LES Software Agreement Terms and Conditions

SOFTWARE DEFINITIONS

The term “Authorized Users” shall mean the maximum number of individuals actively accessing the Logistics Expert System at any given point in time and who is authorized to use the Software.

The term “Software” or “LES” means collectively any electronic copy of  or hosted access to the Logistics Expert System, including any third party software or code provided by a third party, which is included in or with the software provided by Teknowlogi.

The term “Documentation” means all associated electronic/hard-copy documentation related to the Software.

The term “Intellectual Property” means the Logistics Expert System, Software and its works, including Literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, and any other work that may be the subject matter of copyright protection; any word, symbol, configuration or any combination thereof used to identify or distinguish goods and/or services or any other identifiers of goods and/or services that may be subject matter of trademark protection, including all applications and registrations therefore and associated goodwill; advertising and marketing concepts; information; data; formulas; designs; models; drawings; computer programs, including all Documentation, related listings, design specifications, and flowcharts; trade secrets; and any inventions, including all know-how, processes, machines, manufactures and compositions of matter and any other invention that may be the subject matter of patent protection; and all statutory protection obtained or obtainable thereon.

The term “Customer” for purposes of the LES Agreement when used throughout the Agreement and any and all Appendix, Addenda, Schedules, Amendments or Attachments thereto, the term “Customer” shall include Customer and its affiliated companies, provided that any such affiliate is under common control or influence of Customer. For the purposes of the LES Agreement, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity through the majority ownership of voting securities.

The term “Third Party Software” is defined as software that is not included in the Software and is provided to Customer under a separate license agreement with another party; however, such definition does not include third party software provided by Teknowlogi as part of the Software licensed herein.

SOFTWARE OWNERSHIP AND RIGHTS

Teknowlogi represents and warrants that it has the right to grant Customer a license for the use of the Software and the Documentation as set forth herein. Customer understands and agrees that its use of the Software may involve or require the utilization of third-party software and related software applications (“Third Party Software”); such Third-Party Software shall be licensed directly by Customer. Customer is responsible, at its sole expense, for determining, prior to using the Software, what Third Party Software may be utilized or required by its proposed use of the Software. Further, Customer is responsible for obtaining all necessary licenses and/or permissions from the provider of the Third-Party Software. In addition, Customer understands and agrees that Customer is solely responsible for paying all license fees and charges and/or other costs relating to use of any Third-Party software and that Teknowlogi bears no responsibility for any such fees, charges and/or costs. Customer represents and warrants that Customer owns and/or has properly obtained a valid license or other permission from the provider of the Third-Party Software to use any additional software, including without limitation any Third-Party Software that may be used when Customer runs and/or uses the Software.

TITLE TO SOFTWARE

The Software and Documentation are licensed (not sold) to Customer. Teknowlogi, LLC, which licenses the Software to Customer, retains all right, title, and ownership of the Software, along with Documentation and all related Intellectual Property including all subsequent full or partial copies, enhancements, modifications and other derivatives of the Software. Except as set forth herein, Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Software, the Documentation or copies thereof to others. Customer agrees to secure and protect the Software, the Documentation and copies thereof in a manner consistent with the maintenance of Teknowlogi’ rights therein and to take appropriate action, including by instruction or agreement with its employees or consultants who are permitted access to the Software, to satisfy its obligations hereunder. Any copies made by the Customer of the Software and other programs developed hereunder, including translations, compilations, and partial copies with modifications and updated works, are the property of Teknowlogi LLC.

CONFIDENTIAL INFORMATION

Teknowlogi and Customer acknowledge that the LES Software Agreement creates a confidential relationship between Customer, Customer’s Customers, and Teknowlogi. That confidential relationship is the basis on which both parties have disclosed and may in the future disclose commercially valuable, proprietary, confidential information pertaining to the Software provided under the LES Agreement and potentially some of such information that both parties hold as a trade secret. The Software (including, but not limited to the existence and development status of the Software, the functionality of the Software, the appearance, content and flow of the Software’s screens and user interfaces, the method and pattern of user interaction with the Software, and the content of the Documentation), all related Intellectual Property, and any of the terms of this Software License Agreement, including all exhibits and schedules, constitutes proprietary trade secret information owned solely by Teknowlogi (collectively, “Confidential Information”). Customer shall take all reasonable precautions to prevent inadvertent disclosure of the Software, including all trade secrets and Confidential Information contained therein or associated herewith.

Restrictions

Except as set forth in the Software Agreement, Customer shall not: (1) use or run the Software, except in strict accordance with the terms and conditions of the LES Agreement; (2) copy any part of the Software; (3) distribute, rent, lease, sublicense or publicly display any portion of the Software; (4) modify or prepare derivative works of the Software; (5), or use of the Software in any other way other than for Customer’s own business purposes; or (6) decode, decompile, disassemble or otherwise reverse engineer the Software.

