DDC Sync End User License Agreement

THIS DDC SYNC SERVICES AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY CARRIER AND DDC FREIGHT PROCESS OUTSOURCING LLC (“DDC FPO”) AND GOVERNS THE CARRIER’S USERS USE OF DDC FPO’S DDC SYNC APPLICATION FOR READING AND SCANNING BILLS OF LADING (“BOLS”). CARRIER’S EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. SIGNATORY OF THE ORDER FORM ON BEHALF OF CARRIER REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND CARRIER, ITS AFFILIATES AND USERS TO THESE TERMS AND CONDITIONS. THIS AGREEMENT IS EFFECTIVE BETWEEN CARRIER AND DDC FPO AS OF THE EFFECTIVE DATE OF THE ORDER FORM. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. DEFINITIONS The terms defined below and throughout the Agreement shall have the following meanings:

“Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this document and its corresponding Order Form(s), any exhibits and/or addenda. “BOLs” means bills of lading.
“Carrier” or “Carrier’s” means the company or other legal entity which accepts this Agreement. “Carrier Data” is defined in Section 5 below.
“DDC FPO” means DDC Freight Process Outsourcing LLC, the licensor of the DDC Sync™ App and provider of the Services.
“DDC Sync Aggregated Data” means all aggregated and anonymized data and information collected and compiled and related to Carrier and its Users’ use of the DDC Sync App and the Services, including without limitation, statistical and performance data related to the operation of the DDC Sync App and the Services, as further described in Section 5 of this Agreement.
“DDC Sync App” means the DDC Sync Application, owned and licensed by DDC FPO and available for Carrier’s use under this Agreement and a corresponding Order Form for its use and receipt of corresponding Services.
“DDC Sync Services” or “Services” mean the process by which images and data of and related to BOLs are captured by DDC Sync and transmitted to a central processing center for billing and related processes.
"Device"or “Devices” means the mobile hardware (phone or other mobile device) to which the DDC Sync App is downloaded and used in conjunction with the number authorized on the Order Form and under terms and conditions of this Agreement.
"Fees" are the fees for the Services as described in an Order Form and are payable as stated in the Order Form and in this Agreement.
“Order Form” means the document for placing orders hereunder that are entered into between Carrier and DDC FPO from time to time, including, addenda and supplements thereto which shall be incorporated by reference. The Order Form will state the number of authorized Users, the Subscription Term and the Fees and such other information agreed upon by the Parties. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were Carrier, the original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Subscription Term” means the time period for which Carrier and its Users will have access to the DDC Sync App and Services as described in the Order Form. Continuation of use of to the DDC Sync App and receipt of the Services upon expiration of the Subscription Term will require execution of a new Order Form and the payment of additional Fees.
“User” or “Users” means with respect to Carrier, Carrier’s employees, consultants, contractors, and agents who register and receive identifications and passwords to access and utilize the DDC Sync App. Carrier’s number of authorized Users is limited as stated in the Order Form.

2.  SERVICES
2.1 Grant of License & Provision of Services. DDC FPO grants Carrier a limited license and right to access, download and use the DDC Sync App solely by the number of authorized Users stated on the Order Form and as registered to each authorized User of Carrier, for the Subscription Term, subject to the payment of the Fees. No other rights whatsoever are provided to Carrier under this SOW or otherwise; DDC FPO reserves all rights not expressly granted hereunder.

2.2 Additional or New Services. DDC FPO may advise Carrier from time to time of new functionality for the DDC Sync App and the Services, products, modules & applications, and Carrier may request additional or new services from DDC FPO (collectively, “New Services”). All New Services shall be subject to completion and execution of a new Order Form and Agreement and may incur additional Fees.

