EZ Loader TMS - Service Level Agreement

Document Owner: EZ Loader Software, LLC

1. Agreement

This Service Level Agreement (“SLA”), together with the Proposal executed by Client on the Effective Date of this SLA (the “Proposal”) and the Company’s Terms and Conditions (as modified by the Company from time to time, the “Terms and Conditions”) (the Proposal, this SLA and the Terms and Conditions are collectively referred to herein as the “Agreement”).  The Agreement constitute the final, complete and entire agreement and understanding of the parties and all prior agreements or understandings (whether oral or written) are superseded and deemed merged herein.   The Terms and Conditions, and any modifications thereof, may be found on the EZ Loader, LLC website at https://www.ezloadertms.com/ssa/ (the “WebSite”) or its successor. The terms of the Proposal and this SLA may not be modified except by written agreement signed the Company and Client. 

Company reserves the right in its sole discretion to modify the Terms and Conditions from time to time.  All such modifications shall be effective upon Company’s posting of the modified Terms and Conditions on the WebSite; provided that no modification of the Terms and Conditions that materially affects Client’s rights under the Agreement shall be binding upon Client unless Company specifically notifies Client in writing, by email or otherwise, at Client’s the address set forth below. A log in to the WebSite by any of Client’s Authorized User shall constitute Client’s agreement to be bound by the Terms and Conditions and any modifications thereof.

2. Term of Agreement

The initial term of the Agreement is set forth in the Proposal (the “Term”). Upon expiration of the initial Term (and successive Terms), the Term shall automatically be renewed for the same duration as the initial Term unless Company or Client shall send written notice of non-renewal at least sixty (60) prior to expiration of then current Term; provided, that if any Term is renewed, Company may at any time modify rates to be payable by Client under the Agreement for each renewal Term by delivering written notice of proposed modified rates. Client shall have right to either deliver written notice of (i) acceptance of the proposed modified rates, or (ii) termination the Agreement effective as of the later of (a) thirty (30) days after Client’s receipt of written notice of termination, or (b) expiration of the then current Term.  Tenant’s failure to deliver written notice of termination within thirty (30) days after receipt of written notice of proposed modified rates shall be deemed to be an acceptance of such modified rates.

3. General Obligations

3.1 Client Obligations - Client at all times comply with the Agreement, including, but not limited to: 

 3.1.1   Client shall timely pay all sums as and when due to Company under the Agreement (“Payments”) without notice, demand, abatement, setoff or counterclaim. The amount of Payments due for all software and support costs are set forth in the Proposal, subject to modification during any renewal Term as provided above. Payment for software access and support services by the Company (collectively, the “Products”) shall be due and payable in advance not later than the 1^st day of each month with payments being prorated for any partial month during the Term, unless another date is set forth in the Agreement for items such as non-recurring payments. Payment shall be made by credit card, check, wire transfer or ACH.   Clients are responsible for always maintaining a valid payment method with sufficient funds on file. Company reserves the right to suspend or terminate access for failed payments. If any amount payable to Company is in arrears for more than ten (10) days from the applicable due date hereunder, Company reserves the right, without prejudice to any other remedy, to (a) accelerate payment and declare that the entire outstanding amount due under the Agreement is immediately due and payable (b) suspend the Client’s accounts and suspend Client’s access to the Software and the Services until payment is received.

3.1.2 Client shall cause an authorized representative to be reasonably available at all times to resolve any service-related incident or request.

3.1.3 Client shall cause all Authorized Users to comply with the Agreement, and shall not not allow persons other than Authorized Users to log on to, access or use the Software.

3.2  Company Obligations - Company shall at all times comply with the Agreement, including, but not limited to: 

3.2.1 Company shall provide access to the Company’s EZ Loader TMS Software, as outlined in Section 4.1 below - “Software Access.”

3.2.2 Company shall provide general support/help services outlined in Section 4.2 below - “Service/Help Support Availability.”

3.2.3  Company shall use commercially reasonable efforts to ensure communication of all technical support issues relating to the Software based on schedule noted in Section 4.3 - “Technical Support Issues.”

