Terms & Conditions
The following General Terms and Conditions (“GTC”) constitute a portion of the legally binding agreement that governs Client’s use of the Software (as defined below), services and web site (collectively, the “Software and Services”). You must agree to the GTC before you can use the Software and Services. You have agreed to these GTC by actually using the software. As a result, we are permitted to rely on your agreement for all purposes. You should save a copy of the GTC for your records.
If the Client is an entity of any type, then the person agreeing to these GTC represents that he or she has the authority to agree to and deliver the GTC on behalf of the Client and that the GTC is binding upon the Client. If this is not true, do not agree to these GTC. Instead, make sure someone agrees to these GTC who does have that authority.
EZ LOADER, LLC may update or change the GTC from time to time. You will receive written notice if EZ LOADER, LLC makes a change to the GTC. You understand and agree that your continued use of the Software and Services for 15 days after the GTC have changed constitutes your acceptance of the revised GTC.
ARTICLE 1.
SCOPE OF SERVICES
1.1. Software and Services. EZ LOADER, LLC 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, LLC hereunder from time to time) (“Software”), and (2) the services (including help desk and technical support) (“Services”) as more fully set forth in Exhibit A to the GTC (“Software and Services Exhibit”).
1.2. Live Date. Certain setup procedures (“Software Setup Procedures”), as detailed on Exhibit A, must be completed (with the assistance of Client) as a condition precedent to EZ LOADER, LLC ‘s provision of the Software and Services hereunder (excluding initial training). The later of the date on which the Software Setup Procedures are completed and Client uses the Software to perform routine daily activities using Client’s production database, is the “Live Date”. EZ LOADER, LLC and Client will mutually agree on an appropriate Live Date, within the limits set forth below. Notwithstanding the foregoing, Client acknowledges and agrees that the ability of EZ LOADER, LLC to effect the Live Date within such time period is conditioned upon the timely receipt from Client of all documentation, data files, programs and any other materials reasonably required by EZ LOADER, LLC in order to complete the Software Setup Procedures and the ability of EZ LOADER, LLC to effect the Live Date within such time period is further conditioned upon no delays being imposed by third party vendors for interface services, communication lines, equipment and services not within the control of EZ LOADER, LLC . However, the Live Date will be no later than 60 days after the Effective Date.
1.3. Additional Services. EZ LOADER, LLC agrees to provide other services on a time and materials basis separate from and additional to the Services described herein if requested by Client, on the terms and conditions mutually agreed to by EZ LOADER, LLC and ClientAbsent such separate agreement, then such services shall be provided based on EZ LOADER, LLC ’s hourly rates and costs of materials.
ARTICLE 2.
ASP SOFTWARE AND DATA LICENSES
2.1. Software License
2.1.1. EZ LOADER, LLC grants to Client a non-exclusive, term-limited, non-transferable license, for Client’s internal business use only, to (i) electronically access EZ LOADER, LLC ‘s information systems for the sole purpose of executing the Software; and (ii) use the associated published materials, including online and/or help files and other written documentation (the “Documentation”). The Software will be made available to Client in executable form.
2.1.2. Unless otherwise set forth in Exhibit “A”, the licenses granted herein makes the Software available to each person who Client has designated as an authorized user (“user seat”) only and who has completed the training described in the Initial Training Services (as defined herein) (“Authorized Users”). Seats shall not be shared between users, only one seat per person.
2.1.3. Third Party Software. If EZ LOADER, LLC 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 Client in the GTC. “Third Party Software” shall mean operating system software and other software developed by parties other than EZ LOADER, LLC, including without limitation, those which Client obtains through EZ LOADER, LLC as well as those which EZ LOADER, LLC specifies as required for Client to obtain separately. “EZ LOADER, LLC Proprietary Software” means the Software listed on Exhibit “A”, excluding all such Third Party Software listed therein. Third Party Software provided by EZ LOADER, LLC may have license restrictions on the number of users, workstations, or servers and other qualifying terms and conditions as indicated on the Exhibit “A”. With respect to certain Third Party Software, where applicable, EZ LOADER, LLC shall, as indicated in Software and Services Exhibit, pass through to Client the associated Third Party Software vendor’s required license terms and conditions and warranties. Unless otherwise set forth in Exhibit “A”, EZ LOADER, LLC ‘s sole support obligations with respect to Third Party Software shall be in a general first-tier support capacity, and EZ LOADER, LLC shall use commercially reasonable efforts to assist Client in contacting the applicable Third Party Software vendor to arrange for comprehensive support of such items (for which there may be additional fees, as applicable) and/or to assist with procurement of replacement Third Party Software (to the extent any such software expires, is sunset and/or as a result of changes in the Client Technical Requirements set forth in Exhibit C).
