This Ogre End User Agreement ("Agreement") is made as of the Effective Date, by and between Simplified Logistic Solutions, LLC ("SLS") and [Company] ("Customer"). SLS and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement.
ARTICLE 1: RECITALS AND DEFINITIONS
Section 1.01 - Definitions: The following definitions shall apply:
(1) Authorized Person: The term "Authorized Person" shall mean a person or organization who is authorized in writing by SLS to receive Proprietary Information and who agrees to maintain the propriety and confidentiality of such Proprietary Information.
(2) Data: The term "Data" shall mean any and all information, records, etc. loaded into Ogre by the Customer or SLS, including, without limitation, bill of lading, carrier, origin, destination, billing and other information.
(3) Effective Date: The term "Effective Date" shall mean the date Agreement is signed with a Signature by SLS and Customer.
(4) Electronic Signature: The term “Electronic Signature” shall mean an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a Party with the intent to sign the Agreement.
(5) Fee Schedule: The term "Fee Schedule" shall mean that certain schedule of fees and payment terms for access to the Software and use of the Services by Customer as described in Attachment A.
(6) Password: The term "Password" shall mean a string of alphanumeric characters selected by the Customer which is at least eight (8) digits in length and containing at least one special character or number.
(7) Proprietary Information: The term "Proprietary Information" shall mean the Password, Data and any and all information in connection with Ogre which is disclosed to Customer by SLS or learned or obtained by Customer and is not: (i) conveyed to Customer by a third party; (ii) released by SLS without restriction; (iii) independently developed by Customer; and (iv) required by court order to be released by Customer.
(8) Services: The term "Services" shall mean those certain transportation management system and services as provided by SLS to Customer through the Software.
(9) Signature: The term "Signature" shall mean using any symbol executed or adopted with present intention to adopt or accept this Agreement, including an Electronic Signature.
(10) Software: The term "Software" shall mean that certain software that contains tools for managing transportation services, which is referred to by the Parties as Ogre, as made accessible to Customer by SLS via the Internet.
(11) Subscriber Fee: The term "Subscriber Fee" shall mean those certain fees charged by SLS to Customer for access to the Software and use of the Services under this Agreement for the Term, as identified in the Fee Schedule.
(12) System: The term "System" shall mean computer systems and communications equipment owned, licensed or leased by SLS and used for hosting the Subscriber Technology.
(13) Term: The term "Term" shall have the meaning established in Section 3.01 herein.
(14) Unauthorized Access: The term "Unauthorized Access" shall mean any access to the Software and the Services except for the exclusive purposes of using the Services; accessing, retrieving, and viewing Data; inputting, retrieving, modifying, or deleting Subscriber Content; and creating Subscriber Technology.
(15) Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses the Software or the Services except for: (1) employees of Customer authorized by Customer to access the Software or the Services for purposes of using the Services; accessing, retrieving, and viewing Data; inputting, retrieving, modifying, or deleting Subscriber Content; and creating Subscriber Technology, and (2) Authorized Persons who are authorized in writing by SLS to access the Software and the Services.
ARTICLE II: SCOPE OF SERVICES
Section 2.01 - Access: SLS hereby grants Customer a non-exclusive and non-transferable license to access the Software, Services, Deliverable, and Documentation during the Term, subject to the terms and provisions of this Agreement.
Section 2.02 - Unauthorized Access: Customer shall prevent Unauthorized Users from accessing the Software and the Services using the Password. Customer shall prevent Unauthorized Access to the Software and the Services using the Password.
Section 2.03 - Lawful Purpose: Customer represents and warrants that Customer's access to Ogre shall not violate any contract, statute, rule, regulation or other obligation under which Customer is bound. Customer represents and warrants that Customer shall not access Ogre or Services to conduct or solicit the performance of any business or activity that is tortuous or prohibited by law.
ARTICLE III: TERM OF AGREEMENT
Section 3.01 – Term: The term of this Agreement shall be for one month, starting on the Effective Date and renewing automatically month to month until a new agreement is signed or one year has elapsed without Customer initiating another transaction with SLS.