3.2.4 Company shall use commercially reasonable efforts to resolve down system issues based on the schedule noted in Section 4.4 below - “Down System Issues.”

3.2.5  Company shall use commercially reasonable efforts to adhere to data policies outlined in Section 4.5 below - “Data Security and Protection.”

3.2.6  When reasonably possible, Company shall adhere to policies outlined in Section 4.6 below - “Maintenance.”

4. Service Management

4.1 Software Access

4.1.1   Company agrees to provide Client with: (1) access to the Company’s EZ Loader Proprietary Software (including any enhancements, bug fixes, modifications, customizations, upgrades, modified versions, updates, and additions provided by the Company hereunder from time to time) (“Software”) via Client’s log in to Company’s web portal.  Company grants to Client a non-exclusive, term-limited, non-transferable license for Client's internal business use only to (i) electronically access EZ Loader TMS's information systems for the sole purpose of executing and using the Software to facilitate its freight brokerage business and for no other purpose; and (ii) use the associated published materials, including online help files and other written documentation (the "Documentation").

4.1.2  Client acknowledges that Company does not guarantee continuous or uninterrupted connectivity or access to the Software or servers utilized by Company. Client's connectivity can experience delays or connection failures dependent on Client's use of the Software applications, upgrades from software manufacturers, and limitations of or interruptions of the Client’s internet connections. Client agrees that Company will not be responsible for any costs, losses, damages or other occurrence that adversely affect performance of or access to the Software, whether due to network or hardware connectivity issues or other causes that are beyond the reasonable control of Company.

4.1.3  Client acknowledges and agrees that the Software may be updated with replacements, enhancements and fixes throughout the Term.   

4.1.4 Client will be solely responsible for maintaining and implementing up to date hardware and software necessary to maintain adequate access to and functionality of the Software, including all updates.

4.2 Service/Help Support Availability - Company shall provide the following Services:

4.2.1 Telephone Support: 8:00 A.M. to 5:30 P.M. EST Monday – Friday (Excluding Federal Holidays)

4.2.2 Email Support: Monitored 8:00 A.M. to 5:30 P.M. EST Monday – Friday (Excluding Federal Holidays). Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day.

4.2.3 Emergency Voicemail Support:   24/7.

4.3 Technical Support Issues

Company shall endeavor to provide Client with the status of all material technical support issues relating to the Software that are communicated through the proper process of communication reasonably established by Company within the following time frames (the “Service Levels”):

(i) 60 minutes for a Down System issue (a malfunction that prevents users from logging on or off the Software);

(ii) 120 minutes for a High Priority issue (a problem that is not a Down System but is affecting Software usage or data integrity in a materially adverse manner);

(iii) 12 business hours for a Medium Priority issue (any issue that is not a Down System, High Priority, or Low Priority issue); and

(iv) three (3) days (24 business hours) for a Low Priority issue (an issue which is cosmetic in nature only or an issue which with no material impact on Software usage or operation).

If Company and Client do not agree as to how any technical support issue should be characterized for the purpose of determining response times, Client and Company shall attempt in good faith to resolve such disagreement, but any good faith determination by the Company as to the appropriate characterization shall be definitive.

4.4 Down System Issues

 Company will endeavor to resolve all Down System issues within eight (8) hours after the time the Down System issue is properly reported to the Company to the extent the resolution of the Down System issue is within the control of EZLoader, LLC and shall otherwise use its commercially reasonable efforts to resolve the issue as soon as reasonably practicable.

4.5 Data Security and Protection

Company stores two types of data: (a) user entered data stored in a SQL Server database; (b) files uploaded as supporting documentation for the features of the TMS Software. Company utilizes a cloud backup service so that database and file backups are physically stored in a different location for disaster recovery purposes. Database and file backups run periodically (generally every four (4) hours) to minimize the potential for any loss of data should there be a disaster at the primary data center location. In the event of a disaster, Company has a disaster recovery plan to restore software operations in a 24-hour period after determining that the primary data center is a complete loss and cannot be repaired quicker than the disaster recovery plan. In the event of a disaster at the primary data center, Company will use all commercially reasonable efforts to notify all users and provide updates through the proper process of communication reasonably established by Company. 

