Tariffcenter.com
Tariff Retrieval Agreement
If you agree with the terms of this agreement, you may continue with the registration by completing the Tariff Retrieval Registration Form.
Dart Maritime Service, Inc. is the developer and owner of proprietary computer software and a database known by the name Tariffcenter.com, which allows for the storage of ocean common carrier tariff data in a proprietary database. Customer desires the right to electronically access from Customer's remote locations Dart Maritime Service, Inc.'s tariff database from time to time to retrieve tariff data for use by Customer.
1. DEFINITIONS
1.1 "Tariffcenter.com Database" means Dart Maritime Service, Inc.'s database of United States and foreign Tariffs and/or other information with respect to certain Conferences, individual steamship lines and licensed OTIs maintained at Dart Maritime Service, Inc.'s remote, secure Data Center.
1.2 "Tariffs" means tariffs, memorandum rate sheets/price lists, and service contracts, including all applicable tariff changes which Customer is permitted to access.
1.3 "Effective Date" means the date of Customer's signature of this Agreement.
2. RIGHT OF ACCESS
2.1 Retrieval. Dart Maritime Service, Inc. hereby grants, as authorized by respective ocean carrier, to Customer, for the charges set forth in Section 3.2, a non-exclusive, nontransferable, restricted right for individuals to link electronically with the Software and to access and retrieve from the Tariffcenter.com Database Tariff information by following the procedures set forth in Section 2.2.
2.2 Access Requirements. Customer will access Dart Maritime Service, Inc. Rates via a Customer-provided, internet network connection between the Customer's desktop personal computer or internal network and a link provided on Dart Maritime Service, Inc.'s website. It is Customer's responsibility to obtain compatible telecommunications / internet software necessary to access the Software. Dart Maritime Service, Inc. will provide Customer with a computer ID and password. Dart Maritime Service, Inc. does not accept any responsibility for the performance of Internet communications between Customer's desktop PC or internal network and the Dart Maritime Service, Inc. Proprietary database.
2.3 Security. Customer agrees to comply with the rules of operation and security procedures established by Dart Maritime Service, Inc. from time to time. Customer agrees not to attempt to gain access or in any way use or modify any data, files, or programs to which it is not specifically entitled under this Agreement. Further, Customer agrees that it is Customer's responsibility to safeguard access to terminals at Customer's locations and Customer will take all steps necessary to prevent unauthorized access of the Software and Database.
2.4 Ownership of Software. Dart Maritime Service, Inc. retains all right, title and interest in and to the Software, Documentation, and Database, including to any Fixes and New Versions, and to all copies of the Software and Documentation, authorized or unauthorized, in whole or in part, and in all intellectual property related to all of the foregoing.
2.5 Trademark. Customer may not use Dart Maritime Service, Inc.'s trade name or any of Dart Maritime Service, Inc.'s trademarks, whether or not registered, or any translation or equivalent thereof, in any language, with a product or service, with another trademark, in a corporate title or business name, or in any advertising or other materials, without the written consent of Dart Maritime Service, Inc.
2.6 Additional Terms. Dart Maritime Service, Inc. does not accept and objects to any different or additional terms and conditions contained in any purchase order or other writing received from Customer.
3. FEES AND PAYMENT
3.1 Telecommunications. All telecommunications charges related to the connection to the database are the responsibility of Customer.
3.2 Fees. Each Customer billing address will be charged for access per the fees listed below. If applicable, fixed monthly minimum fees will be billed in advance for the term of this Agreement and all other Fees and expenses will be billed by Dart Maritime Service, Inc. on a monthly basis unless other payment terms are required to open account.
DMS Publishing Customers:
- Proprietary Information - NO CHARGE
- Competitive Information - per fee schedule
Non-Publishing Customers:
User will be responsible and billed for all time while connected to the Dart Maritime Service, Inc. site, until the user logs off or disconnected from the server via time-out method. The number of minutes of idle connection permitted will be determined from time to time by Dart Maritime Service, Inc. system administrator.
