BRINGPRO PROVIDES THE SERVICE AND APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR OTHER MEANS PROVIDED FOR ACCEPTANCE CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) CUSTOMER IS 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, BRINGPRO WILL NOT AND DOES NOT LICENSE THE SERVICES AND APPLICATION TO CUSTOMER AND CUSTOMER MUST NOT DOWNLOAD, ACCESS, USE OR INSTALL THE APPLICATION OR SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY APPLICATION OR SERVICE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF BRINGPRO’S APPLICATION OR SERVICE.
This Agreement sets forth the terms under which a Customer may utilize the BringPro Service and the associated BringPro Application (defined below). Customer’s use of the BringPro Service and Application is subject to Customer’s agreement to the terms and conditions set forth herein, which may be modified from time to time. Customer will be notified, via Customer’s email address provided, of any such changes. Customer’s continued use of the BringPro Application and Service shall constitute consent and acceptance of and to any such modifications.
- Limited License. Subject to and conditioned upon Customer’s compliance with this Agreement, BringPro hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Term to (i) download, install and use the BringPro Application and Service for Customer’s personal, non-commercial use on a single mobile device owned or otherwise controlled by Customer (“Mobile Device”) strictly in accordance with the Application’s documentation; (ii) access and use the Application via Customer’s personal devices solely in connection with Customer’s use of the Services; (ii) access, stream, download and use on such Mobile Device the Information and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Service applicable to such Information and Services as set forth in Section 5
- License Restrictions. Customer shall not: (i) copy the Application or Services, except as expressly permitted by this limited license; (ii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or Services; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application, Services or any part thereof; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application or Services, including any copy thereof; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application, Services or any features or functionality of the Application or Services, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; (vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application or Services; (vii) use the Application in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments; (viii) use the Application or Services to transport, deliver or in connection with any hazardous materials, combustibles, weapons or ammunition, dangerous substances, chemicals, pharmaceuticals, livestock, jewelry, precious stones, currency, negotiable instruments, illegal or unlawful activity or materials or any merchandise, items, materials or freight with a value in excess of twenty five thousand dollars ($25,000); (ix) frame, link or mirror the Application or Services, or any portion thereof; or (x) use the Application or Services in violation of any federal, state or local law, regulation or rule. Customer will not use, associate or link the Service in connection with a website or content including any of the following: (a) racial, ethnic, gender, age, religious, political, or sexual orientation discrimination; (b) investment or business opportunities or advice prohibited by law; (c) obscenity, profanity, pornography, or sexual orientation discrimination; (d) defamatory, abusive or threatening language, images or content; (e) promotion of illegal substances or narcotics, gambling, or other criminal conduct; (f) pirating software or media (g) hacking, spoofing, phishing or phreaking. In addition, Customer may not access the Service for purposes of monitoring its performance or functionality, or for any other competitive purposes
- Third-Party Materials. The Application and Services may include or be accessed in connection with software, content, data, services or other materials, including related documentation or advertising, that are owned by Persons or entities other than BringPro and that are provided to Customer on third party licensee terms and in accordance with third party privacy policies, that are in addition to and/or different and distinct from those contained in this Agreement (“Third-Party Licenses”). BringPro does not endorse such third party services and shall not be liable or responsible for services or products provided to Customer by a third party. A list of all materials, if any, specifically included in the Application and provided under Third-Party License can be found at https://bringpro.com/third-party-licenses/ and the applicable Third-Party Licenses are accessible via links therefrom. Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
- Ownership & Reservation of Rights. Customer acknowledges and agrees that the Application and Service is provided under license, and not sold, to Customer. Customer acknowledges and agrees that BringPro is and shall remain the exclusive owner of all right, title and interest in and to the Application and Service, including without limitation all patent, copyright, trade secret, trademark and other intellectual property rights therein, including any optimizations, enhancements, modifications, algorithms, trends or additional features added from time to time by BringPro, whether in connection with Customer Information, Customer’s use or feedback or otherwise, but specifically excluding any Third Party Licenses. Customer does not acquire any ownership interest in the Application or Service under this Agreement, or any other rights thereto other than to use the Application and Service in accordance with the limited license granted, and subject to all terms, conditions and restrictions, under this Agreement. BringPro and its licensors and service providers reserves and shall retain their entire right, title and interest in and to the Application and Services, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to Customer in this Agreement. Neither this Agreement nor Customer’s use of the Application or Services grants Customer any right to use, copy, reproduce, display or distribute the BringPro logo, tradename, trademarks or service marks. Customer shall safeguard the Application, Services and related software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
- Responsibility for Use of Software. Customer is responsible and liable for all uses of the Application and Services through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Application and Services by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Application or Services, whether such access or use is permitted by or in violation of this Agreement.
