INTTRA LEGAL TERMS AND CONDITIONS (“TERMS”)
UPDATED MAY 25, 2018
IMPORTANT MESSAGE: PLEASE READ THESE TERMS PROVIDED BELOW CAREFULLY BEFORE CLICKING THE BOX INDICATING YOUR ACCEPTANCE, PROVIDING THE INFORMATION INDICATED ABOVE, OR USING ANY INTTRA WEBSITE AND/OR THE SERVICES AS DEFINED BELOW. BY USING THE SERVICES, YOU (A) AGREE TO THE TERMS ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO DO THAT, AND (C) AGREE TO USE ELECTRONIC SIGNATURES, AND TO BE SUBJECT TO THE PROVISIONS OF THE U.S. E-SIGN ACT (I.E. THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (ESIGN, PUB.L. 106-299, 14 STAT. 464, ENACTED JUNE 30, 2000, 15 U.S.C. CH. 96)). IF THESE STEPS ARE NOT WHAT YOU INTEND, OR IF YOU DO NOT FULLY UNDERSTAND AND AGREE WITH THESE TERMS AND CONDITIONS, WHICH INCLUDE A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, AND SELECTION OF GOVERNING LAW AND CHOICE OF FORUM, THEN DO NOT CLICK THE BOX INDICATING YOUR ACCEPTANCE AND DO NOT ACCESS ANY INTTRA WEBSITE OR USE THE PORTAL OR SERVICES.
TABLE OF CONTENTS
27. Contact Information
Schedule 1: Standard contractual clauses for the transfer of personal data from the European Community to third countries (controller to controller transfers (based on Commission Decision C9 (2004) 5721)
“Agreement” means the combination of these Terms and the INTTRA Privacy and Security Policy, and any referenced addendums, amendments, exhibits, Service Orders, schedules, SOWs, and/or other contract documents.
“Alliance Intermediary” means a third party that Customer identifies who may act as an intermediary on behalf of Customer and/or Customer Affiliate(s).
“Bill of Lading Data” or “BL Data” is transport document (bill of lading or Waybill) data and/or invoice data that describes shipment details, such as the parties to a contract of carriage, references, description of goods, charges and terms of carriage. Only Transmitting Carriers may use BL Data for purposes of rendering and issuing bills of lading or Waybills to a shipper.
“BL Data Service” is a Service that supports the exchange, communication and distribution of Bill of Lading Data, in either EDIFACT/IFTMCS, ANSI X12/310 and/or XML standardized message formats that is transmitted by carriers from proprietary, third party, and public data and supported by INTTRA through the use of proprietary tools, processes and technology of INTTRA.
“BL Web Services” (formerly “BL-Act”) means the method of accessing the BL Image through the Portal.
“BL Image” means the Data containing an image file of a bill of lading or Waybill transport document. To the extent allowed by individual Carrier(s), the BL Image also supports the remote printing and signing of bills of lading or Waybills to which the Data relates.
“BL EDI” (formerly “BL Link”) means the method of accessing the BL Image through INTTRA EDI, formerly known as INTTRA Link.
“Carriers” means INTTRA member ocean carriers and other carriers to which INTTRA provides connectivity via the Portal.
“Confidential Information” means non-public information of either Party, in whatever form, that is disclosed under this Agreement and that (i) is marked as confidential; (ii) if disclosed verbally, is identified as confidential at the time of disclosure; or (iii) by its nature reasonably should be understood to be confidential. Confidential Information may include information regarding a Party’s products, business plans, customers, technology, software, trade secrets, technical data, methodologies, or a third party’s confidential information.
“Control” means possession, directly or indirectly, of power to direct or cause the direction of management and operating policies of an entity through the ownership of more than fifty percent (50%) of its voting or equity securities or the maximum allowed by law, contract, voting trust, or otherwise.
“Customer”, “You”, “Your”, or “Yourself” means collectively you and the company or other legal entity you represent defined as the “Customer” in the important message paragraph at the top of this page, and, if permitted, any Affiliate of Customer designated by Customer to make use of the Services under this Agreement, provided that Customer shall be wholly responsible for all actions or omissions by any such affiliated entity in connection with this Agreement.
“Data” means any data transmitted to, from, and/or through any INTTRA service including, without limitation, the Portal, electronic data exchange, communication and distribution of data supplied by the Parties from any source, including, without limitation, proprietary INTTRA data, Customer data, Carrier data, and/or public data, including, without limitation, any data related to a BL Image.
“Document Conversion”, formerly “INTTRA Change”, is the process by which INTTRA converts pdf documents into electronic format for submission.
“INTTRA”, “We”, or “Us” means INTTRA Inc.
“INTTRA eVGM Services” means INTTRA’s electronic verified gross mass (“eVGM”) service to facilitate industry compliance with the Safety of Life at Sea Verified Gross Mass (“VGM”) regulation. The INTTRA eVGM Services enable the submission and management of VGM messages from Party to Party.
“INTTRA EDI” (formerly “INTTRA Link”) means connectivity provided via standardized electronic data interchange methodologies and transactions to support the electronic communication of messages between INTTRA’s customers and the Portal, as may be expanded or changed from time to time.
“Ocean Schedules Data Feed” and “Ocean Schedules Web Services” means the INTTRA proprietary information services (delivered via the Portal, as the case may be) that provide access to metrics which enable Users to analyze trade lanes, carrier transit times, arrival dates versus schedules plans to facilitate scheduling and compliance filing.
“Parties” means collectively INTTRA, Customer, and for purposes of BL Image (if applicable) as to Section 5, 11, 17, 18 and 19 only, approving Carrier(s).
“Party” means individually INTTRA, Customer, and for purposes of BL Image (if applicable) as to Section 5, 11, 17, 18 and 19 only, approving Carrier(s).
“Portal” means the proprietary INTTRA platform transportation network infrastructure, products, and services, including, without limitation, the Services delivered and accessed via a variety of means as determined by INTTRA, including, but not limited to, the internet, EDI, API, Document Conversion, and/or certain other proprietary software.
“Product-Specific Attachment” or “PSA” means the Service-specific terms and conditions that are incorporated by reference into a Service Order or contract.
“Service Order” or “Service Order Request” or “Order” means the order form, contract, or agreement, in a form provided by INTTRA, between INTTRA and Customer identifying Services ordered by or made available to Customer and signed or otherwise accepted by both Customer and INTTRA.
“Service(s)” means services (including BL Image, BL Data, Document Conversion or INTTRA eVGM Services, Dashboards, Ocean Schedules Data Feed and Ocean Schedules Web Services, if selected by Customer), products, data, and information provided by or through INTTRA, authorized third-party service or data providers and/or the Portal which may be accessed by Customer via the Portal and the use of any INTTRA website, whether logged in or not, including inttra.com.
“Transmitting Carrier(s)” means each of those INTTRA-member carriers and non-member carriers that transmit Bill of Lading Data to INTTRA for INTTRA’s distribution to Customer under the terms hereof.
“Transacted Container” has the meaning set forth in an applicable PSA or Service Order but if no such definition exists then it means each individual container handled via the Portal via any means, such as referenced in a booking request, referenced on an eVGM submission, etc. An individual container will be counted as a Transacted Container each time it is referenced in a Service. For example, the same container referenced on a booking request, shipping instruction, and eVGM submission will count as three Transacted Containers.
