GT NEXUS operates an Internet-based virtual network including the GT Nexus corporate web site (http://www.gtnexus.com, the "Site") ("Network") that allows transportation service providers, users, and intermediaries such as freight forwarders, customs brokers, and third party logistics providers, ("Members") to collaborate across a range of transportation planning and execution activities and to gain access to industry information, services, writings, graphics, media and data files and other text and content materials ("Content") ") using the Network. Through the Network, Members are able to provide or receive ocean container and other transportation services, including the exchange of information and documents critical to establishing and conducting transportation services, ("Transportation Services") to or from other Members.
To become a Member, you must register as such by filling out an application made available on the Site and accepting the terms and conditions of the agreement contained herein. GT Nexus and a Member may also enter into a separate written agreement regarding the Transportation Services herein described, as well other services.
This Membership Agreement (this "Agreement") describes the Terms and Conditions applicable to your use of the Network as a Member. By either clicking the "SUBMIT" button in the GT Nexus Registration Application page or signing a hard copy of the application and faxing it to the number indicated, you accept the terms and conditions of this Agreement. GT Nexus may, at its sole discretion, update and revise this Agreement at any time by posting the amended Agreement on the Network. Please check the Network periodically for changes to this Agreement. Your use of the Network following the posting of any changes to the terms of this Agreement constitutes acceptance of those changes. The effective date of any revision or amendment will be the date on which the revised Agreement is posted on the Network. Without limiting the generality or effect of the foregoing, GT Nexus may also add, delete or modify some or all of its services at any time in its sole discretion.
The Network's use and access is available to any qualified persons engaged in the worldwide transportation industry. Notwithstanding anything to the contrary contained in this Agreement, we may refuse to accept an application for membership at our sole discretion and/or limit a Member's use of the Network at any time at our sole discretion. If you have any questions about the Member's Terms and Conditions, please contact us at 1-866-486-3987.
This Agreement (and any other supplemental or additional agreement you enter into with GT Nexus) governs your use the Network. The specific terms and conditions of a Member's purchase or sale of Transportation Services (such as pricing, warranties from providers, delivery, etc.) through the Network are established between Members. Although Members will post Transportation Services on the Network or will post inquiries on the Network, GT Nexus is merely a venue for Members to agree upon the terms of transactions. GT Nexus does not set nor endorse the price, contract terms, quality, safety, conformance or legality of any of the Transportation Services advertised or offered for sale, the ability of Members to sell or provide the Transportation Services or the ability of Members to buy Transportation Services. We cannot and do not control whether Members will complete the sale of Transportation Services they offer. We are not responsible for the payment or collection of orders made through this Network.
GT NEXUS PROVIDES THE NETWORK ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTY OR CONDITION, EXPRESS OR IMPLIED. MEMBER AGREES THAT USE OF THE NETWORK IS AT MEMBER'S SOLE RISK. GT NEXUS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, (II) FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, (III) THAT SERVICE WILL BE CONTINUOUS, UNINTERRUPTED AND/OR ERROR-FREE, (IV) THE QUALITY, IDENTITY OR RELIABILITY OF ANY MEMBER AND WHETHER YOU SHOULD DO BUSINESS WITH SUCH MEMBER, (V) THE ACCURACY OF POSTINGS MADE ON THE NETWORK BY OR ON BEHALF OF MEMBERS, AND (VI) THE ACCURACY OF AND ANY WARRANTIES FOR THE INFORMATION, PRODUCTS OR SERVICES PROVIDED BY OR THROUGH THE CONTENT OR THE APPLICABILITY TO ANY MEMBER'S CIRCUMSTANCES OR REQUIREMENTS. THE PARTIES DESIRE AND AGREE TO COMPLY FULLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS. SPECIFICALLY, THE PARTIES AGREE THAT THE NETWORK IS NOT TO BE UTILIZED TO FACILITATE COLLUSION OR OTHER CONDUCT IN VIOLATION OF THE ANTITRUST LAWS OR ANY APPLICABLE COMPETITION LAWS.
The Network acts as the venue for Members to purchase and sell Transportation Services. GT Nexus does not take a position in the actual transactions between Members. Accordingly, we have no control over the truth or accuracy of postings, the ability of Members to sell listed Transportation Services or Members to purchase Transportation Services. Because we are not involved in Member-to-Member transactions, in the event of any dispute between you and another Member, you release GT Nexus, its agents and employees from any claims and damages of every nature (including, without limitation, known and unknown matters, suspected, unsuspected, actual, special, incidental and consequential), disclosed and undisclosed, arising out of or in any way connected with such dispute. By this Agreement, you further agree to waive the provisions of Section 1542 of the California Civil Code. Said section 1542 provides as follows:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Transaction Fees are the responsibility of the transportation service provider ("Provider") and are governed by the Hosted Services Agreement executed between the Provider and GT Nexus. Except where provided by the Hosted Service Agreement or any other agreement, GT Nexus reserves the right to modify or terminate any services provided and related fees at any time.