3.3 Invoicing and Payments. All fees must be prepaid in advance as per the fee schedule. All Fees are due and payable in U.S. dollars, and must accompany the registration form. Renewal payments at the expiration date of the term in the registration agreement are also payable in advance or service may be denied. If Customer is based outside of the United States, all payments must be made by wire transfer in immediately available funds. Fees do not include costs of postage, shipping and administrative bank fees or fees imposed by various regulatory bodies. In addition, Dart Maritime Service, Inc. or authorizing carrier may terminate this Agreement in accordance with Sections 7.2 and 7.3.
3.4 Late Payments. In the event that any payment of any invoice is overdue, Dart Maritime Service, Inc. or carrier may bill Customer a late payment charge on the unpaid balance at the rate of 1 and 1/2% per month or the highest legal rate, whichever is lower.
3.5 Creditworthiness. Dart Maritime Service, Inc. reserves the right to assess Customer's creditworthiness and to modify these payment terms in Dart Maritime Service, Inc.'s sole discretion based on Customer's credit history.
3.6 Taxes. All Fees are exclusive of and Customer is responsible for (a) all applicable federal, state or local taxes user fees or other assessments on the sale, license or use of the Software, Documentation, and/or services provided under this Agreement, (b) any access fees charged by any governmental agency. Customer is not responsible for taxes based upon Dart Maritime Service, Inc.'s net income, or any gross receipt, capital stock, franchise, net worth or similar taxes imposed upon Dart Maritime Service, Inc..
3.7 Pricing. All prices and Fees set forth in this Agreement, and Exhibits hereto, shall be at Dart Maritime Service, Inc.'s then current rates. Dart Maritime Service, Inc. may increase prices and fees without notice to Customer.
4. SUPPORT SERVICES
4.1 Basic Support Services.
(a) Dart Maritime Service, Inc. will provide to Customer telephone consultation and advise with respect to the use and operation of the Software and the resolution of routine Software-related problems. Dart Maritime Service, Inc. will use commercially reasonable efforts to return such calls from Customer during Dart Maritime Service, Inc.'s normal business hours, 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday.
5. WARRANTY AND REMEDIES
5.1 Limitation on Damages. Dart Maritime Service, Inc. WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSSES OR DAMAGES ARISING OUT OF ANY ACT OR OMISSION OF CUSTOMER WITH RESPECT TO CUSTOMER'S USE OF TARIFF INFORMATION. Dart Maritime Service, Inc. WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITIES CAUSED DIRECTLY OR INDIRECTLY BY FAILURE OR ERRONEOUS PERFORMANCE OF THE SOFTWARE OR PERFORMANCE OF SERVICES HEREUNDER, WHETHER A CLAIM ARISES OUT OF CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY).
5.2 Entire Liability. Entire liability to Customer for any cause whatsoever, whether arising from Software or services is limited to a refund of all Fees Customer has paid under this Agreement for one (1) month period immediately prior to the date liability accrues. Refund will be issued by party receiving payment as per this agreement.
5.3 Customer Indemnification. Customer indemnifies and holds harmless Dart Maritime Service, Inc., its officers, directors, employees and agents from and against any claims, losses, liabilities or expenses (including reasonable attorney's fees) arising out of injury or damage (including death) to Customer's or Dart Maritime Service, Inc.'s employees, consultants, agents, other third parties or the property of any of them arising out of Customer's (a) negligence or willful misconduct, or b) infringement of another's patent or copyright or misappropriation of a trade secret, unless such claims, losses or liabilities are solely caused by the negligence of Dart Maritime Service, Inc..
5.4 Disclaimer. Dart Maritime Service, Inc. MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND THE WARRANTY AGAINST NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
6.1 Indemnification. Customer agrees to indemnify and hold harmless Dart Maritime Service, Inc., its officers, directors and employees, from any and all liabilities, losses or damages, including reasonable attorney's fees, incurred by Dart Maritime Service, Inc. as a result of claims, demands, lawsuits, or judgments arising from or in connection with this Agreement, unless Dart Maritime Service, Inc. is negligent, reckless or engages in willful misconduct in its performance of this Agreement or if such Dart Maritime Service, Inc. liabilities, losses or damages result from a material breach of this Agreement by Dart Maritime Service, Inc..
