Terms of Service

Last updated on June 6, 2023.

1. GRANT & SCOPE OF RIGHTS

1.1 Grant of Right to Use. Subject to the terms and conditions contained herein, The Company grants to the Customer from the Commencement Date and during the Term a non-exclusive right to use and access the Service in accordance with these Terms and Conditions.

1.2 Internal Use Only. The Customer shall be entitled to use the Service for its own internal business purposes only, including, for the avoidance of doubt, to support its own any third party to use the Service nor use these on behalf of or, other than as set forth in the preceding sentence, for the benefit of any third party in any way whatsoever (e.g., but without limitation, for operating a bureau service). The Customer shall notify The Company immediately if the Customer becomes aware of any unauthorized use of the Service by any third party.

1.3 Restrictions on Use. The Customer shall have no right to and agrees not to adapt, reverse engineer, decompile, disassemble or modify the Software in whole or in part. The Customer further shall have no right to, nor shall permit the Software (or any part thereof) to be combined with or become incorporated in any other software programs, except to the extent expressly permitted by applicable law.

1.4 No Assignment or Grants by Customer. The Customer shall have no right to assign its rights to use or access the Service over or grant any access or use rights for the Service without The Company’s prior written consent.

2. ACCESS & SECURITY

2.1 Access. The Company shall permit Customer to access the Service beginning on the Commencement Date, or as soon thereafter as practicable.

2.2 Suspension or Termination of the Service. The Company may, directly or indirectly, by any lawful means, suspend, terminate or otherwise deny the Customer’s or any other person’s access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (a) The Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires The Company to do so; or (b) The Company believes, in its good faith and sole discretion, that: (i) the Customer has failed to comply with, any material term of this Agreement, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction (ii) the Customer has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any use of the Service; or (iii) this Agreement expires or is terminated. This Section 2.2 does not limit any of The Company’s other rights or remedies, whether at law, in equity or under this Agreement. (iv) Upon termination of the Service, the Customer shall be given 90 days to download any data specific to their business.

3. FEES & PAYMENTS

3.1 Payment Terms. All sums payable under this Agreement are quoted net of any taxes and shall be both stated in and payable in US Dollars. The Customer will be charged on a per Active Truck basis, Active Trucks are defined as any truck, within the Company system, which completed at least one load that was concluded within the previous calendar month. The Customer shall pay the Subscription Fee and any other charges payable by it in connection with this Agreement (collectively, the “Fees”) and any applicable taxes invoiced by The Company to Customer upon receipt of the invoice from The Company (or such later due date as may be identified in such invoice, if any). Customer shall be responsible for the payment of any sales, use, property or excise taxes, whether paid to The Company or not, but shall not be responsible for taxes on The Company’s net income.

3.2 Late Payment. If any sum payable under this Agreement (after, as well as before judgment) is not paid within seven days after the applicable due date then, without prejudice to The Company’s other rights and remedies, The Company shall be entitled to charge interest (from the due date until payment) on such sum at the maximum rate permitted by law, but no more than 1.5% per month calculated on a daily basis. Such interest shall be paid by the Customer on demand by The Company. The Company shall have the right to restrict or suspend the Customer’s access to or use of the Service until any past due payment (including any interest thereon) is made. This Section 3.2 does not limit any of The Company’s other rights or remedies, whether at law, in equity or under this Agreement.

3.3 Increase in Subscription Fees. The Company may increase the Subscription Fee once annually. Unless otherwise set forth on the applicable Schedule, Subscription Fees are payable monthly on the 1st of each month and will but charged on a recurring automated basis.

4. WARRANTY, DISCLAIMERS & FAULT CORRECTION

4.1 THE SERVICE IS PROVIDED “AS IS” AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, ITS FUNCTIONS OR RESULTS OF THE USE THEREOF (INCLUDING ANY SERVICE OUTPUT), WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS OR BE SUITABLE FOR THE CUSTOMER’S INTENDED USE, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, OR BE SECURE, ACCURATE, COMPLETE OR ERROR-FREE.

