Terms & Conditions

CUSTOMSNOW SOLUTIONS AGREEMENT

This CustomsNow Solutions Agreement (the “Agreement”) is entered into by and between Customs Now, Inc., a Delaware corporation with its principal office at 36600 N. Pima Rd. Ste 303-6. Carefree, AZ 85377 (“CustomsNow”), and you, personally and, if applicable, on behalf of the entity for whom you are using this web site (collectively, “You” and/or “Customer”).

ARTICLE I: DEFINITIONS

SECTION 1.1 DEFINED TERMS. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:

a. “Account” shall mean a top-level gateway identifier that is issued by CustomsNow to Customer to enable Customer’s use of Transaction Services hereunder. Each unique Account is associated with one Filer Code and one billing address for the Transaction Services package purchased in conjunction with such Account.

b. “Filer Code” shall mean a 3 alpha-numeric character issued by U.S. Customs required for use of Transaction Services.

c. “Client Integration” shall mean data mapping configurations delivered from Customer’s commercial operating platforms and other 3rd party platforms used by Customer for such data in a manner by which CustomsNow can match to CustomsNow systems. Any modifications of CustomsNow data mapping configurations are subject to additional fees.

d. “CustomsNow Downloads” shall mean CustomsNow forms, templates and setup files that are licensed to Customer under this Agreement, which enable the use of Transaction Services and/or Agent Services. Downloads can be found at https://www.customsnow.com/supportcenter/index.php.

e. “Confidential Information” shall mean any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, end user data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.

f. “CustomsNow Quotation” shall mean the document of the same name setting forth solutions or other services that may be purchased by Customer under the CustomsNow ISF and/or CustomsNow ABI solutions packages, and/or CustomsNow Agent ISF Filings and/or CustomsNow Agent Brokerage Services and the fees applicable thereto.

g. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) now known or hereafter existing anywhere in the world: (a) rights associated with works of authorship, including, without limitation, all exclusive exploitation rights, copyrights, moral rights, and mask-works; (b) trade secret rights and other confidential information; (c) patents, patent applications, and disclosures (including, without limitation, reissues, divisions, reexaminations, extensions, provisionals, continuations and continuations-in-part thereof), designs, and other industrial property rights; (d) trademark, trade dress and similar rights based on designation of origin; (e) all other intellectual property and proprietary rights of every kind and nature, whether arising by operation of law, contract, license or otherwise; (f) source code, object code, formulas, ideas, concepts, methods, know-how, processes, inventions, techniques, specifications, devices and the like, whether or not any of the foregoing are subject to protection under law; and (g) all registrations, applications, renewals, extensions, continuations, divisions, reissues and the like.

h. “Services Documentation” shall mean collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Customer by download, and that are intended for use in connection with the Transaction Services and/or Agent Services.

i. “Transaction Services” shall mean generally, the CustomsNow-hosted, online services of CustomsNow marketed as CustomsNow ISF or CustomsNow ABI, (each a “Transaction Services package”), as such services are set forth in more detail in the applicable price schedules and Services Documentation.

j. “Agent Services” shall mean generally, services as an agent for importers and other international traders to facilitate their Importer Security Filings and/or customs business.

SECTION 1.2 INTERPRETATION. References to Articles, Sections and Exhibits are to be construed as references to the Articles or Sections of, and Exhibits to, this Agreement, unless otherwise indicated, and terms such as “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to this entire Agreement rather than any particular part of the same. “Days” means calendar days, unless expressly stated otherwise.

ARTICLE II: SERVICES AND FEES

Section 2.1 TRANSACTION SERVICES.

a. Scope of Services. Subject to the terms of this Agreement, CustomsNow shall provide to Customer the services applicable to the Transaction Services package purchased by Customer, as indicated below, at the rates and pursuant to the terms and conditions set forth in the applicable CustomsNow Quotation.

0CustomsNow ABI Customer Initials

0CustomsNow AMS/AES Customer Initials

1CustomsNow Subscription Customer Initials

b. If during any calendar month, Customer uses any services that are not part of the Transaction Services package purchased (“Unpermitted Use”), CustomsNow shall have the right to charge Customer CustomsNow’s then standard fees applicable for such services giving rise to the Unpermitted Use, including monthly fees applicable to the Transaction Services package under which such services are permitted.

