FEDEX LEO LICENSE AGREEMENT
This introduction uses terms defined in the section entitled “Key Definitions” below. Please confer with that section when reading this introduction.
THIS FEDEX LEO LICENSE AGREEMENT (“LICENSE AGREEMENT”) GIVES EACH OF US CERTAIN RIGHTS AND RESPONSIBILITIES. THIS LICENSE AGREEMENT INCORPORATES, BY REFERENCE, OTHER TERMS AND CONDITIONS, POLICIES AND NOTICES TO FORM THE AGREEMENT.
YOU WILL BE LIMITING YOUR REMEDIES BY AGREEING TO THE AGREEMENT.
YOU WILL BE ASSUMING FULL AND SOLE RESPONSIBILITY FOR ALL ACCESS AND USE OF THE FEDEX TECHNOLOGY.
ALL ACCESS TO AND USE OF THE FEDEX TECHNOLOGY IS AT YOUR OWN AND SOLE COST, EXPENSE AND RISK.
PLEASE READ THE AGREEMENT CAREFULLY.
THE AGREEMENT GOVERNS THE ACCESS AND USE OF FEDEX TECHNOLOGY. IN ORDER TO ACCESS AND USE THE FEDEX TECHNOLOGY, YOU MUST AGREE TO AND ABIDE BY THE AGREEMENT.
YOUR CONSENT TO BE BOUND BY THE AGREEMENT (AND ANY MODIFICATION TO THE AGREEMENT) SHALL BE DEEMED GIVEN BY YOUR SUBMISSION OF THE RELEVANT ACKNOWLEDGMENT FORM INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND, IF APPLICABLE, ITS AFFILIATES, TO THE AGREEMENT.
ONCE ACKNOWLEDGED, THIS DOCUMENT WILL CONSTITUTE A LEGAL AGREEMENT BETWEEN FEDEX AND YOU GOVERNING ACCESS TO AND USE OF FEDEX TECHNOLOGY MADE AVAILABLE TO OR ACCESSED BY YOU. FOR THE AVOIDANCE OF DOUBT, THIS AGREEMENT SHALL GOVERN ANY AND ALL OF YOUR ACCESS TO AND USE OF ANY FEDEX TECHNOLOGY PROVIDED TO YOU BY FEDEX FROM TIME TO TIME, REGARDLESS OF WHETHER ANY SUCH ACCESS AND USE OCCURS ON A SINGLE OCCASION OR OVER SEPARATE OCCASIONS, AND REGARDLESS OF WHETHER ANY SUCH ACCESS AND USE IS IN RELATION TO THE SAME FEDEX TECHNOLOGY.
PLEASE NOTE THAT ACCESS TO SOME ELEMENTS OF THE FEDEX TECHNOLOGY OR FEDEX SERVICES MAY REQUIRE FURTHER REGISTRATION PROCESS(ES). ADDITIONAL ACCESS AND USAGE PERMISSIONS WILL BE PROVIDED, BY FEDEX IN ITS SOLE DISCRETION, ONLY UPON COMPLETION OF ADDITIONAL REGISTRATION PROCESS(ES), AS APPLICABLE.
USE OF FEDEX TECHNOLOGY IS LIMITED TO A SPECIFIC TERRITORY.
A COPY OF THIS LICENSE AGREEMENT SHOULD BE PRINTED AND RETAINED FOR FUTURE REFERENCE.
For good and valuable consideration of the mutual promises and obligations set out below, the sufficiency of which the Parties hereby acknowledge and confirm, FedEx and You acknowledge and agree as follows:
Key Definitions
“Agreement” will mean the then current version of: (1) the terms and conditions set forth in the FedEx LEO License Agreement; (2) all other terms and conditions applicable to FedEx Technology (as defined below) including, those terms and conditions contained in or presented in connection with all Documentation provided by FedEx which are applicable to FedEx Technology); (3) the terms and conditions of the Contractor Agreement; and, (4) applicable FedEx privacy policy and/or privacy notice, a copy of which is available by request or by download in the Territory at www.fedex.com, which is supplementary to, and shall be read together with, the FedEx Global Privacy Policy and Privacy Notice, available here. Except for the Contractor Agreement, any and all of the foregoing may be updated, revised, replaced, supplemented or otherwise modified by FedEx or its affiliates in its sole discretion at any time and such modification will be effective when FedEx posts a revised version at the URL address of the prior terms and conditions (or, such other URL address as FedEx may indicate at the URL address of the prior terms and conditions).