Members will, at their own expense, generate and deliver to GT Nexus the Content they would like to post on the Network. Members will be solely responsible for creating, managing, editing, reviewing, testing, deleting, and otherwise controlling the Content. In the event a Member desires to add, modify, replace or delete any Content, Member shall provide written or electronic instructions regarding the changes to be made and GT Nexus will use diligent efforts to perform such action in a prompt manner. GT Nexus will, at Member's request, and for a fee to be agreed upon between GT Nexus and Member, review the Content and modify or edit the Content to the extent GT Nexus deems required, and which Member agrees, to present the Member and the Content in the best possible light via the Internet.
Member shall be responsible for any liability associated with GT Nexus' publication and distribution of the Content and Member agrees to indemnify and hold harmless GT Nexus from any and all claims whatsoever, that may arise from Member's Content posted on the Network. Member agrees that the Content posted on the Network (a) must not be fraudulent; (b) must not infringe any third party's rights, including but not limited to copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (c) must not violate any applicable law, statute, rule or regulation, (d) must not be obscene, indecent or contain pornography; (e) must not be defamatory, trade libelous, threatening or harassing; (f) must not be outdated or inaccurate in any way that could mislead any Member; and (g) must not link directly or indirectly to or include descriptions of products or services that are prohibited by this Agreement. In addition, a Member may not post on or sell on the Network any product or service which, by paying GT Nexus a Transaction Fee, which could reasonably be expected to result in a violation of any applicable law, statute, rule or regulation. GT Nexus is not obligated and undertakes no responsibility to review the Content and to determine whether it is accurate. GT Nexus does not endorse any Content posted on the Network by Members or third parties. Member agrees that GT Nexus has no obligation to monitor the Content on the Network or links to other web sites, and expressly disclaims any responsibility of GT Nexus to filter any such Content. However, GT Nexus may take any action with respect to any Content GT Nexus deems necessary or appropriate in GT Nexus' sole discretion if GT Nexus believes such Content may give rise to liability to GT Nexus or other parties or interfere or impair GT Nexus' relationship with any Member.
The Content consists of material provided by others including Members themselves ("Content Providers") and made available to Members with the permission of such Content Providers. Neither GT Nexus nor any Content Provider endorses or assumes any responsibility for the accuracy or completeness of any information, materials or data provided in the Content. If the Member accesses third party service provider materials published by a Content Provider, the Member understands that this material is provided by the respective service provider and the Member agrees that neither GT Nexus nor the Content Provider is responsible for the accuracy or completeness thereof. Any use of or reliance by the Member on service provider materials or anything provided in the Content is entirely at the Member's own risk and Member agrees to hold GT Nexus and the Content Provider harmless for any consequences arising there from. Members do not have the right to copy, store or print out the Content or any portion thereof without express written or electronic permission of the Content Provider. In the event that the Member is the source of or otherwise responsible for any unauthorized copying, storing or printing of the Content or any portion thereof, in addition to any other rights GT Nexus and the Content Provider may have, Member agrees to pay as damages one dollar ($1) for each net screen, HTML page or media object copied, stored or printed out.
a) Equipment and Connections. Member is responsible for providing all equipment necessary to access the Internet and the Network. GT Nexus will a) include Member's Information on the Network through GT Nexus' portal and any commercially reasonable Internet portals for distribution of Transportation Services; b) make available the computer hardware and software, telecommunications equipment and Internet access equipment required for the operation of such portals, as GT Nexus deems necessary; c) and make all commercially reasonable efforts to ensure that the Network is available to end-users, with regularly scheduled system downtime and other non-scheduled outages, where possible, occurring on the least disruptive day and time.
b) Availability of the Network. The Network is usually available 24 hours a day, 7 days a week. However, we retain the right to make the Network unavailable from time to time for any reason. Member agrees that GT Nexus shall not be liable for any damages arising from any interruption, suspension or termination of the Network.