Section 2.2 AGENT SERVICES.

a. Scope of Services. Subject to the terms of this Agreement, CustomsNow shall provide to Customer the services applicable to the Agent Services package purchased by Customer, as indicated below, at the rates and pursuant to the terms and conditions set forth in the applicable CustomsNow Quotation.

0 CustomsNow Agent ISF Filings Customer Initials_________

0CustomsNow Agent Brokerage Services Customer Initials

In addition to the terms and services stated herein, usage of these Agent Services shall be subject to the attached National Customs Brokers and Forwarders Associations (NCBFAA) terms and conditions of services, including, but not limited to, its provisions regarding jurisdiction, venue and limits of liability.

Section 2.3 FEES

a. With respect to CustomsNow ISF and CustomsNow ABI Transactional and Agent Services packages, each month, CustomsNow will deliver an invoice setting forth the fees due for Transaction and/or Agent Services provided in or monthly fees applicable to the immediately preceding month, upon receipt of which Customer shall remit the full amount due no later than thirty (30) calendar days. If it does not, CustomsNow shall have the right to impose the “Late Fee” of one and a half percent (1.5%) per month or, if lower, the highest permitted by applicable law, until such fees are due.

b. “Monthly Minimum fees” and “Premier Support fees”, as such fees are described in the applicable CustomsNow Quotation, apply to each Account issued to Customer hereunder. For example, each Account may be subject to a Monthly Minimum fee.

c. Application of recurring monthly fees, such Monthly Minimum fees, and Premier Support fees, subject to the Transaction and/or Agent Service package purchased, shall commence in the first full calendar month immediately following the Effective Date.

d. After the Initial Term, CustomsNow shall be entitled to revise the CustomsNow Quotation at any time, provided that (i) CustomsNow gives written notice to Customer at least sixty (60) days prior to the effective date of any such revision and (ii) any such revision occurs no more than once in any twelve (12) month period.

e. In the event of a dispute made in good faith as to the amount of fees, Customer agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within forty five (45) days after said dispute has been resolved by both parties.

ARTICLE III: LICENSE AND INTELLECTUAL PROPERTY

Section 3.1 LICENSE.

a. Subject to the terms, conditions, and restrictions in and of this Agreement, CustomsNow hereby grants to Customer and Customer hereby accepts from CustomsNow a personal, limited, non-exclusive, non-transferable, revocable license and right to use the CustomsNow Downloads and Transaction Services, in object code form only, and accompanying Services Documentation for the following purposes:

i. To install and use the CustomsNow Downloads on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by Customer) to use the Transaction Services for the intended purposes of the Transaction Services; and

ii. To use the accompanying Services Documentation solely for the purpose of installing and using the CustomsNow Downloads; and

iii. To use and access the web-based portion of the Transaction Services solely for their intended, lawful purpose.

Section 3.2 INTELLECTUAL PROPERTY.

Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, as between Customer and CustomsNow, CustomsNow shall retain all right, title and interest in and to the Transaction Services, CustomsNow Downloads, Client Integrations, Services Documentation, its Confidential Information, and any derivatives of the foregoing (“CustomsNow IP”), and, nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right. Customer agrees that the CustomsNow IP constitutes proprietary information and trade secrets of CustomsNow or its licensors, whether or not any portion thereof is or may be validly copyrighted or patented. Customer SHALL NOT permit, cause, or assist others to do any of the following, whether during or after the term of this Agreement: (i) reproduce, copy, modify, adapt, enhance, translate, create a derivative work of, disassemble, decompile, reverse engineer or otherwise attempt to discover, in whole or in part, the object code or source code of any CustomsNow IP; (ii) use any CustomsNow IP to enhance the products of CustomsNow competitors or their licensors or create a product competitive to CustomsNow products or services; (iii) assign, rent, make a data transmission of, or sublicense to or timeshare with others or otherwise transfer or share the right to use any CustomsNow IP, or any portion thereof; (iv) tamper with, alter or otherwise rearrange any CustomsNow IP; (v) abuse any CustomsNow IP or assist others to do so in any manner that (a) interferes with the products or services offered by CustomsNow or (b) violates applicable laws or any third party rights; (vi) delete, destroy or alter in any manner the copyright notices, and other proprietary rights and intellectual property notices, markings and legends appearing on any CustomsNow IP; or (vii) change any license key or other security technology now incorporated in or that may in the future be adopted for any CustomsNow IP.

