1.1. ”Activation Date” means the date on which Rock Solid delivers to Client log in credentials, usernames and temporary password.
1.2. ”Addendum” means any addendum or other agreement in writing, in any case, agreed to by Client and Rock Solid pertaining to Services. (For the avoidance of doubt, the term “in writing” means, with respect to this definition only, a fee estimate for additional Services sent by e-mail (or other electronic means) by Rock Solid to Client and confirmed by an employee of Client.)
1.3. ”Additional Training” means any training services requested in addition to the standard initial training ordered by Client.
1.4. ”Add-On Services” means Software or Services that are in addition to the core Rock Solid Enterprise Management System (REMS).
1.5. ”Agreement” means, collectively, the Order Form(s), these Terms of Service and any Addendum.
1.6. ”Associates” means, collectively, the directly licensed franchises or agents or sales agents of the Client, who resell or offer for sale the shipping services offered by Client.
1.7. ”Client Data” means all information entered by client or a Permitted Entity into the Hosted Programs or the Third Party Services. For the avoidance of doubt, the term “Client Data” does not include any information that has been properly de-identified as contemplated by Section 3 hereof.
1.8. ”Client REMS Administrator” means the individual identified by Client as authorized to administer setup aspects of the REMS system.
1.9. ”Client Users” means users affiliated with Client including Employees, Independent Contractors, franchises, and sales representatives. Client Users expressly excludes End Users Shippers.
1.10. ”Confidential Information” means the terms of this Agreement and all confidential and business proprietary information of a party hereto disclosed in connection with the provision or receipt, as the case may be, of Services hereunder; provided, however, that the term “Confidential Information” does not include any information that (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party, either directly or indirectly, from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction or disclosure; or (iv) is independently developed by the receiving party.
1.11. “Day” (a business day of 8 hours (excluding a meal break).
1.12. “Effective Date” means the date that the agreement for services is effective. This date may differ from Activation Date.
1.13. “End User Shipper” means the organization or entity that produces a shipping label for shipping fulfillment. This entity or individual is also typically the user of Webship and other third-party services and additional future shipping functionality such as eCommerce integration.
1.14. “Hosted Programs” means the computer software programs owned or licensed by Rock Solid in object code form, and that Client has subscribed to as set forth in an Order Form(s) or an Addendum; provided, however, that the term “Hosted Programs” does not include any Third Party Service.
1.15. “Hosted Services” means (i) access to and use of the Hosted Programs or the Third Party Services that Client has subscribed to as set forth in an Order Form(s) or Addendum, and (i) and the storage, retrieval and processing of Client Data in connection with the use of the Hosted Programs and the Third Party Services.
1.16. “Order Form(s)” means the application or services order form issued by Rock Solid and agreed to by Client pursuant to which Client purchases a Service(s).
1.17. “Permitted Entity” means with respect to any Client, Client Associate, End User Shipper or other third party user of the Hosted Programs.
1.18. “REMS” means Rock Solid’s core product, Rock Solid Enterprise Management System.
1.19. “Service” means, as applicable with respect to Client, Hosting Services, Support Services, Training Services, Third Party Services and any other service purchased by Client (whether identified on an Order Form(s) or otherwise contemplated by this Agreement).
1.20. “Standard Rate” means, with respect to any Service, Rock Solid’s standard rate for such Service (including, if applicable, time and material charges), as set forth in Rock Solid’s standard fee schedules, as in effect from time to time.
1.21. “Support Services” means those support services provided by Rock Solid as such may change from time to time in the sole and absolute discretion of Rock Solid.
1.22. “Terms of Service” means these terms of service, including any Exhibit hereto agreed to by Client or applicable to the Service used by Client, in all Cases, as such may be updated, revised, modified or amended from time to time as permitted herein.
1.23. “Third Party Services” means any software, offering, product or functionality that Client uses (whether or not specifically subscribed for in an Order Form(s) or an Addendum), but which is provided by an independent third party.
1.24. “Training Services” means training and other consulting services that may be provided by Rock Solid to Client, as identified on an Order form(s) or an Addendum.
1.25. “Webship” means the manual entry shipping platform developed by Rock Solid and designed for single entry label creation. This product does not have eCommerce, shopping cart, or online store integration or batch processing capability.
