Service Agreement
SOFTWARE AS A SERVICE AGREEMENT This Software as a Service Agreement (the “Agreement”) is entered into on (Date: ) (the “Effective Date”), between Priority-1, Inc. d/b/a Cabotage TMS™ (“Licensor”) with offices located at 1800 E. Roosevelt Road, Little Rock, AR 72206 and (Name: ), an entity organized under the laws of the state of with offices located at (Address: ) (“User”). For purposes of this Agreement, User and Licensor each will be referred to individually as a “Party” and together as the “Parties.” For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. License and Service.
(a) Services. Licensor shall be provided access to Licensor’s proprietary transportation management system, Cabotage TMS™ (“Cabotage TMS™” or “Service/Services”), and subject to and conditioned on User’s compliance with the terms and conditions of this Agreement, Licensor hereby grants User a limited, non-exclusive non-transferable license, without right of sublicense, during the Term to access and utilize Cabotage TMS™ for booking less than truckload shipments in the United States, Mexico, and Canada. Cabotage TMS™ will provide User the capability of booking loads using either User’s existing Customer Direct Pricing or Priority-1’s available pricing. However, User shall have no ability to access Priority-1 pricing for any carrier for which there is Customer Direct Pricing. Cabotage TMS™ shall enable User to access to Priority-1 pricing for other Priority-1 carriers (“Priority-1 Pricing”).
(b) Customer Direct Pricing: User has obtained customer direct pricing from certain carriers and wishes to utilize Cabotage TMS™ to book shipments utilizing its customer direct pricing for those carriers specifically identified in this subparagraph. To enable Licensor to load User’s pricing into Cabotage TMS™, User shall provide Licensor with necessary credentials to enable Licensor to load such pricing into Cabotage TMS™ for the carriers identified here (“Customer Direct Pricing”):
(c) Grant. Licensor hereby grants the User a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access and display on User’s Display Devices within the United States, the Service, and to permit Authorized Users to use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to Licensor. An Authorized User is User’s employee, consultant, contractor, and agent (a) who is authorized by User to access and user the Services under the rights granted to User pursuant to this Agreement; and (b) for whom access to the Services has been purchased by User hereunder.
(d) Scope of Intellectual Property License. Other than the afore-mentioned license, nothing in this Agreement grants any right, title, or interest in or to any intellectual property rights in or relating to the Services, whether expressly, by implication, estoppel, or otherwise.
(e) Restrictions Use. User shall not, and shall not permit anyone to, access or use the Services except as expressly permitted by this Agreement. User shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright, trademark, and proprietary rights notices. User may not, and may not permit others to:
(i) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
(ii) modify, translate, adapt, alter, or create derivative works from the Service;
(iii) copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service; or
(iv) bypass or breach any security device or protection, or permit anyone to access or use the Service with any device other than their own valid access credentials;
(v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede in any manner the access and use of Service by any third-party user under a valid license by Licensor;
(vi) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property Right or other right of any third party, or that violates any applicable Law;
(vii) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to the Licensor’s detriment or commercial disadvantage;
(viii) distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Service to any third party.
(f) User Requirements. Cabotage TMS™ is an internet-based service that is accessed over the internet. Adequate bandwidth is required to provide a responsive experience. Bandwidth requirements vary based on the volume on a User’s network. Bandwidth is not the only determining factor for application responsiveness. Among other factors, network related items such as latency and reliability of the network service may affect the application response. If you are unsure whether your system has adequate bandwidth, you should consult with your internet service provider or IT professional.
(g) Changes. Licensor reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Licensor’s services to its customers; (ii) the competitive strength of or market for Licensor’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable laws.
(h) Suspension or Termination of Services. Licensor may, directly or indirectly, and by use of a device or any other lawful means, suspend, terminate, or otherwise deny User’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Licensor receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Licensor to do so; or (b) Licensor believes, in its good faith and reasonable discretion, that: (i) User or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) User or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated.
(i) Data Backup. The Services do not replace the need for User to maintain regular data backups or redundant data archives. LICENSOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF USER’S DATA.
