NYSHEX Proactive Performance Management Terms of Service

Version 1

Effective Date: February 1, 2024

These Terms of Service govern Your subscription to and use of the NYSHEX Platform to utilize the Proactive Performance Management Service product.

Part I. Definitions

"BCO” means beneficial cargo owner.

“Intellectual Property Rights” all past, present, and future rights of the following types, which may exist or be created in any jurisdiction worldwide: (i) rights associated with authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) Marks; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in intellectual property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v).

“Marks” means trademarks, service marks, logos, trade dress, trade names, and the associated goodwill, whether or not registered.

"Member” means a BCO, NVOCC, or VOCC who utilizes the NYSHEX Value Added Services via the NYSHEX Platform.

“NVOCC” means a non-vessel operating common carrier.

"NYSHEX Platform" means the systems developed, owned, and operated by NYSHEX to provide a standardized method for performance monitoring and general supply chain monitoring.

“Proactive Performance Management Service” or “PPM” means an application feature, or customer support function provided by NYSHEX in support of the Proactive Performance Management product.

“VOCC” or “Carrier” means vessel- operating common carrier.

"We," "Us," or "Our" means the NYSHEX, LLC, and affiliates of NYSHEX.

"You" or "Your" means the company or other legal entity for which You are accepting these Terms of Service, and Affiliates of that company or entity.

Part 2. Proactive Performance Management Service Product

Section 1. Proactive Performance Management Service

We will provide the following services to You as Proactive Performance Management Service:

Data Access

We will provide technology and enriched data to You that will enable You to:

Clarify and align on performance expectations based on Your agreements with NVOCCs or VOCCs, allocations, and/or forecasts.
Receive alerts and corresponding workflows when performance expectations are not met.
Access analytics and insights to improve planning and expectation setting between You and Your Carrier partners.

We will process and maintain all applicable data consistent with the Data Processing Addendum.

Platform Access

By agreeing to these Terms to Service, You will have the limited, non-exclusive, non-transferrable right to access the NYSHEX Platform to receive the Proactive Performance Management Service for internal business purposes for the duration of Your subscription. We will remain the sole and exclusive owner of: (a) NYSHEX Platform and the Proactive Performance Management Service; (b) usage data; (c) any software, applications, inventions or other technology developed or supplied by Us; (d) Our Marks; (e) all derivative works based upon, or modifications, enhancements or derivations of, or improvements to, any of the Proactive Performance Management Service (f) all Intellectual Property Rights in and to the NYSHEX Platform and Proactive Performance Management Service (the “NYSHEX IP”). You will remain the sole owner of any raw, unaggregated data provided to NYSHEX via the NYSHEX Platform.

Section 2. Membership Responsibilities

Letters of Authorization

In order to for Us to receive data regarding Your contracts from Your Carrier or NVOCC partners, You will need to execute Letters of Authorization or authorize Us to execute those Letters of Authorization on Your behalf.

Authorized Users

We will provide to You and Your designated employees, consultants, contractors and/or agents (“Authorized User(s)”) user IDs and passwords to access and use the NYSHEX Platform and Proactive Performance Management Service (the “Access Credentials”). You will keep the Access Credentials confidential and will be responsible and liable for all actions taken under an Authorized User’s account. You will promptly notify Us of any suspected violation of these Terms of Service by an Authorized User and will cooperate with Us to address the suspected violation.

Additional Responsibilities

While using the NYSHEX Platform and the Proactive Performance Management Service, You will (a) be responsible for You and Your Users’ compliance with these Terms of Service, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the NYSHEX Platform and notify Us promptly of any such unauthorized access or use of which you become aware, and (c) be responsible for payment of all Fees owed to Us for Your use of the NYSHEX Platform and the Proactive Performance Management Service.

Restrictions

You will not do or attempt to do (and will not permit others to do or attempt to do) the following:

allow anyone other than the Authorized Users to access or use the NYSHEX Platform for the Proactive Performance Management Service from Your Access Credentials;
interfere with or disrupt, or attempt either, the NYSHEX Platform or Proactive Performance Management Service (or any related systems or networks);
use or permit your Authorized Users to use the NYSHEX Platform or Proactive Performance Management Service other than for Your internal business purposes;
copy, modify, or distribute (or redistribute) any portion of the NYSHEX Platform or the Proactive Performance Management Service;
rent, lease, sell, convey, assign, share, circulate, publish, retransmit, or resell the Proactive Performance Management Service, in any form, to any third party (including any service bureau or similar environment) without Our consent;
transfer any of Your access rights or any other rights given to You in these Terms of Service;
defeat, disable or circumvent any protection mechanism related to the NYSHEX Platform; and
access, view, read, modify, reverse compile, reverse assemble, disassemble, alter, tamper with or otherwise reverse-engineer the NYSHEX Platform and/or Proactive Performance Management Service in order to build a competitive product or service.