2.2. Software Covenants
2.2.1. Client shall limit access to the Software to Authorized Users only. Client acknowledges that the rights of Client in and to the Software are limited to the license rights as specifically 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.
2.2.2. Client acknowledges and agrees that the Software will be updated with enhancements and fixes (“Software Updates”) periodically throughout the term of the service, and Client will implement recommended hardware/software updates to client’s hardware/software to maintain compliance with the Client Technical Requirements (defined below) when requested by EZ LOADER, LLC.
2.2.3. 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 any other intellectual property rights in and to the Software (including modifications made at the request of Client) are and shall remain in EZ LOADER, LLC or its licensors. EZ LOADER, LLC retains ownership of the EZ LOADER, LLC Proprietary Software and EZ LOADER, LLC ‘s suppliers of software retain ownership of their respective supplier software programs.
2.2.4. The Client agrees to maintain backup copies of its data at all times, including a real time mirrored copy of all data as the original data is being changed or otherwise recorded or stored. Client accepts complete responsibility to insure that such backups are accessible at all times and can be read and imported into the Software as may be needed. Client is relieved of the backup responsibility if Client has engaged EZ LOADER, LLC to provide those services.
2.3. Software Operation. Client shall be solely responsible for the accuracy and adequacy of the data input using the Software. Client further acknowledges that the Software will be unavailable for use from time to time while maintenance (including, in certain cases, the provision of Software Updates) is being performed; provided, however, that EZ LOADER, LLC will use commercially reasonable efforts to schedule maintenance of the Software in advance and to perform such maintenance outside of Client’s normal business hours.
2.4. Client Technical Requirements. Client shall be solely responsible (including financially) for ensuring that each Authorized User has certain hardware and software capable of accessing the Software as such requirements are updated by EZ LOADER, LLC from time to time and that Client has complied with any necessary hardware/software upgrades detailed therein. Further, all costs associated with network connectivity between the offices of Client and EZ LOADER, LLC ’s designated data center(s), including all expenses associated with telecom services and any expenses associated with the network equipment required by Client to achieve connectivity therewith shall be paid by Client.
2.5. Covenant to Adhere to Certain Policies and Procedures. Client shall, and shall cause each Authorized User to, comply with reasonable policies and procedures developed by EZ LOADER, LLC to maximize the efficiency of the Software and Services, including but not limited to any restrictions set forth in such policies and procedures with respect to the ability to run reports during certain time periods.
2.6. Service Level Agreement. The Service Level Agreement applicable to the Software is set forth in Exhibit D.
ARTICLE 3
FINANCIAL TERMS
3.1. Initial License and Service Fees. For the provision of the Software and performance of the Services, Client shall pay to EZ LOADER, LLC the amounts set forth to the GTC (the “Fee Schedule”); as such schedule is amended from time to time (as provided therein). If any amount payable to EZ LOADER, LLC is in arrears for more than ten (10) days from the applicable due date hereunder, EZ LOADER, LLC reserves the right, without prejudice to any other remedy, to (a) charge interest on such overdue amount on a day to day basis from the due date until paid in full at the rate of one and a half percent (1.5%) per month which is earned on the first day of each such month; and (b) suspend the provision of the Software or Services until such time as payment is received, provided that EZ LOADER, LLC shall not suspend the provision of Software or Services without first providing at least five (5) days advance written notice to Client. Client shall be responsible for payment of reasonable attorneys’ fees and court costs incurred by EZ LOADER, LLC to collect all such amounts owed by Client.
3.2. Taxes; Expenses. All fees set forth are exclusive of all Federal, state and local taxes, including sales taxes, assessed on or due in respect of any services performed by EZ LOADER, LLC hereunder, for which taxes Client shall be solely responsible. Client shall reimburse EZ LOADER, LLC for all those costs and expenses of Client paid by EZ LOADER, LLC or any affiliate of EZ LOADER, LLC on behalf of Client in connection with the provision of the Software and Services hereunder.
