|
ApparelTrak Service Registration Agreement
By registering to be an ApparelTrak User and selecting the "I Accept" button, you agree to be
legally bound by the terms and conditions set forth in this ApparelTrak Service Registration
Agreement, including all of the attachments described in Section 1.2 below (collectively, the
"Agreement"). Ecom shall have the right to amend this Agreement including, without limitation,
the Fee Schedule, at any time by posting the amended Agreement on ApparelTrak; provided that
Ecom will provide an opportunity to review such changes before acceptance. Failure to agree
to any modifications to this Agreement may result in a termination thereof and ApparelTrak
User's right to access ApparelTrak. You agree to be legally bound by all terms and conditions
of this Agreement, as amended.
Table of Contents
1.1 About ApparelTrak. Ecom Partners, Inc. ("Ecom")
provides a web-based supply chain management service located on the Internet at
http://www.appareltrak.com ("ApparelTrak") that allows
its registered users to offer control, schedule and track the flow of goods within a channel
defined by services offered by other users of ApparelTrak, all in accordance with the terms and
conditions set forth in this Agreement. The terms "ApparelTrak User", "you" and "your" as used
in this Agreement include you, if participating as an individual, or the entity on whose behalf
you are authorized to represent in applying to ApparelTrak.
1.2 Terms and Conditions.
This Agreement describes the terms and conditions
applicable to use of ApparelTrak by you and your Authorized Users. Schedule 1 sets forth the
fees to be paid by ApparelTrak User ("Fee Schedule");
Schedule 2 sets
forth rules applicable to Authorized Users and others who access ApparelTrak
("Terms of Access");
Schedule 3 sets
forth ApparelTrak policy with respect to the privacy of the information of users of
ApparelTrak ("Privacy Policy");
and Schedule 4 sets
forth ApparelTrak policy with respect to export control ("Export Control Policy"),
each of which is incorporated and made a part of this Agreement. ApparelTrak User agrees to
the terms and conditions of this Agreement, and shall be solely responsible for ensuring that
each of its Authorized Users is made aware of and complies with the terms of this Agreement.
ApparelTrak User shall be solely responsible for the acts and omissions of each of its
Authorized Users.
1.3 Access to ApparelTrak.
During the term of this
Agreement, you shall have a limited, revocable and nontransferable license for you and your
authorized users (all of whom shall be employees and/or authorized contractors under your
control) ("Authorized Users"), to use ApparelTrak solely to conduct the supply chain
transactions described in this Agreement for your own benefit.
1.3.2 Terms of Access.
ApparelTrak User shall and shall ensure that each Authorized User shall access ApparelTrak in
accordance with the Terms of Access. ApparelTrak User is solely responsible for obtaining, at
its own cost and expense, the requisite software, equipment and telecommunications service(s)
necessary to access ApparelTrak.
1.3.3 Passwords.
ApparelTrak User shall use the password(s) assigned by Ecom ("Password").
ApparelTrak User and its Authorized User's right to use the Password shall terminate
immediately upon termination of this Agreement or upon termination of Authorized User's
employment or authorization to access ApparelTrak. ApparelTrak User shall be solely
responsible for monitoring and terminating, when appropriate, its Authorized Users' access to
ApparelTrak. ApparelTrak User nor its Authorized Users or any other person is permitted to
access ApparelTrak using the password of any other user of ApparelTrak User. Ecom shall not
be responsible or liable for the use or misuse of any Password. ApparelTrak User shall be
solely and exclusively responsible and liable for any use or access of ApparelTrak by any
person or entity who gains access to ApparelTrak through the use of ApparelTrak User's
Password including, without limitation, any direct or indirect use or access, whether
authorized or unauthorized, by ApparelTrak User or its Authorized Users.
1.3.4 Availability.
ApparelTrak is scheduled to be available 24 hours a day, 7 days a week; however, Ecom does
not guarantee the availability of ApparelTrak, or that access will be uninterrupted or error
free. Ecom reserves the right to interrupt, limit or suspend ApparelTrak operations from time
to time for purposes of maintenance, upgrades and the like. ApparelTrak User agrees that
Ecom shall not be responsible or liable for any damages arising from any interruption,
suspension or termination of ApparelTrak, regardless of the cause.
1.4 Payment.
ApparelTrak User shall pay to Ecom all fees set forth in the Fee Schedule in accordance with
the payment terms set forth therein. All amounts specified in the Fee Schedule are exclusive
of any applicable value added, use, sales, property, federal, state, local or other taxes,
duties or assessments.
