Subscription and Professional Services Agreement
Last Updated: 06/28/23
This Subscription and Professional Services Agreement is effective as of the Effective Date and is made by and between Customer and Loadsmart and sets forth the terms and conditions governing Customer’s access to and use of the Services.
1.1. “Affiliate” means with respect to a party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
1.2. “Agreement” means this Subscription and Professional Services Agreement together with the applicable Order Form or Statement of Work executed by Customer.
1.3. “Authorized User” means an employee of Customer that has been authorized by Customer to access and use the Subscription Services.
1.4. “Confidential Information” means all non-public information of a party, including, but not limited to, all technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of the Disclosing Party (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information, and usernames and passwords for the Subscription Services disclosed by the Disclosing Party (whether by oral, written, graphic or machine-readable format) to the Receiving Party, which Confidential Information is designated to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
1.5. “Customer” means the legal entity other than Loadsmart identified in the applicable Order Form or Statement of Work.
1.6. “Customer Data” means any data that is provided by Customer or its Authorized Users to Loadsmart during the Services, including Personal Data and Personal Information about Authorized Users, but specifically excluding any Third Party User Data and Usage Data. Customer Data is the Confidential Information of Customer.
1.7. “Deliverables” means the completed work product specifically identified as a deliverable in the applicable Statement of Work.
1.8. “Documentation” means the technical documentation regarding the Subscription Services provided by Loadsmart to Customer.
1.9. “Effective Date” means (a) in the case of Subscription Services, the earlier of: (i) Customer’s initial access to the applicable Subscription Services in any capacity, or (ii) Customer’s execution of the applicable Order Form; or (b) in the case of Professional Services, the effective date listed in the applicable Statement of Work.
1.10. “Excluded Claim” means liabilities arising from: (i) a party’s gross negligence, willful misconduct, or fraud; (ii) a party’s violation of applicable law; (iii) Customer’s breach of Section 2.2; (iv) Customer’s indemnification obligations outlined in Section 10.1; or (v) a party’s breach of the confidentiality obligations outlined in Section 7.1.
1.11. “Feedback” means any suggestions, ideas, concepts, know-how, techniques, comments, or questions containing feedback about the Services submitted by Customer or its Authorized Users.
1.12. “Fees” means any fees paid by Customer for the Services, as further set forth in the applicable Order Form or Statement of Work.
1.13. “Intellectual Property” means any and all inventions, trade secrets, know-how, developments, improvements, results, data, designs, visual interfaces, graphics, compilations, information, computer code (including source code or object code), products, software, services and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.14. “Loadsmart” means Loadsmart, Inc. and its wholly owned subsidiaries and Affiliates.
1.15. “Order Form” means an order for Subscription Services in a format approved by Loadsmart, which incorporates this Agreement and its terms by reference.
1.16. “Professional Services” means the services to be performed by Loadsmart as further described in the applicable Statement of Work.
1.17. “Security Incident” means the actual unauthorized acquisition of Customer Data, Personal Information, or Confidential Information of a party which is maintained or stored by the other party or the actual or suspected unauthorized access to or use of the Subscription Services.
1.18. “Services” means both the Subscription Services and the Professional Services, collectively.
1.19. “Software” means the Software-as-a-Service platform owned and operated by Loadsmart through which an Authorized User may access the Subscription Services.
1.20. “Statement of Work” means a document executed by both parties outlining the Professional Services to be performed by Loadsmart and the associated Deliverables.
1.21. “Subscription Services” means the online and hosted Software subscription provided by Loadsmart. The scope of the Subscription Services purchased by the Customer may be further described in the Order Form.
1.22. “Subscription Term” means the service start date through the service end date as set forth in the applicable Order Form.
1.23. “Third Party User” means a user accessing the Subscription Services that is not Customer or Loadsmart.
1.24. “Usage Data” means any information derived from the Software as a result of Customer’s use of the Subscription Services, including, but not limited to, data, statistics, trends, patterns, and similar information.
2. SUBSCRIPTION SERVICES
2.1. Subscription Services.
Loadsmart will provide the Subscription Services in accordance with this Agreement for the duration of the Subscription Term. Customer may access and use the Subscription Services solely for its internal business purposes, subject to the terms of this Agreement, and such access and use is expressly limited to the Authorized Users of Customer.