2. Permitted Uses
INTTRA’s products and services are designed for bona fide business use only and are not for use by individuals or for any use that is not expressly granted to You. Any individual use is expressly prohibited. Notwithstanding anything to the contrary in these Terms, any use for any business or commercial purpose that is competitive with INTTRA or its Affiliates or that may devalue INTTRA’s or its Affiliates’ commercial interests is expressly prohibited.
3. Use of INTTRA Websites, Portal, and Services
By registering, accessing, browsing, viewing, using, downloading, generating, receiving or transmitting any data, information or messages to or from the Portal, via the Services, and/or via any INTTRA website or service, Customer hereby accepts, without limitation or qualification, this Agreement as currently constituted and as may be updated from time to time in accordance with its terms. In the event INTTRA posts changes to the Agreement and/or to the INTTRA Web site, Your continued use of the Portal and/or Services shall constitute Your agreement to such changes. You agree to regularly revisit and review the INTTRA website for changes to this Agreement. We may also require that You accept other terms and conditions that govern the use of particular Services at the time You register for or use that Service. This Agreement incorporates by reference the terms and conditions of any Service for which You register or use.
In the event of any conflict between contract documents you have with INTTRA, the order of precedence shall be (i) any Service Order or contract for services; (ii) Product Specific Attachments, if any; and (iii) these Terms. Should a conflict exist between several Service Orders or several Product Specific Attachments the terms of the most recent Service Order or Product Specific Attachment, respectively, shall control.
4. Change of Information and Services
4.1 In its sole discretion, INTTRA shall control the appearance, development and operation of the Portal, the Services, and INTTRA websites. INTTRA may, in its sole discretion, set standards for the messaging performance between INTTRA and Customer.
4.2 Information and Data provided via the Portal or the Services may be changed and/or updated without prior notice.
4.3 INTTRA may make improvements, updates, and/or changes to the Portal, the Services, and/or INTTRA websites or cease to provide any of the foregoing at any time without prior notice to the Customer; provided that INTTRA will endeavor to provide 30 days prior notice to Customer if it is to discontinue or materially change any Service.
4.4 Customer grants INTTRA the authority to modify any messages or submissions submitted via the Portal by Customer to correct any messages that do not conform to the standards set by INTTRA or, if applicable, the standards of the intended third party recipient of such data, e.g. a Carrier.
4.5 A Service Order is required In order to obtain certain Services.
5. BL Image (optional service, if applicable)
5.1 Registration to use the BL Image application is required. You may elect to obtain BL Image by contacting INTTRA Customer Service. INTTRA will work with You to gather information about the selected Carrier(s) You wish to register with for BL Image, as well as Your contacts at the Carrier(s). You also need to appoint a person as Your BL Approval Contact. The BL Approval Contact is responsible for approving and removing Customer users for BL Image access. Each Carrier You wish to register with must first approve Your request for BL Image access, and Carrier shall then be a Party to (and provide Carrier-Specific Services in connection with) this Agreement only for the purpose of Sections 5, 11, 17, 18 and 19 only when such approval and access has been granted to You.
5.2 The BL Images offered to Carrier-approved Customers by a requested INTTRA approved Carrier (“Carrier-Specific Services “) depend on, and are subject to, the BL Image permitted by each such specific Carrier. To the extent permitted by each individual Carrier, the BL Images offered may include but not be limited to the following: remote printing of Sea Waybills (“Waybills”);
remote printing of negotiable Bills of Lading (“Negotiable B/Ls”) Originals; remote printing of Negotiable B/Ls – copies; remote printing of non-Negotiable B/Ls – originals; remote printing of non-Negotiable B/Ls – copies; Customer authorization to sign Waybills as Agent for Carrier; Customer authorization to sign non-Negotiable B/Ls as Agent for Carrier; Customer authorization to sign Negotiable B/Ls as Agent for Carrier; and Customer authorization to print Waybills on Carrier paper stock. In their sole discretion, INTTRA and each Carrier may modify or change the BL Images provided to Customer from time to time.
5.3 Any Data accessed through INTTRA and/or a BL Image (a) do not constitute “Electronic Bills of Lading”, “paperless trading”, a “contract of carriage”, or a “contract of transport” (as those terms may be used generally in the shipping industry), (b) shall not be used to create unauthorized documents of any kind, including unauthorized bills of lading or Waybills, (c) have no commercial value in and of themselves, (d) may not be used to transfer by endorsement or otherwise the rights under a contract of carriage, and (e) may not be used for purposes of transferring ownership of cargo or as negotiable instruments. BL Image(s) merely provides an alternative method of exchanging Data electronically between Parties or “Allowed Parties” (defined below) to assist in the preparation of documents prior to actual issuance of traditional paper bills of lading or Waybills by the individual Carrier(s) or Carrier’s authorized agent. Although not necessarily printed by the Carrier, the Waybill or bill of lading to which the electronic data relates is issued by the Carrier. Only the Carrier and its authorized representatives and agents have authority to issue, sign, mark or alter any such document on behalf of the Carrier. Customer is authorized to remotely print such paper bill of lading or sea waybill in accordance with this Agreement but only if so specified and approved by the Carrier as a Carrier-Specific Service. Nothing in this Agreement constitutes an agreement to carry any goods or forms any part of a contract for the carriage of goods.
5.4 Once You are approved by (1) INTTRA, and (2) the individual Carrier(s) from which you have requested BL Image access, and your BL Image access is activated at INTTRA, you shall be permitted to view, print, request changes to, approve, and share Data supplied by the Parties directly or via Alliance Intermediary, if applicable, to the extent authorized by the Carrier and Section 5.5. This Agreement does not, by itself, grant to You any further right to access, copy, use, modify, sublicense, distribute, transfer or transmit any Data accessed on or through BL Image(s). Specifically, this Agreement does not, by itself, grant to You any right to sign any bill of lading or Waybill on behalf of Carrier(s), unless the specific Carrier has authorized You to sign such bill of lading or Waybill as agent for the Carrier. Customer shall ensure that any bill of lading or Waybill is printed at Customer’s printer as soon as reasonably practicable onto Carrier’s paper stock as appropriate or, in the case of a Waybill, if and as permitted by the individual Carrier, onto good quality plain white paper consistent with relevant Carrier’s requirements. Customer shall ensure that any bill of lading or Waybill once printed is (a) legible, showing the complete contents of the document without distortion or addition in correctly centered portrait orientation, (b) is appropriately aligned and set out for the relevant paper size, and (c) accurately reflects the relevant Data supplied by the Parties as well as any additional information supplied by Allowed Parties or any third party. If any document which is printed (whether or not in full) pursuant to this Agreement does not comply with any part of Section 5.4 above, or if any electronic data is made available to the Customer in error, the Customer shall immediately contact the Carrier and comply with said Carrier’s instructions in relation thereto. If there is any inconsistency between a Waybill or bill of lading that is printed and the latest document available in electronic form at www.inttra.com, the latter shall prevail. A Carrier’s paper stock shall remain the property of that particular Carrier until printed and executed pursuant to this Agreement. The Customer shall make no alteration to the individual Carrier’s paper stock and unconditionally guarantees the secure and safe keeping of such Carrier’s paper stock to prevent release to any third party or the unauthorized or unlawful use of such Carrier’s paper stock by the Customer, its employees, agents or any third party. Customer shall report immediately to INTTRA and the relevant Carrier(s) any breach or suspected breach of security, including, but not limited to, loss or theft of Carrier’s paper stock, even if temporary. Customer shall acknowledge receipt of Carrier’s paper stock, indicating the exact quantity received. Customer shall also maintain an inventory of Carrier’s paper stock, including the serial number of each, whether actually used or wasted, and supply such inventory records to the relevant Carrier upon its request. Customer shall ensure that the number of attempts to print an original bill of lading does not exceed the number of originals shown on the face of the bill of lading as having been issued. If for technical reasons (for example, difficulties in printing) more attempts to print are required, the express prior written authority of the Carrier must be obtained. This will be at the Carrier’s absolute discretion, which in any event will be conditional on (a) the Carrier receiving a letter of indemnity, signed by the Customer, in the terms provided by or agreed with the Carrier, and (b) any paper document which is to be replaced pursuant to such authority having first been destroyed.