3. USE OF THE DDC SYNC APP AND SERVICES
3.1 DDC FPO Responsibilities. DDC FPO will: (i) provide basic support for the DDC Sync App to Carrier at no additional charge; (ii) use commercially reasonable efforts to make the DDC Sync App available seven (7) days a week, 24 hours per day and technical support for the Services available 8 AM CST – 6 PM CT 5 days a week, except for: (a) planned downtime (of which DDC FPO shall use reasonable commercial efforts to provide Carrier with 7 days’ advance notice thereof), or (b) any unavailability caused by circumstances beyond DDC FPO’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving DDC FPO employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the DDC Sync App only in accordance with applicable laws and government regulations.

3.2 Carrier’s Responsibilities. Carrier shall (i) be responsible for all uses of the DDC Sync App and the Services, directly or indirectly, and each User’s compliance with this Agreement, (ii) take all commercially reasonable efforts to make its Users aware of the provisions of this Agreement and will use commercially reasonable efforts to prevent unauthorized access to or use of the DDC Sync App, and notify DDC FPO promptly of any such unauthorized access or use, and (iii) use (and cause its Users to use) the DDC Sync App only in accordance with the DDC Sync App and Services Terms of Use and Privacy Policy, this Agreement and applicable laws and government regulations, including but not limited to the applicable privacy laws and regulations. Carrier shall not (a) make the DDC Sync App and Services available to anyone other than Carrier’s Users which are registered with DDC FPO, (b) sell, resell, rent, or lease the DDC Sync App, in whole or part, including without limitation, the DDC Sync Anonymized Data, (c) interfere with or disrupt the integrity or performance of the DDC Sync App or third-party data contained therein, or (d) attempt to gain unauthorized access to the DDC Sync App or their related systems or networks.

3.3 DDC FPO Limitations.DDC Sync App may be subject to other limitations, such as, for example, limits on disk storage space, which is based upon Carrier’s own operating system, it’s Users’ Devices and related services.

4. FEES AND PAYMENT FOR SERVICES
4.1 Fees. Carrier shall pay all Fees specified in all Order Forms executed with DDC FPO. Except as otherwise specified herein or in an Order Form, (i) Fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable, and Fees paid are non-refundable.

4.2 Invoicing and Payment. All charges for Services shall be paid as stated in the Order Form. DDC FPO will invoice Carrier in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Carrier is responsible for providing complete and accurate billing and contact information to DDC FPO and notifying DDC FPO of any changes to such information.

4.3 Overdue Charges. If any charges are not received from Carrier by the due date, then at DDC FPO discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4 Suspension of use of DDC Sync App and Service and Acceleration. If any amount owing by Carrier under this or any other agreement for DDC FPO services is 30 or more days overdue, DDC FPO may, without limiting DDC FPO other rights and remedies, accelerate Carrier’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend use of the DDC Sync App and Services to Carrier and its Users until such amounts are paid in full. DDC FPO will give Carrier at least 7 days’ prior notice that Carrier’s account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending Services to Carrier.

4.5 Payment Disputes. DDC FPO will not exercise DDC FPO rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if Carrier is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6 Consulting Services and Expenses. In the event Carrier request DDC FPO to provide Carrier with training or other consulting services outside the Services described on an Order Form, such Consulting Services shall be at DDC FPO’s then current services rates and shall be specified in an Order Form for such purposes (each, a “Services Order Form”). Carrier shall reimburse DDC FPO for all out-of-pocket (including travel and living) expenses incurred by DDC FPO in performing DDC FPO obligations to Carrier under an Order Form and/or Services Order Form for which DDC FPO shall invoice Carrier. All payment obligations for such services and expenses shall be as stated in this Section 4.

4.7 Taxes. Unless otherwise stated, DDC FPO fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Carrier are responsible for paying all Taxes associated with Carrier’s purchases hereunder. If DDC FPO has the legal obligation to pay or collect Taxes for which Carrier are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Carrier, unless Carrier provide DDC FPO with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, DDC FPO are solely responsible for taxes assessable against it based on DDC FPO income, property, and employees.