Section 3.02 - Termination: Either Party may terminate this Agreement for convenience upon providing thirty (30) days advance written notice of termination to other party, provided it is past the minimum subscription period set forth in the Fee Schedule.
Section 3.03 - Cancellation for Cause: If Customer fails to comply with any obligation under this Agreement, SLS may cancel this Agreement by sending notice cancelling this Agreement (“Cancellation Notice”) describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such Cancellation Notice to cure any such noncompliance. If such noncompliance is not cured within the ten-day period, SLS shall have the right to cancel this Agreement as of the eleventh (11th) day following the date of the Cancellation Notice.
ARTICLE IV: FEES, CHARGES AND SERVICES
Section 4.01 - Subscriber Fee: Customer shall pay the Subscriber Fee to SLS in advance of each Term as set forth in the Fee Schedule. Neither the Subscriber Fee nor any portion thereof shall be refunded by SLS in the event of termination of this Agreement by Customer or cancellation of this Agreement by SLS.
Section 4.02 - Late Fee: Past due payments, as determined by Section 7.01 of this Agreement, shall be subject to an additional charge at the rate of 1.5% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by SLS will be applied to the invoice for which they are designated. If no invoice is designated then SLS will apply funds to the oldest (based on pick-up date) invoiced bill of lading that is outstanding. In the event this Agreement is placed by SLS in the hands of an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all collection costs including reasonable attorney's fees, (including such fees and costs incurred in the successful defense of any cross claim or counterclaim brought against SLS).
Section 4.03 - Credit Approval: Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of SLS. The Customer grants SLS the right to perform such credit and background searches as SLS deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer's shipment. The Customer authorizes SLS to charge the Customer's credit card or bank account for any charges.
Section 4.04 - Rates: “Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight classification (“NMFC”) which are weight based. All quoted or displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload (“TL”) rates are based on dock door pickup/dock door delivery and shipper load/consignee unload and are state to state and mileage based. Additional fees may apply for charges including, tractor detention, trailer detention, and driver assistance. SLS will provide documentation for any additional charges upon request. All transportation charges are made pursuant to the NMFC. Customer must tender this load to Carrier at the agreed upon rate, or pay a $250.00 "truck ordered, not used" penalty. Air freight rates are based on the greater of actual or dimensional weight. If an air freight shipment contains oversize freight, additional charges and transit days may apply. Van line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on equipment type, state to state/mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
Section 4.05 - Guaranteed Services: SLS will provide LTL guaranteed services (“Guaranteed Services”) for an additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the Carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the Carrier. The Customer is liable for all charges related to the shipment. In the event of a Carrier’s failure to comply with the Guaranteed Service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to deliver a written claim request to SLS. If SLS does not timely receive a claim request within said fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all Guaranteed Service standards and the claim request will automatically be considered invalid and denied. In the event of the Carrier’s failure to comply with the Guaranteed Service requested and after the Carrier has agreed to liability, SLS will credit the account of the said Customer with such amount awarded by the Carrier. In no event shall SLS be liable nor will any account be credited if the Customer does not use an SLS BOL.
Section 4.06 - Determination of Charges: The Customer shall be liable for all charges payable on account of such Customer's shipment. Such charges may include transportation, fuel and other applicable accessorial charges, all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. SLS reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer, (ii) if additional services by the carrier were required, or (iii) if the Customer authorized the carrier to perform the pick-up, transportation and delivery functions other than contemplated by the bill of lading. Any disputes by Customer of any invoice issued by SLS shall be made in writing, specifically indicating the nature of the dispute and received by SLS at their offices within 15 days from the date of the invoice. In the event SLS does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid.
Section 4.07 - Lien: SLS shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts more than ninety (90) days past-due by Customer.