5.5 As a BL Image Customer, You shall be permitted to access, receive and exchange, and/or submit Data through the Portal in accordance with the following:
(i) INTTRA WILL USE COMMERCIALLY REASONABLE EFFORTS TO ADVISE YOU IF ANY DATA INTERCHANGE IS REJECTED OR FAILS BUT SHALL HAVE NO LIABILITY FOR ANY FAILURE TO DO SO AT ANY TIME.
(ii) All Data will be accessible online for a maximum period of ninety (90) days following receipt by INTTRA. After 90 days, such Data will be archived for three (3) years.
(iii) By submitting Data through the Portal You grant to INTTRA and Carrier(s) all necessary rights to copy, store, translate, publish and provide access to the Data to those authorized parties required for the Licensed Use of BL Image.
(iv) YOU AGREE THAT IN NO CIRCUMSTANCES WILL INTTRA OR CARRIER(S) BE LIABLE TO YOU FOR ANY CLAIM OF ANY NATURE RELATING TO ANY USE THAT THE CARRIER(S) OR OTHER THIRD PARTIES MAKE OF THE DATA AVAILABLE THROUGH BL IMAGE. Further, there may exist additional restrictions on the use of the Data arising from agreements as between You and the Carrier(s) or, if applicable, between You and Alliance Intermediary. The Carrier(s), through the use of BL Image(s), assume(s) no more legal obligation than that required by applicable law. The contract of carriage obligations of the Carrier(s) under the conditions of the bill of lading or Waybill are not reduced nor modified by this Agreement.
5.6 As a BL Image(s) Customer, You shall be permitted to receive and distribute Data from BL Image(s) only in accordance with the specific functionality of BL Image(s) and pursuant to the following:
(i) You agree not to alter, change, misuse or use the Data in any unlawful way or for any unlawful purpose.
(ii) You agree that You are responsible for ensuring the accuracy of any and all Data supplied by the Parties as well as any additional information supplied by Allowed Parties or any third party and for informing the Carrier(s) via a Carrier change request in the event that any Data submitted to BL Image(s) are inaccurate.
(iii) You agree and understand that You are not authorized to make corrections to Data, any Waybill or bill of lading, or any information supplied by Allowed Parties or any third party. Only the respective Carrier(s) shall be authorized to make corrections to the Data.
(iv) Except to the extent expressly set forth in this Agreement, You agree and undertake not to disclose or distribute the Data to any non-Allowed Parties in any format and/or through any means (e.g. email).
(v) You agree that You are responsible for protecting the confidentiality of any information shared with a third party. Customer agrees to limit Data sharing to the following “Allowed Parties” and for the following “Allowed Uses”. Allowed Parties include only (a) entities which have been lawfully named on the bill of lading or Waybill; (b) legally authorized relevant government entities; and (c) Customer’s legally authorized brokers, agents, logistic providers, and banks and, if applicable, Alliance Intermediary. Allowed Uses include only customs filing, relevant governmental requirements, import documentation, accounting record keeping and cargo release and, if applicable, data transmission to or from Alliance Intermediary. Sharing of Data for other uses or with other parties not listed above is specifically prohibited. Further, sharing of Data shall be in accordance with the terms set forth in Section 5.3 above.
(vi) For BL EDI Only. INTTRA will provide a user ID and password to the Customer’s Security Administrator(s). The user ID and password are required to download Data from INTTRA. Customer shall ensure the proper and secure management and use of such user ID and password and accepts responsibility for any unauthorized access to INTTRA by any person other than an employee of INTTRA using such user ID and password.
5.7 All Data accessible through BL Image(s) are, and shall continue to be, owned exclusively by the rightful holders of the copyright in the relevant Data. Such holders have granted to INTTRA the express or implied right to process the Data in connection with the services provided by INTTRA through BL Image(s) and the Data are protected under applicable copyrights, patents, trademarks, trade dress, and/or other proprietary rights. Under no circumstances will You acquire any ownership rights or other interest in any Data solely by virtue of being a BL Image Customer.
5.8 Use by Customer-Affiliate(s): No Customer-Affiliate(s) shall have access to or be entitled to use the Portal or Carrier-Specific Services unless each such Affiliate(s) is first approved by the respective Carrier(s).
5.9 For BL EDI Only. Alliance Intermediary. This Agreement gives Customer the right to access BL EDI either directly or via an Alliance Intermediary. Customer acknowledges and agrees that the following additional terms apply to Customer’s access to BL EDI via the Alliance Intermediary: (a) neither INTTRA nor any Carrier(s) shall have any liability to Customer or any Customer-Affiliate(s) arising from, or any way related to (i) any action or inaction on the part of Alliance Intermediary, or (ii) any Data transmitted between Customer and Alliance Intermediary; (b) Alliance Intermediary is not a party to this contract, and the relationship between Customer and Alliance Intermediary is, instead, covered by the corresponding agreement between Customer and Alliance Intermediary, if any; and (c) nothing in this Agreement shall be construed to make or constitute either INTTRA or any Carrier as an agent, servant, employee or partner of Alliance Intermediary.
5.10 BL Image Services shall continue in effect until terminated by either Party upon 30 days prior written notice to the other. Termination of BL Image shall not constitute termination of the Terms. Notwithstanding the foregoing, BL Image will be automatically terminated as part of a termination of the Terms, with cause or without cause, as applicable, in accordance with the corresponding terms of the Terms.
5.11 BL Image Service shall not in any way reduce, increase or modify any separate right or obligation of Customer or of the Carrier, nor shall it increase Carrier’s liability in any way under any other document or agreement between Customer and the Carrier, including, without limitation, the Carrier’s contract of carriage rights and obligations under the bill of lading or Waybill.
6. BL DATA (optional service, if applicable)
6.1 You may select to obtain BL Data by contacting INTTRA Customer Service. Once Customer is activated and approved by both INTTRA and the individual Transmitting Carrier(s) from which Customer has requested BL Data access, Customer shall be permitted to access and receive BL Data transmitted by those Transmitting Carriers to the extent authorized in Section 6.3, below. Except as set forth in this Agreement, BL Data does not grant to Customer any right to copy, use, modify, sublicense, distribute, transfer or transmit any BL Data accessed through the Portal or through INTTRA-EDI.