“Contractor” means the legal entity that has entered into a Contractor Agreement with FedEx to provide Contractor Services to, or on behalf of, FedEx, as indicated in such Contractor Agreement.
“Contractor Agreement” means an executed, written agreement under which the Contractor undertake to perform various transportation related services for or on behalf of FedEx, any FedEx group company and/or any FedEx affiliate company (e.g., GSP agreement, Service Provider Agreement, etc).
“Contractor Equipment” means hardware products, including software (other than the Software) and firmware required to operate, or otherwise installed on, such hardware products, that is owned, licensed or provided by the Contractor or You, and on which the Contractor or You install or operate the Software.
“Contractor Services” means the various transportation related services provided by the Contractor and/or You under the applicable Contractor Agreement.
“Data” means any data or information (including, names, addresses, and reports) that is collected, used, stored or otherwise processed with, through or in the FedEx Technology and/or pursuant to this License Agreement.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy in the Territories and any other jurisdictions to which a party is subject to with respect to the Personal Data in connection with this License Agreement, including where applicable the guidance and codes of practice issued by the relevant authorities.
“Documentation” means text, graphics, content, manuals, policies, procedures, specifications, instructions, technical resources or other materials, data or information regarding the FedEx Technology which is distributed, or made available, to the Contractor and/or You by FedEx.
“Equipment” means Contractor Equipment and FedEx Equipment.
“FedEx Equipment” means hardware products and related Documentation provided by FedEx to You, from time to time.
“FedEx” means (i) FedEx Corporate Services, Inc., if the Territory in which You provide the Contractor Services under the Contractor Agreement is the United States of America (“USA”); (ii) Federal Express Canada Corporation if the Territory in which You provide the Contractor Services under the Contractor Agreement is Canada; or (iii) Federal Express Corporation, if the Territory in which You provide the Contractor Services under the Contractor Agreement is outside of the USA or Canada and/or if You are located, install, access, or use the FedEx Technology, outside of the USA or Canada.
“FedEx Technology” means each of the following (whether individually and collectively): Software, Documentation and FedEx Equipment.
“Personal Data” shall have the meaning given to it in the Data Protection Legislation.
“Software” means the software products (in object code form only) and related Documentation provided by FedEx to You, from time to time.
“Territory” mean the country, or countries, or territory, or territories, in which the Contractor Agreement authorizes the Contractor and/or You to provide Contractor Services to, or on behalf of, FedEx.
“Trade Control Laws” means restrictions and controls imposed by export control and economic sanctions laws and regulations of (1) the United States, including but not limited to the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and economic sanctions programs maintained by the U.S. Treasury Department’s Office of Foreign Assets Control; and (2) any other applicable jurisdiction.
“You” means Contractor and you, the individual accessing and using the FedEx Technology in connection with providing the Contractor Services under the Contractor Agreement as an employee or authorized representative of the Contractor. “Your” is the possessive of “You”.
Section 1: Lease, License and License Restrictions
1.1 To the extent that FedEx provides You with FedEx Equipment, subject to the terms and conditions of the Agreement, FedEx hereby leases the FedEx Equipment to You solely (a) as provided by FedEx; (b) to use for the purpose of performing the Contractor Services; (c) in the Territory; and, (d) during the Term (as defined in Section 7.1).
1.2 Subject to the terms and conditions of the Agreement, FedEx hereby grants to You a personal, limited, revocable, non-exclusive, non-transferable license to use the Software solely (a) as provided by FedEx; (b) on the Equipment; (c) in the Territory; (d) for the purpose of performing the Contractor Services; and, (e) during the Term.
1.3 Subject to the terms and conditions of the Agreement, FedEx hereby grants to You a personal, limited, revocable, non-exclusive, non-transferable license to use, reproduce, and create compilations of the Documentation solely (a) as provided by FedEx; (b) in the Territory; (c) for the purpose of using the applicable FedEx Technology in order to perform the Contractor Services; and, (d) during the Term.