ARTICLE 4
TERM AND TERMINATION
4.1. Term. The term is month to month, unless otherwise set for by an SSA.
4.2. Termination. Either party may terminate the agreement (i) immediately upon breach of any material obligation of the other party under the GTC which is not cured within sixty (60) days of receipt of written notice of such breach (except that in the case of a breach of payment obligations by Client as provided in section 3.1); provided, however, that any delay or disruption in EZ LOADER, LLC ’s provision of the Software or Services hereunder, or other failure of EZ LOADER, LLC to perform hereunder, related to the failure, malfunction or delay of Client to comply with its obligations under these GTC (including any failure of network equipment owned or leased by Client or provided by any third party vendor of Client), shall not be considered cause for termination by Client hereunder, (ii) if (a) either party files any debtor relief action under the Bankruptcy Code; (b) any involuntary proceeding under the Bankruptcy Code is filed against either party and is not dismissed within sixty (60) days; or (c) either party is unable to, or admits in writing, its inability to pay its debts as they become due, makes an assignment for the benefit of creditors, a receiver is appointed, voluntary or otherwise, for its property, or it is adjudicated bankrupt, suspends its business, or becomes insolvent; or (iii) either party fails to materially comply with any applicable federal, state and local statutes, rules or regulation governing such party’s obligations under these GTC.
4.3. Obligations after Termination. Except as otherwise provided herein, or in any amendment hereto, following the termination of the agreement, the GTC shall be of no further force or effect; provided, however, that the provisions of Sections 2.2.3, 2.3, 3.2, 4.3, 6.2, 6.3 and Articles 5, 7 and 8 expressly survive termination and each party to the agreement shall remain liable for any obligations or liabilities arising from activities carried on by such party prior to the effective date of termination (including that Client shall continue to be liable to and shall pay EZ LOADER, LLC for all amounts due hereunder).
In addition:
4.3.1. Client will have no right to continue its use of the Software licensed to Client as of the date of termination of these GTC. Client is not entitled to, and EZ LOADER, LLC will not provide, support, and maintenance for the Software and EZ LOADER, LLC will not provide upgrades or patches to the Software. With respect to the third party software that is embedded in the Software, Client will be solely responsible for arranging the continued use of all third-party software directly from such third party vendor, and will be solely responsible for all fees with respect thereto. However, EZ LOADER, LLC shall forward to Client an electronic file of the Client’s data in a format reasonably available to EZ LOADER, LLC and readable by Client’s other software. However, EZ LOADER, LLC accepts no responsibility that the format selected will, in fact, be so readable due to the various requirements of the other software. EZ LOADER, LLC will endeavor to work with Client in a reasonable but limited manner for a smooth transition so that Client has an opportunity to avoid any damages.
4.3.2. In the event that the services have been terminated in accordance with this Article 4 for any reason (other than due to a breach by Client of its obligations hereunder) and provided that all fees due and payable to EZ LOADER, LLC hereunder have been paid by Client to EZ LOADER, LLC, EZ LOADER, LLC will use commercially reasonable efforts to assist Client, at EZ LOADER, LLC ’s then current rate for such services, in the orderly termination of the agreement as may be necessary for the smooth and orderly business continuation of Client, including the conversion of all client information into a format reasonably acceptable to Client.
4.3.3. Client shall cause all Client personnel and agents and other users, including Authorized Users, to comply with the provisions of this Section 4.3.
ARTICLE 5
PRIVACY STANDARDS COMPLIANCE; CONFIDENTIAL INFORMATION
5.1. Privacy Standards Compliance. In accordance with the final privacy regulations promulgated thereunder (the “Privacy Standards”), EZ LOADER, LLC and Client are concurrently executing a mutually agreeable Business Associate Agreement, set forth in Exhibit E to the GTC, which is incorporated herein, governing their respective obligations to one another under the Privacy Standards with respect to the performance by each of them under these GTC.