1.5 ApparelTrak User's Representations and Warranties.
ApparelTrak User hereby represents and warrants to Ecom as follows with respect to ApparelTrak
User and its Authorized Users:
(a) ApparelTrak User and its Authorized Users are now and during the term of this Agreement
shall continue to be in compliance with all applicable laws, statutes, rules, regulations and
policies of all applicable countries and their instrumentalities and political subdivisions
thereof including, without limitation, all states, provinces, territories and the like
(collectively, "Laws") including, without limitation, all Laws relating to use of ApparelTrak
and the supply chain transactions undertaken therethrough;
(b) ApparelTrak User and its Authorized Users shall not engage in, nor is ApparelTrak User
or any of its Authorized Users currently engaged in, the operation of any unlawful transactions
and/or business, and neither ApparelTrak User nor its Authorized Users shall use, nor shall
ApparelTrak User permit any third party to use, ApparelTrak for any unlawful purpose;
(c) ApparelTrak User and its Authorized Users will not modify or tamper in any way with
ApparelTrak including, without limitation, any software, look and feel or functionality
thereof;
(d) All content and other material ApparelTrak User and/or its Authorized Users supply, post
or otherwise make available via ApparelTrak ("ApparelTrak User Content"): (i) does not
contain any viruses, time bombs, Trojan horses, worms or other computer programming routines
that may damage or interfere with the operations of ApparelTrak or any system, data or
information pertaining to ApparelTrak or any User of ApparelTrak; (ii) is true and accurate;
(iii) is not fraudulent and does not involve the sale of stolen items; (iv) does not infringe
upon any third party's rights including, without limitation, copyright, patent, trademark,
trade secret or other proprietary rights or rights of publicity or privacy; (vi) does not
violate any applicable law, statute, rule or regulation; (vii) is not obscene, indecent or
pornographic; and (viii) is not defamatory, trade libelous, threatening or harassing;
(e) ApparelTrak User and/or its Authorized Users shall not manage supply chain transactions
that could reasonably be expected to result in a violation of the Export Control Policy or
any other Laws;
(f) ApparelTrak User and its Authorized Users will take reasonable precautions to preserve
the security of ApparelTrak and the privacy of other users of ApparelTrak; and
(g) ApparelTrak User and its Authorized Users shall not: (i) breach or attempt to breach
the security of software, network, servers, data, computers or other hardware relating to
ApparelTrak or that of any other user of ApparelTrak or third party that is hosting or
interfacing with any part of ApparelTrak; and (ii) use or distribute on ApparelTrak software
or other tools or devices designed to compromise privacy or security.
1.6 Ecom Not Responsible for ApparelTrak User Content.
ApparelTrak User is solely and exclusively responsible for all ApparelTrak User Content.
Ecom does not endorse any ApparelTrak User Content. Ecom has no obligation to monitor
ApparelTrak User Content, and ApparelTrak User expressly releases Ecom and its affiliates,
and their respective members, directors, officers, shareholders, employees, representatives,
agents, attorneys, consultants, successors and assigns, and their respective third party
contractor's (collectively, "Ecom Representatives"), from any responsibility to monitor or
filter any such content. However, Ecom may take any action it deems necessary or appropriate
with respect to ApparelTrak User Content, in its sole discretion, if it believes such
information may give rise to liability to Ecom or other parties or interfere with or impair
Ecom's relationship with any other users of ApparelTrak.
1.7 Confidentiality of Information; Ownership.
1.7.1 Confidential Information.
The following information shall constitute the confidential and proprietary information of
ApparelTrak (collectively, "Confidential Information"): (a) all ApparelTrak passwords,
user IDs and login names; (b) the ApparelTrak User Content of all users of ApparelTrak other
than your ApparelTrak User Content; (c) the Personal Information of all users of ApparelTrak
other than your Personal Information; (f) all Cookies; and (g) all Aggregate Data. ApparelTrak
User shall take all reasonable precautions necessary to safeguard the confidentiality of all
Confidential Information including, at a minimum, those precautions taken by ApparelTrak User
to: (i) protect ApparelTrak User's own confidential information, which shall in no event be
less than a reasonable degree of care; and (j) prevent the removal or defacement of any
confidentiality or proprietary notice placed on Confidential Information. Confidential
Information shall not include any information that is: (k) publicly available or later
becomes available other than through a breach of this Agreement; (l) known to ApparelTrak User
or its employees, agents or representatives prior to such disclosure; (m) independently
developed by ApparelTrak User or its employees, agents or representatives subsequent to such
disclosure; or (n) subsequently lawfully obtained by ApparelTrak User or its employees,
agents or representatives from a third party without obligations of confidentiality.