c) Use of Passwords. Access to and use of the Network is achieved through a combination of a User Name and Password. Each Member will be assigned a unique User Name and Password. A Member with GT Nexus-assigned administrative privileges may add additional User Names and Passwords to enable multiple users within the Member's organization to use the GT Nexus Network. Acceptance of a membership application by GT Nexus validates a Member's User Name(s) and Password(s). The User Name and Password provide entry to the Network and allows a Member to conclude a range of planning and execution transactions on the Network. No Member or other person is permitted to access the Network using the User Name and Password of any other Member
The transportation of (i) dangerous goods, commodities or hazardous materials or (ii) goods, commodities or materials that may become dangerous or hazardous (hereinafter collectively "dangerous goods") is subject to special safety considerations and legal requirements such as the regulations of the United States Department of Transportation (DOT), the International Maritime Organization's (IMO) Dangerous Goods Code, and the laws and regulations of various port authorities around the world. Additionally, the transportation of goods neither designated nor identified as dangerous goods by transportation authorities may nevertheless present safety hazards during transportation requiring shippers and carriers to exercise special care, particularly with respect to the communication of shipping requirements and parameters to carriers. The proper communication and evaluation of information relevant to the safe transportation of dangerous goods are matters within the exclusive knowledge of Members who are shippers or carriers or their agents and possess the relevant information and knowledge concerning both the goods and the transportation. Therefore, Members agree to assume all risk associated with the transportation of dangerous goods. Members further agree to exercise special care when arranging for the transportation of dangerous goods. Members also warrant (a) that their personnel are trained properly pursuant to applicable laws, regulations and standards of care with respect to dangerous goods, (b) that dangerous goods are accurately identified, (c) that the risks and hazards associated with the transportation of dangerous goods are properly communicated to relevant parties, and (d) that dangerous goods are transported consistent with the risks and hazards. GT Nexus does not warrant, verify or monitor the appropriateness, accuracy or completeness of the information relevant for transportation safety of dangerous goods or the vessels carrying them.
a) Applicable Laws. Member agrees to comply with all applicable local, state, federal, and international laws, statutes, rules and regulations relating to Member's use of the Network. Without limiting the foregoing, Members are responsible for observing all applicable tariffs and trade laws.
b) No Unauthorized Access. Member shall not provide access to the Network to other persons through use of Member's User Name or Password. The Member is solely responsible to ensure that it takes no action or omits to take action which in either case results in any other person utilizing Member's User Name or Password. GT Nexus is specifically not responsible for the use of any Member's User Name or Password by another party, except to the extent due to the gross negligence of GT Nexus.
c) Malicious Intent. Member agrees not to tamper in any way with the software or functionality of the Network. Without limiting the foregoing, Member agrees not to put any material into the Network which contains any viruses, time bombs, trojan horses, worms, cancelbots or other computer programming routines that may damage, interfere with, intercept or expropriate any system, data or information.
d) Maintenance of Confidential Information; Privacy. GT Nexus agrees to maintain the confidentiality of all rates, terms and conditions provided for in any contract entered into by Members. Member agrees not to disclose other Members' confidential information consistent with accepted industry practices. Member agrees not to invade another Member's privacy. This includes, but is not limited to, the breach or attempted breach of the security of another Member's computer, software or data without the knowledge and express consent of such Member. Use or distribution of tools designed for compromising privacy or security is strictly prohibited. In addition, Member agrees not to disclose GT Nexus confidential information, such as business and technical information, and that Member shall maintain such information in confidence to the same extent that it protects its own confidential information, which in no event shall be less than the safeguards employed by a reasonably prudent businessperson in similar circumstances. The foregoing restrictions shall not apply with respect to any information that (a) is or becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (b) is known by the receiving party at the time of receiving such information as evidenced by records; (c) or is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.
a) Intellectual Property Matters Generally. Member acknowledges that all data developed and/or collected by GT Nexus in connection with the operation of the Network shall be the exclusive property of GT Nexus. Information concerning a Member shall not be shared with any third parties without the prior written consent of Member, except (i) for the fact that Member is a member of GT Nexus, (ii) pursuant to the license granted below, and (iii) for aggregate data derived from transactions. All third party Content published on the Network is property of the respective copyright owners and may not be copied or distributed in any way by Members for commercial purposes. To enable GT Nexus to use Information provided by Members in connection with the operation of the Network and the advertisement thereof by GT Nexus without violating any rights the member has in the Information, Member grants to GT Nexus a non-exclusive, worldwide, perpetual, irrevocable, royalty free right to exercise the copyright, trademark and publicity rights (but not other rights) you have in such Information on the Internet and otherwise in any publicity material of GT Nexus, including the right to make Transportation Services information and inquiries provided by Members available to third parties for copying and downloading over the Internet. Title to and ownership of all intellectual property rights of the Information provided by a Member shall remain with the Member or its third party licensors. In addition, Members grant to GT Nexus the right to establish hypertext links as part of the Network that link to appropriate areas of Member's web site. The foregoing license will terminate upon the termination of Member's membership in GT Nexus.
b) Intellectual Property With Respect to the Content. The Content consists of material which is owned by, licensed or used with the permission of Content Providers, and is protected by United States and international copyright, trademark, and patent laws. The Content may also include trade secrets proprietary to others. Member agrees not to modify or delete any notices on the Content regarding copyright, trademark, patent and/or proprietary rights. All title, ownership and intellectual property rights in and to the Content shall remain with GT Nexus or the Content Provider.
a) Termination Rights. Unless other agreed in a separate written agreement, either GT Nexus or Member may immediately terminate this Membership Agreement by providing notification to the other in writing or via e-mail.
b) Member Obligations. Upon termination Member agrees to pay all outstanding debts to GT Nexus in full within thirty (30) days, and honor all outstanding transactions.