1.4 The license does not permit, and You will not (and will not permit any employee or other third party to):
a) reverse engineer, decompile, disassemble, or translate the FedEx Technology;
b) apply any procedure or process to FedEx Technology in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for Software or any trade secret or confidential information or process contained in FedEx Technology;
c) remove, obscure, modify, or otherwise change any product identification, trademark, confidentiality, proprietary, copyright or other legends or notices from the FedEx Technology;
d) circumvent, disable or otherwise work around any technical limitation in the FedEx Technology;
e) use the FedEx Technology to provide service bureau, time-sharing, software as a service or other computer software or database services to or for the benefit of third parties;
f) transfer the FedEx Technology or the license, in whole or in part, or grant any rights in the FedEx Technology or the license, in whole or in part, by sublicense or otherwise;
g) provide, lease, rent, loan, lend, or otherwise use or allow others to use or have access to the FedEx Technology or any portion thereof;
h) disseminate or disclose performance information or analysis (including, benchmarks) relating to the FedEx Technology without the prior written consent of FedEx;
i) distribute, display or publish the FedEx Technology;
j) use the FedEx Technology for the benefit of any other party, absent a written agreement with FedEx expressly permitting such use;
k) access or use the Software except through the Equipment and through means authorized by FedEx;
l) access or use, or permit a third party to access or use, the FedEx Technology in a manner inconsistent with Section 14 of this License Agreement, including permitting use or access to FedEx Technology by persons subject to restriction under U.S. Trade Control Laws;
m) access, use, distribute, publish, display, or copy the FedEx Technology outside of its Territory;
n) reproduce, alter, modify or create derivative works of the FedEx Technology;
o) With the exception of transmissions to and from the Equipment, You may not electronically transmit the Software to one computer from another or over a network without prior written approval from FedEx; or,
p) use the FedEx Technology to perform services by or for the benefit of third parties.
Section 2: Use Requirements and Restrictions.
2.1 You shall only be entitled to use the FedEx Technology in the Territory and for the purpose of performing the Contractor Services as defined in the applicable Contractor Agreement with FedEx.
2.2 You shall use the FedEx Technology strictly in accordance with the applicable Documentation, copies of which You acknowledge You have received, or other written instruction provided by FedEx from time to time.
2.3 The FedEx Technology is for Your exclusive use. You may not transfer to, nor allow use of the FedEx Technology by anyone other than Your employees or authorized sub-contractors, and in doing so, You shall ensure and procure that Your employees or authorized sub-contractors acting under Your authority and whom have access to the FedEx Technology act in accordance with this License Agreement and are subject to obligations no less onerous than those imposed upon You pursuant to this License Agreement. Under no circumstances may You permit or allow a third party to use, borrow or copy the FedEx Technology in whole or in part.
2.4 You shall not re-export the FedEx Technology or any other technical data received from FedEx.
2.5 FedEx shall have the right to request that You purchase other equipment in addition to the Equipment solely in order to assist the efficient and proper use of the FedEx Technology. You shall bear all costs associated with the purchase, installation and maintenance of such equipment and You shall bear all risks of loss or damage to such equipment.
2.6 You shall provide FedEx in a timely manner with the names of the persons responsible for the operation of the FedEx Technology and shall advise FedEx immediately of any changes to those names. You are solely responsible for ensuring that any disclosures made to FedEx pursuant to or related to the Agreement which may include Personal Data are made in compliance with all applicable laws, including, without limitation, Data Protection Legislation.
2.7 FedEx shall provide such initial training on the operation of the FedEx Technology for Your employees as shall be agreed between FedEx and You.
2.8 FedEx or its authorized representative shall install the FedEx Technology.
2.9 You shall provide the space, electrical power and connectivity necessary for the operation of the FedEx Technology in accordance with the installation specifications of FedEx and at no cost to FedEx.
2.10 You shall bear the costs: i) for shipping the FedEx Technology to the Territory, including any duties and taxes that are payable; ii) for maintaining and updating the FedEx Technology; iii) for telecommunications; iv) for using and operating the FedEx Technology; and v) for any additional training requested by You.
2.11 You shall be responsible for and shall bear all costs associated with obtaining and maintaining certificates, approvals and the registration and operation of the Equipment and all associated telecommunication and other equipment in the Territory.
2.12 You will not use the Equipment or Software in such a manner that adversely affects the functionality of the FedEx infrastructure.
2.13 You acknowledge and agree that the FedEx Technology may collect and transmit to FedEx positional or location information related to or on the Equipment during use in the course of providing Contractor Services which may be collected, transmitted or downloaded from a global positioning satellite, device, software program or other system or technology capable of producing automatic location detection data regardless of accuracy.