5.2. “Confidential Information” shall mean all EZ LOADER, LLC data, analyses, pricing, the terms of the agreement and other financial information and modeling, projections, policies, procedures, accounting procedures, business techniques, formulas and processes, 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, LLC or its affiliates and/or (b) which a reasonable person in the position of the party making the determination in good faith would, consider to be confidential and/or proprietary. Confidential Information includes all such information disclosed by EZ LOADER, LLC to Client. The term “Confidential Information” as used herein, and the confidentiality commitments set forth in this Section, shall not extend to any information provided which the receiving party can demonstrate: (i) after disclosure to such receiving party by the disclosing party, becomes generally available to the public other than as the result of a disclosure by or other act of the receiving party; (ii) to be already available to the receiving party on a nonconfidential basis prior to its disclosure by the disclosing party; or (iii) becomes available to the receiving party on a nonconfidential basis (excluding transmissions prohibited by a contractual, legal or fiduciary obligation) from a source other than the disclosing party.
5.3. Client Obligation. Client acknowledges the proprietary and ownership interests of EZ LOADER, LLC in, and the independent economic value to EZ LOADER, LLC of, the Confidential Information (including all such derivatives and improvements made therefrom). The Confidential Information of EZ LOADER, LLC shall be considered to be and kept strictly secret and as the private, privileged, and proprietary property and trade secrets of EZ LOADER, LLC, 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, LLC other than in the performance of its obligations hereunder, or (b) divulge any of the Confidential Information of EZ LOADER, LLC to any person or entity except upon the direct written authorization of EZ LOADER, LLC, or as may be required by applicable law, provided that prior to any disclosure required by law, Client shall notify EZ LOADER, LLC promptly upon receipt of any request or demand for disclosure (regardless of form) and cooperate with EZ LOADER, LLC in any and all lawful efforts it may choose to undertake to avoid or limit such disclosure. All Confidential Information of EZ LOADER, LLC, including all copies thereof, regardless of the medium in which stored, shall be: (a) available for inspection at any time by EZ LOADER, LLC, and (b) delivered to EZ LOADER, LLC as soon as reasonably practicable after termination of the agreement without Client making or retaining copies or excerpts of any of such Confidential Information.
5.4. Remedies. Client acknowledges and agrees that the breach or threatened breach of any provision of this Article 5 would cause irreparable damage to EZ LOADER, LLC which damage would be inadequately compensable in money damages, and EZ LOADER, LLC shall be entitled to injunctive relief (temporary and permanent) to prevent or terminate any breach or threatened breach of this Article 5, in addition to any monetary damages, sanctions or other legal remedies available to EZ LOADER, LLC .
ARTICLE 6
LIMITED WARRANTY, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
6.1. Limited Warranty. EZ LOADER, LLC warrants that it has the right to license the Software to Client. Furthermore, EZ LOADER, LLC warrants that it will perform all Services in accordance with reasonable industry practices and that it shall honor the warranties for the Software and Software provided by EZ LOADER, LLC licensors and warrant that the EZ LOADER, LLC Proprietary Software will conform, in all material respects, to the applicable Documentation for a period of sixty (60) days after the Live Date.
6.2. Disclaimer of Warranties. EXCEPT AS PROVIDED HEREIN: (A) THE SOFTWARE PROVIDED BY EZ LOADER, LLC HEREUNDER IS PROVIDED “AS IS”; AND (B) EZ LOADER, LLC MAKES AND CLIENT RECEIVES NO WARRANTY, EXPRESS OR IMPLIED AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
6.3. LIMITATION OF LIABILITY. CLIENT ACKNOWLEDGES THAT EZ LOADER, LLC’S PERFORMANCE HEREUNDER IS DEPENDENT UPON THE PROVISION OF SERVICES BY CERTAIN TELECOMMUNICATIONS PROVIDERS AND OTHER SERVICE PROVIDERS (“PRECEDENT SERVICES”), AND THAT EZ LOADER, LLC 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 EZ LOADER, LLC 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, LLC, INCLUDING BUT NOT LIMITED TO THE FAILURE OF THIRD PARTY SERVICE PROVIDERS TO ADEQUATELY PROVIDE THE PRECEDENT SERVICES. EZ LOADER, LLC SHALL HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR FOR 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 POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE GTC, IN NO EVENT SHALL EZ LOADER, LLC BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNTS PAID BY CLIENT TO EZ LOADER, LLC HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM OR DAMAGES.
ARTICLE 7
INDEMNIFICATION
Client shall indemnify, defend and hold harmless EZ LOADER, LLC and its affiliates, partners, agents, and employees (“EZ LOADER, LLC 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, LLC, 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.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1. 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.
8.2. Entire Agreement. These GTC constitute the entire understanding relating to the subject matter hereof between the parties. These GTC may not be amended except in a writing duly executed by the parties.
8.3. Material Changes; Periodic Review. Notwithstanding anything to the contrary in these GTC, in the event of a significant change or amendment to any regulation, law, policy or procedure, or any legal or ethical rule or regulation is promulgated or modified, or any administrative ruling or judicial interpretation is issued or modified, that prohibits any act or course of conduct contemplated by these GTC, or which materially and adversely affects the ability of EZ LOADER, LLC to provide the Software or Services hereunder or imposes onerous financial or other burdens on EZ LOADER, LLC ’s provision of services hereunder, an amendment or modification to these GTC shall be made by EZ LOADER, LLC . To the maximum extent possible, any such amendment shall preserve the underlying economic and financial arrangements between Client and EZ LOADER, LLC.
8.4. 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 to be a waiver of any subsequent breach or violation of these GTC.
8.5. Governing Law. The SSA is accepted in and substantially preformed in Georgia and shall be governed in all respects by the laws of the State of Alabama, without regard to its conflicts of law principles.
8.6. 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 as long as the underlying services and economic benefits can be fulfilled.
8.7. Assignment; Successors and Assigns. Other than assignment to affiliates of a party, under Internal Revenue Code section 267, or to a purchaser of all or substantially all of the assets or capital stock of a party, these GTC may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned. The provisions of these GTCand obligations arising thereunder will extend to, be binding upon and inure to the benefit of the parties hereto and their respective assigns and successors in interest.
8.8. Notices. Any notice or other communications required by these GTC to be in writing shall be deemed given when delivered either personally or by registered or certified mail, return receipt requested, or delivered by a reputable courier or delivery service, such as Federal Express, which can provide confirmation of delivery addressed as follows:
If to EZ LOADER, LLC:
105 Depot Street, Suite B
Dalton, GA. 30720
If to Client: to the address set forth in the agreement.
8.9. Compliance with Law. The obligations of EZ LOADER, LLC pursuant to these GTC shall be subject to any limitations or restrictions which may be imposed by law or regulation, and EZ LOADER, LLC may suspend any or all obligations hereunder in the event that it reasonably determines, upon advice of counsel, that the performance of any obligation pursuant to these GTC may contravene applicable law or regulation, the effect of which would be to have a material adverse effect on the business, financial condition, or operations of EZ LOADER, LLC or any of its affiliates.
8.10. Attorney’s Fees. If either party shall breach 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.
8.11. Arbitration. Excluding any claims with respect to the protection of EZ LOADER, LLC ‘s intellectual property rights which claims 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 O.C.G.A. 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 desires any additional matters submitted to arbitration, he shall so 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 single arbitrator acting in the matter or, if more than one arbitrator is acting, any decision of a majority 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.
8.12. Justifiable Delay in Nonperformance. Except as otherwise 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 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.
8.13. Further Assurances. Client shall from time to time take any further action and execute and deliver any instruments, including documents of assignment or acknowledgments that EZ LOADER, LLC may reasonably request in establishing and protecting its rights in the Software.
Exhibit “A”
SOFTWARE AND SERVICES
Description of Software and Services. The Software and Services to be provided to Client by EZ LOADER, LLC consist of:
1. SUMMARY
a) Software Setup Procedures consisting of the setup process as set forth below;
b) Software upgrade, if required, from existing EZ LOADER, LLC Proprietary Software and/or EZ LOADER, LLC provided Third Party Software releases to the most current release from EZ LOADER, LLC ;
c) 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, LLC during the term of the agreement;
d) Application and technical support services to support the central servers and related database(s) as set forth below and as amended from time to time; provided, however, that if the nature of any such help desk support request, or series of requests is reasonably determined by EZ LOADER, LLC to be indicative of the need for additional training, then Client or EZ LOADER, LLC shall provide an appropriate amount of additional training to Client’s Authorized Users. If such additional training services are provided by EZ LOADER, LLC, Client shall pay EZ LOADER, LLC the Additional Training Fees as set forth in Exhibit B;
e) Initial implementation training services to the initial Authorized Users (as designated by Client), consisting of instruction on the latest Software release, as specifically set forth below (the “Initial Training and Other Services”); provided, however, that any training services in addition to the Initial Training Services will be provided at EZ LOADER, LLC ’s then-current hourly rates.
SOFTWARE *EZ LOADER, LLC will provide Client with access to the EZ LOADER, LLC Proprietary Software and the third-party Software listed in Exhibit B for the fees listed in Exhibit B.
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 issues related to network hardware and connectivity is not the fault of EZ LOADER, LLC and shall not constitute a breach of these GTC. If network problems are experienced by Client, EZ LOADER, LLC shall use commercially reasonable efforts to work directly with Client to resolve any Client-network connectivity issues.
HELP DESK AND TECHNICAL SUPPORT SERVICES
Toll-free HOTLINE telephone support, Monday through Friday 8:00 a.m. to 5:30 p.m. EST..
After Hours support is provided for Down System and High Priority issues (as defined in Exhibit D) only, and should not be used for routine requests.
INITIAL TRAINING AND OTHER SERVICES
Software Training Selections: Implementation, Training Services and Project Management time allotted will be defined by the Tier selected.
RESPONSIBILITIES
Client Responsibilities:
• Client shall designate a user who is a member of Client’s management team who will be EZ LOADER, LLC ’s primary contact, and who will facilitate the successful implementation and ongoing utilization of the Software.
• Provide a person that has the knowledge and time to assume the Client implementation responsibilities.
• Identify and document Client’s current and future workflows.
• Manage internal communication with stakeholders and end-users.
• Provide all practice hardware including PCs, printers, networking, cabling, etc. per specifications in Exhibit C.
• Arrange for high speed telecommunication connection per enclosed recommendations in Exhibit C.
• Provide web browser (as specified in Exhibit C from time to time)
• Provide and use Anti-Virus software
EZ LOADER, LLC Responsibilities:
• Assign and implement user seats appropriate per the SSA
• Provide access to Software via application service provider model as set forth in the GTC.
Exhibit “B”
FEE SCHEDULE
SERVICE FEES
Client shall pay to EZ LOADER, LLC the fees as listed below (collectively, the “Service Fees”) for each Authorized User.
Adjustments.
SET-UP, PROJECT MANAGEMENT & TRAINING
Initial system setup/training/implementation for the Software listed in this Exhibit B are included in the Initial Fees. Ongoing reasonable and customary travel and living expenses for EZ LOADER, LLC staff are not included and will be invoiced monthly to Client. If any additional implementation and training services are required, then Client shall notify EZ LOADER, LLC, and EZ LOADER, LLC shall provide Client with a proposal for such additional services at a rate of $175.00 per hour, plus travel expenses. Further, if Client initiates a help desk support request, or series of requests, that EZ LOADER, LLC reasonably determines to be indicative of the need for additional training, then EZ LOADER, LLC shall notify Client, and shall provide the additional training services at EZ LOADER, LLC ’s then-current hourly rate, including travel expenses as also described in the GTC.
PAYMENT TERMS
IF BY CHECK – All fees due EZ LOADER, LLC shall be payable by Client within 10 days of receipt of invoice from EZ LOADER, LLC. IF BY CREDIT – Payment due at the same time every month. If service is cancelled your account will be disabled.
Exhibit “C”
CLIENT TECHNICAL REQUIREMENTS
Bandwidth
Client will provide adequate bandwidth within Client’s local and wide area networks and intranet/internet connections for Authorized Users’ access to and utilization of the Software provided under these GTC.
Client will provide a minimum bandwidth of 1024kbps plus 256kbps times the number of Authorized Users. This speed is typically available using T1 lines, business-class DSL or cable.
All Exhibit C Client Technical Requirements and specifications are subject to change from time to time as a result of additional functionality provided by Software updates and releases and/or as a result of Third Party Software updates and releases.