2. Fees and Payment.
(a) Fees. For loads booked using Cabotage TMS™ and Customer Direct Pricing (“CDP Loads”), Priority-1 shall receive a fee of $ per load billed monthly with a minimum monthly total of such fees of $ . Fees for CDP Loads shall be invoiced monthly. For all loads booked using Cabotage TMS™ and Priority-1 Pricing, such shipments shall be invoiced and billed pursuant to Priority-1’s standard terms and conditions as set forth here: https://priority1inc.com/terms-and-conditions/
(b) Late Payments. If User fails to pay the fees for CDP Loads within fifteen (15) days of invoice, Licensor shall be entitled to interest from the day on which the fees are due. Both parties agree that the rate of interest on overdue invoices shall be 1.5 per cent per month.
(c) Taxes. User will be responsible for, and will promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of User) that are based on or with respect to any Services or goods provided by Licensor to User, or the amounts payable to Licensor therefore.
(d) Setup Fee. User will be responsible for a one-time setup fee of $ for each Customer Director Pricing carrier identified in Section 1(b) above. Setup fees will be included on User’s monthly invoice.
3. Freight Claims. With regard to any and all claims that may arise related to shipments booked through Cabotage TMS™ using Cabotage TMS™ and Customer Direct Pricing, including but not limited to claims for damage, loss or delay of cargo, Licensor shall bear no responsibility whatsoever with regard to any billing, auditing functions, processing of claims, rate discrepancies, rate disputes, accuracy of rate information, or any other similar or related matters. User accepts full responsibility for the selection of carriers and agrees to indemnify and hold Priority-1 harmless for any and all claims, disputes, demands, actions, complaints or legal actions pertaining to any shipments booked using Cabotage TMS™ or any customer, carrier or other third-party issues related thereto. User retains final authority for selection of carriers. User acknowledges and agrees that carrier selection dictates claims processing and limits of liability, on-time service levels, and pricing. Priority-1 shall bear no obligation whatsoever with regard to processing, handling or assisting customer with claims of any kind involving shipments booked through Cabotage TMS™. For all loads booked using Cabotage TMS™ and Priority-1 Pricing, claims that may arise related to such shipments shall handled in accordance with Priority-1’s standard terms and conditions as set forth here: https://priority1inc.com/terms-and-conditions/
4. Access. The Service is delivered to User via the internet via User’s own computers, computer network(s), and other equipment. All Authorized Users must access and use Services only by using properly assigned valid access credentials. Licensor will make the Service available to User as of the Service Start Date. The Service will be deemed accepted by User upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by User on the day such Corrections are delivered.
5. Verification. During the term of this Agreement and for one year thereafter, and upon a reasonable and determinable belief that a violation may have occurred, Licensor and/or its designated representatives, shall have the right to audit User’s workstations and devices utilized by User to access the Service, to verify its compliance with the terms of the Agreement and identify any unauthorized use, distribution or copying of the Service. Licensor shall conduct such audits during User’s normal business hours and in such a manner not to unreasonably interfere with User’s normal business operations.
6. Copyright Protection; Use Restrictions; Security. User agrees that the Service and specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors. The works and databases included in the content of the Service are protected by applicable copyright laws. User agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of User or independent contractors consulting for User in the ordinary course of User’s business may be Authorized Users. User shall not reverse engineer, decompile or disassemble any part of the Service. User further agrees that neither User nor any Authorized User shall store, copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of User, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by User be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. User agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Licensor.
7. Disclaimer. USER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8. Indemnification.
(a) User Infringement Indemnity. User, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which directly relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party (each a “Licensor Claim”) that arise out of or result from:
(i) User’s data, including any processing of User’s data by or on behalf of Licensor in accordance with this Agreement;
(ii) Any other materials or information provided by or on behalf of User or any Authorized User, including Licensor’s compliance with any specification or direction provided by or on behalf of User or any Authorized User to the extent prepared without any contribution by Licensor;
(iii) Allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(iv) Gross negligence or more culpable act or omission (including recklessness or willful misconduct) by User, any Authorized User, or any third party on behalf of User or any Authorized User, in connection with this Agreement.