ARTICLE IV: WARRANTIES AND DISCLAIMERS

Section 4.1 CUSTOMSNOW WARRANTIES.

a. With respect to Transaction Services, CustomsNow represents and warrants that the Transaction Services and CustomsNow Downloads provided to Customer hereunder will materially conform to specifications set forth in the applicable Services Documentation, as may be amended from time to time at CustomsNow’s sole discretion; provided, however, the foregoing warranty is dependent upon: (a) installation by Customer of all changes and releases to the Transaction Services, CustomsNow Downloads, and Client Integrations provided or made available to Customer, (b) Customer notifying CustomsNow of any perceived deficiency within one (1) year: (i) of the effective date of this Agreement or (ii) with respect to errors caused by any changes or new releases, the date of such release; and (c) CustomsNow being given thirty (30) days from the notice given to investigate the perceived deficiency, and a further thirty (30) days to cure such deficiency.

b. With respect to Transaction Services, if any of such services contain or use any software, CustomsNow further represents and warrants that CustomsNow is fully authorized to use such software in the performance of Transaction Services for Customer.

c. The preceding warranties will NOT apply if: (i) any products, services, or deliverables provided hereunder are used in material violation with this Agreement or the applicable documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of CustomsNow; or, (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s malfunctioning equipment or third party software not approved by CustomsNow in writing to be used with the products, services or deliverables.

d. In the event Customer discovers that any products, services, or deliverables are not in conformance with the representations and warranties set forth in Section 4.1.a and reports such non-conformity to CustomsNow as provided above, CustomsNow will, at CustomsNow’s discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) refund the fees paid for the non-conforming products, services, or deliverables during the ninety (90) day period preceding Customer’s discovery of such non-conformity. THE REMEDY STATED IN THIS PARAGRAPH CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CUSTOMSNOW’S ENTIRE LIABILITY UNDER SECTIONS 4.1.a THROUGH SECTION 4.1.d.

Section 4.2 CUSTOMER WARRANTIES.

a. Customer represents and warrants that at all times during the term of this Agreement, Customer’s installation, configuration, and use of Transaction Services shall conform to specifications set forth in the applicable Services Documentation.

b. Customer further represents and warrants that, at all times while this Agreement is in effect, Customer shall maintain and adhere to all reasonable security measures to protect Customer Systems and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with the U.S. Export Control Laws, if applicable, including, without limitation, exporting any CustomsNow IP into any jurisdiction in which it is illegal or restricted under U.S. law to do so. For the purposes of this Section 4.2.b., “Customer Systems” shall mean the computer systems operated by or on behalf of Customer that capture or store Transaction Services data, or that transmit such data to CustomsNow.

c. Customer further represents and warrants that (i) Customer has all necessary rights and authorizations to the products or services, the sale or distribution for which Customer is using the Transaction Services; and, (ii) Customer does and will comply with all applicable laws and regulations as related to its use or license of any products or services hereunder, including, without limitation, the obtaining of all required licenses and, to the extent applicable, the payment of all fees and other charges assessed.

d. Customer represents and warrants that it will obtain for itself the minimum hardware and software as set forth on Schedule A, which is subject to change, without notice, at the sole discretion of CustomsNow.

Section 4.3 DISCLAIMERS.

a. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

b. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMSNOW SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALES OF ITS PRODUCTS OR SERVICES. CUSTOMER ACKNOWLEDGES THAT IT IS NOT RELYING UPON CUSTOMSNOW REGARDING THE SUITABILITY OF THE CUSTOMSNOW IP FOR USE AS INTENDED OR CONTEMPLATED BY CUSTOMER. CUSTOMSNOW SHALL HAVE NO OBLIGATION OR LIABILITY FOR CUSTOMER’S INABILITY TO ACCESS ANY CUSTOMSNOW IP DUE TO CUSTOMER’S INABILITY TO ACCESS THE INTERNET OR OPERATE ANY SOFTWARE.

c. CUSTOMER UNDERSTANDS AND AGREES (I) THAT NEITHER CUSTOMSNOW NOR ITS THIRD-PARTY VENDORS CAN GUARANTEE THE ACCURACY OF THE DATA THAT CUSTOMER OR ANY OF ITS THIRD-PARTY PROVIDERS INPUT INTO THE TRANSACTION SERVICES; (II) INACCURATE DATA INPUTTED INTO THE TRANSACTION SERVICES WILL RESULT IN INACCURATE RESULTS; AND (III) CUSTOMER BEARS THE ULTIMATE RESPONSBILITY FOR THE PROPER INPUT OF DATA INTO THE TRANSACTION SERVICES.