4.6 Maintenance

Software and server maintenance will generally be undertaken by Company between the hours of 12AM-3AM EST.   Company will use commercially reasonable efforts to notify users of maintenance scheduled outside such hours. Company will use commercially reasonable efforts to notify users of un-scheduled maintenance but reserves the right to pursue any means necessary to resolve and prevent issues deemed by Company as emergency, severe or a high priority without notice to Client. Client further acknowledges that the Software will be unavailable for use from time to time while maintenance (including, in some instances, the provision of Software Updates) is being performed; provided, however, that Company will use commercially reasonable efforts to schedule maintenance of the Software in advance and to perform such maintenance at a time the mitigates business disruption.

5. Remedies

5.1 Company Breach - If Company fails to cure any breach by Company of its obligations under the Agreement after having received not less than sixty (60) days written notice from Client, Client may, as its sole and exclusive remedy, terminate the Agreement by delivering written notice of termination without payment of any early termination fees in which case any prorated prepaid amounts shall be refunded to Client. 

LIMITATION OF LIABILITY - CLIENT ACKNOWLEDGES THAT COMPANY’S PERFORMANCE UNDER THE AGREEMENT IS DEPENDENT UPON THE PROVISION OF SERVICES BY CERTAIN TELECOMMUNICATIONS PROVIDERS AND OTHER SERVICE PROVIDERS (“PRECEDENT SERVICES”), AND THAT COMPANY DOES NOT CONTROL, NOR CAN IT CONTROL, THE FLOW OF DATA TO OR FROM SUCH TELECOMMUNICATIONS PROVIDERS, OTHER SERVICE PROVIDERS OR CLIENT'S INTERNAL SYSTEMS, INCLUDING INTRANETS OR OTHER WIDE AND/OR LOCAL AREA NETWORKS. ACCORDINGLY, CLIENT AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED IN WHOLE OR IN PART BY FACTORS NOT WITHIN THE DIRECT CONTROL OF COMPANY, INCLUDING BUT NOT LIMITED TO THE FAILURE OF THIRD-PARTY SERVICE PROVIDERS TO PROVIDE THE PRECEDENT SERVICES ADEQUATELY. COMPANY SHALL HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT SHALL COMPANY BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNTS PAID BY CLIENT TO COMPANY HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM OR DAMAGES.

5.2 Client Breach - If Client fails to cure any breach by Client of its obligations under the Agreement after having received not less than sixty (60) days written notice from Company, Company may terminate the Agreement and recover all damages suffered or incurred as a result of such breach. The foregoing shall not prevent the Company from obtaining an injunction or other expedited relief if deemed necessary or appropriate to protect the Company and its assets.  Client shall pay to Company all costs of enforcing the Agreement including, but not limited to, reasonable attorneys’ fees incurred by Company in connection with Client’s default under the Agreement.

Client acknowledges and agrees that the breach or threatened breach of any provisions of the Agreement would cause irreparable damage to Company, which damage would be inadequately compensable in money damages, and Company shall be entitled to injunctive relief (temporary and permanent) to prevent or terminate any breach or threatened breach of the Agreement, in addition to any monetary damages, sanctions or other legal remedies available to Company.

Upon any termination or expiration of the Agreement, Client will have no right to continue access or use the Software or Services after the effective date of termination or expiration, as applicable.  Client will not entitled to, and Company will not provide, support and maintenance for the Software, and Company will not provide upgrades or patches to the Software. For any third-party software embedded in the Software, Client will be solely responsible for arranging the continued use of all Third-Party Software directly from the respective third-party vendor and will be solely responsible for all fees with respect thereto.

6. Warranties 

Company makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the Software, the Documentation or the Services. Company does not represent or warrant that (a) the use of the Software and Services will be secure, timely, uninterrupted, or error-free or operate in combination with any other hardware, Software, system, or data, (b) the Software or the Services will meet your requirements or expectations or maintain a certain percentage of availability or "uptime," (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by Client through the Software or the Services will meet Client’s requirements or expectations, (e) errors or defects will be corrected, (f) any proposed upcoming feature will be implemented either on-time or in any fashion.  All conditions, representations, and warranties, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law.