6.2 To protect the confidentiality of BL Data, INTTRA strongly recommends that Customer implement secure communication protocols, such as secure ftp or AS2. If Customer, nonetheless, elects to access BL Data utilizing non-secure communication protocols, Customer acknowledges that the use of such non-secure protocols may result in unauthorized access to BL Data and fully assumes all liability arising from or relating to such unauthorized access.
6.3 Notwithstanding anything to the contrary contained in this Agreement, the following terms apply to the receipt, use and distribution of BL Data by Customer or any party acting on behalf of Customer:
(a) Limited Use of BL Data (i) ANY BL DATA ACCESSED OR RECEIVED THROUGH INTTRA-EDI DOES NOT CONSTITUTE “ELECTRONIC BILLS OF LADING”. UNLESS A SEPARATE WRITTEN AUTHORIZATION BY TRANSMITTING CARRIER IS PROVIDED, BL DATA SHALL NOT BE USED TO CREATE BILLS OF LADING AND WAYBILLS, SHALL HAVE NO COMMERCIAL VALUE IN AND OF THEMSELVES, MAY NOT BE USED TO TRANSFER BY ENDORSEMENT OR OTHERWISE THE RIGHTS UNDER A CONTRACT OF CARRIAGE, AND MAY NOT BE USED FOR PURPOSES OF TRANSFERRING OWNERSHIP OF CARGO OR AS NEGOTIABLE INSTRUMENTS. INTTRA MERELY PROVIDES AN ALTERNATIVE METHOD OF ACCESS TO AND RECEIPT OF BL DATA ELECTRONICALLY BY CUSTOMER FROM THE TRANSMITTING CARRIERS OR THEIR AUTHORIZED AGENT(S); (ii) BL Data may be used only for purposes of updating Customer’s backend systems or data visibility tools to allow Customer and Allowed Parties (as defined below) to view, download, and use the BL Data. BL Data may not be used as a substitute for Transmitting Carrier’s carrier-generated freight invoices. In the event of a discrepancy between data included in the BL Data and data within any official document issued by the Transmitting Carrier, such as freight invoices or transport documents, the document issued by the Transmitting Carrier will take precedence; (iii) NOTHING IN THIS AGREEMENT IS OR SHALL BE CONSIDERED AN AGREEMENT TO CARRY ANY GOODS OR FORM ANY PART OF A CONTRACT FOR THE CARRIAGE OF GOODS; and (iv) Customer shall not use BL Data in any unlawful way or for any unlawful purpose.
(b) Distribution of BL Data: (i) Customer agrees that it is legally responsible for protecting BL Data from any misuse, and shall not disclose or distribute the BL Data, in any format and/or through any means (including, without limitation, via email or internet), other than to those persons or entities lawfully listed on the transport documents, legally authorized relevant government entities, and Customer’s legally authorized brokers, agents, logistics providers and banks (collectively “Allowed Parties”); (ii) Customer shall limit any sharing of BL Data with Allowed Parties only to the following uses: data visibility, customs filing, governmental requirements, import documentation, accounting record keeping and cargo release. Further, any sharing of BL Data shall also be in accordance with the terms set forth in Section 6.3(a), above; (iii) Sharing of BL Data for other uses or with other parties not listed above is specifically prohibited; and (iv) further, Customer acknowledges that there may exist additional restrictions on the use and distribution of the BL Data arising from agreements personal as between Customer and the Transmitting Carrier.
6.4 BL Data Services shall continue in effect until terminated by either Party upon 30 days prior written notice to the other. Termination of BL Data shall not constitute termination of the Terms. Notwithstanding the foregoing, BL Data will be automatically terminated as part of a termination of the Terms, with cause or without cause, as applicable, in accordance with the corresponding terms of the Terms.
6.5 BL Data Service shall not in any way reduce, increase or modify any separate right or obligation of Customer or of the Transmitting Carrier, nor shall it increase Transmitting Carrier’s liability in any way under any other document or agreement between Customer and the Transmitting Carrier, including, without limitation, the Transmitting Carrier’s contract of carriage rights and obligations under the bill of lading.
7. Document Conversion
You may purchase Document Conversion by contacting INTTRA Customer Service. Use of Document Conversion is subject to the applicable PSA.
8. INTTRA eVGM
You may purchase INTTRA eVGM Services by contacting INTTRA Customer Service. Use of eVGM Services is subject to the applicable PSA.
9. Fees; Payments
9.1 Service Fees. The fees for Services may include, without limitation, a set-up/implementation fee, an annual subscription or maintenance/support fee, and/or a per-container or per-transaction fee. Any such fees are set forth in a Service Order.
9.2 INTTRA will invoice Customer based on the terms of your Service Order for any particular Service. If no invoice terms are specified in such Service Order, INTTRA will invoice as follows: (i) for monthly, annual, or other recurring or subscription charges: annually in advance; (ii) for one-time charges: immediately upon order; and (iii) for Services that are priced on the amount of Transacted Containers: monthly in arrears.
9.3 Customer shall pay all invoices when due as set forth in the applicable Service Order; provided that If no invoice terms are specified in such Service Order, invoices shall be due within 30 days of receipt.
9.4 Customer shall raise all invoice disputes within 60 days of the date of the invoice; otherwise Customer waives any right to dispute. In order for a dispute to be valid, Customer must include a detailed description of the disputed items, the reason for the dispute, and the requested resolution of the dispute. For any disputed invoice, Customer shall pay all undisputed amounts when due and then promptly cooperate with INTTRA to investigate and resolve the disputed amount.
9.5 For any payment not received when due or within 30 days of Customer’s receipt of INTTRA’s invoice, whichever is later, Customer’s balance due will accrue interest at a rate of one and one-half percent (1½%) per month, or the highest rate allowed by applicable law, whichever is lower, and Customer agrees to pay this amount. If Customer’s account is delinquent, INTTRA may, upon notice to Customer, require payment before the provision of any and all Services provided to or requested by Customer.
9.6 In addition to INTTRA’s right to terminate this Agreement, in whole or in part, based on non-payment by Customer, INTTRA may, after notice to Customer limit or suspend Customer’s access to any or all Services, in whole or in part, until Customer’s account is made current.
9.7 Unless expressly set forth otherwise, all fees charged or invoiced by INTTRA are in United States Dollars and all payments due by Customer shall be paid in United States Dollars in a manner acceptable to INTTRA.
9.8 Unless expressly set forth otherwise, Customer is liable for and will pay any and all applicable taxes relating to this Agreement, other than taxes based on INTTRA’s net income.
9.9 INTTRA may modify pricing for any Services upon 90 days’ notice to Customer. During such notice period, Customer may terminate its use of the Services and any applicable Service Order for such affected Service but only for the affected Service.
9.10 Any term(s) contained in Customer’s purchase order, acknowledgement form, or any other form that is different from, or in addition to this Agreement shall not have any effect of modifying or adding any terms to the Agreement. No agent, employee, or representative of INTTRA has any authority to alter or delete the terms of this Agreement or bind INTTRA to any warranty, covenant, or representation other than as set forth in this Agreement.