ARTICLE V: INDEMNIFICATION; LIMITATION OF LIABILITY

Section 5.1 INDEMNIFICATION.

a. Each Party (the “Indemnifying Party”) will indemnify, defend, and hold harmless at its expense any legal cause of action brought against the other party, its officers, directors, employees, and the successors and assigns of the foregoing (the “Indemnified Party”), to the extent that such cause of action is based upon a claim that any services or products of the Indemnifying Party infringe a copyright, patent, trade secret, or other intellectual property rights of a third party under the laws of the United States. The Indemnifying Party will pay those costs and damages incurred by the Indemnified Party which are attributable to any such claim, provided that (i) the Indemnified Party notifies the Indemnifying Party in writing promptly after the Indemnified Party becomes aware of such claim (provided that the failure to so notify shall not affect the Indemnified Party’s rights to indemnification hereunder unless, and then only to the extent that, the Indemnifying Party has been actually prejudiced thereby); (ii) the Indemnifying Party has sole control of the settlement, compromise, negotiation, and defense of any such action (provided that the Indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the Indemnified Party or admission of liability by the Indemnified Party without obtaining the Indemnified Party’s prior written consent); and (iii) the Indemnified Party cooperates, in good faith, in the defense of any such legal action.

b. Should any of the Indemnifying Party’s products or services become, or in the Indemnifying Party’s opinion is highly likely to become, the subject of a claim of infringement, the Indemnifying Party may, at its option, (i) obtain the right for the Indemnified Party to continue using said products or services; (ii) replace or modify the Indemnifying Party’s products or services with substantially similar products or services so that they are no longer infringing or reduces the likelihood that they will be determined to be infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate this Agreement.

c. The Indemnifying Party shall have no liability for any claim of infringement based on (i) products or services of the Indemnifying Party which have been modified by parties other than the Indemnifying Party; (ii) the Indemnified Party’s use of the Indemnifying Party’s products or services in conjunction with data where use with such data gave rise to the infringement claim; (iii) failure of the Indemnified Party to install upgrades or patches provided by the Indemnifying Party where such upgrade or patch would have removed the infringing condition; or, (iv) the Indemnified Party’s use of the Indemnifying Party’s products or services in a manner inconsistent with documentation provided with such products or services; or, (v) the Indemnified Party’s use of the Indemnifying Party’s products or services with software or hardware not authorized by the Indemnifying Party, where use with such other software or hardware gave rise to the infringement claim.

d. The rights and obligations set forth in this Section 5.1 shall be the Indemnified Party’s sole and exclusive remedy and the Indemnifying Party’s sole and exclusive liability with respect to claims based on infringement, misappropriation, or violation of third-party intellectual property rights.

e. Except as expressly provided in Section 5.1.a, Customer shall indemnify and hold CustomsNow and its affiliates, and their respective officers, directors, employees, licensors, agents, and representatives harmless from and against any and all claims, damages, costs and liabilities, including, but not limited to, attorneys’ fees and disbursements, arising out of or relating to or connected with the acts or omissions of Customer, or its agents and employees in connection with the license and use of the CustomsNow IP or Transaction Services. In addition, the Customer shall indemnify CustomsNow and the other persons and entities identified above for any fines, penalties, interest or other levies imposed by government agencies or departments and any loss or damage with respect to goods imported to or exported from the United States by Customer. In no event shall Customer settle any claim subject to this Section 5.1.e without the prior written approval of CustomsNow.

Section 5.2 LIMITATIONS OF LIABILITY.

a. IN NO EVENT SHALL CUSTOMSNOW’S OBLIGATION OR LIABILITY HEREUNDER OR RELATED HERETO EXTEND TO INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES OR LOSSES CUSTOMER MAY SUFFER OR INCUR IN CONNECTION HEREWITH, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, DAMAGES OR LOSSES AS A RESULT OF CUSTOMER’S INABILITY TO FULFILL OBLIGATIONS TO THIRD PARTIES, INJURY TO GOOD WILL, CLAIMS OF CUSTOMERS AND THE LIKE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF CUSTOMSNOW HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY THEREOF, NOR SHALL IT EXTEND TO DAMAGES OR LOSSES CUSTOMER MAY SUFFER OR INCUR AS A RESULT OF CLAIMS, SUITS OR OTHER PROCEEDINGS MADE OR INSTITUTED AGAINST CUSTOMER BY THIRD PARTIES, WHETHER PUBLIC OR PRIVATE IN NATURE.