2.1. Right to Use Hosted Programs and Third Party Services.
2.1.1. During the term of the Agreement, Rock Solid grants to Client a non-exclusive, non-transferable right for Client Employees, Licensed Franchises and End User Shippers to access and use the Hosted Programs and Third-Party Services set forth in an Order Form(s) or an Addendum. Client shall be entitled to access and use the Hosted Programs and the Third-Party Services for Client’s own internal business operations and to enable its Associates to manage their internal business operations, and to End User Shippers to facilitate the label and shipping process associated with Clients offering.
2.1.2. Client shall not transfer, sell, lease, or lend the Hosted Programs or the Third-Party Services, or any software or systems used to provide the Hosted Programs or the Third-Party Services, or any contents, information, tools, and resources therein, to any third party. Client shall not (i) allow any third party to access or use the Hosted Programs or the Third-Party Services, or (ii) access or use the Hosted Program’s or the Third-Party Service for third-party training, commercial time-sharing, software hosting, rental or service bureau use.
2.1.3. Client shall not personally, (or enable, support or provide assistance through a third party to) download, modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Hosted Programs or the Third Party Services or in any software or system used by Rock Solid in connection with providing the Hosted Programs or the Third Party Services.
2.1.4. As between the parties, Rock Solid retains all title, copyrights, patent rights, trade secrets, and other proprietary rights in the Hosted Programs, the Third-Party Services and any software or other intellectual property developed by Rock Solid as part of the Services. Client does not acquire any rights, express or implied, in the Hosted Programs, the Third-Party Services, or any software or other intellectual property developed by Rock Solid as part of the Services, other than the right to access and use the Hosted Programs, the Third-Party Services, and such software or intellectual property as set forth in the Agreement. Rock Solid may terminate or suspend Client’s access to and use of the Hosted Programs, the Third-Party Services and such software or intellectual property (in whole or in part) at any time, with or without notice, if Rock Solid has reason to believe that Client has violated the terms set forth in this section 2.1. Client acknowledges that violation of this section will cause irreparable harm to Rock Solid and money damages may not be a sufficient remedy for breach.
2.1.5. You confirm that all Users are 16 years old or older.
2.1.6. You shall not upload or enter any personal data, revealing: (i) racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; (ii) data concerning health or sex life or sexual orientation; or (iii) genetic data or biometric data, (“Sensitive Personal Data”) into the Service.
2.2. Verification. Rock Solid or its agents shall have the right to monitor use of the Hosted Programs and the Third Party Services by Client or any Permitted Entity. This audit right includes but is not limited to (i) electronic monitoring at any time, and (ii) an on-site audit, which may be conducted not more than once per year upon reasonable notice to Client (and which shall be conducted in a manner so as not to unreasonable interfere with Client’s business).
3.1. Provision of Hosting Services, Support Services and Training Services
3.1.1. Rock Solid will provide the Hosting Services purchased by Client in an Order Form(s).
3.1.2. Rock Solid will provide Support Services
3.1.3. Training Services provide onsite at Client’s premises are billed at a standard rate for each Day. If the number of hours required for Training Services during a calendar day exceeds 8 hours, each hour will be billed at the then-current after-hours consulting rates. All travel cost for Training Services provided onsite at Client’s premises will be billed separately, as incurred by Rock Solid. Client shall be responsible for (i) all non-refundable airfare fees, and (ii) one Day of fees for Training Services for all cancellations or rescheduling that occurs less than 7 days prior to the first day on which Training Services will be provided.
3.1.4. All Training Services must be utilized by Client within 90 days from the date on the Order Form(s) pursuant to which the Training Services are purchased. If Client does not utilize the Training Services within the 90-day period, the Training Services will be considered as having been delivered and no refund or other compensation shall be issued by Rock Solid (except in those cases where the failure to utilize the Training Services is a result of Rock Solid’s inability to deliver the Training Services).
3.2. Security of Client Data. Rock Solid agrees to maintain the security of Client Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for the security of business data. Rock Solid shall employ commercially reasonable storage and reasonable precautions to prevent the loss of or alternation to Client’s Data, but Rock Solid does not guarantee against any such loss or alteration. Rock Solid is not and will not be, Client’s official record keeper.
3.3. De-Identification. Rock Solid may use and disclose Data to create de-identified information and used and disclose di-identified information.
3.4. Rock Solid API
3.4.1. The Rock Solid API makes available to Client Rock Solid’s standard application program interface functions (API’s) for the purpose of enabling Client to share specific data between the Hosted Programs or Third Party Services and other software and/or data sources owned or licensed by Client or a third party that provides services to Client (the “External System”).
3.4.2. Rock Solid charges a separate fee for Client’s use of the Rock Solid API. Client’s use of the Rock Solid API and all API’s is expressly limited, and may only be used in association with a fully executed Rock Solid API Developer Agreement and payment of associated fees specified in such agreement. Access to or use of the Rock Solid API by External Systems not disclosed therein is strictly prohibited.
3.4.3. Rock Solid reserves the right to suspend or terminate access to the Rock Solid API, use of the API and the sharing of data with an External System in the event Rock Solid suspects any breach of security, in the event that Rock Solid determines that the External System is, directly or indirectly, affecting the proper performance of the Hosted Programs or the Third Party Services, or for any other valid business purpose.
4.1. Client Representations and Covenants
4.1.1. Client represents and warrants to Rock Solid that (i) Client’s use of the Client Data in connection with the Services (including the right to transfer, store, process and cache Client Data in connection with the use of the Hosted Programs and the Third Party Services) complies with all applicable federal, state and local laws and regulations, and that Client has received all necessary third party approvals with respect to the Services and its use of the Hosted Programs and the Third Party Services, and (ii) the Client Data, and the Client’s use of the Client Data (including storage, processing and caching of Client Data), do not infringe the intellectual property rights of any third party, and Client agrees to indemnify and hold Rock Solid harmless from any third party claims arising from Client’s use of the Client Data in connection with the Services.
4.1.2. Client shall comply with all federal, state and local laws and regulations applicable to Client’s conduct of its business, including, without limitation, obtaining and maintain all federal, state and local licenses.
4.1.3. Client shall (i) conduct business in a manner that reflects favorably at all time on the Rock Solid Products or Services and the good name, goodwill and reputation of Rock Solid; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Rock Solid, the Rock Solid Products or Services or the public; (iii) make no false or misleading representation with regard to Rock Solid or the Rock Solid Products or Services; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising with regard to Rock Solid Products or Services; (v) promote proper use of Rock Solid Products and Services, and (vi) make no representation, warranties or guarantees that are inconsistent with the information distributed by Rock Solid.
4.2. Data Import Limitations. Client is responsible for providing all Client Data in an industry standard format regularly used by Rock Solid in the ordinary course of business. Client acknowledges and agrees that the Client Data available in the Hosted Programs and Third Party Services will be a reflection of the quality of the data provided by the Client. Rock Solid is not responsible for inability to perform or access Services due to improperly formatted or corrupted files, viruses on media provided, or incompatible backup media or software. Client shall maintain (on a server owned or under the control of Client, or in any other manner Client shall elect) an accurate backup copy of all data provided to Rock Solid. Client acknowledges that transferring Client Data in connection with the use of the Hosted Programs or Third Party Services is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data, or damage to media that may give rise to loss or damage. Client is responsible to adopt reasonable measures to limit the impact of such problems.
4.3. Software and Hardware Requirements.
4.3.1. Client is responsible for obtaining access to the Internet using software and hardware that meet Rock Solid’s published system requirements, including security requirements. These system requirements may be modified from time to time.
4.3.2. Client agrees to access the Hosted Programs and Third Party Services, and to store and retrieve data using third party programs, including (without limitation) Internet browser programs, that support data security protocols compatible with those specified by Rock Solid.
4.4. Account Name and Passwords
4.4.1. Client may designate user account names and passwords for Associates, and for additional permitted users associated with Client, which may include a Permitted Entity. Client is responsible for safeguarding the confidentiality and use of account names and passwords, and agrees to take any and all actions necessary to maintain the privacy of such information.
4.4.2. Client shall be liable and responsible for any and all activities conducted through its account, whether or not such activities have been authorized by Client. Rock Solid will deem any communication, data transfer, or use of the Hosted Programs or Third Party Services received under Client’s account names and passwords to be for Client’s benefit and use.
4.4.3. Client will promptly notify Rock Solid if account names or passwords are lost, stolen, or are being used in an unauthorized manner. Upon Rock Solid’s request, Client will provide Rock Solid with accurate and complete registration information of Users, and the additional Permitted Entity users associated with authorized Providers, that have access to the Hosted Programs, or Third Party Services.
4.5. Ownership of Client Data. As between the parties, Client holds ownership of data as it pertains to its use of Rock Solid software. Both Rock Solid and Client are bound by their respective nondisclosure of confidential information as it relates to the data. Nothing herein shall prevent Rock Solid from using or disclosing such Data as may be required by law, or as otherwise permitted in this Agreement. Without limiting the foregoing, Rock Solid may use and disclose data to create de-identified information or to provide data aggregation services or to communicate with users pertaining their use of the services. As between the parties, Rock Solid is the owner of any de-identified data and any data set that aggregates Client Data with client data from other Rock Solid clients. In all cases, the identity of Client will not be determinable from the de-identified information nor any aggregated data set.