5.  PROPRIETARY RIGHTS
5.1 Reservation of Rights. Carrier acknowledges and agrees that DDC FPO is the owner of all right, title and interest in and to all worldwide intellectual property in, arising from and related to the DDC Sync App and the DDC FPO Information (as defined in Section 6 below), as well as all enhancements, updates, upgrades, modifications, and versions to any of them (the “DDC IP”). The DDC Sync App is patent pending. No rights are granted to Carrier or any User under this Agreement other than as expressly stated Any alterations of the Services performed for Carrier, if any, shall be owned solely by DDC FPO.

5.2 Carrier Data. Data and images of BOLs will be captured by Carrier’s Users using the Services of the DDC Sync App (“Carrier Data”); the Carrier Data will then be provided to the DDC FPO operational center for processing. Carrier is the owner of all right, title and interest in and to all worldwide intellectual property in, arising from and related to the Carrier Data. Upon execution of the Data Processing Addendum, attached and incorporated herein, Carrier Data will be transferred in the same manner as current production and as provided in the Agreement. In the event of any inconsistency or conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum will govern. On a daily business day basis, DDC FPO will purge any Carrier Data sent to the DDC Sync App as well as the FTP site used for the DDC Sync App. All other data similar to current production data created in connection with this Agreement will be handled in the same manner as current production.

5.3 DDC Sync Aggregated Data. Carrier acknowledges and agrees that DDC FPO may monitor Carrier's use of the DDC Sync App and Services and collect and compile data and information related to Carrier' use thereof that is used by DDC FPO in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("DDC Sync Aggregated Data"). As between DDC FPO and Carrier, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by DDC FPO and will be deemed DDC IP for all purposes under this Agreement. Carrier acknowledges that DDC FPO may compile DDC Sync Aggregated Data based on Carrier Data input into the DDC Sync App and Carrier agrees that DDC FPO may (i) make Aggregated Data publicly available, in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Carrier or Carrier's Proprietary Information.

5.4 Restrictions. Neither Carrier nor its Users shall (nor will any of them permit a third party to) (i) permit any unauthorized access the DDC Sync App except as permitted herein or in an Order Form, (ii) create derivative works based on the DDC Sync App and/or Services, (iii) copy, frame or mirror any part or content of the DDC Sync App, (iv) reverse engineer the DDC Sync App or related Services, or (v) access the DDC Sync App in order to (a) build a competitive product or service, (b) copy any features, functions or graphics of the Services or attempt to enable the Services to interoperate with any third party products or services, except as may be permitted under law.

5.5 Suggestions. DDC FPO shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the DDC Sync App and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Carrier and/or its Users, relating to the operation of the DDC Sync App and the Services. 

5.6 Federal Government Provisions. DDC FPO provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with DDC FPO to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 6. CONFIDENTIALITY

6.1 Definition of Proprietary Information. As used herein, “Confidential Information” means all nonpublic proprietary information other than Trade Secrets (defined below), of value to its owner, as well as any data or information defined as a Trade Secret, but which is determined by a court of competent jurisdiction to not be a trade secret under applicable law. DDC FPO Confidential Information shall include the DDC Sync App, Services and DDC Sync Aggregated Data; the Carrier Data shall be Carrier Confidential Information; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms. “Trade Secrets” means information, including the source code and human readable code of the DDC Sync App, business processes, product plans and designs and technology and technical information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Collectively, hereinafter “Confidential Information” and “Trade Secrets” is referred to as “Proprietary Information.” Proprietary Information, which is disclosed by a party hereunder to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Proprietary Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without direct or indirect use of the Proprietary Information.

6.2 Protection of Proprietary Information. Each party agrees with the other (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective for performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior consent. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement and shall exercise due care to monitor and ensure compliance with this The nondisclosure and confidentiality obligations set forth in this Section 6 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.

6.3 Compelled Disclosure. A party receiving Proprietary Information (“Receiving Party”) may disclose Proprietary Information of the disclosing party (“Disclosing Party”) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.