2.14 Any and all Contractor Equipment must comply with the then current technical requirements to operate the Software. FedEx will make available such requirements to You in the Documentation for the Software and via notice as set forth below. You are solely responsible for ensuring that Contractor Equipment complies with the then current technical requirements. You acknowledge and agree that modifications to the Software (e.g., bug fixes, updates, upgrades, new versions, releases, etc), if any, may result in a change to the technical requirements and result in Contractor Equipment becoming obsolete or incompatible with the Software. FedEx will have no liability to You for any losses, damages, costs or expenses in such event; and, You will be solely responsible for all costs, expenses and other expenditures necessary to implement new or replacement Contractor Equipment that meets the revised technical specifications.
2.15 You will not load, process or store Data on or through the FedEx Technology not required or related to your authorized conduct of business with FedEx. FedEx will have access to and use of the Data. FedEx reserves the right to access, use, delete or remove any Data. In addition, You understand and agree to the collection, storage, use and disclosure by FedEx or its designee (including affiliates and service providers) of any Data, including, without limitation: (i) user configurations and computer system settings and specifications such as operating system type and version, device name, workgroup name, machine name, available memory or hard drive size; (ii) IP address; (iii) product information, including version; and (iv) other general system information, which FedEx and/or its designees may use for responding to Your and/or the Contractor’s requests, processing transactions, product support, and product development, excluding any direct marketing purposes.
2.16 You acknowledge that the collection and processing of such Data may be necessary for FedEx to provide some or all of the FedEx Technology, and that if You refuse such collection and/or processing FedEx may not be able to provide some or all of the FedEx Technology. In addition, You understand and agree to the transfer of such information to FedEx and/or its designees (including affiliates and service providers) across jurisdictions. Please see applicable FedEx privacy policy and/or privacy notice in the Territory, and the FedEx Global Privacy Policy and Privacy Notice, available at https://www.fedex.com/en-us/trust-center/privacy.html for more information. Information on FedEx affiliates may be found at https://about.van.fedex.com/our-story/company-structure.
2.17 In relation to any Data provided by You in connection with the FedEx Technology, and/or otherwise, You warrant, represent, and undertake that You have complied with all applicable laws and regulations, including Data Protection Legislation, including obtaining all necessary consent or legal ground for the usage, processing or provision of Personal Data which may be included in such Data, and providing the relevant data subject with all necessary information in connection with the collection, transfer and processing of such Personal Data. You shall indemnify FedEx, its agents, contractors, employees and affiliates in respect of all costs, claims, damages and expenses suffered or incurred by the same, arising out of or in connection with Your failure to comply with the foregoing.
2.18 The provisions of this Section shall survive the expiration or earlier termination of this License Agreement.
Section 3: Access
3.1 For avoidance of doubt, FedEx or its authorized representatives shall have full, safe and free access to the FedEx Technology, including but not limited to for the purposes of installation or inspection, relocation or removal of the FedEx Technology.
3.2 You shall only relocate the FedEx Technology after having obtained FedEx’s prior written approval.
Section 4: Maintenance
4.1 You are solely responsible for the maintenance, repair, support and upkeep of the Equipment. You will maintain the Equipment in good working order at all times.
4.2 You are solely responsible for loss of or damage to FedEx Equipment. FedEx is not and will not be responsible for the loss of or damage arising from or in connection with any Data and/or FedEx Technology. You are advised to seek independent insurance to cover any such loss or damage arising from or in connection with any Data and/or FedEx Technology.
4.3 Upon termination or expiration of the Contractor Agreement, You will return FedEx Equipment to FedEx, at Your sole expense, in the same condition FedEx Equipment was provided to You, reasonable wear and tear excepted.
4.4 You shall have the Equipment maintained and repaired only by the original manufacturer or its authorized agents or representatives.
4.5 FedEx reserves the right to request You to replace, modify, or upgrade the Equipment and/or Software, at Your sole expense and cost, at anytime.
4.6 FedEx reserves the right to change or delete security passwords and other access codes without notice.
Section 5: Rental Payments regarding FedEx Equipment
5.1 In consideration of the FedEx Equipment provided to You, and subject to the terms of the Contractor Agreement and/or any agreement between You, and any FedEx entity, You shall ensure and procure that the Contractor shall pay FedEx rental payments for the use of the FedEx Equipment, and such rental payments shall be paid into an account designated by FedEx at the end of each month during the Term.
