect to access to and use of the Product. If any provision of the Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.
Effective: September 26, 2023