7.  WARRANTIES AND DISCLAIMERS
7.1 DDC FPO Warranties. DDC FPO represents and warrants that it (i) has sufficient expertise, training, and experience to satisfactorily accomplish the Services hereunder and the Services will be performed in a professional and workmanlike manner, and (ii) DDC FPO has validly entered into this Agreement and has the legal power to do so.

7.2 Carrier Warranties & Acknowledgements. Carrier warrants that it has validly entered into this Agreement and has the legal power to do so and will ensure its Users comply with the terms and conditions hereof.

7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE DDC SYNC APP AND SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ON INFRINGEMENT.

8.  MUTUAL INDEMNIFICATION
8.1 Indemnification by DDC FPO. DDC FPO shall defend Carrier against any claim, demand, suit, or proceeding made or brought against Carrier or its’ Users (the “Carrier Indemnified Parties”) by a third party alleging that the use of the DDC Sync App as delivered hereunder infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Third Party Claim”), and shall indemnify the Carrier Indemnified Parties for any damages, attorney fees and costs finally awarded against Carrier Indemnified Parties as a result of, and for amounts paid by Carrier Indemnified Parties under a court-approved settlement of, a Third Party Claim; provided that Carrier Indemnified Parties (a) promptly give DDC FPO written notice of the Third Party Claim; (b) give DDC FPO sole control of the defense and settlement of the Third Party Claim (provided that DDC FPO may not settle any Third Party Claim unless the settlement unconditionally releases Carrier Indemnified Parties of all liability); and (c) provide to DDC FPO all reasonable assistance, at DDC FPO expense. In the event of a Third Party Claim, or if DDC FPO reasonably believe the DDC Sync App may infringe or misappropriate a third party intellectual property right, DDC FPO may in DDC FPO discretion and at no cost to Carrier Indemnified Parties (i) modify the DDC Sync App so that it no longer infringes or misappropriates, without breaching DDC FPO warranties under “DDC FPO Warranties” above, or (ii) obtain a license for Carrier’s continued use of the DDC Sync App in accordance with this Agreement and the Order Form.

8.2 Indemnification by Carrier. Carrier and its Affiliates shall defend DDC FPO against any claim, demand, suit or proceeding made or brought against DDC FPO or its Affiliates (the “DDC FPO Indemnified Parties”) by a third party alleging that Carrier’s use (or any of Carrier’s Users’ use) of the DDC Sync App and/or Services, in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against DDC FPO”), and shall indemnify the DDC FPO Indemnified Parties for any damages, attorney fees and costs finally awarded against DDC FPO Indemnified Parties as a result of, or for any amounts paid by DDC FPO Indemnified Parties under a court-approved settlement of, a Claim Against DDC FPO; provided that DDC FPO or its Affiliates (a) promptly give Carrier and its Affiliates written notice of the Claim Against the DDC FPO Indemnified Parties; (b) give sole control of the defense and settlement of the Claim Against DDC FPO (provided that neither Carrier nor its Affiliates may settle any Claim Against DDC FPO Indemnified Parties unless the settlement unconditionally releases DDC FPO and Affiliates of all liability); and (c) provide to Carrier and its’ Affiliates all reasonable assistance, at Carrier and Affiliates expense.

8.3 Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

9.  LIMITATION OF LIABILITY
9.1 Limitation of Liability. EXCEPT WITH REGARD TO INDEMNIFICATION, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT PAID BY CARRIER HEREUNDER IN THE CALENDAR QUARTER IMMEDIATELY PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL ANY PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CARRIER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CARRIER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICES). IN NO EVENT SHALL DDC FPO OR AFFILIATES OR LICENSORS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE DDC SYNC APP OR SERVICES OR THE USE OR OTHER DEALINGS IN AND RELATED TO THE DDC SYNC AGGREGATED DATA, OR CAUSED BY ERRORS OR OMISSIONS IN THE DDC SYNC APP OR ITS INPUTS OR OUTPUTS, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH ERRORS OR OMISSIONS ARE CAUSED BY ERRORSOR INACCURACIES IN THE INPUTS TO THE DDC SYNC APP, IN THE STORAGE OR ACCESS OF SUCH DATA BY THE DDC SYNC APP OR SERVICES, IN THE DISPLAY OR PERFORMANCE OF DATA OR OTHERWISE.