1.7.2 Maintenance of Confidential Information; Privacy.
ApparelTrak User shall not disclose Confidential Information to third parties, except as
required by applicable Laws, provided that, as to such disclosures, ApparelTrak User shall
provide Ecom, its third party contractors and any other affected users of ApparelTrak with
reasonable notice prior to such disclosure. ApparelTrak User may disclose Confidential
Information to its employees and its agents, provided that each employee or agent to whom
Confidential Information is disclosed has been advised that the Confidential Information is
the subject of confidentiality and use restrictions under this Agreement or under general
confidentiality obligations of ApparelTrak User covering this type of information.
ApparelTrak User acknowledges that any unauthorized use or disclosure of Confidential
Information may cause irreparable damage to Ecom, its third party contractors and/or
other users of ApparelTrak. If an unauthorized use or disclosure occurs, ApparelTrak
User shall immediately notify Ecom, its third party contractors and any affected user of
ApparelTrak and, at ApparelTrak User's expense, shall take all steps necessary to recover
the Confidential Information and prevent subsequent unauthorized use or disclosure.
1.7.3 Ownership.
Ecom retains all of its ownership rights in and to ApparelTrak, other than ApparelTrak
User Content, including, without limitation, all graphical designs, names, icons, interfaces
and other design elements (e.g., the selection and arrangement of materials therein and the
"look and feel" thereof).
1.8 Limitations.
1.8.1 Exclusion of Liability. APPARELTRAK
USER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO THE LIMITATION ON LIABILITY
PROVISIONS SET FORTH IN SECTION 2.6 OF THE TERMS OF ACCESS.
1.8.2 Liability Cap.
NOTWITHSTANDING SECTION 1.8.1, THE TOTAL AGGREGATE LIABILITY OF ECOM AND ECOM REPRESENTATIVES
UNDER THE TERMS OF THIS AGREEMENT, WHETHER FOR CLAIMS BASED ON CONTRACT, TORT, STRICT
LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY
APPARELTRAK USER TO ECOM IN ACCORDANCE WITH THE FEE SCHEDULE DURING THE CALENDAR YEAR IN
WHICH SUCH CLAIM FIRST ACCRUED. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION
OF THIS AGREEMENT.
1.8.3 Warranty Disclaimer.
APPARELTRAK USER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO THE WARRANTY
DISCLAIMER SET FORTH IN SECTION 2.5 OF THE TERMS OF ACCESS.
1.9 Indemnification.
ApparelTrak User shall defend, indemnify and hold Ecom and the Ecom Representatives harmless
from and against any and all claims, losses, damages, liabilities, obligations, judgments,
causes of action, costs, charges and expenses (including, without limitation, reasonable
attorneys' and consultants' fees and such fees and/or penalties as any exchanges or third
party licensors may impose) arising out of: (a) any breach or alleged breach by ApparelTrak
User of this Agreement; (b) any failure of ApparelTrak User to comply with the requirements
of, or obligations imposed by, any third party; (c) any negligence, or willful or reckless
actions or misconduct of ApparelTrak User or ApparelTrak User's employees or agents, including
Authorized Users; and/or (d) any violation of, or noncompliance with, Laws including, without
limitation, the Export Control Policy. This Section shall survive any termination or
expiration of this Agreement.
1.10 Term and Termination.
The term of this Agreement shall
commence on the date signed by ApparelTrak User ("Effective Date") and shall continue until
terminated in accordance with Section 1.10.2.
1.10.2 Termination.
Ecom shall have the right to terminate this Agreement or otherwise limit ApparelTrak User's
access to ApparelTrak at any time with or without cause effective upon written notice to
ApparelTrak User and without incurring any liability or obligation in connection therewith
including, without limitation, if, in its sole and absolute discretion, Ecom believes that
ApparelTrak User is not in compliance with the Export Control Policy and/or any other
applicable Laws. Ecom shall further have the right to terminate this agreement if it ceases
to prove ApparelTrak to its customers and clients upon thirty (30) days written notice.