5.2 Late payments shall be subject to interest.
Section 6: Taxes
6.1 You shall ensure and procure that the Contractor shall bear and pay any levy arising from the execution or performance of the Agreement and/or use or possession of the FedEx Technology pursuant to the Agreement in the nature of sales tax, use tax, customs duties, value added tax (VAT), national sales tax, or any similar tariffs and fees.
Section 7: Term and Termination
7.1 Unless terminated earlier in accordance with the Agreement, this License Agreement shall commence on the date You receive the FedEx Technology and will terminate upon expiration or termination of the Contractor Agreement in relation to which the FedEx Technology was provided (the “Term”).
7.2 This License Agreement may be terminated by FedEx without liability of any sort to You or any third party: i) by giving 90 (ninety) days’ notice at any time; ii) by giving 60 (sixty) days’ notice if the FedEx Equipment or the Software become redundant and require replacement with a new version; iii) immediately if You do not comply with the Agreement; and, iv) immediately if this License Agreement and/or any FedEx Technology is found to infringe, misappropriate or otherwise violate any third party rights.
7.3 Upon termination of this License Agreement, You shall promptly cease use of and return all FedEx Equipment, copies of the Software and Documentation to FedEx.
7.4 Termination of this License Agreement shall not prejudice any rights, which either party may have which arose prior to the date of termination.
Section 8: Confidentiality and Protection of Personal Data
8.1 This License Agreement, FedEx Technology and all data, materials and other information concerning FedEx Technology are or contain the confidential and proprietary information of FedEx or its licensors (“Confidential Information”). Confidential Information does not include any data, materials or other information made publicly available by FedEx or its affiliates without restriction on use or disclosure. You will not (a) distribute or disclose any Confidential Information to a third party without the prior written consent or instruction of FedEx; and (b) use Confidential Information for any purposes other than those expressly permitted in Section 1 of this License Agreement. You will make no public announcements regarding the Agreement or any FedEx Technology without the prior written consent of FedEx. You will take all reasonable steps to secure and protect the Confidential Information from any unauthorized use, access or disclosure, and in compliance with all applicable laws and regulations, including Data Protection Legislation. You will take appropriate technical and organizational measures to ensure a level of security appropriate to the risk of the processing of any Confidential Information or other data (including Personal Data) received from FedEx, taking into account the applicable legal and regulatory requirements, state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
8.2 You acknowledge that FedEx may disclose to You certain “Personal Data”, which term, for the purposes of this License Agreement, means any information about an identifiable individual. You confirm that the Personal Data is being disclosed to You for the purposes of the Contractor Services only. Accordingly, You agree as follows:
(i) to exercise all precautions to protect the Personal Data against loss or theft, as well as unauthorized access, disclosure, copying, use or modification;
(ii) to use the Personal Data for the purposes of the Contractor Services only;
(iii) not to use the Personal Data for its own benefit or the benefit of third parties;
(iv) not to communicate or disclose, directly or indirectly, the Personal Data in any form, or the knowledge of its existence and use by You, to any third party without the prior written consent of FedEx;
(v) upon request of FedEx, to cease any and all use of the Personal Data and return the Personal Data, and any and all copies or sources thereof, to FedEx or destroy the Personal Data in a manner agreed to by FedEx; and
(vi) upon reasonable notice, to permit site visits by FedEx to examine the measures taken by You to protect the Personal Data.
8.3 You further acknowledge that FedEx may be requested to disclose to an individual that Personal Data has been disclosed by FedEx to You and You agree that FedEx may make such disclosure.
8.4 Nothing in this License Agreement is to be interpreted to grant to You or Contractor any right, title, or interest in the Confidential Information, including Personal Data.
8.5 FedEx makes no representation or warranty, explicit or implied, regarding the Confidential Information, including Data and Personal Data, or its fitness for a particular use or purpose.