4.2 Notification of Faults. The Customer shall promptly notify The Company of any Fault of which the Customer becomes aware and provide The Company (insofar as the Customer is reasonably able) with a documented example of such Fault.

4.3 Co-operation of Customer. The Customer shall reasonably co-operate with any reasonable request made by

The Company and its Representatives in connection with the diagnosis, investigation and correction of any Fault, including (without limitation) by allowing The Company’s Representatives reasonable access to the Customer’s premises and the Customer’s information technology infrastructure and networks.

5. MAINTENANCE AND SUPPORT SERVICES & CONSULTING SERVICES

5.1 Customer Responsibilities. The Customer agrees to provide all assistance and information reasonably necessary for The Company to provide any Maintenance and Support Services (such assistance and information are “Supporting Materials”). All services provided by The Company as part of providing Maintenance and Support Services are based upon information provided by the Customer and any inaccuracies or insufficiencies in such information will affect The Company’s ability to provide Maintenance and Support Services. The Customer acknowledges that any failure by the Customer to provide all Supporting Materials will excuse The Company from providing those Maintenance and Support Services that are dependent upon The Company receiving full and accurate Supporting Materials until such Support Materials are received.

5.2 Maintenance Term and Termination. The term for the Maintenance and Support Services shall begin on the Commencement Date and shall terminate automatically upon the earlier of the termination of the then current Subscription Term or the termination of this Agreement. In the event that the Customer’s access to the Service is restricted or suspended by The Company for non-payment of any payments due under this Agreement pursuant to Section 3.2, the Maintenance and Support Services shall be suspended automatically until payment (including any interest thereon) has been made in full.

6. INTELLECTUAL PROPERTY RIGHTS, RELATED INDEMNITY & CONFIDENTIALITY

6.1 Intellectual Property Rights. The copyright, trade mark and other intellectual property rights in the Software, the Service shall remain the exclusive property of The Company and its Licensors and no ownership rights in any intellectual property in the Service, the Software is granted or transferred to the Customer under this Agreement. The Customer shall not remove or alter any copyright, trade mark or other proprietary notice are expressly reserved by The Company and the respective Licensors. In furtherance of the foregoing, the Customer hereby unconditionally and irrevocably grants and assigns to The Company all right, title and interest in and to the Service Output, including all intellectual property rights relating thereto.

7. LIMITATION & EXCLUSION OF LIABILITY

7.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY AND ITS LICENSORS SHALL NOT HAVE ANY LIABILITY TO THE CUSTOMER (OR ANY PERSON CLAIMING UNDER OR THROUGH THE SAME) FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING FROM OR IN CONNECTION WITH (I) THE USE OF THE SERVICE, PERFORMANCE OF THE SOFTWARE (WHETHER OR NOT IN THE MANNER PERMITTED BY THIS AGREEMENT), OR (II) ANY FAULT AND ALL OTHER OBLIGATIONS OF THE COMPANY AND ITS LICENSORS SHALL BE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

8. INDEMNITY BY CUSTOMER

8.1 Customer shall defend, indemnify and hold harmless The Company and its employees, officers, directors and Licensors (collectively, the “The Company Indemnified Parties”) from and against any reasonable losses, damages, costs (including legal fees) and expenses incurred by the The Company Indemnified Parties in connection with any claim or action brought by a third party arising out of or in connection with:

(a) use by the Customer (or its Representatives or other authorized user) of the Service other than in accordance with this Agreement

(b) any allegation of facts, that, if true, would constitute a breach of any of its representations, warranties, covenants or obligations Agreement by the Customer;

(d) Customer Data, including any Processing of Customer Data in connection with Customer’s use of the Service in accordance with this Agreement;

(e) the use of the Service in conjunction with Service Output which claim or action would not have occurred for use solely of the Service; or

(f) the failure of the Service to function or provide accurate results because of erroneous or incomplete data; or

(g) use of the Service by Customer or its Representatives or other authorized user in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose.