Customer shall not attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer shall not, and shall ensure its Authorized Users do not: (a) copy, modify or distribute any portion of the Subscription Services or Software, (b) rent, lease, or provide access to the Subscription Services or Software on a time-share or service bureau basis; (c) use the Subscription Services or Software to provide, or incorporate the Subscription Services or Software into, any product or service provided to a third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs related to the Subscription Services or Software, or (e) transfer any of its rights hereunder (except as expressly set forth herein).
2.3. Acceptable Use.
Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with applicable laws, regulations and the rights of others and in accordance with the applicable Order Form. Customer shall be fully liable for all acts or omissions of its Authorized Users in connection with the Subscription Services as if they were performed by Customer.
2.4. Illegal and Unauthorized Use of Subscription Services.
Loadsmart may immediately suspend or terminate Customer’s access to the Subscription Services, by written notice to Customer, in the event that (i) Loadsmart determines on the basis of reasonable evidence that the Subscription Services are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation or the Agreement, or (ii) in the event that a governmental, legal or other law enforcement authority so requires, or instructs Loadsmart to terminate or suspend the Subscription Services to Customer. Customer is and shall be solely responsible for any fraudulent use, misuse, or illegal activity conducted in or on the Subscription Services by its Authorized Users.
2.5. Data Maintenance and Backup Procedures.
The Subscription Services are not intended to be a data warehouse or data back-up solution. In the event of any loss or corruption of Customer Data, Loadsmart shall use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Loadsmart. Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances and Loadsmart shall have no liability to Customer in such case.
3. PROFESSIONAL SERVICES
3.1. Statement of Work.
From time to time, Customer may request that Loadsmart perform certain Professional Services. Each engagement for Professional Services will be described in detail in a separate Statement of Work executed by both parties, including, but not limited to, Fees and expenses, project timelines, personnel and resource requirements, and specific Deliverables.
4. CUSTOMER OBLIGATIONS
4.1. Cooperation and Assistance.
Customer shall at all times: (a) provide Loadsmart with good faith cooperation and assistance and access to such information and personnel as may be reasonably required by Loadsmart in order to provide the Services from time to time; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.
4.2. Marketing Support.
Customer grants to Loadsmart a non-exclusive, non-transferable, revocable, limited right to use Customer’s name, trademarks, and logos (collectively, the “Customer Marks”
) solely for the purpose of identifying Customer as a recipient of the Services and in accordance with any trademark and logo use guidelines that Customer provides to Loadsmart.
5. FEES; TAXES
5.1. Fees; Late Payment.
Customer shall pay the Fees and expenses as set forth in the Order Form and Statement of Work, as applicable. In the event Customer’s usage of the Subscription Services exceeds the limitations set forth in the applicable Order Form, Customer will be responsible for any additional amounts billed by Loadsmart as a result. After the initial Subscription Term, Loadsmart may increase the Fees for the Subscription Services no more than once in a twelve (12) month period. Customer is responsible for maintaining complete and accurate billing and contact information and notifying Loadsmart of any changes to such information. All invoices are due thirty (30) days following receipt by Customer. In the event that an invoice is not timely paid, Loadsmart shall have the right to charge interest on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Loadsmart. In addition, if any invoice becomes more than thirty (30) days overdue, Loadsmart may: (i) for Subscription Services, suspend Customer’s access to and use of the Subscription Services without liability to Customer, or (ii) for Professional Services, cease all work under the applicable Statement of Work. If Loadsmart is required to take legal action to collect undisputed Fees, Customer shall be obligated to reimburse Loadsmart for the reasonable costs of collection, including reasonable attorney’s fees. Except as otherwise set forth in Section 9.2 and Section 10.2, all Fees for Services are non-refundable.
5.2. Payments Processing.
Customer authorizes Loadsmart to automatically charge Customer’s credit card or bank account for all Fees payable in accordance with the applicable Order Form or Statement of Work. Customer further authorizes Loadsmart to use a third party to process payments and consents to the disclosure of Customer’s payment information to such third party. Customer will notify Loadsmart immediately of any change in Customer’s credit card or bank account billing information.
All amounts and Fees stated or referred to in this Agreement or any Order Form or Statement of Work, are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, use, GST, VAT, withholding, or similar taxes) (collectively, “Taxes”). Customers shall be responsible for payment of all Taxes related to the Services.