10. Intellectual Property
10.1 Each Party reserves any and all title, right and interests it may have in its trademarks, copyrights and other intellectual property rights. As between Customer and INTTRA, INTTRA shall own all intellectual property rights in the Portal, the Services, and INTTRA websites , separately and as a whole, including all rights in and to databases, trade secrets, patents, copyrights, trademarks, and know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign. INTTRA shall own any data that it creates as a result of or derived from operating the Portal, and/or the Services (for avoidance of doubt, the data described in this sentence does not include data submitted by Customer). Subject to Section 5 (for BL Image, as applicable) and Section 6 (for BL Data, as applicable), INTTRA grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, terminable license in any information and data provided to Customer (including data from third parties), directly or indirectly, by or through the Portal and/or the Services (“Portal Data”), to use that Portal Data solely for Customer’s internal systems processing and business uses.
10.2 Except as expressly licensed in Section 10.1 and subject to Section 5 (for BL Image, as applicable) and Section 6 (for BL Data, as applicable), Customer shall not at any time display, perform, copy, distribute, or use any Portal Data in any form at any time or permit any entity under its Control to cause any distribution, disclosure, or transfer to any third party of: (i) access to the Services; (ii) data and information derived from the Services; or (iii) use of the Services, without INTTRA’s express written consent.
10.3 Subject to Section 5 (for BL Image, as applicable) and Section 6 (for BL Data, as applicable), Customer may display or publish such Portal Data to shippers, forwarders, consignees, importers and exporters (“Specified Third Parties”), provided that: (i) any such Specified Third Party has a direct contractual and/or legal interest in and entitlement to such data; (ii) such data is necessary to facilitate completion of Customer’s transactions; (iii) such use is consistent with this Agreement, applicable laws and regulations governing Customer’s use of the Services; and (iv) to the extent such data is Confidential Information, such Specified Third Party is bound by written confidentiality obligations at least as protective as Section 20 below. In no event will You acquire any ownership rights or other interest in any data or database by or through Your use of the Portal and/or the Services.
10.4 If applicable, for each Customer’s customer seeking access to the Services, data or information, You warrant and represent that You shall have appropriate authority from such Customer to allow INTTRA to obtain, transmit, and use data or other information regarding such customer in furtherance of this Agreement.
10.5 Customer hereby grants to INTTRA, with respect to all Data, Services, and/or other data related to Customer that is provided to INTTRA by Customer or any other source, including, without limitation, via e-mail, EDI message, or documents generated thereby, a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such data (in whole or in part) and to incorporate it in other works in any form, media, or technology. In the case where such Data would otherwise be subject to the obligations set forth in Section 20.1, INTTRA will only publish or display such data, other than when providing the Services to Customer, as de-identified data, which means in a manner that does not identify, directly or indirectly, Customer or that allows Customer to be identified.
10.6 INTTRA may collect ideas, concepts, or techniques for new services or products provided by You or otherwise made known to INTTRA. Such information is not confidential or proprietary and INTTRA will have an unrestricted, irrevocable, world-wide, royalty free right to use, communicate, reproduce, publish, display, distribute, make derivative works of, and exploit such information in any manner it chooses with no duty to account to You.
While INTTRA has used reasonable efforts to ensure that Portal Data is accurate and up to date, INTTRA is not responsible or liable for any errors, inaccuracies or omission in the Portal Data or in the data from which the Portal Data is derived. ALL PORTAL DATA AND SERVICES ARE PROVIDED “AS IS” WITH NO GUARANTEES OF COMPLETENESS, ACCURACY, OR TIMELINESS OF RESULTS OBTAINED FROM THE USE OF PORTAL DATA OR THE SERVICES.
Unless otherwise noted, everything Customer sees or reads on the INTTRA websites, Portal and/or regarding the Services including, but not limited to, textual, graphical and all other content created by or for INTTRA, is (as between Customer and INTTRA) the property of INTTRA, and is protected by copyright and may not be reproduced, distributed, publicly performed or displayed, transmitted, or used, and related rights except as provided in these Terms, without written permission of INTTRA. Re-publication or citation of any content generated by the Portal and/or Services without INTTRA's written consent is expressly prohibited, except as otherwise set forth herein. The INTTRA websites, Portal, and/or Services may contain other proprietary notices and copyright information, the terms of which must be observed and followed. INTTRA is a trademark of INTTRA Inc. and may not be used without prior written permission. INTTRA asserts no claims to the marks of Carriers and/or customers displayed by INTTRA on the website, Portal, and/or Services.
13. Claims of Copyright Infringement
INTTRA respects the intellectual property rights of others, and We ask that everyone using the Portal do the same. Anyone who believes that his or her work has been reproduced on the Portal in a way that constitutes copyright infringement may notify INTTRA's Legal Department by providing the following information:
a. Identification of the copyrighted work that You claim has been infringed;
b. Identification of the material that You claim is infringing, including a description of where it is located on the Portal so We can locate it;
c. Your address, telephone number and, if available, e-mail address, so that We can contact You about Your complaint; and
d. A signed statement that the above information is accurate; that You have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that You are the copyright owner or are authorized to act on the copyright owner's behalf in this situation.
If You give notice of copyright infringement by e-mail or phone, INTTRA's Legal Department will begin investigating the alleged copyright infringement; however, We must receive Your signature by mail before We are required to take any action. More information about U.S. copyright law can be found at the United States Copyright Office, which can be found here: http://www.copyright.gov/.
Notices of copyright infringement claims should be sent to INTTRA at the address provided in Section 27.
14. Linked Web Sites
INTTRA makes no warranties or representations whatsoever regarding any other Web sites Customer may access through the Portal and/or the Services. When accessing a non-INTTRA Web site, Customer understands that that Web site is independent from INTTRA and that INTTRA has no control over the content of that Web site. In addition, a link to a non-INTTRA Web site does not mean that INTTRA endorses or accepts any responsibility for the content or the use of such Web site. It is up to the Customer to take precautions to ensure that whatever is selected for Customer’s use is in all ways suitable and free of viruses and other items of destructive nature.
15. Received Information and Comments
16. Disclaimer of Warranties
INTTRA, AND IN THE CASE OF BL IMAGE THE CARRIER(S), DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE PORTAL AND/OR THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND USE OR FREEDOM FROM INFRINGEMENT OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE PORTAL AND/OR THE SERVICES MAY NOT BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, OR FREE OF ANY VIRUSES. INTTRA FURTHER DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. INTTRA WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, INTTRA’S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING INFORMATION.
INTTRA AND TRANSMITTING CARRIER(S) DO NOT WARRANT AGAINST, AND SHALL NOT BE LIABLE FOR, ERRORS IN THE TRANSMISSION OR CONTENT OF BL DATA, AND SPECIFICALLY DO NOT WARRANT AGAINST ERRORS THAT WOULD RESULT IN THE DISCLOSURE OF BL DATA TO THIRD PARTIES.
CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR THE USE OF THE PORTAL, SERVICES, PORTAL DATA, DOCUMENTS AND ANY OTHER DATA OR INFORMATION OFFERED BY OR THROUGH THE PORTAL AND/OR THE SERVICES. THE PARTIES AGREE THAT THE PORTAL AND/OR SERVICES IS NOT TO BE USED TO FACILITATE COLLUSION OR OTHER CONDUCT IN VIOLATION OF THE ANTITRUST LAWS OR ANY APPLICABLE COMPETITION LAWS.