ApparelTrak User shall have the right to terminate this Agreement at any time upon written
notice to Ecom, provided ApparelTrak User acknowledges that Ecom shall have no obligation to
refund any amounts paid by ApparelTrak User hereunder upon any such termination. Upon any
termination of this Agreement, all rights granted to ApparelTrak User hereunder shall cease,
and ApparelTrak User shall immediately discontinue use of ApparelTrak, and Ecom shall have
the right to pursue any other remedies available to it at law or in equity. Upon termination
of this Agreement, the provisions of this Agreement which by their nature should survive,
shall survive termination of the Agreement.
1.11.3 Survival.
The terms of Sections 1.7, 1.8, 1.9 and any other term that by its nature should survive,
shall survive the expiration or termination of this Agreement.
1.12 Relationship between Ecom and ApparelTrak User.
The relationship between ApparelTrak User and Ecom is that of independent contractors, and
neither party is the partner, joint venturer, or agent of the other.
1.13 Assignment.
ApparelTrak User shall not assign or otherwise transfer this Agreement, in whole or in part,
nor delegate or subcontract any of its rights or obligations hereunder, without Ecom's prior
written consent. Notwithstanding the foregoing, ApparelTrak User may assign, transfer, or
sublicense its rights and obligations under this Agreement without the consent of Ecom in
the event of a merger or sale of all or substantially all of the assets of ApparelTrak User
or to an entity that controls, is controlled by or under common control with ApparelTrak User.
Ecom shall have the right to assign this Agreement, in whole or in part, to a third party at
any time with or without notice.
1.14 Force Majeure.
Neither party shall have any liability to the other or to third parties for any failure or
delay in performing any obligation under this Agreement due to circumstances beyond its
reasonable control including, without limitation, acts of God or nature, actions of the
government, fires, floods, strikes, civil disturbances or terrorism, or power, communications,
satellite or network failures.
1.15 Governing Law; Exclusive Jurisdiction.
This Agreement, and all the rights and duties of the parties arising from or relating in any
way to the subject matter of this Agreement or ApparelTrak shall be governed by, construed
and enforced in accordance with the laws of the State of Georgia (excluding any conflict of
laws provisions of the State of Georgia which would refer to and apply the substantive laws
of another jurisdiction). Any suit or proceeding relating to this Agreement, including
arbitration proceedings, shall be brought in the courts, state and federal, located in or
having jurisdiction over Fulton County, Georgia. APPARELTRAK USER HEREBY CONSENTS TO THE
EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR
HAVING JURISDICTION OVER FULTON COUNTY, GEORGIA.
1.16 Notices.
Any written notice required or permitted to be delivered pursuant to this Agreement shall be
in writing and shall be deemed delivered: (a) upon delivery if delivered in person; (b)
three (3) business days after deposit in the United States mail, registered or certified
mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier,
with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with
a national overnight courier; (e) upon transmission if sent via email with a telecopy sent
the same day, in each case addressed to the address listed in the Application (or to such
other address as may be specified upon notice).
1.17 Modifications and Waiver.
Except as provided in the opening paragraph of this Agreement, any waiver or modification of
this Agreement shall not be effective unless executed in writing and signed by an authorized
representative of Ecom and ApparelTrak User. Except as provided in the opening paragraph of
this Agreement, the parties expressly disclaim the right to claim the enforceability or
effectiveness of: (a) any amendments to this Agreement that are not executed by an
authorized representative of Ecom; (b) any oral modifications to this Agreement; and (c)
any other amendments that are based on course of dealing, waiver, reliance, estoppel or
similar legal theory. The parties expressly disclaim the right to enforce any rule of law
that is contrary to the terms of this Section. The failure of either party to enforce, or
the delay by either party in enforcing, any of its rights under this Agreement shall not be
deemed to be a waiver or modification by either party of any of its rights under this
Agreement.
1.18 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid
or unenforceable, in whole or in part, such holding shall not affect the validity or
enforceability of the other provisions of this Agreement.
1.19 Time to Bring Claims.
With respect to ApparelTrak User, any claim arising out of or relating to this Agreement
shall be brought within one (1) year of the date on which the claim arose or such claim
shall be waived and forever barred.
1.20 Business Relationship.
With your prior consent, Ecom will have the right to use and display your name, likeness,
trademarks, service marks, trade names and any nonconfidential information and materials
that you provide to Ecom during the term of this Agreement solely in connection with, and
for the presentation, marketing and promotion of, ApparelTrak.
1.21 Entire Agreement.
This Agreement, together with the Fee Schedule, Terms of Access, Privacy Policy and
Export Control Policy, constitutes the complete and entire agreement between the parties
and supersedes any prior or contemporaneous agreements or understandings between the parties
with respect to its subject matter.
|