6. INTELLECTUAL PROPERTY
6.1. Loadsmart Intellectual Property.
Loadsmart shall retain all right, title, and interest to any and all Intellectual Property: (i) in the Subscription Services, (ii) in the Software, and (iii) developed by Loadsmart prior to commencement of the Professional Services, independent of the Professional Services, and during the Professional Services, provided the applicable Intellectual Property is not a Deliverable, and, in each case, all Intellectual Property rights therein or relating thereto are and shall remain the exclusive and sole property of Loadsmart (collectively “Loadsmart Intellectual Property”). Loadsmart grants to Customer and its Authorized Users a limited, non-exclusive, non-sublicensable, non-transferrable, terminable, revocable, license to the Loadsmart Intellectual Property to the extent necessary for Customer to make use of the Subscription Services or the applicable Deliverable for Customer’s internal business purposes in accordance with the applicable Order Form or Statement of Work.
6.2. Customer Intellectual Property.
Customer shall retain all right, title, and interest to any and all Intellectual Property: (i) in the Customer Data, (ii) if applicable and subject to Customer’s payment of all applicable Fees and expenses, in the Deliverables, and (iii) in the Customer Marks. By providing Customer Data during the Services, Customer grants to Loadsmart the right and license to use, reproduce, distribute, modify, and adapt the Customer Data: (y) for the purpose of providing the Services to Customer, including the right to disclose Customer Data to Loadsmart's employees, subsidiaries, Affiliates, contractors, vendors, and Third Party Users to the extent necessary to provide the Services to Customer, and (x) for Loadsmart’s internal business purposes (subject to the confidentiality obligations outlined in Section 7.1).
6.3. Aggregate, Usage, and Third Party User Data.
Notwithstanding anything to the contrary in this Agreement, Loadsmart may use de-identified or aggregated Customer Data for any business purpose, including, without limitation, industry benchmarking, best practices guidance, recommendations, and similar reports which may be distributed externally to other customers of Loadsmart. In addition, nothing contained within this Agreement or the applicable Order Form or Statement of Work will restrict or prohibit Loadsmart’s ability to utilize Third Party User data or Usage Data for any lawful purpose.
Loadsmart shall be free to use, disclose, reproduce, license, or otherwise distribute Feedback as it sees fit, without obligation or restriction of any kind on account of Intellectual Property rights or otherwise; provided, that such Feedback shall not contain any specific or identifiable elements unique to Customer or its operations. Customer shall have no Intellectual Property rights in the Subscription Services as a result of Loadsmart's incorporation of Feedback into the Subscription Services.
7. CONFIDENTIALITY; SECURITY; DATA PRIVACY.
7.1. Confidentiality Obligations.
In connection with this Agreement, a party may disclose (the“Disclosing Party”
) certain Confidential Information to the other party (the “Receiving Party”
). During the term of this Agreement and for a period of three (3) years after expiration or termination of this Agreement, the Receiving Party will not disclose the Disclosing Party’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. The Receiving Party shall not disclose Confidential Information to any third party except to the Receiving Party’s employees, contractors, vendors, and Affiliates that have a reasonable need to know such information in connection with this Agreement; provided, that any such third parties will be legally bound by confidentiality obligations at least as strict as those outlined hereunder. The Receiving Party shall ensure that the Disclosing Party’s Confidential Information is not disclosed or distributed by its employees, contractors, vendors, or Affiliates in violation of the terms of this Agreement. The Receiving Party will treat all Confidential Information with the same degree of care that the Receiving Party utilizes to protect its own Confidential Information, but in any event no less than a reasonable degree of care.
The foregoing confidentiality restrictions shall not apply to information which the Receiving Party is able to demonstrate by documentary evidence: (i) is or becomes available in the public domain without breach of this Agreement by Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Confidential Information; or (iv) is lawfully received by the Receiving Party from a third party having a right of further disclosure.
Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency or judicial process; provided, that before providing such Confidential Information the Receiving Party must give (to the extent permitted by applicable law) the Disclosing Party sufficient advance notice of the disclosure to enable the Disclosing Party to exercise any rights it may have to challenge or limit the disclosure of such Confidential Information.
Upon written request by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) business days of receipt of request, and (iii) confirm in writing that the Receiving Party has complied with the obligations set forth in this paragraph. Notwithstanding the foregoing, the Receiving Party may retain one (1) copy of the Confidential Information to monitor ongoing compliance with this Agreement and a limited number of backup copies made in accordance with the Receiving Party’s standard record retention policies.