17.1 NEITHER INTTRA NOR A CARRIER/TRANSMITTING CARRIER IN THE CASE OF BL IMAGE OR BL DATA (INCLUDING EACH OF THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, LICENSORS OR AFFILIATES) NOR ANY THIRD-PARTY SERVICE OR DATA PROVIDER TO INTTRA SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUES, OR BUSINESS INTERRUPTION) ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR ANY DOCUMENTS, ANY PORTAL DATA, PERSONAL DATA AND OTHER DATA OR INFORMATION, ANY SOFTWARE OR ANY OF THE SERVICES PROVIDED THROUGH YOUR INTERACTION WITH THE PORTAL AND/OR SERVICES PROVIDED HEREUNDER, AS WELL AS ANY INFORMATION AND DOCUMENTS, ANY DATA OR MESSAGES GENERATED, RECEIVED, TRANSMITTED, DOWNLOADED OR OTHERWISE DISSEMINATED WHICH ARE RELATED TO OR STEM FROM CUSTOMER’S USE OF THE SERVICES AND/OR REGISTRATION AT THE PORTAL. THE FOREGOING SHALL APPLY: (A) EVEN IF INTTRA OR A CARRIER/TRANSMITTING CARRIER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY, REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER THEORY OF LIABILITY.
IN CONSIDERATION OF THE SERVICES PROVIDED BY INTTRA, THE AGGREGATE CUMULATIVE LIABILITY OF INTTRA, THIRD-PARTY SERVICE OR DATA PROVIDERS TO INTTRA, AND THE CARRIER(S)/TRANSMITTING CARRIER(S) TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ITS TERMINATION, OR ANY SERVICES, WILL NOT EXCEED THE LOWER OF (i) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO INTTRA DURING THE PRECEDING 12-MONTH PERIOD OR (ii) FIVE THOUSAND DOLLARS ($5000.00).
17.2 INTTRA and the Carrier(s)/Transmitting Carrier(s) (including each of their respective employees, agents, officers, directors, licensors or affiliates) shall have no liability for any inaccuracies, errors, or omission contained within any data caused by or attributable to BL Image(s) or BL Data; Your interaction with BL Image(s) or BL Data; any electronic agreement or other contract entered into between You or any third party; and Your use or inability to use BL Image(s) or BL Data or third party use of, or reliance on, the BL Data or BL Image.
17.3 YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES OR THIS AGREEMENT MUST BE ASSERTED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY OTHERWISE HAVE UNDER ANY STATUTE OR LAW FOR ANY CLAIMS NOT MADE WITHIN SUCH ONE YEAR PERIOD.
17.4 The limitations of liability set forth in this section reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these Terms found to have failed of its essential purpose and shall inure to the benefit of INTTRA, including its Affiliates, and/or its respective suppliers.
18.1 Customer will indemnify, hold harmless, and defend INTTRA (including its Affiliates), and all of its (including its Affiliates) current and former officers, directors, members, shareholders, agents, and employees (the “Indemnified Parties”), from any and all Claims. “Claim” means any action, cause of action, suit, proceeding, claim, or demand of any third party (and all resulting judgments, bona fide settlements, penalties, fines, damages, losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' fees and costs)), which arises out of: (a) Customer’s breach of this Agreement, or (b) Customer’s or Customer’s customer use of or access to the INTTRA websites, Portal and/or the Services. INTTRA will provide Customer with reasonable notice of any Claim. Customer will not settle any claim without INTTRA’s prior written consent, which will not be unreasonably withheld.
18.2 BL Data only, if applicable: Customer shall be liable to INTTRA and the Transmitting Carrier(s) for, and will indemnify, hold harmless, and defend INTTRA and Transmitting Carrier(s) (and its and their current and former officers, directors, shareholders, agents, property and employees) against and from any and all Claims. Claims include, but are not limited to, any action, cause of action, suit, proceeding (arbitral or otherwise), claim, or demand of any party (and all resulting judgments, bona fide settlements, penalties, damages, losses, liabilities, costs, interest and expenses (including without limitation reasonable attorneys' fees and costs)), which arise(s) out of: (a) Customer's breach of Section 6 (for BL Data); (b) Customer's use of or access to (i) INTTRA systems and/or BL Data Service, or (ii) BL Data; (c) the use or misuse by any party with whom the Customer has shared BL Data or whom Customer has designated as an intermediary to receive BL Data from INTTRA on its behalf (including an INTTRA alliance partner), or any access by such party to (i) INTTRA systems, BL Data Services, or (ii) BL Data; or (d) any mis-delivery, non-delivery, theft, conversion, misuse, fraud or inaccurate submission, receipt or distribution of any BL Data. INTTRA and/or each Transmitting Carrier may, at their/its expense, employ separate counsel to monitor and participate in the defense of any Claim. INTTRA and the Transmitting Carrier(s), will provide Customer with reasonably prompt notice in writing of any Claim.
18.3 BL Image only, if applicable: Customer shall be liable to INTTRA and the Carrier(s) for, and will indemnify, hold harmless, and defend INTTRA and Carrier(s) (and its and their current and former officers, directors, shareholders, agents, property and employees) against and from any and all Claims. Claims include, but are not limited to, any action, cause of action, suit, proceeding (arbitral or otherwise), claim, or demand of any party (and all resulting judgments, bona fide settlements, penalties, damages, losses, liabilities, costs, interest and expenses (including without limitation reasonable attorneys' fees and costs)), which arise(s) out of: (a) Customer's breach of Section 5 (for BL Image); (b) Customer's use of or access to (i) INTTRA systems and/or BL Image Services, or (ii) BL Image; (c) the use or misuse by any party with whom the Customer has shared BL Image or whom Customer has designated as an intermediary to receive BL Image from INTTRA on its behalf (including an INTTRA alliance partner), or any access by such party to (i) INTTRA systems and/or BL Image Services, or (ii) BL Image; or (d) any mis-delivery, non-delivery, theft, conversion, misuse, fraud or inaccurate submission, receipt or distribution of any BL Image. INTTRA and/or each Carrier may, at their/its expense, employ separate counsel to monitor and participate in the defense of any Claim. INTTRA and the Carrier(s) will provide Customer with reasonably prompt notice in writing of any Claim.
19.2 You agree not to: (i) use any device, software or technique to interfere with or attempt to interfere with the proper working of the Portal and/or the Services; (ii) post or transmit to the Portal and/or the Services any unlawful, fraudulent, harassing, libelous, or obscene information of any kind; (iii) post or send to the Portal and/or the Services any information that contains a virus, bug, or other harmful item; (iv) post or transmit into or on the Portal and/or the Services any information in violation of another party's contractual rights, privacy or data protection rights, or copyright or other intellectual property rights; (v) take any action which imposes an unreasonable or disproportionately large load on the Portal and/or the Services infrastructure; (vi) use any device or technology to provide repeated automated attempts to access any portion of the Portal and/or the Services; (vii) use the Portal and/or the Services in any manner that could damage, disable, overburden, or impair the Portal and/or the Services or interfere with any other party's use and enjoyment of the Portal and/or the Services; (viii) attempt to gain unauthorized access to any Service and/or the Portal, including, but not limited to, access through other accounts not legally registered to Customer, through any means; (ix) pass User IDs or passwords to any third party without written consent from INTTRA; (x) use any robot, spider or other automated device, process or means to access the Portal and/or the Services or use any manual process to monitor or copy content from the Portal for any other unauthorized purpose without INTTRA’s prior express written permission; and (xi) pass data received via the Portal and/or the Services to any third party outside Customer’s organization, other than those on behalf of which Customer is legally acting, without the written consent of INTTRA.