b. UNDER NO CIRCUMSTANCES SHALL THE ENTIRE LIABILITY OF CUSTOMSNOW TO CUSTOMER UNDER THIS AGREEMENT, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID OR PAYABLE TO CUSTOMSNOW HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

c. THE PARTIES HAVE AGREED THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS SPECIFIED IN THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT EVEN IF ANY SUCH SECTION (OR PORTION THEREOF) IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT CUSTOMSNOW HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON SUCH DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS, WHICH ALLOCATE THE RISK BETWEEN CUSTOMSNOW AND CUSTOMER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.

ARTICLE VI: TERM AND TERMINATION

Section 6.1 TERM AND TERMINATION OF AGREEMENT.

a. The initial term (“Initial Term”) of this Agreement shall be one (1) year beginning from the Effective Date. Thereafter, this Agreement will renew automatically for additional terms of one (1) year (each a “Renewal Term”) unless either party provides written notice to the other party, at least thirty (30) days prior to the commencement of any Renewal Term, that the Agreement shall not so renew.

b. The Agreement may be terminated by either party at any time in the event of a material breach by the other party that remains uncured after thirty (30) calendar days written notice thereof.

c. The Agreement may be terminated by either party effective immediately and without any requirement of notice, in the event that (i) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding, under bankruptcy or insolvency laws, is instituted against such party and not stayed, enjoined, or discharged within sixty (60) days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.

d. Except as otherwise provided in this Agreement, within ten (10) calendar days of termination of this Agreement, the Receiving Party shall, at the Disclosing Party’s discretion, return to the other party all materials belonging to the other party that constitute Disclosing Party’s Confidential Information and/or intellectual property, and in the case of Customer, return all other materials provided by CustomsNow. Further, Customer shall cease any further use of CustomsNow IP and pay fees due to CustomsNow remaining unpaid. CustomsNow will return Customer’s stored data in either CSV format or on CD within five (5) days of payment of all outstanding amounts owed. Customer’s data will be deleted upon the earlier of fourteen (14) days after the effective date of termination or receipt of written or electronic notice from Customer that the returned data has been successfully stored to another system. CustomsNow will not retain any copies of such data or of any materials or property herein described. CustomsNow shall not be responsible for the provision or supply of any data, files or information that may be deleted or destroyed by the Customer, in error or otherwise, prior to or after the termination of this Agreement.

e. In the event that CustomsNow reasonably believes that Customer is in violation of its obligations in Section 4.2.a or that Customer’s conduct (including, without limitation, transmitting inaccurate and/or incomplete data to CustomsNow) or its products violate applicable law or pose a threat to CustomsNow’s systems, equipment, processes, or Intellectual Property (the “Threatening Condition”), CustomsNow will provide Customer with notice by e-mail or telephone of the Threatening Condition, upon receipt of which Customer agrees to exercise best efforts to cure said Threatening Condition. If, in the reasonable and good faith determination of CustomsNow, the Threatening Condition poses an imminent or actual threat to CustomsNow’s systems, equipment, processes, or Intellectual Property, Customer agrees to suspend any and all activity on Customer’s Account(s) until such threat is cured, but CustomsNow may deactivate the Account(s) until the threat is cured if Customer does not suspend such activity. In any event, CustomsNow may terminate this Agreement without further requirement of notice if the Threatening Condition remains uncured more than thirty (30) calendar days after Customer is notified of the Threatening Condition.

ARTICLE VII: INFORMATION TECHNOLOGY (IT) SECURITY

Section 7.1 PASSWORD PROTECTION.

CustomsNow maintains that the Transaction Services use individually assigned accounts that require a periodic change of password. IT security policies, procedures and standards are in place and are provided in the form of training or documentation posted on website or in training manuals.

Section 7.2 ACCOUNTABILITY:

CustomsNow maintains it has a system in place to identify abuse of IT, including improper access, tampering or altering of business data.

ARTICLE VIII: GENERAL TERMS

Section 8.1 CONFIDENTIAL INFORMATION.

a. Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder; (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable U.S. and foreign import and export laws and regulations, including, without limitation, those of the U.S. Department of Commerce; (v) not to copy or reverse engineer any such Confidential Information; and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement. Notwithstanding anything to the contrary, CustomsNow will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of performing under this Agreement.

b. Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.

