User will be responsible and billed for all time while
connected to the Dart Maritime Service, Inc. site, until the user logs off or disconnected
from the server via time-out method. The number of minutes of idle connection permitted
will be determined from time to time by Dart Maritime Service, Inc. system administrator.
3.3 Invoicing and Payments. All fees must be prepaid in advance as
per the fee schedule. All Fees are due and payable in U.S. dollars,
and must accompany the registration form. Renewal payments at the
expiration date of the term in the registration agreement are also
payable in advance or service may be denied. If Customer is based outside of
the United States, all payments must be made by wire transfer in immediately available
funds. Fees do not include costs of postage, shipping and administrative
bank fees or fees
imposed by various regulatory bodies. In
addition, Dart Maritime Service, Inc. or authorizing carrier may terminate this Agreement in accordance with
Sections 7.2 and 7.3.
3.4 Late Payments. In the event that any payment of any invoice is overdue, Dart
Maritime Service, Inc. or carrier may bill Customer a late payment charge on the unpaid balance at
the rate of 1 and 1/2% per month or the highest legal rate, whichever is lower.
3.5 Creditworthiness. Dart Maritime Service, Inc. reserves the right to assess
Customer's creditworthiness and to modify these payment terms in Dart Maritime Service,
Inc.'s sole discretion based on Customer's credit history.
3.6 Taxes. All Fees are exclusive of and Customer is responsible for (a) all applicable
federal, state or local taxes user fees or other assessments on the sale, license or use
of the Software, Documentation, and/or services provided under this Agreement, (b) any
access fees charged by any governmental agency. Customer is not responsible for taxes
based upon Dart Maritime Service, Inc.'s net income, or any gross receipt, capital stock,
franchise, net worth or similar taxes imposed upon Dart Maritime Service, Inc..
3.7 Pricing. All prices and Fees set forth in this Agreement, and Exhibits hereto,
shall be at Dart Maritime Service, Inc.'s then current rates. Dart Maritime Service, Inc.
may increase prices and fees without notice to Customer.
4. SUPPORT SERVICES
4.1 Basic Support Services.
(a) Dart Maritime Service, Inc. will provide to Customer telephone consultation and
advise with respect to the use and operation of the Software and the resolution of routine
Software-related problems. Dart Maritime Service, Inc. will use commercially reasonable
efforts to return such calls from Customer during Dart Maritime Service, Inc.'s normal
business hours, 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday.
5. WARRANTY AND REMEDIES
5.1 Limitation on Damages. Dart Maritime Service, Inc. WILL NOT BE LIABLE TO CUSTOMER
FOR ANY LOSSES OR DAMAGES ARISING OUT OF ANY ACT OR OMISSION OF CUSTOMER WITH RESPECT TO
CUSTOMER'S USE OF TARIFF INFORMATION. Dart Maritime Service, Inc. WILL NOT BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LOST PROFITS, LOST BUSINESS OPPORTUNITIES CAUSED DIRECTLY OR INDIRECTLY BY FAILURE OR
ERRONEOUS PERFORMANCE OF THE SOFTWARE OR PERFORMANCE OF SERVICES HEREUNDER, WHETHER A
CLAIM ARISES OUT OF CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE
AND STRICT LIABILITY).
5.2 Entire Liability. Entire liability to Customer for
any cause whatsoever, whether arising from Software or services is limited to a refund of
all Fees Customer has paid under this Agreement for one (1) month period immediately prior
to the date liability accrues. Refund will be issued by party
receiving payment as per this agreement.
5.3 Customer Indemnification. Customer indemnifies and holds harmless Dart Maritime
Service, Inc., its officers, directors, employees and agents from and against any claims,
losses, liabilities or expenses (including reasonable attorney's fees) arising out of
injury or damage (including death) to Customer's or Dart Maritime Service, Inc.'s
employees, consultants, agents, other third parties or the property of any of them arising
out of Customer's (a) negligence or willful misconduct, or b) infringement of another's
patent or copyright or misappropriation of a trade secret, unless such claims, losses or
liabilities are solely caused by the negligence of Dart Maritime Service, Inc..
5.4 Disclaimer. Dart Maritime Service, Inc. MAKES NO WARRANTIES WITH RESPECT TO THE
SOFTWARE OR SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND THE WARRANTY AGAINST NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
6.1 Indemnification. Customer agrees to indemnify and hold harmless Dart Maritime
Service, Inc., its officers, directors and employees, from any and all liabilities, losses
or damages, including reasonable attorney's fees, incurred by Dart Maritime Service, Inc.
as a result of claims, demands, lawsuits, or judgments arising from or in connection with
this Agreement, unless Dart Maritime Service, Inc. is negligent, reckless or engages in
willful misconduct in its performance of this Agreement or if such Dart Maritime Service,
Inc. liabilities, losses or damages result from a material breach of this Agreement by
Dart Maritime Service, Inc..