Section 3. Fees

The nonrefundable fee for the Proactive Performance Management Service will be charged o as indicated on Your Summary of Commercial Terms form. We reserve the right to amend the fee at our sole discretion. Failure to pay the fee may result in the suspension of the Proactive Performance Management Service or termination by Us for breach under these Terms of Service.

Section 4. Term and Termination

Term and Termination for Convenience

Your annual subscription to the Proactive Performance Management Service is effective the day You first accept these Terms of Service (Effective Date). The subscription may be cancelled by You or by Us by providing thirty (30) days’ written notice to NYSHEX prior to the end of the then current term. Your subscription will renew automatically for additional one (1) year terms until cancelled.

Termination for Breach

In the event of a material breach of these Terms of Service, the nonbreaching Party must provide written notice of the breach to the breach Party immediately upon discovery. The nonbreaching Party may terminate the Subscription if the breach is not cured within thirty (30) days. Your failure to pay fees owed to Us will be considered a material breach of these Terms of Services.

Obligations After Termination.

Upon termination of the Proactive Performance Management subscription for any reason:

You must pay any fees owed to Us in full for the services up to and including the termination date;
All licenses granted to You under these Terms of Service will terminate;
NYSHEX will immediately terminate access to the NYSHEX Platform and Proactive Performance Management Service;
Any term or obligation of these Terms of Service that survive termination will continue to be in effect.

Survival

The Data Processing Agreement, the Confidentiality Agreement, and the Parts and Sections of these Terms and Conditions entitled "Obligations After Termination,” “Representations, Warranties, Disclaimers, Limitations of Liability, and Indemnification,” and "General Provisions" will survive any termination.

Part 4. Confidentiality

Section 1. Confidential Information

For purposes of these Terms of Service, “Confidential Information” means any technical or business information disclosed by either Party that:

Is in writing and marked “confidential” or “proprietary” at the time it is disclosed;
If disclosed orally, it is identified as “confidential” or “proprietary” at the time it is disclosed, and is summarized in a writing sent by the Disclosing Party within thirty (30) calendar days after it is disclosed; or
Under the circumstances and/or based on the nature of the information, it would be reasonably understood that the information disclosed is confidential or proprietary.

For clarification, Our Confidential Information includes, but is not limited to all data residing on the NYSHEX Platform obtained in conjunction with use or access to the NYSHEX Platform and the Proactive Performance Management Service.

At no time will We provide You with access to the commercially sensitive information of Your competitors nor will We permit the sharing of commercially sensitive information between competitors.

Section 2. Maintaining Confidential Information

With regard to Confidential Information, the Receiving Party agrees:

To maintain the disclosing Party’s Confidential Information in strict confidence and to protect the disclosing Party’s Confidential Information in the same manner as it protects its own;
Not to use the disclosing Party’s Confidential Information, or to permit it to be accessed or used, for any purpose other than to perform its obligations under these Terms of Service; and
Not to disclose the disclosing Party’s Confidential Information to third parties. Disclosure may be made to the receiving Party’s representatives on a need-to-know basis (i.e., employees, officers, directors, auditors, attorneys, tax advisors, consultants, financial advisors and similar professionals) so long as those representatives are bound by confidentiality obligations no less restrictive than those in this Part 4.

These obligations do not apply to any information that:

Is or becomes generally known to the public through no fault of or breach of these Terms of Service by the receiving Party;
Was already known, without restrictions on its use or disclosure, by the receiving Party at the time of disclosure;
Is independently developed by the receiving Party without access to the disclosing Party’s Confidential Information; or
That was rightfully obtained from a third party who shared the information without breaching any confidentiality obligations between the third party and the disclosing Party.

Either Party may disclose:

If required or ordered to do so by a court, administrative agency, or other governmental body; provided, that if legally permitted, the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement or limit the scope of such request; or
As required under applicable securities regulations.

Section 3. Duration

These Confidentiality Provisions will remain in effect during the entirety of Your subscription to the Proactive Performance Management Service and for a period of two (2) years after the expiration or termination of Your subscription, except with regard to trade secrets of the disclosing Party. Trade secrets will be held in confidence for as long as they remain trade secrets.

These Confidentiality Provisions do not prevent Us or any of our employees or representatives from using or disclosing ideas, concepts, practices, learning, information or know-how or technology developed or learned in the course of providing the Proactive Performance Management Service that relates to software development or programming or other aspects of Our business activities.

Section 4. Return and Retention of Confidential Information

Upon the disclosing Party’s request, the receiving Party will promptly return to the disclosing Party all tangible items and embodiments containing or consisting of the disclosing Party’s Confidential Information and all copies thereof (including electronic copies) and provide the disclosing Party with a statement certifying the receiving Party’s compliance. Notwithstanding the foregoing, the receiving Party may retain a copy of the Confidential Information that is:

Required by Law or its records retention policies,
Created by automatic electronic archiving or backup processes in the ordinary course of business, and
Any portion of the Confidential Information that consists of and/or is contained in analysis, summaries, compilations, calculations, forecasts, studies or other documents prepared by the receiving Party. Any Confidential Information retained will be held and kept confidential by the receiving Party in accordance with the terms of this Agreement.