9. TERM & TERMINATION

9.1 Term. This Agreement shall continue in effect until (a) it is terminated by the Company or the Customer with 30 days written notice, (b) it is terminated in accordance with Section 9.2, (c) upon written notice by The Company, if any payment due under this Agreement is not made within thirty days after it is due, or (d) automatically upon the expiration of the Subscription Term for the Service under all then current Schedules to this Agreement such that the Customer has no active subscription to the Service hereunder.

9.2 Termination for Cause. Each party shall be entitled to terminate this Agreement forthwith upon written notice to the other, if the other party:

(a) commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) has failed to remedy the breach within thirty days after the receipt of a request in writing from the other party to do so;

(b) has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party enters into any voluntary arrangements with its creditors or becomes subject to an administration order or ceases to carry on business or anything analogous occurs in any jurisdiction.

9.3 Effect of Termination. Except as expressly provided in this Agreement, the Customer shall not be entitled to any refund or repayment of all or any of the Subscription Fee or any other Fees upon termination of this Agreement. Upon termination of this Agreement any and all unpaid Fees associated with any Schedule, including those associated with future periods, shall become immediately due and payable.

9.4 Accrued Rights. The termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

10. MISCELLANEOUS

10.1 Export Administration. The Customer shall comply fully with all relevant export laws and regulations in connection with its use of the Service, including but not limited to the laws and regulations of the United States (collectively “Export Laws”). Without limiting the generality of the foregoing, the Customer shall not and shall require its Representatives not to export, direct or any direct product thereof to any destination, person or entity restricted or prohibited by the Export Laws. The Customer shall defend, indemnify and hold The Company harmless from and against all claims and liability relating to a breach of this Section 10.1.

10.2 Force Majeure. Neither party shall in any circumstances be liable to the other for any loss of any kind whatsoever (including but not limited to any damages) whether directly or indirectly caused to or incurred by the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to circumstances or causes beyond its reasonable control including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes, strikes, riots and acts of civil and military authorities.

10.3 No Waiver. Failure by either party hereto to enforce any rights under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver of a breach of any provision hereof in any one or more instances be construed as constituting a continuing waiver or as a waiver in other instances. No waiver by any party of any of the provisions hereof shall be effective unless set forth in writing and signed by the party so waiving.

10.4 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.5 No Third Party Rights. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and, except for the third party beneficiaries under Section 5.1, is not intended to convey any rights or benefits to any third party, nor shall this Agreement be interpreted to convey any rights or benefits to any person except the parties hereto.

10.6 Assignment.

The Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without The Company’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving the Customer (regardless of whether the Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which The Company’s prior written consent is required. No delegation or other transfer will relieve the Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 10.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

10.7 Amendment. No amendment or modification of this Agreement shall be effective unless it is set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.

10.8 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

10.9 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

10.10 Notices. Notices under this Agreement shall be in writing, and shall be sent to the other party at the address set out for such party in the Service Schedule (or such other address that such party may designate from time to time by notice to the other party in accordance with this Section 10.10). Notices may be delivered by hand or sent by national overnight courier, US certified or registered mail (return receipt requested), or by e-mail (with confirmation of transmission). Notices shall be deemed delivered (a) on receipt, when delivered by hand or by national overnight courier, (b) on the fourth day after the date mailed by certified or registered mail, and (c) when sent, if sent by e-mail (with confirmation of transmission) if sent during the receiving party’s normal business hours, and on the next business day if sent after the receiving party’s normal business hours.

10.11 Entire Agreement. This Agreement (including the Schedules) constitute the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to such subject matter.

10.12 Governing Law And Jurisdiction. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware, without giving effect to its conflict of laws rules.

10.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail (including .PDF attachment) or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement