EZ Loader TMS SSA

Terms & Conditions 


The following General Terms and Conditions ("GTC") constitute a portion of the legally binding Agreement between EZ Loader LLC in combination with EZ Loader Software LLC and EZ Loader TMS (collectively referred to as EZ Loader TMS) that governs the Client and all users (collectively, the “Client”) use of the Software services and web site (collectively, the "Software and Services"). General terms and conditions are subject to any SLA and/or additional individual contract terms agreed upon between EZ Loader TMS and the Client. The Client and all associated users accept the affirmative obligation to periodically review whether these Terms and Conditions have changed. The User's continued use or access of the Software and Services constitutes the User's (a) acknowledgment of the modifications, alterations, or updates to the Terms and Conditions; and (b) agreement to abide and be bound by the modified, altered, or updated terms and conditions contained in the Terms and Conditions. The current version of the Terms can be viewed by selecting the "Terms and Conditions" link on the Sign-In page of the Service. We are permitted to rely on your Agreement for all purposes.  


If the Client is an entity of any type, then the person agreeing to these GTC represents that they have the authority to approve/agree to and deliver the GTC on behalf of the Client and that the GTC is binding upon the Client.


Scope of Services 

 

EZ Loader TMS agrees to provide Client with: (1) access to the Software (including any enhancements, bug fixes, modifications, customizations, upgrades, modified versions, updates, and additions provided by EZ Loader TMS hereunder from time to time) (“Software”), and (2) the services (including help desk and technical support) (“Services”)  



Software and Data Licenses 


EZ Loader TMS grants to the 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 the Software; and (ii) use the associated published materials, including online help files and other written documentation (the "Documentation"). 


Software and Services - Summary 


Description of Software and Services. The Software and Services to be provided to the Client by EZ Loader TMS consist of the following: 


Software upgrade, if required, from existing EZ Loader TMS’s Proprietary Software and EZ Loader TMS provided Third Party Software releases to the most current release from EZ Loader TMS. 


A license to access the Software for Client's Authorized Users, as well as any Software upgrades and enhancements (including Documentation updates) provided by EZ Loader TMS during the term of the Agreement. 


Application and technical support services  


EZ Loader TMS will provide Client with access to the EZ Loader TMS Proprietary Software Client acknowledges that Client's connectivity can experience delays dependent on Client's use of the Software applications, upgrades from the software manufacturer, and limitations of the connection itself. Client agrees that any delays in Software performance due to network hardware and connectivity issues are not the fault of EZ Loader TMS and shall not constitute a breach of these GTC.  


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 EZ Loader TMS 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.


Software Covenants 



User seats are assigned to one individual User. Clients may not share Logins / User seats. Misuse may disrupt clients use of the software and may result in account revocation.


The Client and all associated users' access to the Service may not be assigned by the Client/User without the prior written approval of EZ Loader TMS. However, EZ Loader TMS may assign its rights and obligations hereunder in its sole discretion and without the Client/User’s consent. 


Third-Party Software. If EZ Loader TMS incorporates the programs or content of any other suppliers in the Software, those suppliers shall be entitled to the benefit of the obligations incurred by the Client in the GTC. "Third Party Software" shall mean operating system software and other Software developed by parties other than EZ Loader TMS, including, without limitation, those which Client obtains through EZ Loader TMS and those which EZ Loader TMS specifies as required for Client to obtain separately. Third-Party Software provided by EZ Loader TMS may have license restrictions on the number of users, workstations, servers, and other qualifying terms and conditions. EZ Loader TMS's sole support obligations are strictly limited to EZ Loader TMS’s direct software. Client acknowledges they may need to directly engage third party support for issues stemming from third party software.


Client shall limit access to the Software to Authorized Users only. Client acknowledges that the rights of the Client in and to the Software are limited to the license rights expressly granted herein and that it has and will have no further right or interest to the Software. Client shall not directly or indirectly use the Software to process the work of any third party or make the Software available to any third party. 


Client acknowledges and agrees that the Software will be updated with enhancements and fixes ("Software Updates") periodically throughout the term of the Service. The Client will be solely responsible for implementing hardware/software updates to the Client's hardware/Software as necessary to maintain adequate access to the Software.


You may not access the Software if you are a competitor of EZ LOADER TMS.  


EZ Loader TMS makes no representation, warranty, or guarantee regarding the Service's reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness. EZ Loader TMS does not represent or warrant that (a) the use of the Service will be secure, timely, uninterrupted, or error-free or operate in combination with any other hardware, Software, system, or data, (b) the Service 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 you through the Service will meet your requirements or expectations, (e) errors or defects will be corrected, (f) any upcoming feature listed in the Service 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. 

 

Client shall and shall cause each Authorized User to comply with reasonable policies and procedures developed by EZ Loader TMS to maximize the efficiency of the Software and Services, including but not limited to any restrictions outlined in such policies and practices with respect to the ability to run reports during certain periods. 

 

Financial Terms 


Initial License and Service Fees - For the provision of the Software and performance of the services, the Client shall pay EZ Loader TMS the amounts set forth in their initial sign-up form and/or contract. Clients are responsible for always maintaining a valid payment method with sufficient funds on file. EZ Loader TMS reserves the right to suspend or terminate access for failed payments. If any amount payable to EZ Loader TMS is in arrears for more than ten (10) days from the applicable due date hereunder, EZ Loader TMS reserves the right, without prejudice to any other remedy, to (a) Make the entire outstanding amount immediately due and payable (b) suspend the provision of the Software or Services until payment is received, Client shall be responsible for payment of reasonable attorneys' fees and court costs incurred by EZ Loader TMS to collect all such amounts owed by Client. 


EZ Loader TMS reserves the right to increase customer rates. EZ Loader TMS will provide 60 days written notice of any price increases other than expirations of promotional rates. Client will have the option to terminate an active subscription before the set increase by completing the termination process listed below. Contracted pricing will not be adjusted until the end of the then current contract term. See “Contract Renewal” section below.

 


Terms and Termination 


New Tenant Setup Timeline - Certain setup procedures must be completed as a condition precedent to EZ Loader TMS providing client access to the Software. Setup procedures require submitting certain client information to EZ Loader TMS through an onboarding form. EZ Loader TMS will provide the Client access to the Software within 3 business days of receipt of the onboarding form. Client acknowledges that EZ Loader TMS will make a commercially reasonable effort to assist in the setup of additional services and integrations provided through 3rd party vendors. EZ Loader TMS accepts no responsibility for delays or failures of other Software and services from 3rd party vendors. 


Term of Agreement – The term of the agreement is stated in the individual contract. Absent an individual contract the term is month to month. Active contacts and subscriptions are automatically renewed unless the termination process noted below is completed.


Termination Process - The Client may request a subscription cancelation at any time for any reason. If applicable, the termination process is subject to additional contract terms based on the Client's predetermined Agreement; please see contract clauses for additional terms and conditions regarding cancelation. The Client must request an account cancellation through an admin-level user via email to support@ezloadertms.com. Upon EZ Loader TMS's receipt of the cancellation request, the Client will receive an offboarding form which the Client must complete and submit back to EZ Loader TMS prior to the next billing cycle to complete the termination of the Client's account and active subscription. Upon receipt of the completed offboarding form, the termination of the Client's account will be finalized subject to any additional contract terms based on the Client's predetermined Agreement. EZ Loader TMS will process termination requests during standard business hours, Monday-Friday. The Client will maintain access to their account until the end of the current billing cycle assuming the accounting is in good standing. At the end of the billing cycle in which the termination process was completed, the Client's account will be deactivated, and all future billing and services will cease. Client will receive no refunds for invoices finalized prior to completion of the termination process. Terminated accounts will receive no refunds for other services or prepaid items such as SMS tracking credits, EDI, Setup Fee’s, or any other prepaid items. Any outstanding balance becomes immediately due and payable upon termination. The Client is responsible for any outstanding balance even after termination. 


Contract Buyout - If subject to a contract period, early termination is subject to a buyout fee of 50% of the remaining contract value at the time of cancellation. The remaining contract value is calculated as the highest recorded billing rate during the entire contract period multiplied by the remaining term of the contract. 


Contract Renewal - Current contract is subject to auto-renewal at the end of the initial contract period. Each term shall automatically renew for subsequent periods of the same length and pricing structure as the initial term unless either Party gives the other written notice of termination or change to term and pricing at least sixty (60) days before the expiration of the then-current term. 


Contract Term - The initial term of this Contract shall be stated in the initial signup form, quote, or other contract agreement years, commencing on the date of Client approval. 


Contract Pricing – Client Agrees to pay EZ Loader TMS a minimum recurring monthly fee of equal to the stated amount in the initial signup form, quote, or other contract agreement, plus any additional monthly fee’s associated with the addition of user seats or package upgrades based on the user fee schedule listed within the contract.