- User Accounts. If Customer would like to use the Application in conjunction with certain Services which have been authorized by BringPro to be accessed from, performed by, displayed on or linked to through the Application, Customer must establish and maintain user account with BringPro.com or with such other BringPro website through which the Services may be accessed (the “Account“). Account registration requires Customer to submit to BringPro certain personal information, such as Customer’s name, address, mobile phone number and age, as well as at least one valid payment method. Customer must be over the legal age of 18 and a resident of the United States of America to maintain an Account. The Application will use information included in Customer’s Account to perform certain of its functions and enable access to certain of its features. Therefore, such features may not be available if Customer does not establish an Account. Customer agrees to maintain accurate, complete and up-to-date information in Customer’s Account. Customer is solely responsible for the information Customer provides when Customer establishes the Account, and for maintaining the confidentiality and security of Customer’s Account and the password Customer creates to access the Account. Customer shall not reveal its Account information or password to another person. Customer shall not access or attempt to access an Account that Customer is not authorized to access. Customer is entirely responsible for all activities that occur on or through the Account, and Customer agrees to immediately notify BringPro of any unauthorized use of the Account or any other breach of the security of the Account. BringPro shall not be responsible for any losses arising out of the unauthorized use of Customer’s Account. Customer may not authorize third parties to use their Account. Customer may not possess or maintain more than one Account with BringPro. Customer agrees to comply with all local, state, federal and any other applicable law, in connection with Customer’s use of the Application and Service.
- Account Communications. In creating an account, Customer agrees the Application, Services and BringPro may send Customer information messages, including email messages, text messages or communications or notifications within the Application. The Service will include also certain communications from BringPro, such as service announcements, administrative messages and e-newsletters. BringPro provides Customer the option of opting out from receiving newsletter mails and text messages from us, however, this may prevent BringPro from providing effective Services to Customer. To opt-out of receiving text (SMS) messages from BringPro at any time by texting the word STOP to text message originator from the Mobile Device receiving the messages
- User Content. Customer acknowledges and agrees that BringPro and its affiliates, partners and agents may, directly or indirectly, read, collect, transfer, process and store certain information collected from the Application and Services, including but not limited to information about (i) the Application and Services; (ii) the software applications, contents and peripheral devices that interact with the Software; and (iii) user generated or uploaded content, including but not limited to, a geographic location pin, address book, contact information, item descriptions, special instructions, destination information, picture image, or video (“Information”). Information includes, but is not limited to: (1) unique identifiers relating to Customer’s device(s) and their components; (2) performance of the Application and Services; (3) configurations of Customer’s device(s), the Application, Services and the software applications, contents and peripheral devices that interact with the Application and Services; (4) use and frequency of use of the functions of the Application, Services, and the software applications, contents and peripheral devices that interact with the Applications and Services; (5) user generated content, including images and video, regarding the contents of a requested transportation, destination information or other use of the Services and (5) location data, as indicated below. Customer agrees to not provide Information or user generated content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BringPro in its sole discretion, whether or not such material may be protected by law. BringPro may, but shall not be obligated to, review, monitor, or remove Information or user generated content, at BringPro’s sole discretion and at any time and for any reason, without notice to Customer.
- License of Information (User Content). By providing Information to BringPro, directly or indirectly, Customer grants BringPro a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Information in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BringPro’s business and on third-party sites and services), without further notice to or consent from Customer, and without any further notice or compensation to Customer of any kind or any other person or entity. Customer hereby waives and agrees never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Customer’s or other’s use and enjoyment of Information. This license grant to BringPro, and terms above regarding any applicable moral rights, will survive any termination of this Agreement.