Section 8.2 REMEDIES. Each party acknowledges and agrees that due to the unique nature of Intellectual Property, licenses, and Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the breaching party or third parties to unfairly compete with the breached party resulting in irreparable harm to the breached party, and therefore, that upon any such breach or any threat thereof, the breached party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have under this Agreement or at law. If a party brings any action for any relief against the other arising from or relating to this Agreement, the losing party shall pay to the prevailing party (i.e., the party whose major positions taken could fairly be said to have prevailed over the other party’s major positions on material disputed issues) the attorneys’ and experts’ fees and costs incurred in connection with such action. Any order or judgment entered in such action must contain a specific provision providing for such payment, separate from the judgment, for amounts incurred in enforcing such judgment and the previous sentence is intended to survive any judgment and is not to be deemed merged into any judgment or decision. Further, if CustomsNow pursues collections against Customer for any amounts past due, Customer shall pay CustomsNow the costs of collection in addition to the amounts owed and the Late Fee.

Section 8.3 MARKETING. Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, Customer consents to placement of Customer’s company logo(s) on CustomsNow’s website (www.customsnow.com) where other Customers’ logos are featured. Customer agrees to provide a high-resolution logo file(s) to CustomsNow for this purpose in the format requested by CustomsNow.

Section 8.4 RELATIONSHIP OF PARTIES. The parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title, or interest of such other party.

Section 8.5 GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the laws of the State of Arizona, hereby excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods.

Section 8.6 ASSIGNMENT. This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, consent of Customer shall not be required for CustomsNow’s assignment or transfer made by (i) operation of law, or (ii) in connection with a merger, acquisition, reorganization, or sale of substantially all of its stock, assets or business. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void.

Section 8.7 FORCE MAJEURE. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) business days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated. The party facing an event of force majeure shall use commercially reasonable efforts to remedy that situation as well as to minimize its effects. A case of force majeure shall be notified to the other party by any of the methods described in the Notices section below within five (5) days after occurrence of the event of force majeure.

Section 8.8 ENTIRE AGREEMENT. This Agreement (including, without limitation, the documents referenced herein) constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements, Any pre-printed terms and conditions contained in any Customer purchase order or other Customer documentation will be of no force and effect. Each party acknowledges and agrees that the other party has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

Section 8.9 MODIFICATIONS, AMENDMENTS, AND WAIVERS. This Agreement may not be modified or amended, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized employees of both of the parties hereto. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.

Section 8.10 COUNTERPARTS. This Agreement may be executed in counterparts, including counterparts transmitted by facsimile, each of which shall be deemed an original, and all such counterparts shall constitute one and the same agreement.

Section 8.11 SURVIVAL. The provisions of this Agreement relating to payment of any fees or other amounts owed, payment of any interest on unpaid fees, confidentiality, disclaimers, warranties, limitation of liability, indemnification, governing law, severability, headings, and this paragraph shall survive any termination or expiration of this Agreement.

Section 8.12 SEVERABILITY. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Section 8.13 THIRD-PARTY BENEFICIARY. CustomsNow’s licensors are intended third party beneficiaries of Sections 3.2, 4.3, 5.2, 6.1.d, and 7.1. There are no other third-party beneficiaries to this Agreement.

Section 8.14 HEADINGS; CONSTRUCTION. The headings in this Agreement are intended for convenience or reference and shall not affect the Agreement’s interpretation. The language of this Agreement will be construed not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this Agreement or any specific term hereof.

Section 8.15 NOTICES. Unless otherwise expressly set forth in this Agreement, any legal notice required under this Agreement shall be given in writing at the address set forth below, as may be amended in writing from time to time, and shall be deemed to have been delivered and given for all purposes (i) on the delivery date, if delivered by hand courier to the party to whom such notice is directed; (ii) two (2) business day after deposit with a commercial overnight carrier; (iii) five (5) business days when mailed by United States mail; and (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission.

In witness whereof, the parties have executed this Agreement, as of the date last below written (“Effective Date”).

SCHEDULE A

CustomsNow™ Customer Undertaking (System Requirements)

Information/ System Requirements/Hardware

• Intel® Pentium III processor, 500MHz (Pentium 4 processors running at 1.0GHz or higher are recommended).

•256 Megabytes of RAM (512 MB RAM or more is recommended)

• 100MB free disk space.

• Windows 7 or higher as an operating system (Windows 10 or higher is recommend).