7.2. Security Obligations.
Each party shall (i) maintain commercially reasonable information security practices for its systems used to provide or access the Subscription Services, including security procedures and practices appropriate to the nature of the information input into or residing in the Subscription Services and designed to prevent unauthorized access to, or use or disclosure of, any Customer Data and Confidential Information or a Security Incident, and (ii) comply with all privacy and data security laws and regulations applicable to the Subscription Services. Each party shall promptly notify the other party of any Security Incident. Where Customer is the notifying party, the notice shall be directed to Security@Loadsmart.com with a copy to Legal@Loadsmart.com. The notifying party will reasonably investigate any such Security Incident. For Security Incidents arising out of a party’s gross negligence or willful misconduct, that party shall be responsible for (i) costs of government or regulatory fines, and (ii) if required by applicable law, providing notice and/or credit monitoring or identity protection to any data subject impacted by the applicable Security Incident and/or to provide notice to any governmental entity, costs associated with any such notices or identity protection (collectively, “Breach Costs”). Loadsmart shall have no responsibility to pay any Breach Costs related to a Security Incident caused by the Customer’s or its Authorized Users’ negligence, willful misconduct, fraud, or violation of applicable law.
7.3. Data Privacy.
8. WARRANTIES AND DISCLAIMERS
8.1. Representations and Warranties of Loadsmart.
Loadsmart represents and warrants the following with respect to the Services:
8.1.1.Loadsmart warrants that the Subscription Services will substantially conform to the functionality set forth in the Documentation. If the Subscription Services do not substantially conform to the functionality set forth in the Documentation, Loadsmart’s sole and exclusive obligation will be to use commercially reasonable efforts to correct the non-conformity or, in Loadsmart’s sole discretion, if such remedy is impracticable Customer may terminate this Agreement in accordance with Section 9.2. The warranty set forth in this Section 8.1.1 will not apply: (i) if Customer makes a claim of non-conformity more than thirty (30) days after the date on which Customer first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Subscription Services are being offered on a no-charge, trial, or evaluation basis.
8.1.2.Loadsmart represents and warrants that the Services will be of a professional quality conforming to generally accepted industry standards and practices.
8.1.3.Loadsmart shall at all times comply with all applicable laws, rules and regulations, including data privacy laws, and the terms of this Agreement during Loadsmart’s provision of the Services.
8.1.4.If Loadsmart uses or licenses Intellectual Property owned by third parties in the performance or provision of the Services, Loadsmart represents and warrants that it has obtained any such licenses and authorizations necessary for its valid use of such third-party Intellectual Property in connection with the Services.
8.2. Representations and Warranties of Customer.
Customer represents and warrants the following with respect to its use of the Services and provision of the Customer Data:
8.2.1.Customer has the necessary licenses, rights, consents, and permissions to use the Customer Data and to allow its Authorized Users and Loadsmart to use and distribute Customer Data as necessary to provide and make use of the Services.
8.2.2.Customer Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any applicable laws or any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, contractual right, or any other Intellectual Property or proprietary right.
8.2.3.Customer shall at all times comply with all applicable laws, rules and regulations, including data privacy laws, and the terms of this Agreement during Customer’s use of the Services.
8.2.4.Customer shall not engage in any conduct that may cause a virus or other computer code, file, or program to interrupt, destroy or limit the functionality of the Subscription Services and/or any related hardware or technological equipment, or otherwise permit unauthorized access to or use of the Subscription Services.
8.3. Customer Use and Data.
Loadsmart shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided by Customer or its Authorized Users to Loadsmart in connection with the Services. Except as otherwise set forth herein, Loadsmart expressly disclaims any and all liability in connection with Customer Data. Loadsmart is under no obligation to edit or control Customer Data, including Customer Data that Customer inputs into the Subscription Services. Loadsmart may, at any time without prior notice, remove any Customer Data that violates this Agreement or applicable law, or which violates the rights of a third party or Loadsmart.
8.4. General Disclaimer.
OTHER THAN THE WARRANTIES IN THIS AGREEMENT THE SERVICES ARE PROVIDED “AS IS” AND LOADSMART EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.5. CoPilot Disclaimer.
LOADSMART’S COPILOT FUNCTIONALITY IN THE SUBSCRIPTION SERVICES IS POWERED BY THIRD PARTY ARTIFICIAL INTELLIGENCE AND LOADSMART DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AND NONINFRINGEMENT OF THIRD PARTIES' RIGHTS WITH RESPECT TO ANY INFORMATION, RECOMMENDATIONS, ANSWERS, ANALYSIS OR OTHER DATA PROVIDED BY THE COPILOT FUNCTIONALITY TO EACH AUTHORIZED USER.
9. TERM AND TERMINATION
This Agreement is effective as of the Effective Date and shall remain in full force and effect: (a) for each Order Form, until the end of the Subscription Term; and (b) for each Statement of Work, until the end of the applicable term set forth therein. For Subscription Services, the Subscription Term shall automatically renew for subsequent twelve (12) month periods following completion of the initial Subscription Term, unless either party provides the other party written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Term.
9.2. Termination for Breach.
If either party commits a material breach of its obligations in this Agreement or any Order Form or Statement of Work (including payment obligations), the non-defaulting party may give written notice to the defaulting party specifying the nature of the default, and if such default is not remedied within thirty (30) days from the receipt of such notice, then the non-defaulting party shall have the right to immediately terminate this Agreement or the Order Form or Statement of Work by written notice. If the breach relates solely to one Order Form or Statement of Work, then only such Order Form or Statement of Work may be terminated in accordance with the terms herein and all other Order Forms and Statements of Work and this Agreement shall continue in full force and effect. In the event that Customer terminates an Order Form in accordance with this Section 9.2, Customer shall be entitled to a pro-rated refund of any prepaid Fees for the remainder of the Subscription Term as of the effective date of termination.
9.3. Termination for Insolvency.
Notwithstanding anything to the contrary herein, either party may terminate this Agreement immediately by providing written notice to the other party in the event the other party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such party and is not dismissed within sixty (60) days thereafter.
9.4. Rights and Obligations Upon Expiration or Termination.
Upon expiration or termination of this Agreement, (i) Customer’s and its Authorized Users’ right to access and use the Subscription Services shall immediately terminate, (ii) Customer and its Authorized Users shall immediately cease all use of the Subscription Services, (iii) Customer shall delete or return, and make no further use of any materials, Loadsmart Confidential Information, Documentation, Loadsmart Intellectual Property, usernames, passwords, or other items (and all copies thereof) obtained in connection with the Services; and (iv) Customer will have no further access to any Customer Data input into the Subscription Services.
Upon termination, any provision which, by its nature or express terms should survive, will survive, including, but not limited to, Sections 5, 6, 7, 10, 11, 12.
10.1. Indemnification by Customer.
Customer shall indemnify Loadsmart, its Affiliates, and subsidiaries, and its and their officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any claim by a third party to the extent and proportion arising from: (i) Customer’s or its Authorized User’s use of, or any person granted access by a Customer to use, the Services in a manner that violates applicable laws, the terms of this Agreement, or the terms of the DPA (if applicable), (ii) alleging that any Customer Data, violates a third party’s privacy rights, Intellectual Property rights, or other rights, or (iii) Customer’s material breach of this Agreement. Customer’s obligations under this Section 10.1 are contingent upon Loadsmart providing Customer with prompt written notice of such claim.
10.2. Indemnification by Loadsmart.
Loadsmart shall indemnify Customer, its officers, directors, and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any third party’s claim to the extent and proportion arising from: (i) the infringement or misappropriation of any Intellectual Property rights of a third party by Customer’s authorized use of a Deliverable or the Subscription Services, (ii) Loadsmart's violation of applicable law, or (iii) Loadsmart’s material breach of this Agreement. Loadsmart's obligations under this Section 10.2 are contingent upon: (a) Customer providing Loadsmart with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Loadsmart, at Loadsmart's expense, in the defense and settlement of such claim, (c) Loadsmart having sole authority to defend or settle such claim. With respect to claims described in subsection (i) herein, in the event that Loadsmart's ability to provide the Subscription Services or Customer’s use of a Deliverable is enjoined or in Loadsmart's reasonable opinion is likely to be enjoined, Loadsmart may obtain the right to continue providing the Subscription Services or to allow Customer’s use of the applicable Deliverable, replace or modify the Subscription Services or the applicable Deliverable so that they become non-infringing, or, if such remedies are not commercially practicable, terminate this Agreement without liability to Customer and provide a pro-rated refund of any Fees prepaid and unused upon such termination. The foregoing states the entire obligation of Loadsmart with respect to any alleged or actual infringement or misappropriation of Intellectual Property rights by the Subscription Services or a Deliverable. Loadsmart shall have no liability or obligation under this Section 10.2 for any infringement claims caused in whole or in part by: (x) any instruction, information, design, or other materials furnished by Customer to Loadsmart as part of the Services, (y) modification of the Subscription Services or a Deliverable by any party other than Loadsmart without Loadsmart’s express written consent, or (z) the combination, operation, or use of the Subscription Services or a Deliverable with other product(s), data or services where the Subscription Services or the applicable Deliverable would not by itself be infringing. Notwithstanding anything to the contrary hereunder, Loadsmart shall have no obligation or liability under this Section 10.2 for any claims arising from the negligence, willful misconduct, or fraud of Customer.