(b) Licensor Infringement Indemnity. Licensor, at its expense, will defend, indemnify, and hold User harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against User which directly relate to a claim, action, lawsuit, or proceeding made or brought against User by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “User Claim”) by way of User’s use of the Service in accordance with this Agreement. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(i) Third-party materials or customer data;
(ii) Access to or use of Service in combination with any hardware, system, software, network, or other materials or service not provided by Licensor, unless otherwise expressly permitted by Licensor in writing;
(iii) Modification of any materials provided to User by Licensor as part of Service without prior written approval by Licensor; or
(iv) Failure to timely implement any modification, upgrade, replacement, or enhancement made available to User by or on behalf of Licensor.
9. Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (“THE PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO USER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY USER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. USER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST LICENSOR RELATING TO ANY BREACH OF THIS AGREEMENT BY USER.
10. Term; Early Termination. This Agreement shall become effective as of the Effective Date and the initial Term shall be thirty (30) days. This Agreement shall automatically renew for subsequent like terms unless either party gives the other written notice of its intention not to renew no later than five (5) business days prior to the end of the then-current term. Modifications in any ongoing Fees in connection with access to the Service shall be communicated to User no later than thirty (30) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Agreement. This Agreement may be terminated as follows: (a) if either party commits a breach of any provision of this Agreement (other than payment) and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching party (“Notice of Breach”), the party giving such notice may then deliver a second written notice to the breaching party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; (b) if User fails to make payment within the terms set forth in this Agreement; or (c) if a receiver is appointed over any assets of either party or if either party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. Upon termination, User shall immediately cease all use of any Service and Licensor may disable all User’s and Authorized User’s access to Services. Notwithstanding anything to the contrary contained in this Agreement, if User receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor’s Credit Department), such notice will be deemed to be a Notice of Breach.
11. Confidentiality. User and Licensor understand and agree that in the performance of this Agreement each party may have access to private or confidential information of the other party which either is marked as “confidential” or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other party. Each of us shall hold such information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. The Parties mutually agree to hold in the strictest confidence any and all rate agreements, tariffs, contracts and general Information disclosed by the other and also agree not to disclose any information/data to any third party without prior written permission. This obligation of confidentiality shall not apply to information that is generally available to the public through no act or omission of the receiving party or becomes known to the receiving party through a third party with no obligation of confidentiality, or is required to be disclosed by law, court or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation or order of any court of competent jurisdiction, before any such disclosure the receiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other restriction regarding such disclosure. All confidential information will remain the exclusive property of the owner. No public announcement, press release or communication concerning this Agreement shall be made without the prior consent of the other party.
12. Miscellaneous.
(a) Notice. All notices to a party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth above, or to a different address which a party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received.
(b) Amendment. The parties acknowledge that User is responsible for notifying Vendor directly of any Vendor-related issues. This Agreement may not be amended except in a writing executed by authorized representatives of User and Licensor.
(c) Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by User in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns.
(d) Survival. The following obligations of the parties will survive termination or expiration of this Agreement for any reason: Sections 6, 7, 8 and 9 (but only for three (3) years after such termination or expiration), and Section 11 of this Agreement, and any payment obligations of User that accrue prior to such termination or expiration.
(e) Independent Contractor. Licensor is acting in performance of this Agreement as an independent contractor.
(f) Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement.
(g) Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter. (h) Injunctive Relief. If User breaches Section 1 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and User acknowledges and agrees to not contest such application.
(i) Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
(j) Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of Arkansas, United States of America (“Arkansas”), applicable to contracts made entirely within Arkansas and wholly performed in Arkansas, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Little Rock, Pulaski County, Arkansas.
(k) Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, pandemic, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, embargoes, blockades, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Licensor.
(l) Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
(m) Authority. The undersigned represents and warrants that he or she is authorized to execute this Agreement on behalf of the designated party. [Signature Page to Follow]
WHEREFORE, the Parties hereto have signed this Agreement as of the Effective Date above.
Cabotage TMS™ User:
By: _______________________ By: _________________________