Section 4.08 - Claims and Limitations of Liability: Customer agrees to indemnify and hold harmless SLS from, and SLS is not liable for, any loss, damage, mis-delivery or non-delivery, caused by: (i) the act, default or omission of a carrier, the Customer or any other party who claims interest in the shipment, (ii) the nature of the shipment or any defect therein, (iii) a violation by the Customer of any provision of this Agreement, the bill of lading, the carrier's Tariff, including, improper or insufficient packing, securing, marking or addressing, (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions, (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment, or (vi) the acts or omissions of any person other than employees of SLS and then only for its own gross negligence. Notwithstanding anything herein to the contrary, SLS shall not be liable to Customer or any other person for any indirect or consequential damages (such as, but not limited to loss of profits, loss of market, loss of customer goodwill, shutdown, or punitive or exemplary damages). Customer acknowledges that in order to provide competitive rates for the services, that the Parties have agreed as a material term of this Agreement that the burden of any loss or damage incurred as a result of SLS liability has been shifted to the Customer, and that the maximum amount of SLS liability is limited to the fees that SLS has earned with respect to the subject shipment.
Section 4.09 - Insurance: The Customer will look solely to insurance provided by the carrier for damage to goods in transit. Each carrier's governing Tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the Tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to SLS to help ensure timely resolution. SLS will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of Customer, SLS has a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. SLS may have optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. SLS has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.
Section 4.10 – Tariffs and Quotes: SLS has obtained, and will obtain, tariffs and quotes from its carriers (each a “Tariff” or “Quote”). In the event of a conflict in the terms of this Agreement and an applicable Tariff or Quote then in effect with a selected carrier, in every instance the Tariff or Quote shall take precedence and control in the interpretation of the rights and obligations of the Parties. If no conflict exists with respect to the carrier’s Tariff or Quote, this Agreement shall control.
ARTICLE V: INTELLECTUAL PROPERTY
Section 5.01 - Ownership and Title: Title to Ogre (excluding Subscriber Content and Subscriber Technology), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of SLS.
Section 5.02 - Proprietary Information: Customer shall not disclose Proprietary Information except to Authorized Persons. Customer shall hold Proprietary Information in strict confidence and shall not duplicate, use or disclose Proprietary Information except as otherwise permitted under this Agreement. Customer hereby acknowledges and agrees that the Proprietary Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under applicable law.
ARTICLE VI: WARRANTY
Section 6.01 - Warranty: SLS hereby represents and warrants that the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.
SECTION 6.02 - WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 6.01 IS IN LIEU OF ALL OTHER WARRANTIES BY SLS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED BY SLS EMPLOYEES OR ON ITS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON ITS WEBSITE. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. SLS DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SOFTWARE. SLS DOES NOT MAKE ANY WARRANTY AND CUSTOMER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE SOFTWARE. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES AND APPLICABLE LAWS. SLS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF CUSTOMER INABILITY TO USE THE SERVICES. UNLESS GUARANTEED SERVICES ARE REQUESTED BY THE CUSTOMER, SLS CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT SHALL SLS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.
Section 6.03 - Inaccuracies: Customer hereby acknowledges that the Data may contain errors, inaccuracies and omissions. SLS shall not be responsible for editing, correcting, modifying, reviewing or deleting any such Data. Customer shall assume any and all risk of loss, harm or damage associated with Customer access to and use of Ogre.
Section 6.04 - Limitation of Damages: SLS shall not be liable to Customer for any lost profits or consequential, exemplary, incidental or punitive damages, regardless of whether SLS has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of SLS for any reason and for any cause of action whatsoever in connection with Ogre shall be limited to the Subscriber Fee for one calendar month of access.
Section 6.05 - Force Majeure: SLS shall not be liable to Customer for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of SLS. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of Customer to cooperate with the reasonable requests of SLS, breach of this Agreement by Customer, and any other events reasonably beyond the control of SLS.
Section 6.06 - Content Warranty: Customer represents and warrants that any and all information provided by Customer in connection with this Agreement, the Ogre registration, the Password and the Services shall be true, accurate, complete and current.
Section 6.07 - Indemnification: Customer shall release, defend, indemnify and hold harmless SLS from and against any and all claims, liability, losses and damages arising in connection with: (1) Customer access to Ogre; (2) use of the Services by Customer; (3) the Subscriber Content and the Subscriber Technology; and (4) breach of this Agreement by Customer.