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective for the term as specified on the registration form. Either party may terminate this Agreement at any time with ten (10) days prior written notice. All fees incurred are non-refundable.
7.2 Termination. Dart Maritime Service, Inc. may terminate this Agreement immediately upon written notice to Customer (a) if Customer fails to pay any invoice when due or (b) in the event of transfer of a substantial portion of Customer's assets or control of its business by sale, reorganization, or merger. Either party may terminate this Agreement immediately upon written notice to the other (i) if the other party materially breaches any other obligation under this Agreement and has failed to cure such breach to the other's satisfaction within thirty (30) days of receipt of notice of the breach, or (ii) in the event of bankruptcy, insolvency, dissolution or receivership proceedings filed by or against the other party.
7.3 Re-Connect Fee. Rather than terminating this Agreement in the event Customer fails to pay any invoice when due, Dart Maritime Service, Inc. may, after notice to Customer, suspend services to Customer until Customer's account is made current. If Dart Maritime Service, Inc. terminates this Agreement or suspends services and Customer later requests reinstatement of services, Customer will be required to reinstate the existing Dart Maritime Service, Inc. Tariff Retrieval Agreement, or enter into a new Dart Maritime Service, Inc. Tariff Retrieval Agreement with Dart Maritime Service, Inc.. In addition, Customer will be required to pay any and all past due amounts and a Re-Connect Fee equal to the greater of 2.5% of all past due amounts or $25.00.
7.4 Survival of Obligations. All obligations of Customer to pay all amounts still due and owing to Dart Maritime Service, Inc. will survive the termination of this Agreement for any reason.
8. MISCELLANEOUS
8.1 Justifiable Delays. Dart Maritime Service, Inc. shall be excused from performance or delays under this Agreement to the extent such performance is prevented or delay is due to causes beyond the control of Dart Maritime Service, Inc., including without limitation acts of God, strikes, or other labor disputes, wars, governmental restrictions, failure of transportation, failure of utilities or telecommunications transmission lines or service, and failure of equipment. In such event Dart Maritime Service, Inc.'s time for performance shall be extended by the extent of any such delay or where practical shall be excused.
8.2 No Third Party Beneficiaries. No customer, agent , authorized employee, or affiliate of Customer, is or will be deemed a third party beneficiary under this Agreement.
8.3 Severability. If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be severed and the remaining provisions will remain in effect.
8.4 Waiver. The failure by any party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. No waiver by any party will be valid unless given in an appropriate writing signed by that party.
8.5 Governing Law. This Agreement will be governed and construed in accordance with the substantive laws of the State of North Carolina without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. This Agreement will be deemed to have been entered into in North Carolina. The parties agree that this Agreement primarily involves the sale of services and that the provisions of the Uniform Commercial Code shall not apply.
8.6 Jurisdiction and Venue. Customer agrees that any legal actions concerning this Agreement will be brought only in the proper court of jurisdiction for the State of North Carolina or courts in the County of Mecklenburg. Each party hereby consents to the jurisdiction of such courts and to venue therein.
8.7 Modification and Assignment. This Agreement may not be modified except by an instrument in writing signed by both parties. This Agreement may not be assigned by Customer without the written consent of Dart Maritime Service, Inc.. Any attempted assignment by Customer without consent will be void and of no effect.
8.8 Headings. The headings in this Agreement in no way define, limit, expand or interpret the scope of this Agreement or of any provision hereof.
8.9 Independent Contractors. Both parties are independent contractors with respect to all matter arising out of this Agreement. For purposes of this Agreement, neither of the parties will be considered an employee, agent or joint venturer of the other.
8.10 Integration. This Agreement, together with any Exhibits and/or attachments referenced herein, constitutes the entire and exclusive agreement between Dart Maritime Service, Inc. and Customer relating to the subject matter hereof and supersedes all prior written or oral agreements, representations, or communications between the parties relating to the subject matter of this Agreement. All Exhibits attached to this Agreement are incorporated by reference as if fully set forth herein.
8.11 Limitation of Actions. All claims against Dart Maritime Service, Inc. must be brought within one (1) year after the cause or action arises and Customer waives any statute of limitations which might apply by operation of law or otherwise.