Member, GT Nexus and Content Providers are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created by Member's acceptance of the Member's Terms and Conditions, use of the Network.
This Membership Agreement and the relationship between Member and GT Nexus shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions. Member and GT Nexus agree that any controversy or claim arising out of or relating to the Member's Terms and Conditions and the relationship between Member and GT Nexus shall be settled by binding arbitration conducted in Oakland or San Francisco, California under the then-current commercial rules of the American Arbitration Association ("AAA") and all expedited procedures prescribed by the AAA rules shall apply. The arbitration shall be conducted by three (3) independent arbitrators, of whom each party shall appoint one and the third shall be appointed by the other two arbitrators. The decision of any two arbitrators will be binding. Judgment upon the arbitral award may be entered by any court having jurisdiction thereof. The prevailing party shall be entitled to recover from the losing party all the costs and expenses incurred in connection with such proceedings, including without limitation reasonable attorney's fees and expert witness fees.
As a condition of membership to the Network, and in consideration of the services provided by GT Nexus, Member agrees that neither GT Nexus, nor any officer, affiliate, director, shareholder, agent, Content Provider or employee of GT Nexus will be liable to Member or any third party for any indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, lost data, interrupted communications, damages, expense, or costs resulting directly or indirectly from or otherwise arising in connection with:
As a condition of membership to the Network, and in consideration of the services provided by GT Nexus, Member agrees that neither GT Nexus, nor any officer, affiliate, director, shareholder, agent, Content Provider or employee of GT Nexus will be liable to Member or any third party for any indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, lost data, interrupted communications, damages, expense, or costs resulting directly or indirectly from or otherwise arising in connection with:
1. The use of the Network by the Member, including but not limited to damages resulting from or arising from Member's reliance on the Network, or the mistakes, omissions, interruptions, errors, defects, delays in operation, non-deliveries, misdeliveries, transmissions, eavesdropping by third parties, or any failure of performance of the Network;
2. The termination of Member's membership by GT Nexus pursuant to the Member's Terms and Conditions;
3. Claims related to the failure of any Transportation Services purchased or sold pursuant to the Network to conform to any specifications or terms, whether published on the Network or not;
4. The breach, or alleged breach, of any warranty, express or implied, relating to any such service;
5. Government restriction, strikes, war, any natural disaster or force majeure, power failures, large increases in on-line activity in a short period of time (usage spikes), viruses, catastrophic hardware failures, attacks on GT Nexus' or any Content Provider's servers, fires, earthquakes, floods, unusually severe weather, or any other condition beyond GT Nexus' reasonable control; or
6. Loss of security of a Member's information provided in connection with use of the Content, or interception by unauthorized third parties.
GT Nexus' cumulative liability to a Member for any and all claims or causes of action relating to this Agreement that arise in any calendar year shall, in the aggregate, be limited to the amounts paid to GT Nexus under this Agreement during such calendar year
Without limiting the generality or effect of other provisions of this Agreement, as a condition of membership, each Member agrees to indemnify, hold harmless, and defend GT Nexus, and each of its respective affiliates, subcontractors, agents, Content Providers and employees against all third party claims, liabilities and damages incurred or allegedly incurred by GT Nexus or any Content Provider arising out of such Member's use of the Network or the Content, and engagement in transactions on the Network including, but not limited to, services sold on the Network for failure of a service to meet specifications or breach of warranty.
This Agreement represents the complete and exclusive agreement of the parties concerning its subject matter and supersedes all prior agreements and representations. Headings found in this Agreement are for references only. A party's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between Member and GT Nexus nor trade practice shall act to modify any provision of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, such determination shall not affect such provision in any other respect or any other provision of this Agreement which shall remain in full force and effect. This Agreement may not be assigned or otherwise transferred by a Member, in whole or in part, and any such assignment or transfer without prior written consent shall be null and void and of no force or effect whatsoever.
BY EITHER CLICKING THE "SUBMIT" BUTTON IN THE REGISTRATION APPLICATION PAGE OR SIGNING A HARD COPY OF THE APPLICATION AND FAXING IT TO THE NUMBER INDICATED YOU REPRESENT AND WARRANT THAT YOU AGREE TO ALL THE TERMS OF THIS AGREEMENT AND THAT YOU, AS A DULY AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW.
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