Setup Fees – Client Agrees to Pay EZ Loader TMS a one-time setup fee of $1,500 (Fees waived for 12 Month agreement)


User Changes: User additions or removals must be requested in writing by an admin-level user to support@ezloadertms.com. When a user seat addition request is fulfilled mid-billing cycle, the Client agrees to be charged a prorated amount for the new user seat based on the remaining time in the current billing cycle. An admin-level user must request user seat removals in writing to support@ezloadertms.com. When a user seat removal request is processed mid-billing cycle, the specific User will have their login credentials revoked, and the Client will not receive a refund for the number of days remaining in the current billing cycle. The Client will maintain the rights to that user seat until the end of the current billing cycle and may substitute the User/Individual on that seat. 


The Client will have no right to continue its use of the Software as of the completion of the termination period. The Client is not entitled to, and EZ Loader TMS will not provide support and maintenance for the Software, and EZ Loader TMS 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.  


Privacy Standards Compliance; Confidential Information 


The Software is confidential and contains trade secrets, and any unauthorized use, duplication, or violation by Client of the restrictions herein is prohibited. Client shall not reverse assemble, decompile, sell, license, transfer, publish, disclose, display, or otherwise make available any Software or copies thereof to others. All applicable rights to patents, copyrights, trademarks, trade secrets, and other intellectual property rights in and to the Software (including modifications made at the Client's request) are and shall remain in EZ Loader TMS or its licensors. EZ Loader TMS retains ownership of EZ Loader TMS’s Proprietary Software, and EZ Loader TMS's suppliers of Software retain ownership of their respective supplier software programs. 


Client Obligation - The Client acknowledges the proprietary and ownership interests of EZ Loader TMS in, and the independent economic value to EZ Loader TMS of, the Confidential Information (including all such derivatives and improvements made therefrom). The Confidential Information of EZ Loader TMS shall be considered to be and kept strictly secret and as the private, privileged, and proprietary property and trade secrets of EZ Loader TMS, as appropriate, and Client agrees not to, and to cause all Client personnel not to: (a) use any of the Confidential Information of EZ Loader TMS other than in the performance of its obligations hereunder, or (b) divulge any of the Confidential Information of EZ Loader TMS to any person or entity except upon the direct written authorization of EZ Loader TMS, or as may be required by applicable law, provided that before any disclosure required by law, Client shall notify EZ Loader TMS promptly upon receipt of any request or demand for disclosure (regardless of form) and cooperate with EZ Loader TMS in all lawful efforts it may choose to undertake to avoid or limit such disclosure. All Confidential Information of EZ Loader TMS, including all copies thereof, regardless of the medium in which stored, shall be: (a) available for inspection at any time by EZ Loader TMS, and (b) delivered to EZ Loader TMS 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 EZ Loader TMS.


“Confidential Information” shall mean all EZ Loader TMS 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 EZ Loader TMS 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 EZ Loader TMS to the Client. 


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

 

Consent to Use of Data - You agree that EZ Loader TMS and its subsidiaries may collect and use technical and system-related information, including but not limited to system data and usage, technical information about your computer, application Software, and peripherals, to facilitate the provision of software updates, product support, and other services to you (if any) related to the EZ Loader TMS software. EZ Loader TMS may use this information, if it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you. EZ Loader TMS may use this information to enhance EZ Loader TMS products or to provide customized services or technologies to you and will not disclose or publish this information in a form that personally identifies you or your affiliates. EZ Loader TMS may also use collected data for promotional or marketing purposes but will not disclose this information in a form that personally identifies you.







Limited Warranty, Disclaimer of Warranties and Limitation of Liability 


Limited Warranty. EZ Loader TMS warrants that it has the right to license the Software to the Client. Furthermore, EZ Loader TMS warrants that it will perform all Services in accordance with reasonable industry practices and that it shall honor the warranties for the Software. 


DISCLAIMER OF WARRANTIES - EXCEPT AS PROVIDED HEREIN: (A) THE SOFTWARE PROVIDED BY EZ LOADER TMS HEREUNDER IS PROVIDED “AS IS”; AND (B) EZ LOADER TMS MAKES AND CLIENT RECEIVES NO WARRANTY, EXPRESS OR IMPLIED AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. 


LIMITATION OF LIABILITY - THE CLIENT ACKNOWLEDGES THAT EZ LOADER TMS’S PERFORMANCE HEREUNDER IS DEPENDENT UPON THE PROVISION OF SERVICES BY CERTAIN TELECOMMUNICATIONS PROVIDERS AND OTHER SERVICE PROVIDERS (“PRECEDENT SERVICES”), AND THAT EZ LOADER TMS 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, THE CLIENT AGREES THAT EZ LOADER TMS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED IN WHOLE OR IN PART BY FACTORS NOT WITHIN THE DIRECT CONTROL OF EZ LOADER TMS, INCLUDING BUT NOT LIMITED TO THE FAILURE OF THIRD-PARTY SERVICE PROVIDERS TO PROVIDE THE PRECEDENT SERVICES ADEQUATELY. EZ LOADER TMS SHALL HAVE NO LIABILITY TO THE 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 THESE GTC OR THE USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE fPOSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE GTC, IN NO EVENT SHALL EZ LOADER TMS BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNTS PAID BY THE CLIENT TO EZ LOADER TMS HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM OR DAMAGES. 

 

Indemnification 


Client shall indemnify, defend and hold harmless EZ Loader TMS and its affiliates, partners, agents, and employees (“EZ LOADER TMS 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 the EZ Loader TMS, Indemnified Parties arising from (i) any use by the Client or any Authorized User of the Software in violation of the terms of 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 EZ Loader TMS

 


Miscellaneous Provisions 


You agree to use our website for legitimate purposes and not for any illegal or unauthorized purpose, including without limitation, in violation of any intellectual property or privacy law. By agreeing to the Terms, you represent and warrant that you are at least the age of majority in your state or province of residence and are legally capable of entering into a binding contract.


You agree to not use our software to conduct any activity that would constitute a civil or criminal offence or violate any law. You agree not to attempt to interfere with our software’s network or security features or to gain unauthorized access to our systems.


EZ Loader TMS reserves the right to refuse or cancel service to anyone, at any time, for any reason. If EZ Loader TMS evokes the right to cancel service, client will retain access to the account for 30 days. If EZ Loader TMS evokes the right to cancel service, EZ Loader TMS will use commercially reasonable efforts to provide client with certain data and in a format that is available to EZ Loader TMS.


We reserve the right to make any modifications to the software, including terminating, changing, suspending, or discontinuing any aspect of the software at any time, without notice. We may impose additional rules or limits on the use of our software. 


You agree to review the Terms regularly and your continued access or use of our website will mean that you agree to any changes. If EZ Loader TMS decides to cancel service to a contract-based client, the contract will instantly be null and void. Upon EZ Loader TMS’s decision to terminate a contract, all unpaid fees will become immediately due and payable.


Relationship of the Parties - Neither Party is granted any expressed or implied right or authority by the other Party to assume or to create any obligation or responsibility on behalf of or in the name of the other Party or to bind the other Party in any manner whatsoever, except as expressly stated herein. 

 

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

 

Governing Law - The SSA is accepted in and 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. 


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


The Client and all associated users' access to the Service may not be assigned by the Client/User without the prior written approval of EZ Loader TMS. However, EZ Loader TMS may assign its rights and obligations hereunder in its sole discretion and without the Client/User’s consent. 


Compliance with Law - The obligations of EZ LOADER TMS under these GTC shall be subject to any limitations or restrictions imposed by law or regulation. EZ LOADER TMS may suspend any or all obligations hereunder if it reasonably determines, upon the advice of counsel, that the performance of any obligation under these GTC may contravene applicable law or regulation, the effect of which would be to have a material adverse impact on the business, financial condition, or operations of EZ LOADER TMS or any of its affiliates. 


Attorney’s Fees - If either Party breaches these GTC, the Party in breach shall be responsible to the non-breaching Party for all reasonable costs and expenses related to enforcing these GTC, including, but not limited to, court costs, arbitration costs, and reasonable attorney's fees. 


Arbitration - Excluding any claims for the protection of EZ LOADER TMS's intellectual property rights, which suits may be brought in any court having jurisdiction, the parties hereto agree to submit all other disputes, controversies, and claims of any kind out of or relating to, these GTC to binding arbitration in Whitfield County, Georgia. The Party desiring the matter arbitrated shall serve a demand for arbitration in the form required by OCGA Section 9-9-6(c) by registered or certified mail, return receipt requested. Within thirty (30) days after receipt of such notice, the parties may agree in writing upon a single arbitrator to determine the matter or matters in dispute. If the other desire any additional matters submitted to arbitration, they shall specify in writing. In the event the parties are unable to agree upon a single arbitrator within said thirty (30) day period, then each Party shall, within thirty (30) days after the end of the aforesaid thirty (30) day period, name or designate in writing an arbitrator. The two arbitrators so selected shall select a third arbitrator. The arbitrator or arbitrators shall proceed to determine all matters submitted to him or them within ninety (90) days of such submission. Any decision of a single arbitrator acting in the matter or, if more than one arbitrator is acting, any majority decision shall be final and binding on the parties and may be entered as the judgment of a court of record having jurisdiction in this matter. This provision shall survive the termination of the Agreement. 

Except as otherwise

Justifiable Delay in Nonperformance - provided, neither Party will be responsible for delays or failures to perform (excluding payment obligations) resulting either directly or indirectly from any cause beyond the control of the delaying or non-performing Party, including but not limited to, acts of God, fires, floods, strikes, lockouts, labor controversies (beyond the control of the delaying or non-performing Party), civil disturbances, acts of war, governmental restrictions, shortages or inability to obtain adequate supplies or transportation or transmission facilities (beyond the control of the delaying or non-performing Party), or other similar circumstances. In the event of a delay in performance due to any such cause, the time for performance will be extended for a period of time reasonably necessary to overcome the effect of such delay. 


Software in the cloud or on servers at EZ Loader.


Further Assurances - Client shall, from time to time, take any other action and execute and deliver any instruments, including documents of assignment or acknowledgments that EZ LOADER TMS may reasonably request in establishing and protecting its rights in the Software. 


 

 

Client Responsibilities: 


Client shall designate a user who is a member of Client’s management team who will be EZ Loader TMS 's primary contact and who will facilitate the successful implementation and ongoing utilization of the Software. 


Provide someone with the knowledge and time to assume the Client implementation responsibilities. 


Client Technical Requirements - The Client shall be solely responsible (including financially) for ensuring that each Authorized User has hardware and Software capable of accessing the Software. Further, all costs associated with network/internet connectivity between the offices of Client and EZ Loader TMS’s databases, including all expenses related to telecom services and any fees associated with the network equipment required by Client to achieve connectivity therewith, shall be paid by Client. The Client is responsible for maintaining any anti-virus and other network security protocols the Client deems necessary.


Client acknowledges the Software is only openly accessible from within the US or CA, or Mexico. IP Address outside of the above stated area with require prior approval by EZ Loader TMS. EZ Loader TMS reserves the right to revoke access to certain IP Address and geographical areas as it deems necessary to preserve the security and operational integrity of the software.


Client shall be solely responsible for the accuracy and adequacy of the data input using the Software.


Client shall cause all Client personnel/users to comply with the terms of the Agreement.  



Reciprocal Confidentiality and Nondisclosure Agreement 


 

THIS RECIPROCAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement"), is by and between Client and EZ LOADER TMS, having a place of business at 105 Depot Street, Suite B, Dalton, Georgia 30720 ("dba EZ Loader TMS"). Registering Company and EZ Loader shall hereinafter be individually known as "Party" and collectively known as the "Parties." 


WHEREAS, the Parties have or intend to engage in discussions that may result in a transaction or some other business arrangement between them; and 


WHEREAS, in connection with such discussions, it is anticipated that each Party may find it necessary or desirable to disclose to the other Party and the other Party's officers, employees, agents, contractors, consultants, or representatives (collectively, "Representatives") certain proprietary and confidential information (defined below as the "Confidential Information"); and 


WHEREAS, the Parties desire to enter this Agreement in order to assure the confidentiality of such Confidential Information. As used in this Agreement, each Party, together with its Representatives, who receives Confidential Information of the other Party shall be a “Receiving Party,” and the Party, together with its Representatives, making such disclosure to a Receiving Party shall be a “Disclosing Party.” 

NOW, THEREFORE, in consideration of the preceding premises and the mutual covenants contained herein and intending to be legally bound hereby, the Parties hereto agree as follows: 


During the term of this Agreement and at all times thereafter, the Parties will and will direct their respective Representatives to hold and maintain the confidentiality of any and all Confidential Information (as hereinafter defined) previously or subsequently disclosed by the Disclosing Party and, except as permitted under this Agreement, will not, without the prior written consent of the Disclosing Party, use any such Confidential Information for its own benefit, or publish, disclose, communicate, reveal or divulge any such Confidential Information to, or use any such Confidential Information for the direct or indirect benefit of, any person, corporation or other entity other than the Disclosing Party, and will use the same degree of care to avoid publication or dissemination of any such Confidential Information as the Receiving Party employs with respect to its own information which it does not desire to have published or disseminated. Confidential information may be shared within the Receiving Party's organization only to the extent reasonably necessary in connection with their duties for the Receiving Party. 


As used herein, the term "Confidential Information" will include without limitation that which relates to technical data, research, product plans, products, services, employees, suppliers, customers, markets, Software, know-how, trade secrets, patents, patent applications, ideas, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, finances, notes, analyses or studies formulas, computer programs, databases, designs, algorithms, technology, circuits, layouts, interfaces, materials, schematics, names and expertise of employees and consultants, any other technical, business, financial, customer and product development plans, supplier information, forecasts, strategies, and other confidential information, and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally or by any other medium. Without limiting the generality of the foregoing, Confidential Information shall include all information which, due to its nature, would cause a reasonable person to know that it is confidential and proprietary to the Disclosing Party. 


Notwithstanding the foregoing, the term "Confidential Information" will not include information that: 


Is known to the Receiving Party on or before the date of disclosure to the Receiving Party; or 


Is or becomes a part of the public domain through no wrongful act of the Receiving Party; or 


Is rightfully obtained by the Receiving Party from a third party without restriction and 


Breach of this Agreement or any similar agreement; or Is independently developed by the Receiving Party without access to the Disclosing Party’s information. 


In any such event, the Receiving Party will have no obligation for such information. 


All Confidential Information shall be and remain the sole and exclusive property of the Disclosing Party. Upon request, the Receiving Party shall erase or destroy any Confidential Information stored in computer memory or any other data storage media or apparatus. 


Both Parties use their best efforts to ensure that all their Representatives who have access to Confidential information comply in all respects with the terms of this Agreement. 


Nothing contained in this Agreement shall be construed as obligating either Party to transact any business with the other Party as a result of the execution of this Agreement, the disclosure of Confidential Information hereunder or otherwise, nor shall anything contained herein be construed as granting or conferring any rights on the Receiving Party, whether by license or otherwise, whether expressly, impliedly or otherwise, in or to any Confidential Information, patents, copyrights, trademarks or other intellectual properties of the Disclosing Party, or any portion thereof. 


Neither Party shall refer to the other Party in advertising, promotional activities, or other public disclosures nor announcements without such other Party's prior written consent with at least 15 days' notice before the release unless notice is waived in writing before release. 


This Agreement shall continue and remain in full force and effect until terminated in writing by notice from one Party to the other and shall apply to all Confidential Information disclosed prior to the date the non-terminating Party receives such notice of termination. Notwithstanding any termination of this Agreement, the obligations imposed on the Receiving Party by this Agreement shall continue in effect after any such termination concerning any Confidential Information provided or communicated to the Receiving Party before such termination. 


Each Party acknowledges that the covenants in this Agreement, considering the nature of the business in which the Parties are engaged, are reasonable and necessary to protect their respective legitimate business interests. 


Suppose all or any portion of the covenants contained in this Agreement or the application thereof are construed to be invalid or unenforceable. In that case, the remainder of such covenant or covenants and/or the application thereof shall not be affected. Any remaining covenants shall be given full force and effect without regard to the invalid or unenforceable portions. Suppose any covenant is held to be unenforceable because of the geographic area covered. In that case, the duration thereof, or the scope thereof, then the court making such determination shall have the power to reduce the area and/or the duration and/or limit the content thereof. The covenant shall then be enforceable in its reduced form. 


This Agreement shall be construed and interpreted in accordance with the laws of the State of Georgia, without regard to its principles concerning the application of laws of other jurisdictions. If either Party brings against the other Party any proceeding arising out of this Agreement, including but not limited to any proceeding arising out of any alleged disclosure or use of Confidential information, that Party may bring such proceeding only in the United States District Court for the Northern District of Georgia or in the Superior Court of Whitfield County, Georgia, The Parties hereby consent and submit to the exclusive jurisdiction of either of those courts and waive any objection to their jurisdiction or venue. 


This Agreement shall be binding upon and inure to the benefit of the Parties and their respective representatives, successors, and permitted assigns. 


The acceptance represents and warrants that the acceptor has the authority to bind his/her respective Party.


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