19.3 Customer may not obtain or attempt to obtain any information through any means not intentionally provided to Customer by INTTRA, including, without limitation, the practice known as screen scraping or any other forms of data harvesting. In addition, Customer agrees not to copy, modify, adapt, reproduce, translate, distribute, transmit, reverse engineer, decompile, or disassemble any aspect of the Portal, and/or the Services (including any prices or service descriptions) unless specifically authorized by this Agreement or permitted by law despite this contractual prohibition. Actual or attempted unauthorized use of the Portal and/or the Services may result in criminal and/or civil prosecution.
19.4 You acknowledge that INTTRA has the right, but no obligation, to monitor the Portal and/or the Services and to disclose any information necessary to operate the Portal and/or the Services, to protect INTTRA, and INTTRA customers and licensors, and to comply with legal obligations or governmental requests. INTTRA reserves the right to refuse to post or to remove any information in the Portal and/or the Services, in whole or in part, for any reason.
19.5 You agree to comply with all laws, statutes, ordinances, and regulations (including unfair competition, privacy and data protection, anti-discrimination or false advertising) regarding or relating to Your use of the Portal, and/or the Services.
20. Confidential Information
20.1 Each Party acknowledges that it may have access to Confidential Information of the other Party and agrees, for the duration of this Agreement and three (3) years thereafter, to hold the other's Confidential Information in confidence. The Parties agree not to disclose each other's Confidential Information to any third party (other than those of its employees or agents under nondisclosure obligations) or to use each other's Confidential Information for any purpose other than as contemplated by this Agreement. Each Party agrees to take commercially reasonable steps, which are at least as stringent as it takes to protect its own Confidential Information, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Section 20.
21. Access to the Portal
In order to access and interact with the Portal and/or the Services, Customer must be able to operate and maintain the necessary software and hardware, including, without limitation, Web browser software and appropriate communications infrastructure. Acquiring, installing, maintaining and operating any software and hardware needed to do so is solely Customer’s responsibility. INTTRA is in no way responsible or liable for Customer’s access to the Internet, including, without limitation, any connection speed issues, bandwidth, browser compatibility, or latency-related problems that may affect Customer’s ability to access and use the Portal and/or the Services.
22. Term and Termination of Services
The term of this Agreement shall continue unless terminated in accordance with this Section 22. Either Party may terminate this Agreement: (i) for any reason upon thirty (30) days’ notice to the other Party; provided that if Customer has purchased a subscription Service then the terms of the applicable Service Order and associated terms (e.g. a Product-Specific Attachment) shall control and govern and this subsection (i) shall be inapplicable for such Service; (ii) if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of same; (iii) if the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iv) if the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
For any breaches of Sections 2, 3, 10, and 19 by Customer, INTTRA may, upon email notice to Customer, immediately suspend Services, in whole or in part, until such breach is remedied; provided that if INTTRA reasonably determines that Customer is unable or unwilling to cure such a breach, INTTRA may immediately terminate this Agreement, in whole or in part. THE PARTIES ACKNOWLEDGE AND AGREE THAT MONETARY DAMAGES WOULD BE BOTH INCALCULABLE AND AN INSUFFICIENT REMEDY FOR ANY BREACH OF THE SECTIONS IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH BY CUSTOMER AND THAT ANY SUCH BREACH WOULD CAUSE INTTRA IRREPARABLE HARM. ACCORDINGLY, CUSTOMER ALSO AGREES THAT IN THE EVENT OF ANY BREACH OR ANTICIPATED BREACH OF THESE SECTIONS, INTTRA, IN ADDITION TO ANY OTHER REMEDIES AT LAW OR IN EQUITY IT MAY HAVE, SHALL BE ENTITLED TO SEEK EQUITABLE RELIEF, INCLUDING INJUNCTIVE RELIEF AND SPECIFIC PERFORMANCE, WITHOUT THE REQUIREMENT OF POSTING BOND OR OTHER SECURITY.
Upon termination of this Agreement: (i) INTTRA will immediately cease providing Services and; (ii) any and all payment obligations of Customer under this Agreement shall be due and paid by Customer, if applicable. Sections 17, 18, 19, 20, 22, 24, 25, and 26 shall survive after the termination of this Agreement.
From time to time, INTTRA may engage third parties to perform the Services, or any part thereof, provided that INTTRA will be solely responsible to Customer for the performance of the Service by any such third party.
24. Data Protection
24.2 When using the Service, Customer will have the option to provide certain personal or business contact information, including but not limited to, name, address, email address and telephone number (collectively, the 'Personal Data'). Customer will likely need to submit some Personal Data in order to submit transactions via the Portal. Customer agrees to:
- Provide true, accurate, current, and complete Personal Data as prompted by the Service processes.
- Maintain and promptly update the Personal Data to keep it accurate, current, and complete.
- Maintain the security and confidentiality of any usernames, passwords and any other security or access information used by the Customer to access the Service.
- Refrain from impersonating any person or entity or misrepresent Customer's identity or affiliation with any person or entity, including using another person's Personal Data.
- Immediately notify INTTRA in writing if Customer becomes aware of any loss, theft or use by any other person or entity of any of its Personal Data in connection with the Service or any other breach of security that the Customer becomes aware of involving or relating to the Service.
- Only insert Personal Data into fields clearly designated to hold Personal Data. Examples of such fields include Name, Phone Number, Address, etc. INTTRA will only monitor these fields as it relates to Personal Data rights and regulations. INTTRA will not monitor fields for compliance with data protection laws that are not clearly intended to contain Personal Data (for example, Cargo Description). INTTRA will disclose fields not clearly intended to contain Personal Data to third parties, such as to a Carrier, without identifying them as containing Personal Data and if You insert Personal Data in such fields it may be further disclosed (including by publication or public display) to other third parties, such as in customs filings.
24.3 Where the Customer is based in the European Economic Area (EEA) and in the course of using the Portal or the Services, the Customer provides Personal Data to INTTRA, the Customer acknowledges that this Personal Data will be transferred to countries outside of the EEA (including to the US, Singapore and China) which may not provide a similar level of data protection to that provided by countries within the EEA. As such, the parties agree to comply with the Standard Contractual Clauses set out in Schedule 1 (which are incorporated herein by reference) in connection with the Services in order to address the relevant European data transfer restrictions. INTTRA will apply the E.U.-U.S. Privacy Shield and Swiss – U.S. Privacy Shield Principles to all Personal Data that Customer transfers to INTTRA that originates from the European Economic Area or Switzerland.
24.4 For the purposes of the Standard Contractual Clauses the parties agree that (i) the Customer is the Data Exporter and (ii) INTTRA is the Data Importer.
25. General Provisions
25.1 This Agreement is the entire agreement between the Parties with respect to the subject matter of this Agreement and replaces and supersedes all prior verbal understandings, or written communications or representations, if any, between the Parties regarding this subject matter.