9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ITS LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.  TERM AND TERMINATION
10.1 Term of Agreement/Renewal Subscription Term. This Agreement commences on the earlier date that (i) Carrier signs the Order Form; or (ii) any of its Users download DDC Sync to their Devices and continues until the Subscription Term stated in the Order Form has expired or been terminated. If a new Order Form and payment of additional Fees occurs at least thirty (30) days prior to the expiration of the Subscription Term, the Subscription Term will be renewed and will continue as provided in the new Order Form (each, an “Extended Subscription Term”). Upon expiration none of Carrier’s Users shall have access or use of the DDC Sync App or Services and all licenses thereto shall be terminated.

10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such proceeding continues for more than one hundred twenty (120) days.

10.3 Termination for Convenience. Notwithstanding anything to the contrary contained in this Agreement, either party may terminate this Agreement for any reason or no reason by providing ninety (90) days prior written notice to the other party. Upon such termination for convenience, Carrier’s sole liability to DDC FPO will be to pay DDC FPO for those Services performed prior to the effective date of such termination. Notwithstanding anything to the contrary contained in this Agreement, DDC FPO will refund to Carrier any unearned fees in its possession within thirty (30) days of the effective date of such termination for convenience.

10.4 Surviving Provisions. Section 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 11 (Governing Law, Venue and Notice), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

 11. Governing Law, Venue and Notice.
11.1 Governing Law & Venue. The laws of the State of Colorado shall govern this Agreement, without regard to conflicts of law. Any action related to or arising out of this Agreement shall be venued solely in the Federal District Court for the District of Colorado located in Denver, Colorado and the parties irrevocably commit to the jurisdiction of said courts.

11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).

If to DDC FPO:
Attn: Marissa Crotty, President
4611 Plettner Ln Suite #130
Evergreen, CO 80439

12.  GENERAL PROVISIONS
12.1 Export Compliance. The DDC Sync App and/or Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied- party list. Carrier shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.

12.2 Anti-Corruption. Neither party has received nor been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If Carrier learns of any violation of the above restriction, Carrier will use reasonable efforts to promptly notify our finance department at (finance@ddcfpo.com)

12.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.7 Injunctive Relief. The parties agree that any breach or threated breach of this Agreement will result in irreparable harm to the other party, for which damages would be an inadequate remedy. In addition to any rights and remedies otherwise available at law, a non-breaching party shall be entitled to seek equitable relief to prevent any such breach, and to such other and further equitable relief as may be deemed proper under the circumstances.

12.8 Attorney Fees. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to a reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.

12.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.

12.10 Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike, or other labor dispute. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.

12.11 Compliance with Laws. Each party represents that it is and will remain in compliance with all laws and regulations applicable to it.

12.12 Dispute Resolution. In the event of a disagreement or dispute between the parties arising out of or relating to this Agreement, the parties agree to submit any such disagreement or dispute to mandatory mediation. If the parties are unable to agree on a mediator, they will request that ADR Services, Inc., select a mediator for them. The cost of mediation will be borne equally by both parties. If a party has participated in the mediation, in good faith, and is dissatisfied with the outcome, that party may initiate a formal lawsuit.

12.13 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY PROCEEDINGS BROUGHT BY ANY OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE COURSE OF CONDUCT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO AND ACCEPT THIS AGREEMENT AND SHALL SURVIVE THE CLOSING OR TERMINATION OF THIS AGREEMENT.

12.14 Entire Agreement. This Agreement, including all linked documents, exhibits, addenda and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any terms or conditions stated in Carrier’s form of purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.