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective for the term as specified on the
registration form. Either party may
terminate this Agreement at any time with ten (10) days prior written notice. All
fees incurred are non-refundable.
7.2 Termination. Dart Maritime Service, Inc. may terminate this Agreement immediately
upon written notice to Customer (a) if Customer fails to pay any invoice when due or (b)
in the event of transfer of a substantial portion of Customer's assets or control of its
business by sale, reorganization, or merger. Either party may terminate this Agreement
immediately upon written notice to the other (i) if the other party materially breaches
any other obligation under this Agreement and has failed to cure such breach to the
other's satisfaction within thirty (30) days of receipt of notice of the breach, or (ii)
in the event of bankruptcy, insolvency, dissolution or receivership proceedings filed by
or against the other party.
7.3 Re-Connect Fee. Rather than terminating this Agreement in the event Customer fails
to pay any invoice when due, Dart Maritime Service, Inc. may, after notice to Customer,
suspend services to Customer until Customer's account is made current. If Dart Maritime
Service, Inc. terminates this Agreement or suspends services and Customer later requests
reinstatement of services, Customer will be required to reinstate the existing Dart
Maritime Service, Inc. Tariff Retrieval Agreement, or enter into a new Dart Maritime
Service, Inc. Tariff Retrieval Agreement with Dart Maritime Service, Inc.. In addition,
Customer will be required to pay any and all past due amounts and a Re-Connect Fee equal
to the greater of 2.5% of all past due amounts or $25.00.
7.4 Survival of Obligations. All obligations of Customer to pay all amounts still due
and owing to Dart Maritime Service, Inc. will survive the termination of this Agreement
for any reason.
8.1 Justifiable Delays. Dart Maritime Service, Inc. shall be excused from performance
or delays under this Agreement to the extent such performance is prevented or delay is due
to causes beyond the control of Dart Maritime Service, Inc., including without limitation
acts of God, strikes, or other labor disputes, wars, governmental restrictions, failure of
transportation, failure of utilities or telecommunications transmission lines or service,
and failure of equipment. In such event Dart Maritime Service, Inc.'s time for performance
shall be extended by the extent of any such delay or where practical shall be excused.
8.2 No Third Party Beneficiaries. No customer, agent , authorized employee, or
affiliate of Customer, is or will be deemed a third party beneficiary under this
8.3 Severability. If any provision of this Agreement is determined to be unlawful and
can be deleted without altering the essence of the Agreement, the unlawful provision will
be severed and the remaining provisions will remain in effect.
8.4 Waiver. The failure by any party at any time to enforce its rights under this
Agreement will not be construed as a waiver of such rights, nor will it in any way affect
the validity of this Agreement. No waiver by any party will be valid unless given in an
appropriate writing signed by that party.
8.5 Governing Law. This Agreement will be governed and construed in accordance with the
substantive laws of the State of North Carolina without regard to its conflict of laws
provisions and excluding the United Nations Convention for the International Sale of
Goods. This Agreement will be deemed to have been entered into in North Carolina. The
parties agree that this Agreement primarily involves the sale of services and that the
provisions of the Uniform Commercial Code shall not apply.
8.6 Jurisdiction and Venue. Customer agrees that any legal actions concerning this
Agreement will be brought only in the proper court of jurisdiction for the State of North
Carolina or courts in the County of Mecklenburg. Each party hereby consents to
the jurisdiction of such courts and to venue therein.
8.7 Modification and Assignment. This Agreement may not be modified except by an
instrument in writing signed by both parties. This Agreement may not be assigned by
Customer without the written consent of Dart Maritime Service, Inc.. Any attempted
assignment by Customer without consent will be void and of no effect.
8.8 Headings. The headings in this Agreement in no way define, limit, expand or
interpret the scope of this Agreement or of any provision hereof.
8.9 Independent Contractors. Both parties are independent contractors with respect to
all matter arising out of this Agreement. For purposes of this Agreement, neither of the
parties will be considered an employee, agent or joint venturer of the other.
8.10 Integration. This Agreement, together with any Exhibits and/or attachments
referenced herein, constitutes the entire and exclusive agreement between Dart Maritime
Service, Inc. and Customer relating to the subject matter hereof and supersedes all prior
written or oral agreements, representations, or communications between the parties
relating to the subject matter of this Agreement. All Exhibits attached to this Agreement
are incorporated by reference as if fully set forth herein.
8.11 Limitation of Actions. All claims against Dart Maritime Service, Inc. must be
brought within one (1) year after the cause or action arises and Customer waives any
statute of limitations which might apply by operation of law or otherwise.