• Internet Explorer version 9.0 (or higher).

Additional details regarding our technology can be found here. Detailed instructions for installing the CustomsNow Launchpad Application are available upon request.

Reliable Infrastructure and World Class Security:

• Best in class firewall and intrusion detection technologies.

• All modules hosted through Amazon Web Services.

• Enterprise grade Dell servers with multiple internal redundant systems.

• Frequent data backups.

• Redundant servers, disk drives, power, internet connections, networking, HVAC systems.

• Comprehensive disaster recovery plans in place.

BY ACCESSING OR USING ANY PART OF THE WEB SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE.

This Terms of Service (“TOS”) is a legally binding agreement made by and between CustomsNow, Inc. (“we” or “us”) and you, personally and, if applicable, on behalf of the entity for whom you are using this web site (collectively, “you”). This TOS governs your use of the CustomsNow web site (“Web Site”), so please read it carefully.

BY ACCESSING OR USING ANY PART OF THE WEB SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE.

INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME BASED SOLELY ON SUCH CHANGES. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.

Using The Web Site.

Eligibility. Except as expressly provided below, the Web Site may only be used by individuals and entities who can form legally binding contracts under applicable law. No person under the age of 18 may use the Web Site without the supervision of a parent or legal guardian. Your use of the Web Site will be deemed to be a representation that you are 18 years of age or older or using the Web Site with the permission of your parent or guardian. We require that all purchases be made by individuals 18 years of age or older.
License and Restrictions. Subject to the terms and conditions of this TOS, you are hereby granted a limited, non-exclusive right to use the content and materials on our Web Site in the normal course of your use of the Web Site. We will retain ownership of our intellectual property rights and you will not obtain any rights therein by virtue of this TOS or otherwise, except as expressly set forth in this TOS. You will have no right to use, copy, display, perform, create derivative works from, distribute, transmit or sublicense materials or content available on the Web Site, except as expressly set forth in this TOS.
Prohibited Conduct. In your use of the Web Site, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party; (ii) disrupt or interfere with the security or use of the Web Site or any web sites linked to the Web Site; (iii) interfere with or damage the Web Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (iv) impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) us, or use a false identity; (v) attempt to obtain unauthorized access to the Web Site; (vi) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vii) collect or use (for commercial purposes) information about other users or the Web Site without their or our express written consent; (viii) submit false or misleading information to us; (ix) violate any law, rule, or regulation; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Web Site; or (xi) assist or encourage any third party in engaging in any activity prohibited by this TOS.

Accuracy of Information.

We attempt to ensure that the information on the Web Site is complete and accurate; however, this information may contain typographical errors, pricing errors, and other errors or inaccuracies. We assume no responsibility for such errors and omissions, and reserve the right to: (i) revoke any offer stated on the Web Site; (ii) correct any errors, inaccuracies or omissions; and (iii) make changes to prices, content, promotions, product descriptions or specifications, or other information on the Web Site.

Solutions.

This TOS does not grant any right to access or use any CustomsNow solutions, regardless of whether they may be available through the Web Site. The use of all CustomsNow solutions offered through the Web Site are subject to your agreement to the applicable License Agreement, which you must agree to and sign (whether physically or electronically) prior to being permitted use of any such solution.

Privacy.

We value your privacy. Our Privacy Policy details our practices with respect to the use, collection, and sharing of information collected through the Web Site. In addition to this TOS, the Privacy Policy also governs your visit to our Web Site, and by using the Web Site, you agree to be bound by the terms of the Privacy Policy.

Security.

We employ measures designed to ensure the security of the Web Site, but, as provided below, make no guarantees in this regard.

Intellectual Property Rights.

Copyright. All materials on the Web Site, including without limitation, the logos, design, text, graphics, other files, and the selection and arrangement thereof are either owned by us or are the property of our suppliers or licensors. You may not use such materials without permission. © 2008 CustomsNow, Inc. ALL RIGHTS RESERVED.
Trademarks. CUSTOMS NOW, YOUR DIRECT FILING SOLUTION, all design marks, and other trademarks on the Web Site are owned by us. Page headers, custom graphics, button icons and scripts are trademarks or trade dress we own. You may not use any of these trademarks, trade dress, or trade names without our express written permission.

Third-Party Services.

We may use third parties to provide certain services accessible through the Web Site and may provide links to third-party web sites. We do not control those third parties, their services, or their web sites. We will not be liable to you in any way for your use of such services or web sites. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as these TOS when you use these services and web sites.