- Use of Information. BringPro and its affiliates, partners and agents may use and disclose Information subject to applicable laws in order to improve its products and services or to provide products or services to Customer. Such uses include, but are not limited to: (a) administering the functionalities of the Application or Service; (b) to improve, service, update or upgrade the Application or Service; (c) improving, developing and enhancing the current and future products and services of BringPro and other parties; (d) to provide Customer with information about the products and services offered by BringPro and other parties; (e) complying with applicable laws or regulations; and (f) to the extent offered, providing Customer with location-based services of BringPro and other parties, as indicated below. In addition, BringPro retains the right to use Information to protect itself and third parties from illegal, criminal or harmful conduct.
BringPro, its affiliates, partners and agents will not intentionally use Information to personally identify the owner or user of the Application or Service without Customer’s knowledge or consent. Any use of Information will be in accordance with the privacy policies of BringPro or such third party. Please contact applicable third parties for privacy policies relating to personally identifiable and other information Customer provides when Customer uses or accesses third party software or services. Information may be processed, stored or transferred to BringPro, its affiliates or agents which are located in countries outside of Customer’s country of residence. Data protection and information privacy laws in certain countries may not offer the same level of protection as Customer’s country of residence and Customer may have fewer legal rights in relation to Information processed and stored in, or transferred to, such countries. BringPro will make reasonable efforts to take appropriate technical and organizational steps to prevent unauthorized access to or disclosure of Information, but does not warrant it will eliminate all risk of misuse of such Information.
- Location Information. Certain Services, available through the Application and other Services, may rely upon location information, including, but not limited to, the geographic location of any device on which the Application or Service is installed. To provide the Services, geographic location information is derived from Customer’s wireless carrier, certain third-party service providers, or directly from the mobile device. Customer acknowledges that for the purpose of providing such Services, BringPro, the Third Party Suppliers or their partners may collect, archive, process and use such location data, and that such services are governed by the privacy policies of BringPro or such third party. By using any such services, Customer agrees that Customer has reviewed the privacy policies applicable to such services and consent to such activities.
- No Guarantee of Availability or Continued Use. BringPro reserves the right to modify, update, supplement and discontinue the Application and Services without notice to Customer. From time to time, BringPro may make available updates or upgrades to the Application or Services via software download, patches, mobile updates or other means. Updates or upgrades may, among other things, include bug fixes, compatibility and security enhancements, and new features or functionality. In addition, certain supplemental modules to support will remain cached within the Application or Services when Customer uses the Application or Services to stream, download content or access the Services. Application or Service software downloads may occur automatically without the need for any action on Customer’s part, or Customer may be required to manually download an update, upgrade or supplemental module from within the Application itself or through the same source from which the Application was originally downloaded. Certain features of the Application may be modified or discontinued as a result of an update or upgrade, or may not be available if Customer has not downloaded all updates and upgrades made available by BringPro. Because use of the Application involves network services, Mobile Device availability, internet access, and, if required, purchase of the Services, Customer’s ability to use the Application may be affected by the performance and/or availability of any of these factors. In the event that BringPro changes any part of the Services or Application or any receiving equipment authorized by BringPro to access the Services or Application, or discontinues any of the Services, Application or such receiving equipment (which BringPro may do in its discretion at any time without notice to Customer), or if a Mobile Device manufacturer implements firmware or operating system changes or Customer’s telecommunications carrier imposes restrictions on Customer’s data traffic, Customer may no longer be able to use the Services and/or Application to the same extent as prior to such change. BringPro shall have no liability to Customer in the event of the occurrence of any of the actions described in this paragraph.
- Network Access and Third Party Fees. Customer understands, acknowledges and agrees that access to certain Services and the Application, including but not limited to registration of the Account, requires an Internet connection for which Customer is solely responsible. Customer is solely responsible for payment of any third party fees associated with Customer’s Internet connection or mobile services, including but not limited to Internet service provider, network data, messaging or airtime charges. Operation of the Application and Services may be limited or restricted depending on the capabilities, bandwidth or technical limitations of Customer’s Internet connection and service. Customer understands, acknowledges and agrees that Internet connectivity in relation to the Application and Services is provided by third parties over which BringPro has no control, and is governed by the respective terms of such third parties. The provision, quality, availability and security of such Internet connectivity, mobile network services, software and services are the sole responsibility of such third party.
- Right to Audit. BringPro may, in BringPro’s sole discretion, audit the Customer’s use of the Application and Services under this Agreement at any time during the Term to ensure Customer’s compliance with this Agreement.