8.6 FedEx shall, subject to any mandatory legal rights by the data subjects in relation to applicable Personal Data under the Data Protection Legislation, be the sole and exclusive owner of all Data. Data shall be deemed FedEx’s Confidential Information and subject to the provisions of this Section. You will not (i) collect, review, sell, transfer, disclose, or use in any manner any Data; or, (ii) perform or in any manner engage in any data mining activities with respect to any Data (including discerning account information, shipping history or characteristics, traffic patterns or page impressions). You undertake and warrant that you shall only process Data and Personal Data in such manner as – and to the extent that – it is necessary for the provision of the Contractor Services in accordance with this License Agreement, except as required to – and to the extent that – it is necessary to (A) follow written instructions of FedEx, to comply with a mandatory legal obligation to which You are subject to, in which case, You shall notify FedEx of such legal obligation in writing (the “Approved Purposes”). You shall never process any Data or Personal Data for its own purposes to the extent such purposes are contrary to the Approved Purposes. You shall ensure and procure that Your employees or authorized sub-contractors acting under Your authority and whom have access to the Data and/or Personal Data act in accordance with this License Agreement and are subject to obligations, including confidentiality obligations, no less onerous than those imposed upon You pursuant to this License Agreement.
8.7 You agree that in the event of any violation or threatened violation of this Section, FedEx shall be entitled to obtain from any court of competent jurisdiction preliminary, temporary and permanent injunctive relief as well as an equitable accounting of all profits or benefits arising from such violation, which rights and remedies shall be cumulative and in addition to any other rights or remedies at law or in equity to which FedEx may be entitled.
8.8 The provisions of this Section shall survive the expiration or earlier termination of this License Agreement.
Section 9: Indemnifications
9.1 You unconditionally and irrevocably indemnify, defend and holds harmless FedEx and its affiliates and its and their employees, agents and representatives from any and all claims, demands, actions, proceedings, losses, or liabilities, including reasonable attorney's fees and expenses, and shall promptly on demand pay such amounts to FedEx into an account designated by FedEx in cleared funds in U.S. Dollars, arising from or relating to Your or Your employees' or agents, use of the FedEx Technology whether caused by negligence or otherwise. This Section 9 shall survive the termination of this License Agreement.
Section 10: Ownership
10.1 All right, title and interest in and to the FedEx Technology, including but not limited to, any intellectual property or other proprietary rights, are and at all times shall remain, the property of FedEx and owned exclusively and solely FedEx or its licensors. Except for the express, limited, revocable license set out in Section 1 above You shall have no right, title or interest in the FedEx Technology. You shall not permit any improper use, allow any lien or encumbrance to exist or perform any other act, which may jeopardize the ownership or rights of FedEx. At the request of FedEx, You shall take such reasonable actions, as FedEx deems reasonably necessary to protect FedEx's interest. Except for the express, limited, revocable license set out in Section 1 above, FedEx reserves all right, title and interest, including all intellectual property and other proprietary rights, in and to the FedEx Technology.
10.2 If any claim is made by a third party, or in FedEx’s reasonable opinion is likely to be made, against You alleging that the Software infringes any of its intellectual rights, FedEx may at its sole option and expense: i) procure for You the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this License Agreement; ii) modify the Software so that it ceases to be infringing; iii) replace the Software with non-infringing software; or iv) terminate this License Agreement immediately. If any such claim is made, You shall therefore: i) promptly notify FedEx in writing of any such claim or action; ii) make no admission or settlements without FedEx’s prior written consent; iii) at FedEx’s request and expense, allow FedEx complete control over any negotiations or litigation and/or the defense or settlement of such claim or action; and iv) provide FedEx with all information and assistance as FedEx may reasonably request.
Section 11: Warranty Disclaimer
The FEDEX Equipment, Software, the documentation AND ANY OTHER GOODS, SERVICES, MATERIALS OR INFORMATION (THE FOREGOING ARE THE “fEDeX MATERIALS”) are PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT FEDEX MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. FEDEX AND ITS REPRESENTATIVES (AS DEFINED BELOW), DISCLAIM AND EXCLUDE ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS WHETHER, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTIES OF NON-INFRINGEMENT OR QUIET ENJOYMENT. FEDEX DOES NOT WARRANT THAT (A) FEDEX MATERIALS WILL MEET ANY OR ALL OF YOUR REQUIREMENTS; (B) OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE; (C) ANY DEFECT WITHIN FEDEX MATERIALS OR ANY SERVICES OR INFORMATION OFFERED THROUGH FEDEX MATERIALS WILL BE CORRECTED; OR (D) FEDEX MATERIALS WILL NEVER BE INFILTRATED BY HACKERS OR OTHER UNAUTHORIZED USERS. FEDEX DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF YOUR USE OF FEDEX MATERIALS IN TERMS OF CAPABILITY, CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. FEDEX MAKES NO REPRESENTATION OR WARRANTY THAT FEDEX MATERIALS OR ANY RELATED SERVICES, INFORMATION (OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS. FEDEX DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH FEDEX MATERIALS. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY FEDEX OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY
Section 12: Limitation of Liability
YOUR SOLE REMEDY FOR ANY DISSATISFACTION WITH ANY FEDEX MATERIALS IS TO STOP USING SUCH FEDEX MATERIALS. You waive any and all claims against FedEx and its affiliates arising from or relating to Your access to or use of (or inability to access or use) the FedEx Materials. You agree that the remedy set forth in this Section is Your exclusive remedy under the Agreement for any dissatisfaction with Your access to or use of (or inability to do either) the FedEx Materials.