25.2 No right or license under this Agreement may be assigned or otherwise transferred by Customer without INTTRA’s prior written consent. The foregoing notwithstanding, upon written notice to INTTRA, Customer may assign, or otherwise transfer this Agreement to any Affiliate which Controls, is Controlled by, or is under common Control with Customer, or to the surviving entity as a result of a merger, acquisition or reorganization of all or substantially all of Customer’s assets or stock provided such entity is not deemed by INTTRA to be a direct competitor of INTTRA and agrees in writing it will be bound by the Terms of this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and INTTRA. Notwithstanding the foregoing, Customer understands and agrees that INTTRA sets fees charged to Customer upon Customer’s structure, size, and estimated usage of the Services as of the date of a Service Order. In the event Customer undergoes a merger or acquisition, Customer’s use of the Services may change materially. Fees do not include additional volume which results from a merger or acquisition. If Customer wishes to use the Services for the newly acquired or merged company it shall provide written notice to INTTRA. INTTRA reserves the right to revise fees in such event, and the Parties shall negotiate such revised fees in good faith. If the Parties are unable to come to an agreement, INTTRA reserves the right to limit, suspend, and/or terminate Services.
25.3 For purposes of BL Image only, Carrier(s) shall have the right to enforce against Customer Sections 5, 11, 17, 18 and 19 of this Agreement with respect to only the BL Image Service for the benefit of Carrier. Carrier(s) may enforce any such rights without joining INTTRA to such enforcement action. Nothing in this Agreement or the relationships created by it shall be construed to make or constitute INTTRA as an agent, servant, employee or partner of either Customer, Affiliate(s) or any Carrier(s).
25.4 All written notices shall be in writing and sent by first class mail, overnight mail, courier, or transmitted by facsimile and confirmed by mailing, to the addresses indicated by each Party, and providing at least 10 days prior written notice to the other Party. Notice shall be deemed to have been given upon personal delivery (in the case of overnight mail, courier or facsimile) or five (5) business days after being sent by first class mail. Written notice to INTTRA shall be sent to INTTRA Inc., Attn: Legal Department, 1 Upper Pond Road, Morris Corporate Center 2, Parsippany, NJ 07054 USA.
25.5 INTTRA is a U.S.-based company, and subject to U.S. control laws. Customer acknowledges, agrees, warrants and represents that it will not use the Portal and/or the Services for the purpose of engaging in any transactions that violate the U.S. control laws. Customer also acknowledges, agrees, warrants and represents that it is not a national of any country subject to U.S. control laws and that it is not a Specially Designated National on the U.S. Treasury Department’s list of Specially Designated Nationals. Customer shall comply with and shall ensure that all Affiliates comply with (a) all national or international laws and regulations, which are applicable to the provision or use of the Services, including, those relating to export control, occupational health and safety, environmental matters, wages, working hours and conditions of employment, discrimination, data protection and privacy; (b) all applicable anti-corruption laws and regulations, including without limitation the US Foreign Corrupt Practices Act and the UK Bribery Act of 2010; and (c) undertake and warrant to the other party that it and its officers, directors, shareholders, employees, agents and other intermediaries, and any other person acting directly or indirectly on its behalf, shall not, directly or through third parties, give, promise or attempt to give, or approve or authorize the giving of, anything of value to any person or any entity for the purpose of (i) securing any improper advantage for either party; (ii) inducing or influencing a public official improperly to take action or refrain from taking action in order for either party to obtain or retain business, or to secure the direction of business to either party; and/or (iii) inducing or influencing a public official to use his/her influence with any government or public international organization for such purpose.
25.6 The waiver by either Party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
25.7 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions will remain in full force and effect.
25.8 References in this Agreement to “notice in writing” or “written notice” or other similar reference shall not include electronic or email notice and only hard copy writings are acceptable. Other reference to “notice” shall mean notice by any reasonable communication means, such as INTTRA sending an email to Customer’s most current email address in its files.
25.9 Each Party agrees to bear its own costs relating to the Services, including, but not limited to, costs associated with support, maintenance, testing, interface development, and EDI mapping. The Parties are independent contractors acting for their own account, and neither party is authorized to make any representation or commitment on behalf of the other. This Agreement shall not be construed as creating a partnership, joint venture, franchise, agency, or similar relationship between the Parties.
25.10 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without regard to its conflict of laws rules. Each of the Parties irrevocably submits to the exclusive jurisdiction and venue of the courts of the U.S. District Court for the Southern District of New York and waives any objection to venue in such court, or if such court lacks jurisdiction, to the state courts of New York County, New York.
25.11 This Agreement was drafted, negotiated, and entered into by the Parties in English. Notwithstanding the translation of this Agreement into any other language, by any party, for convenience or any other purpose, the English text shall govern and control.
25.12 Service Orders may be executed in identical counterparts each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures transmitted by facsimile transmission shall constitute legally binding and effective execution and delivery.
26. Force Majeure
INTTRA shall not be liable for delays or failures in its performance to the extent such failures or delays result from acts beyond INTTRA’s reasonable control, including, but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, strikes, walkouts, riots, civil disorders, rebellions, quarantines, epidemics, embargoes or other similar governmental action.
One Upper Pond Rd.,
Morris Corporate Center 2, Building D
Parsippany, NJ 07054
For claims or questions regarding service, contact:
By phone: +1(973).263.5100
By e-mail: firstname.lastname@example.org
For claims or questions regarding copyright, contact: email@example.com
Standard contractual clauses for the transfer of personal data from the European Community to third countries (controller to controller transfers (based on Commission Decision C9(2004) 5721)
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country's system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
- The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
- It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
- It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
- It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
- It will make available, upon request, a copy of the clauses to data subjects who are third-party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
- It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
- It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
- It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
- It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
- It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I (e).
- At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
- Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
- It will process the personal data in accordance with the data processing principles set forth in Annex A.
- It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
- the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
- the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
- data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
- with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
- Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
- The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter's country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established.
V. Resolution of disputes with data subjects or the authority
- In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
- The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
- Each party shall abide by a decision of a competent court of the data exporter's country of establishment or of the authority which is final and against which no further appeal is possible.
- In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
- In the event that:
- the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
- compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
- the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
- a final decision against which no further appeal is possible of a competent court of the data exporter's country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
- a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
- then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
- Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
- The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
- The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I (e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
DATA PROCESSING PRINCIPLES
Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
Data quality and proportionality:
Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
Security and confidentiality:
Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
Rights of access, rectification, deletion and objection:
As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
Data used for marketing purposes:
Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
Or where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
Employees and contractors of the data exporter.
Customers of the Data Exporter.
Purposes of the transfer(s)
The transfer is made for the following purposes:
To allow the data importer to operate the Portal and to permit data exporters access to multiple shipping carriers through a single platform .
To allow the data importer to provide services to the data exporter's customers.
To allow the data importer to market to the data exporter.
Categories of data
The personal data transferred concern the following categories of data;
Name, title, contact details (including postal address);
Invoicing and billing information;
Expertise and details of services provided;
Details of relevant communications for business development activities; and
Customer records and transactions.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
Staff and authorised personnel of the data importer;
Data importer’s affiliates;
Processors and third party providers performing services on behalf of the data importer (provided these have committed to the relevant data protection principles set out in this Agreement);
Regulatory bodies and auditors for statutory purposes;
Data importer’s partners.
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
Data protection registration information of data exporter (where applicable): To be advised by data exporter
Additional useful information (storage limits and other relevant information): Not Applicable
Contact points for data protection enquiries
Data Exporter: As provided on the Portal
Data Importer: As provided on the Portal