IT SUPPORT

Teknowlogi will provide on-going standard technical support for the Logistics Expert System. Standard support will be provided during normal business hours as defined on Teknowlogi website. Support issues are prioritized and handled as quickly as possible by the IT Support Team.

Each customer has the option to purchase a monthly premium support plan based on anticipated ongoing support needs. These optional plans will be discussed during the implementation process.

TARIFF MANAGEMENT

Tariffs loaded by Teknowlogi at the request of the Customer are done so as a courtesy at the pricing structure listed in Exhibit A. The Customer has full responsibility to test each tariff for accuracy after it has been loaded. If any tariff issues are discovered as a result of the tariff setup, then Teknowlogi will correct the issues at the request of the Customer. Teknowlogi is not responsible for any pricing discrepancies related to a Customer owned tariff loaded in the Logistics Expert System.

PRIVATE LABELED WEBSITE

Customer will provide a company logo and any other information requested to create a private labeled website for the Customer. Limited customization of one private label branding and color scheme is included with the implementation of the Logistics Expert System. Any necessary copyright or trademark permissions required by Teknowlogi to create a branded site for Customer are expressly granted with the LES agreement.  Customer must obtain prior written approval from Teknowlogi for use of any third-party logo on the private labeled URL.

All private labeled sites may have a small copyright print for Teknowlogi and a “Powered by Teknowlogi” insignia on the bottom of the web pages.

 

GENERAL SOFTWARE PROVISIONS AND LIABILITY

Any bugs related to any Third-Party Software suite will be the responsibility of the third party vendor of that product. Teknowlogi will not be responsible for fixing these bugs. Teknowlogi may, however, assist the Customer in reporting these bugs to the appropriate Third-Party vendors.

Limitation of Liability: Teknowlogi shall have no liability under the agreement for consequential, exemplary, special, indirect, incidental or punitive damages, including loss of profits, data or use incurred by the Customer or any third party, even if it has been advised of the possibility of such damages. In any event, the liability of Teknowlogi to the Customer for any reason and upon all causes of action or claim with respect to the services hereunder shall be limited to the amount paid to Teknowlogi by the Customer hereunder for such services. These limitations apply to all causes of action or claims in the aggregate. Both parties understand and agree that the limitations and exclusions set forth herein represent the parties’ agreement as to the allocation of risk between the parties.

IMPLEMENTATION

Implementation support and project management is determined by the pre-defined implementation tier that was selected by the Customer. The implementation process usually takes 60 days or (sometimes less). An Implementation Plan and the steps and procedures Teknowlogi will follow during the project to implement our LES will be provided when implementation begins. All projects will be completed utilizing both resources from Teknowlogi and the Customer.

All system enhancement requests will be documented during the implementation by the Teknowlogi Project Team, but these requests will not impact or delay the system from moving into production. The Teknowlogi Project Team may schedule weekly status calls to insure both parties are clear on the implementation progress and that timelines are being met or adjusted.

It is the Customer’s responsibility to clearly define all business rules and requirements at the start of the implementation process. This is required regardless of any previous conversations or documents provided by or with the Customer. The LES is provided as an “off the shelf” software system. Any changes or business processes requested by the Customer that cannot be supported by the standard workflow of the LES will require a separate Statement of Work (SOW) defining the details and requirements of the request.

The customer is expected to fully participate in the implementation process with the Teknowlogi staff in order to complete the process in a timely manner. Customer implementation delays in providing setup data or availability for conference calls or training, can result in the billing of monthly subscription or minimum transaction fees prior to implementation completion.

The customer will be placed into an implementation tier based upon certain setup criteria. For all Tier 1 and 2 implementations, customer data necessary to begin implementation, should be submitted to Teknowlogi no later than five (5) business days from Agreement execution. For all Tier 3 implementations, customer data should be submitted to Teknowlogi no later than ten (10) business days from Agreement execution.

*See Implementation Exhibit accompanying the Agreement for further detail.  If the customer moves outside of the scope of their initial tier, they will be moved into the next tier and charged according to that tier’s pricing structure.

TERMINATION

Either party may terminate the LES Agreement immediately by notice in writing to the other if: (i) a receiver is appointed for either party’s business or assets; (ii) the other party begins bankruptcy proceedings; (iii) if any substantial part of either party’s property becomes subject to any levy, seizure, assignment, application or sale by any creditor or governmental agency and materially affects such party’s ability to perform hereunder; (iv) one party defaults on any of its obligations under the LES Agreement and fails to cure such default within thirty (30) days after written notice by the non-breaching party of such breach; or (v) either party breaches the Confidential Information Section herein.

Should Customer terminate the agreement prior to the expiration date, for any reason other than a breach of agreement by Teknowlogi, the remaining monthly subscription fees through the end of the agreement term will be due by Customer immediately.