FEDEX AND ITS PARENT COMPANY AND SUBSIDIARIES AND AFFILIATES, DIRECT AND INDIRECT, OF ITS PARENT COMPANY, LICENSORS, SUPPLIER, OR ANY OF THE FOREGOING’S RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND/OR AGENTS (COLLECTIVELY, “REPRESENTATIVES”) ARE NOT AND SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES (INCLUDING: DAMAGES FOR LOSS OF BUSINESS, COST OF SUBSTITUTE GOODS, LOSS OF DATA, LOSS OF PROFITS, DAMAGES TO YOUR COMPUTER SYSTEMS OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING, NEGLIGENCE), PRODUCT LIABILITY, STATUTORY OR STRICT LIABILITY OR OTHERWISE EVEN IF FEDEX OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
FOR THE AVOIDANCE OF DOUBT, SUCH DISCLAIMER APPLIES TO ANY DAMAGES WHETHER ARISING FROM, RELATING TO OR OTHERWISE RESULTING FROM ACCESS TO OR USE OF FEDEX MATERIALS OR INFORMATION PROVIDED OR MADE AVAILABLE TO YOU; (B) INSTALLATION OR REMOVAL OF FEDEX TECHNOLOGY; (C) YOUR INABILITY TO ACCESS OR USE FEDEX TECHNOLOGY FOR ANY REASON; OR, (E) THE AGREEMENT, INCLUDING BREACH THEREOF BY FEDEX.
IN ANY EVENT, THE AGGREGATE LIABILITY OF FEDEX UNDER THE AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF FEDEX, OR AN AUTHORIZED REPRESENTATIVE OF FEDEX, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR A REMEDY SET FORTH IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Section 13: Governing Law and Jurisdiction
13.1 The governing law, jurisdiction and venue provisions of the applicable Contractor Agreement shall apply to this License Agreement; provided, however, in any event, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT AND IS HEREBY DISCLAIMED BY BOTH PARTIES.
13.2 If for any reason a court of competent jurisdiction finds any provision of the Agreement, or a portion of it, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.
13.3 Any cause of action with respect to the Agreement, FedEx Technology or other services available through FedEx Technology must be instituted by You within one (1) year after the claim or cause of action has risen or be barred.
Section 14. Export Compliance.
14.1 FedEx Technology (a) is subject to U.S. law, including export restrictions and controls imposed by various statutes and regulations, including the Export Administration Act, the Export Control Reform Act, and the Export Administration Regulations (“EAR”), and (b) may be subject to other applicable Trade Control Laws. By agreeing to this License Agreement, and accessing or using FedEx Technology, You represent, warrant and covenant that: (i) You are in compliance with and will comply with Trade Control Laws regarding export, re-export, and import of FedEx Technology or any other goods, information, software, source code, technology, process, product or service (collectively, “Items and Services”) received from FedEx; (ii) You will not use, export, or re-export FedEx Technology or Items and Services received from FedEx in violation of Trade Control Laws; (iii) You are not located in, headquartered in, or incorporated under the laws of any country or territory subject to territorial economic sanctions or anti-terrorism restrictions under applicable Trade Control Laws, including those under the EAR: Cuba, Iran, North Korea, Sudan, Syria, or the Crimea region (collectively “Sanctioned Countries”); (iv) You are not a person identified on U.S. or other applicable government restricted party lists, including but not limited to the Specially Designated Nationals (“SDN”) List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control or the Entity List or Denied Persons List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security (collectively, “Restricted Parties”), or owned or controlled by or acting on behalf of, any Restricted Party or any party located in, headquartered in or incorporated under the laws of any Sanctioned Countries; (v) FedEx and its independent contractors, as applicable, shall not be required under this EULA to be directly or indirectly involved in the receipt from or provision of any FedEx Technology or Items and Services to Sanctioned Countries or Restricted Parties; (vi) no FedEx Technology or Items and Services provided by FedEx will be used in the design or development of nuclear, chemical, or biological weapons or missile technology; and (vii) no FedEx Technology or Items and Services provided by FedEx will be exported, reexported or transferred (in country) entirely or in part to a military end-use, including for incorporation into any military item; for the use, development or production of military items; for any activity that supports or contributes to the operation, installation, maintenance, repair, overhaul, refurbishing, development, or production of military items; or for use by a military end-user such as the national armed services (army, navy, marine, air force, or coast guard), the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support military end uses in violation of the EAR as described in the foregoing.