- Payment. Customer understands and agrees that use of the Application and Services may result in charges to Customer for the services or goods Customer receives from BringPro (“Charges“). All Charges will be assessed at the applicable rate set forth in the Application at the time the goods or services were rendered by BringPro and may change from time to time. All Charges will be assessed once the goods and services are rendered and are processed using the primary payment method selected and set forth in the Customer’s Account. All charges are non-refundable, except as may be determined in the sole discretion of BringPro. Charges will be inclusive of all taxes and fees where required by law.
All Charges are due immediately and will be facilitated by BringPro, via a third party payment processor, using the primary method of payment set forth in the Account. Once payment has been rendered, BringPro will send a receipt of such Charges, via email, to the email address set forth in the Account. Should Customer’s primary method of payment, set forth in the Account, is determined to have expired or is otherwise invalid, Customer acknowledges and agrees that BringPro may use a secondary payment method set forth in Customer’s Account or may commence collection procedures against the Customer.
Customer acknowledges and agrees Charges may fluctuate from time to time, including substantial increases in Charges, based on geographical areas, usage rates and demand of Services at any given time. Customer may elect to cancel their request for services or goods from BringPro at any time prior to BringPro’s arrival, in which case Customer may be charged a cancellation fee or other Charges. BringPro reserves the right to revise or modify any Charges assessed to the Account, in the sole discretion of BringPro. BringPro will take reasonable efforts to notify the Customer of all Charges that apply to Customer’s use of the Services and Application, however, Customer shall remain responsible for all Charges incurred regardless of Customer’s knowledge or awareness of the applicability of such Charges or the amounts related thereto.
Gratuities to BringPro personnel are not included in any Charges incurred by the Customer. Customer is free to, but shall have no obligation, to provide BringPro personnel a gratuity for any of the Service rendered through the Application.
Customer shall be responsible to BringPro for the cost of repair or cleaning, in excess of ordinary wear and tear, resulting from Customer’s use of the Service or Application. (“Restoration Charges”). Reasonable Restoration Charges may be assessed and payment will be made using the preferred payment set forth within the Account.
Customer hereby authorizes BringPro to assess any and all Charges and Restoration Charges, and expressly authorizes use of the preferred payment method set forth in the Customer Account to fulfill such Charges and Restoration Charges immediately upon assessment.
- Term and Termination.
- This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
- Customer may terminate this Agreement by deactivating and deleting their Account, using the controls set forth therein.
- Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Customer shall cease using and destroy all copies of the Application. No expiration or termination shall affect Customer’s obligation to pay all Charges and Restoration Charges that may have become due before such expiration or termination.
- Right of Inspection and Customer Goods. Customer may use the Application and/or Service to transport goods or materials, expressly owned by Customer (“Customer Goods”), to a delivery location designated by Customer. Customer represents and warrants that Customer holds all interest, right and title to the Customer Goods, for which Customer utilizes the Application and Service, to transport to a delivery location. Customer agrees that BringPro or any governmental authority including customs and security may open and inspect Customer’s shipment or Customer Goods at any time. BringPro shall receive Customer Goods packed by the Customer or Customer’s representative and it is Customer’s express responsibility to adequately pack and protect the goods to ensure safe transportation. Customer is also obliged to properly label each item in order to prevent delay or errant dispatch. BringPro is not responsible for unwrapping, unpacking or assembling Customer Goods.
Customer acknowledges and agrees BringPro shall bear no liability or responsibility for physical damage, loss or loss due to delay for items of freight or Customer Goods that are (i) improperly or inadequately packed or mislabeled by the shipper; (ii) not professionally packed and secured by Customer or via third party hired or directed by Customer; (iii) containing internal damage or concealed breakage; glass and ceramic with existing cracks; (iv) of inherent vice or weakness due to poor craftsmanship in fabrication; (v) containing internal mechanics or instrumentation; (vi) waxen, resinous, or viscous surface area, be they in wet, semi-dry, or hardened state; (vii) damaged or excessively worn antique items in disrepair, items exhibiting prior repairs or breakage; (viii) Uncured and/or not thoroughly dry paintings; uncured and/or unset varnish applied to furniture; (ix) with sensitive to directional orientation to which the shipper does not affix descriptive arrows in advance; (x) shipped unwrapped or in a state or a packaging type explicitly not reasonably conducive to transport regardless of whether such loss or damage may be caused or contributed to by the negligence of the BringPro, its agents or employees. In relation to subjective terms as used above (“inadequately packed”, “inherent vice”, “excessively worn”, etc.) it is understood that the Customer allows and releases BringPro to define and interpret these terms as reasonably and commonly acceptable in Company’s industry and as applied against common and previous occurrences in the normal course of packing, shipping and transport.