11. LIMITATION OF LIABILITY
11.1. Consequential Damages Waiver.
EXCEPT IN THE EVENT OF AN EXCLUDED CLAIM, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIMS AGAINST THE OTHER PARTY REGARDING SUCH LIABILITY AND DAMAGES.
11.2. Liability Cap.
To the fullest extent permitted by law, in no event shall Loadsmart’s aggregate liability to Customer in connection with this Agreement for any and all claims, losses, costs, or damages of any nature whatsoever, including reasonable attorney’s fees, exceed the total Fees paid by Customer under the applicable Order Form or Statement of Work in the twelve (12) month period preceding the incident giving rise to the applicable claim or action, regardless of the form or theory of the claim or action.
12.1. Governing Law; Venue.
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the state of Illinois, without regard to its conflict of laws provisions. The exclusive jurisdiction for any claim or controversy arising out of or relating to this Agreement shall be in the state and federal courts located in Cook County, Illinois, and each party hereto irrevocably and unconditionally waives the defense of an inconvenient forum.
12.2. Amendment; Waiver.
Except as otherwise provided herein, this Agreement may only be amended by a written instrument executed by a duly authorized representative of each party. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
Notwithstanding anything to the contrary in Section 12.2, from time to time, Loadsmart may modify this Agreement with respect to the Subscription Services and, unless otherwise specified by Loadsmart, the modifications will become effective upon the earlier of: (i) Customer’s access to or use of the Subscription Services subsequent to any modifications; (ii) Customer’s acceptance of the modified terms via click-through, or (iii) via email to the address designated in the applicable Order Form. For Order Forms effective prior to any modifications, Customer may terminate the applicable Order Form within thirty (30) days from the modifications becoming effective and receive, as its sole remedy, a refund of any prepaid Fees for the remainder Subscription Term.
Nothing in this Agreement shall prevent Loadsmart from utilizing the services of any subcontractor as it deems appropriate to perform its obligations under this Agreement; provided, however, that Loadsmart shall require its subcontractors to comply with all applicable terms and conditions of this Agreement in providing such services and Loadsmart shall remain primarily liable to Customer for the performance of such subcontractor.
Any notices provided by Loadsmart under this Agreement will be given to the address set forth in the applicable Order Form or Statement of Work. Notices and all other communications provided for herein shall be deemed to have been received: (i) when actually received, if delivered personally or by courier, or (ii) five (5) days following mailing if sent via certified mail, postage prepaid, return receipt requested. Notices provided to Loadsmart shall include a copy via email to Legal@Loadsmart.com
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
12.7. Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, cyberattacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, pandemic, epidemics, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, failure or diminishment of power, telecommunications or data networks, and materials shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the Force Majeure Event continues and provided such party uses commercially reasonable efforts to resume performance.
12.8. Compliance with Laws.
Each party agrees to comply with all applicable laws, including U.S. export laws, and regulations with respect to its activities hereunder.
12.9. Relationship Between the Parties.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Neither party may assign or transfer an Order Form, a Statement of Work, or this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, Loadsmart may freely assign or transfer this Agreement to any of its Affiliates or to any purchaser of all or substantially all of its assets or in connection with any merger or consolidation. Any attempted assignment or transfer in violation of this Section will be null and void.
12.11. Entire Agreement.
This Agreement, together with the applicable Order Form or Statement of Work, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. No provision of any purchase order or other similar business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect with respect to the Services.
12.12. Equitable Relief.
Each party acknowledges that a breach by the other party of any of the confidentiality rights set forth in Section 7.1 or Intellectual Property rights set forth in Section 6 of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
12.13. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the parties hereto may enforce this Agreement.
12.14. Order of Precedence.
In the event of a conflict between the terms of an Order Form or Statement of Work and this Agreement, the Order Form or Statement of Work, as applicable, shall take precedence.