15. Miscellaneous.
15.1 Notices:
(a) Any notice required or permitted to be given to FedEx relating to this License Agreement or the functioning of FedEx Technology will be given in writing as addressed below by U.S. Postal Service first class mail or via FedEx Express Overnight Letter delivery service to: Director, Global Planning and Engineering, Research and Technology 3690 Hacks Cross Road, 2nd Floor, Memphis, Tennessee 38125. Any such notice will be effective when received by FedEx.
(b) Any notice required or permitted to be given to You relating breach, termination or suspension of this License Agreement will be given either by sending (i) via U.S. Postal Service or FedEx delivery service to the name and address listed in FedEx’s records for Your FedEx account number; or, (ii) via electronic mail (or its equivalent) to the name and address listed in FedEx’s records for You. Such notice will be effective and deemed received when sent to You.
(c) Any notice required or permitted to be given to You relating to this License Agreement or FedEx Technology may be given by general posting to the various FedEx web sites. Any such notice will be effective and deemed received when posted. In addition, FedEx may elect to provide you notice via one of the methods set out in subsection 15.1(b); and, notice provided via such method will be effective when sent in accordance with subsection 15.1(b).
15.2 You and FedEx are independent contractors acting for their own account, and neither party or its employees or agents are authorized to make any representations or commitments on the other party’s behalf unless previously authorized by such party in writing. FedEx reserves the right to enter into relationships or agreements with other third parties regarding the subject matter of the Agreement.
15.3 If FedEx fails to give notice or enforce any right under the Agreement, such failure will not constitute a waiver of the same, unless reduced to writing and signed by FedEx. The waiver of any provision will not constitute a waiver of the same or any other provision in the future.
15.4 If, for any reason, a court of competent jurisdiction finds any provision of the Agreement, or a portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effectuate the intent of the parties and the remainder of the Agreement will remain in full force and effect.
15.5 FedEx retains the right to assign all or any part of the Agreement to any third party at any time without notice to You. You may not assign, transfer or sublicense the Agreement to any third party without the prior written permission of FedEx. In addition, except for the parent company, subsidiaries and affiliates of FedEx, there are no third party beneficiaries to the Agreement.
15.6 The parties hereby confirm that they have agreed that this agreement and all written documents between them be prepared in the English language only and such language will be the governing language. Any translation of the Agreement is done for local requirements and in the event of a dispute between the English and non-English version, the English version of the Agreement will govern.
15.7 You shall execute and deliver such additional documents and take all such further action as may be necessary or as may be required by FedEx, to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
15.8 The Agreement constitutes the entire agreement between You and FedEx with respect to FedEx Technology and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral, regarding FedEx Technology. No amendment to or modification of the Agreement will be binding on FedEx without FedEx's written consent. All provisions of the Agreement which by their nature are intended to survive the expiration or termination of this Agreement shall survive and remain in full force and effect, including but not limited to Your obligations pursuant to this License Agreement, the rights and remedies of FedEx pursuant to this License Agreement, and Key Definitions of this License Agreement. The headings are provided for convenience only and are not intended to affect the construction or interpretation of the Agreement. All words used in the Agreement are to be construed to be of such gender or number as the circumstances require. In this License Agreement, the words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this License Agreement states that a party “will”, “shall” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with the Agreement. The words “date hereof” refer to the date of this License Agreement. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase will not mean simply “if.” The term “or” will not be deemed to be exclusive. All terms defined in the Agreement will have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date.
Version: January 04, 2022