Linking and Framing.

You may not deep link to portions of the Web Site, or frame, inline link, or similarly display any of our property, including, without limitation, the Web Site. You may not use any of our logos or other trademarks as part of a link without express written permission.

Comments.

All comments, feedback, suggestions, ideas, and other submissions that you disclose, submit or offer to us in connection with your use of the Web Site (collectively, “Comments”) will become our exclusive property. Such disclosure, submission or offer of any Comments shall constitute an assignment to us of all worldwide right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory. You will, at our cost, execute any documents to effect, record, or perfect such assignment. Thus, we will own exclusively all such right, title and interest and shall not be limited in any way in the use, commercial or otherwise, of any Comments. You should not submit any Comments to us if you do not wish to assign such rights to us. We are and will be under no obligation: (i) to maintain any Comments in confidence; (ii) to pay to you or any third party any compensation for any Comments; or (iii) to respond to any Comments. You are and shall remain solely responsible for the content of any Comments you make.

Indemnification.

You agree to defend, indemnify, and hold us and our employees, representatives, agents, attorneys, affiliates, directors, officers, managers and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties arising from, related to, or connected with your use of the Web Site. If you are obligated to provide indemnification pursuant to this provision, we may, in our sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limitation of the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without our consent.

DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.

DISCLAIMER OF WARRANTIES. WE PROVIDE THE WEB SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE WEB SITE, THE SERVICES, ITS USE, ANY INFORMATION ON IT: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
DISCLAIMER OF FORWARD-LOOKING STATEMENTS. THIS WEB SITE MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT OUR CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE OUR CONTROL.
EXCLUSION OF DAMAGES. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEB SITE OR PRODUCTS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
LIMITATION OF LIABILITY. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO THE WEB SITE) EXCEED $100.

Domestic Use; Export Restriction.

We control the Web Site from our offices within the United States of America. We make no representation that the Web Site or its content (including, without limitation, any products or services available on or through the Web Site) are appropriate or available for use in other locations. Users who access the Web Site from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Web Site may be downloaded in violation of United States law.

Force Majeure.

We will not be liable for failing to perform under this TOS because of any event beyond our reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to perform, fire, terrorism, natural disaster or war.

Arbitration.

All disputes arising out of or relating to this TOS (including its formation, performance or alleged breach) or your use of the Web Site will be exclusively resolved under confidential binding arbitration held in Orange County, California before and in accordance with the Rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this TOS will be joined to an arbitration involving any other party subject to this TOS, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, we will have the right to seek injunctive or other equitable relief in state or federal court located in Orange County, California to enforce this TOS or prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.

WAIVER OF CLASS ACTION RIGHTS.

BY ENTERING INTO THIS TOS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS TOS MUST BE ASSERTED INDIVIDUALLY.

Limitation of Actions.

You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Web Site, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.

Changes to the Web Site.

We may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Web Site, temporarily or permanently, at any time without notice to you, and we will not be liable for doing so.

Termination.

We will have the right to terminate your access to the Web Site if we believe you have breached any of the terms and conditions of this TOS. Following termination, you will not be permitted to use the Web Site. If your access to the Web Site is terminated, we reserve the right to exercise whatever means we deem necessary to prevent unauthorized access to the Web Site, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider. This TOS will survive indefinitely unless and until we choose to terminate it, regardless of whether any account you open is terminated by you or us or if you have the right to access or use the Web Site.

International Use.

By choosing to access the Web Site from any location other than the United States, you accept full responsibility for compliance with all local laws that are applicable. We make no representation that materials on the Web Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. You may not use, export or re-export any materials from the Web Site in violation of any applicable laws or regulations, including, but not limited to, any United States export laws and regulations.

Integration.

This TOS contains the entire understanding between you and us regarding the use of the Web Site, and supersedes all prior and contemporaneous agreements and understandings between you and us relating thereto.

Additional Terms.

This TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without regard for conflict of law principles or other principles that would cause the application of the law of any other State. This TOS and all of your rights and obligations under them may not be assignable or transferable by you without our prior written consent. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this TOS. You are an independent contractor, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.

ARRANGE YOUR CUSTOMSNOW ABI SOFTWARE WALK-THROUGH

Meet with a CustomsNow consultant to explore your compliance practices and how our best-in-class software and services can help you do what you do better.

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