7. Confidential Information – Proprietary Intellectual Property

The Software is the intellectual property of Company. The Software and the Documentation contain Confidential Information and trade secrets. Client may not duplicate the Software and shall not use the Software for any purpose or in any manner in violation of the Agreement.

Client acknowledges the proprietary and ownership interests of Company in, and the independent economic value to Company of, the Confidential Information (including all such derivatives and improvements made therefrom). The Confidential Information of Company shall be considered to be and kept strictly secret and as the private, privileged, and proprietary property and trade secrets of Company, as appropriate, and Client agrees not to, and to cause all Client personnel not to: (a) use any of the Confidential Information of Company other than in the performance of its obligations hereunder, or (b) divulge any of the Confidential Information of Company to any person or entity except upon the direct written authorization of Company, or as may be required by applicable law, provided that before any disclosure required by law, Client shall notify Company promptly upon receipt of any request or demand for disclosure (regardless of form) and cooperate with Company in all lawful efforts it may choose to undertake to avoid or limit such disclosure. All Confidential Information of Company, including all copies thereof, regardless of the medium in which stored, shall be: (a) available for inspection at any time by Company, and (b) delivered to Company as soon as reasonably practicable after termination of the Agreement without Client making or retaining copies or excerpts of any of such Confidential Information. Client shall not reverse assemble, decompile, sell, license, transfer, publish, disclose, reproduce, display, or otherwise make available any marketing or training materials without the prior consent of Company.

“Confidential Information” shall mean all Company Software, source code, data, analyses, pricing, the terms of the Agreement, and other financial information and modeling, projections, policies, procedures, accounting procedures, business techniques, formulas and processes, and other trade secrets. This Agreement, and like information, regardless of the form or medium in which kept or stored (and including materials which contain or otherwise reflect such information), (a) treated or identified as being confidential or proprietary by Company or its affiliates and/or (b) which a reasonable person in the position of the party making the determination in good faith would consider being confidential and/or proprietary. Confidential information includes all information disclosed by Company to Client.

8. Miscellaneous

8.1 Force Majeure - Any time, date or deadline for Company’s performance of its obligations under this Agreement shall be extended if the performance is not reasonably possible by such time, date or deadline because of causes that are outside the reasonable control of Company, such as, but not limited to, power interruption, virus or malware, weather events, shortage of labor or materials, governmental action or inaction, legal action, terrorism, strike, civil unrest, pandemic or disaster.

8.2. Notices - All notices permitted or required by the Agreement shall be sent to the address set forth in the Quote or to such other address as Client or Company, as applicable shall specify in writing. Notices may be sent be email except that any notice of breach shall be sent to the alleged breaching party by overnight courier service or US Certified Mail, return receipt requested. Notices shall be deemed effective only upon actual receipt.  In the case of emails, a notice shall be deemed received if sent to the correct email address without rejection by the recipient’s server.

8.3  Indemnification - Client shall indemnify, defend and hold harmless Company and its affiliates, partners, agents, and employees (“Company Indemnified Parties") from any and all suits, claims, demands, causes of action, judgments, losses, liabilities, damages, costs, and expenses of any type (including, but not limited to reasonable attorney fees and costs) incurred by any of the Company Indemnified Parties arising from (i) any use by Client or any Authorized User of the Software in violation of the terms of the Agreement or any applicable license or sublicense agreement, and (ii) any use of the Software in violation of, or other violation of, any Federal, state or local statute, rule or regulation applicable to Client or Company

8.4  Waiver of Breach - The waiver by either Party of a breach or violation of any provision of the Agreement shall not operate as or be construed as a waiver of any subsequent breach or violation of the Agreement.

8.5  Governing Law - The Agreement is accepted in and will be substantially performed in Georgia and shall be governed in all respects by the laws of the State of Georgia, without regard to its conflicts of law principles.

8.6. Severability - In the event that any provision of the Agreement is found to be invalid, void, or unenforceable, the validity or enforceability of any other provision shall not be affected.