BringPro shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment, but BringPro makes no guarantee, warranty or representation as to the means, route, procedure, handling, transportation, clearance and delivery of shipment.
- Indemnity. Customer agrees to indemnify and hold BringPro and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) Customer’s use of the Application and Services or services or goods obtained through Customer’s use of the Application or Services; (ii) Customer’s breach or violation of any of these Terms; (iii) BringPro’s use of Customer’s Information; or (iv) Customer’s violation of the rights of any third party, including Third Party Providers.
- Disclaimer/Warranty Disclaimer.
THE SERVICE AND APPLICATION ARE PROVIDED TO CUSTOMER ON AN “AS IS”, “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BRINGPRO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE AND APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. BRINGPRO MAKES NO WARRANTY AS TO THE SAFETY, QUALITY OR SUITABILITY OF THE SERVICES OR APPLICATION RENDERED TO CUSTOMER UNDER THIS AGREEMENT. BRINGPRO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES OR APPLICATION, OR THAT THE SERVICES OR APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL BRINGPRO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE APPLICATION OR SERVICES, CUSTOMER’S RELIANCE ON THE USE OF THE APPLICATION OR SERVICES, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, GOODS, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, PERSONAL INJURTY, PROPERTY DAMAGE OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, CUSTOMER’S USE OR RELIANCE ON THE APPLICATION OR SERVICES, ANY TRANSACTION RELATING TO THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL BRINGPRO’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE BRINGPRO PURSUANT TO THIS AGREEMENT FOR THE SERVICES, THAT ARE THE SUBJECT OF THE CLAIM.
THE LIMITATIONS SET FORTH IN Section 14 SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Claims Procedure. If Customer wishes to make a claim for a lost, damaged or delayed Customer Goods, or for any other damages, Customer must comply with any applicable convention and with the following procedure and BringPro reserves the right to reject Customer’s claim, in its sole discretion:1 Customer must notify BringPro in writing about the loss, damage or delay within twenty-four hours (i) after delivery of the Customer Goods, (ii) from the date the shipment should have been delivered or (iii) from the date Customer reasonably should have become aware of the loss, damage or delay in the event the claim relates to other services.15.2 Customer must document Customer’s claim by sending us all relevant information about the Customer Goods and/or the loss, damage or delay suffered within twenty-four hours of notifying BringPro of Customer’s claim.15.3 BringPro is not obliged to act on any claim, nor are you entitled to deduct the amount of Customer’s claim from the Charges or Restoration Charges. Any approved claims will be paid out at a maximum rate of $.60 cents per pound per item.15.4 BringPro will assume the shipment was delivered in good condition unless the Customer has noted any damage on our delivery record when Customer or Customer’s designated representative accepted the shipment. In order for BringPro to consider a claim for damage, the Customer Goods and the original packaging must be made available to us for inspection;15.5 In the case of acceptance by us of part or all of Customer’s claim, you warrant to BringPro that Customer’s insurers or any other third party having an interest in the Customer Goods shall have waived any rights, remedies or relief to which they might become entitled by subrogation or otherwise;15.6 The Customer Goods shall not be deemed to be lost until at least 30 days have elapsed since the date you notified BringPro of the non-delivery. BringPro may, in its sole discretion, agree in writing to shorten this period.
- Export Regulation. The Application and Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export or release the Application or Service to, or make the Application or Service accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application or Service available outside the US.
- US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Application and Service as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
- BringPro shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond BringPro’s reasonable control.
- All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth in the Account and on the BringPro website (or to such other address as may be designated by a party from time to time in accordance with this Section 18.3.
- This Agreement, together with the all schedules and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Customer and BringPro with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without BringPro’s prior written consent, which consent BringPro may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which BringPro’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 18.5 is void. BringPro may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.