Section 5. Ownership of Confidential Information

All Confidential Information is and will remain the sole and exclusive property of the disclosing Party. These Terms of Service do not grant any rights to the receiving Party to any Confidential Information of the disclosing Party, or any patent, copyright or other Intellectual Property Rights of the disclosing Party, except as expressly specified in these Terms of Service.

Section 6. Your Acknowledgement

You and We agree that the unauthorized use or disclosure of any Confidential Information would cause disclosing Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the disclosing Party will have the right to obtain immediate equitable and/or injunctive relief to enjoin any unauthorized use or disclosure of Confidential Information, in addition to any other rights or remedies that the Parties may have at law or otherwise, without the necessity of posting a bond even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.

Part 5. Representations, Warranties, Disclaimers, Limitations of Liability, and Indemnification

Section 1. Representations, Warranties, and Disclaimers

The NYSHEX Platform and the Proactive performance management Service are provided “AS-IS, WHERE-IS, AND AS AVAILABLE.” We make no representations or warranties of any kind, express or implied, including those regarding MERCHANTABILITY, ACCURACY, availability, completeness, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. We DISCLAIM ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

Section 2. Limitation of Liability

Limitation of Liability

EXCEPT AS SET FORTH IN part 4 section 3, To the fullest extent permitted by law, NO EVENT will EITHER PARTY OR ITS AFFILIATES AND SUPPLIERS be liable under this Agreement for any (i) indirect, special, incidental, consequential, exemplary, or punitive damages; or (ii) loss of use, data, business, revenues, or profits (in each case whether direct or indirect).

Total Liability

EXCEPT AS SET FORTH IN PART 4 SECTION 3, To the fullest extent permitted by law, neither party’s aggregate liability under this Agreement will exceed the amount paid by You to Company during the twelve (12) months preceding the INCIDENT GIVING rise to such liability.

Section 3. Indemnification

We will, at Our own expense, indemnify You, Your affiliates and any of Your partners, directors, officers, employees and agents from, any and all third-party claims and any and all resulting damages, awards, and reasonably incurred costs and expenses (including reasonable attorneys’ fees) resulting from any claim that any services, systems, or technology provided by or on behalf of Us violates, infringes upon, or misappropriates any intellection property rights of any third party including, but not limited to, patents and/or copyrights.

The indemnification obligations above are predicated upon You:

Giving Us prompt written notice of any claim;
Reasonably cooperating with Our full control of the defense or settlement of such claim.

No compromise or settlement that imposes any obligation or liability on You, or that includes an admission of fault by or on the part of You, will be entered without the Your prior written consent. You may at Your own expense, employ separate counsel to monitor the defense or settlement of any such claim.

Part 6. General Provisions

Section 1. Notice

You should direct notices to US via email or mail. NYSHEX can be notified via phone at (646) 480- 1663, email at legal@nyshex.com, or in writing to: NYSHEX, LLC, Attn: Legal and Compliance One World Trade Center, 61^st Fl, New York, NY 10007.

We will direct notices to You via the email address or mailing address in our records.

Section 2. License to Use Feedback and Logos

You grant to Us and Our Affiliates a worldwide license to use and incorporate any feedback provided by You, and to use Your name and logo in Our or Our Affiliate’s marketing materials and on Our Website. This license will not be subject to a term limit or royalty and is not revocable by You. You reserve all rights, title, and interesting in and to Your Logo.

Section 4. Agreement to Governing Law and Jurisdiction

This contract is governed by the laws of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts in New York, and You consent to the governance of NYSHEX under United States law and regulations.

Section 5. Dispute Resolution

The Parties agree to negotiate any disputes under these Terms of Service in good faith. If the Parties cannot reach an agreement within thirty (30) days, the Parties agree that the dispute will be resolved by arbitration before an arbitrator and administered by JAMS following its Comprehensive Arbitration Rules and Procedures.

Section 6. Severability

In the event any provision of these Terms of Service is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.

Section 7. Force Majeure

Neither Party will be liable or responsible hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such Party, which may include denial-of-service or other cyberattacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics or epidemics, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, rolling blackouts, national or regional emergency and internet connectivity disruptions.

Section 8. Electronic Signature

The Parties agree and consent to the use of electronic records and electronic signatures for the execution of this SOW. The term electronic signature means an electronic symbol attached to or logically associated with an agreement or amendment and executed or adopted by a person with the intent and authorization to sign the SOW or amendment to the SOW.

Section 9. Entire Agreement and Order of Precedence

Entire Agreement

These Terms of Service and any applicable Data Processing Agreement are the sole agreement between You and Us regarding Your use of the NYSHEX Platform and Proactive Performance Management Service. Any changes or waivers to this Agreement must be agreed to in writing.

Order of Precedence

The following order of precedence applies absent an express statement that one provision or term in another document constituting part of the Agreement takes precedence over another or applies notwithstanding the other:

Any applicable Data Processing Agreement,
The Summary of Commercial Terms; and
These Terms of Service.