Section 6.08 - Loss of Subscriber Content: Programming, software design errors, maintenance of the Software and Services, or unauthorized access to the Software and Services may result in the loss of Subscriber Content. SLS shall not be responsible for any loss of Subscriber Content.
Section 6.09 - Customer Representations and Warranties to SLS: The Customer represents and warrants that at all times during the term of this Agreement, it will be in compliance with all applicable laws, rules, and regulations (“Laws”) including applicable Laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried. The Customer agrees to furnish such information and complete and attach to the SOL BOL such documents as are necessary to comply with such Laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that it has the right to act on behalf of and legally bind the Customer. SLS assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall indemnify and hold SLS harmless for any claims or damages resulting from violation of this section.
ARTICLE VII: MISCELLANEOUS
Section 7.01 - Payment: SLS will bill Customer on a per transaction basis upon receipt of carrier invoice being received and processed by SLS, or SLS will bill Customer weekly on an itemized basis. All charges are payable in US Dollars and are due and payable (30) days from the date of billing (Net 30) by credit card payment, bank wire, or check. Past due payments shall be subject to an additional charge at the rate of 1.5% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by SLS will be applied to the invoice for which they are designated. If no invoice is designated then SLS will apply funds to the oldest (based on pick-up date) invoiced bill of lading that is outstanding. In the event this Agreement is placed by SLS in the hands of an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all collection costs including reasonable attorney's fees, (including such fees and costs incurred in the successful defense of any cross claim or counterclaim brought against SLS).
Section 7.02 - Assurances: Customer represents and warrants that all representations, warranties, recitals, statements and information provided to SLS under this Agreement and the Subscriber Application are true, correct and accurate as of the Effective Date.
Section 7.03 - Severability; Integration; Time of the Essence: The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. Time is of the essence in all matters associated with this Agreement. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.
Section 7.04 - Governing Law: This Agreement is deemed executed, delivered and performed in the State of Alabama, and the substantive laws of the State of Alabama and Federal law as applied in Alabama shall govern. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Circuit Court or Federal District Court located in the County of Jefferson in the State of Alabama and each of the Parties consents to jurisdiction and venue in such court for such purposes.
Section 7.05 - Notices: All notices made in connection with this Agreement shall be deemed given only if made in writing and sent via manner with receipt requested. Notice shall be deemed received at the date and time shown on a return receipt or transmission verification. Notices shall be sent to the following addresses:
Section 7.06 - Assignments: This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that Customer may not assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of SLS.
Section 7.07 - Public Announcements: All public announcements concerning Ogre or the relationship of Customer and SLS under this Agreement shall be subject to the prior written approval of SLS.
Section 7.08 - Materiality: All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the execution and delivery of this Agreement.
Section 7.09 - Signatures: This Agreement may be executed in any number of counterparts; each of which when executed and delivered shall be an original, but all such counterparts shall constitute one and the same Agreement. Any signature page of this Agreement may be detached from any counterpart without impairing the legal effect of any Signatures thereon, and may be attached to another counterpart, identical in form thereto, but having attached to it one or more additional signature pages. Facsimile, Electronic Signatures or Signatures on a PDF via electronic mail shall be effective as originals. This Agreement shall be effective by and between the Parties executing the Agreement.
Section 7.10 - Modification and Waiver: No provision of this Agreement shall be amended, waived or modified except by an instrument in writing signed by the Parties hereto.
Section 7.11 – Authority: By execution of this Agreement, the signatories hereto represent and warrant their authority to act in the capacity stated. By execution of this Agreement each Party represents and warrants its right, power and authority to enter into and to perform its obligation under this Agreement. This Agreement represents a general letter of authority and appoints SLS to be Customer’s representative in accordance with this Agreement and on its behalf in the use of SLS’ carriers and/or negotiate new tariffs with carriers, make contractual changes on tariffs with carriers, billing changes, document retrieval, routing information, shipment history, proof of deliveries, technical support and pricing on behalf of Customer.