Exhibit “D”
SERVICE LEVEL AGREEMENT
Service Levels. EZ LOADER, LLC shall use commercially reasonable efforts to initially notify or provide status of all technical support issues relating to the Software that are communicated to EZ LOADER, LLC through the proper process of communication reasonably established by EZ LOADER, LLC within the following time frames (the “Service Levels”):
(i) 20 minutes for a Down System issue (a malfunction that prevents users from logging on or off the Software);
(ii) 60 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) For a Down System issue, EZ LOADER, LLC shall use commercially reasonable efforts to resolve such issue within eight (8) hours of the time the Down System issue is reported to EZ LOADER, LLC to the extent the resolution of the Down System issue is within the control of EZ LOADER, LLC, and shall otherwise use its commercially reasonable efforts to resolve the issue as soon as reasonably practicable.
For all High Priority, Medium Priority and Low Priority issues, EZ LOADER, LLC shall use its commercially reasonable efforts to resolve such issues as soon as reasonably practicable.
RECIPROCAL CONFIDENTIALITY
AND NONDISCLOSURE AGREEMENT
THIS RECIPROCAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”), is by and between Registering Company____________________, and EZ LOADER, LLC, having a place of business at 105 Depot Street, Suite B, Dalton, Georgia 30720 (“dba EZ Loader”). 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 which 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 foregoing premises and the mutual covenants contained herein and intending to be legally bound hereby, the Parties hereto agree as follows:
1. 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 disseminated within the Receiving Party’s own organization only to the extent reasonably necessary in connection with the performance of their duties for the Receiving Party.
2. 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.
3. Notwithstanding the foregoing, the term “Confidential Information” will not include information which:
4. Is known to the Receiving Party on or prior to the date of disclosure to the Receiving Party; or
5. Is or becomes a part of the public domain through no wrongful act of the Receiving Party; or
6. Is rightfully obtained by the Receiving Party from a third party without restriction and
7. breach of this Agreement or any similar agreement; or Is independently developed by the Receiving Party without access to the Disclosing Party’s information.
8. In any such event, the Receiving Party will have no obligation with respect to any such information.
9. 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.
10. Both Parties use their best efforts to ensure that all of their Representatives who have access to Confidential Information comply in all respects with the terms of this Agreement.
11. 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.
12. 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 prior to release unless notice is waived in writing prior to release.
13. The Parties acknowledge and agree that their Representatives are an integral part of their respective businesses. Each Party therefore agrees that it shall not, from the date of this Agreement until three years after its termination, directly or indirectly, cause, induce or attempt to cause or induce any of the other Party’s Representatives to leave the employ of such Party or to accept employment or engagement with the other Party or any other employer.
14. 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 on which such notice of termination is received by the non-terminating Party. Notwithstanding any termination of this Agreement, the obligations imposed on the Receiving Party by this Agreement shall continue in effect after any such termination with respect to any Confidential Information provided or communicated to the Receiving Party prior to such termination.
15. Unless the context otherwise requires, any reference herein to either Party shall include its officers, directors, employees, consultants, agents, its parent corporation, subsidiaries and affiliates; provided, however, that any consultants who are afforded access to any Confidential Information of any Disclosing Party must be parties to a confidentiality or non-disclosure agreement with the Receiving Party containing terms substantially similar to those set forth in this Agreement.
16. Each Party acknowledges that the covenants contained in this Agreement, in view of the nature of the business in which the Parties are engaged, are reasonable and necessary in order to protect their respective legitimate business interests, and that any violation thereof would result in irreparable injury to the other Party. Each Party agrees that, if it violates any of such covenants, then the other Party shall be entitled to obtain from any court specified in Section 15 of this Agreement temporary, preliminary and permanent injunctive relief, which right shall be cumulative and in addition to any other rights or remedies to which the such Party may otherwise be entitled at law or in equity.
17. If all or any portion of the covenants contained in this Agreement or the application thereof are construed to be invalid or unenforceable, then the remainder of such covenant or covenants and/or the application thereof shall not be affected, and any remaining covenants shall then be given full force and effect without regard to the invalid or unenforceable portions. If any covenant is held to be unenforceable because of the geographic area covered, 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 scope thereof, and the covenant shall then be enforceable in its reduced form.
18. Neither this Agreement nor either Party’s rights hereunder may be assigned or transferred to any other party.
19. This Agreement constitutes the full and entire agreement between the Parties, supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, express or implied, oral or written, and may not be waived, modified or terminated except by the written agreement of each of the Parties hereto.
20. 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.
21. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective representatives, successors and permitted assigns.
22. The acceptance represent and warrant that the acceptor has the authority to bind his/her respective Party.