5.1. Term. Subject to the termination rights set forth in the Agreement, Client’s rights to access and use the Hosted Programs and the Third Party Services shall remain in effect for the initial term (and any renewal term) set forth in the Agreement, Order Form(s) or an Addendum. If (i) no initial term is set forth on the Order Form(s) or an Addendum, then the initial term shall be the period commencing on the Activation Date and ending on the last day of calendar month one year immediately following the month in which the Activation Date occurs, and (ii) if no renewal term is set forth on the Order Form(s) or an Addendum, then the initial term shall automatically renew for additional one-year terms (and the cost for the Hosted Programs and Third Party Services shall be billed at then-current prices) until either party gives three (3) months advance written notice prior to the end of the then-current term of its intention to terminate the Agreement.
5.2. Termination for Cause. Either party may terminate the Agreement at any time upon five (5) days prior written notice, if the other party commits a material breach of any representation, warranty, agreement or covenant set forth in the agreement that remains uncured after fifteen (15) days written notice specifying the nature of the breach and identifying the measures required to correct the breach.
5.3. Additional Rock Solid Termination Rights
5.3.1. Rock Solid may terminate the Agreement upon ten (10) days prior written notice for non-payment of fees.
5.3.2. Rock Solid may terminate the Agreement upon ten (10) days prior written notice in accordance with the terms of Section 6.1.
5.3.3. Rock Solid may terminate the Agreement immediately if Client becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeded, or if any such proceeding is instituted against Client and not dismissed within 90 days after commencement of one of the foregoing events.
5.3.4. Rock Solid may terminate the Agreement immediately in the event Client or its employee(s) includes in the Hosted Programs any content that is obscene, offensive, threatening or malicious, or which violates any applicable law or regulation, or which otherwise exposes Rock Solid to civil or criminal liability.
5.3.5. Rock Solid may suspend or terminate the Agreement immediately in the event of any wrongful or unauthorized access to or use of the Hosted Programs or the Third Party Services by Client or other third party.
5.4. Effect of Termination. Upon termination of the Agreement, access to and use of the Hosted Programs and all Services shall be terminated. Termination of the Agreement (i) shall not relieve any party from any liability that may have arisen prior to such termination, nor shall such termination relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client under the Agreement, and any unpaid fees related to the initial term or any renewal term, and (ii) shall not limit either party from pursuing other remedies available to it, including injunctive relief. Upon any termination of the Agreement, Rock Solid shall have the right to maintain a copy of all Client Data in accordance with, and for the period of time it determines is required or permitted by, applicable law. All subsections in Section 1, 5, 6 and 8 shall survive any termination of this Agreement.
6.1. Rock Solid ownership; Infringement Indemnity.
6.1.1. All computer programs and related documentation made available, directly or indirectly, by Rock Solid to Client as part of the Services are the exclusive property of Rock Solid or the third parties from whom Rock Solid has secured the rights to such services or products. All rights, title and interest in or to any copyright, trademark, service mark, trade secret and other proprietary right relating to the Hosted Programs and the Services are reserved.
6.1.2. Rock Solid shall indemnify, defend and hold harmless Client from and against any and all suits, proceedings, claims, demands, or causes of action by a third party that the Hosted Programs infringe upon or misappropriate any United States copyright, patent, trade secret or other intellectual or industrial property right of any kind or nature whatsoever (a “Claim”).
6.1.3. Rock Solid shall have no liability under the Section 6.1 to the extent a Claim is attributable to (i) combination or use of the Hosted Programs with any item, component, product, material, software or process not provided by Rock Solid, if liability would not have arisen but for such combination or use with such item, component, product, material, software or process; (ii) use of the Hosted Programs in any way not authorized nor contemplated by the Agreement, if liability would not have arisen but for such unauthorized use; or (iii) any breach by Client of the Agreement, if liability would not have arisen but for such breach.
6.1.4. In the event the Hosted Programs are held by a court of competent jurisdiction to, or are believed by Rock Solid to, infringe or misappropriate any third party right, Rock Solid shall have the option, at its expense, to (i) modify the Hosted Programs to be non-infringing, (ii) replace the Hosted Programs with a non-infringing substitute, (iii) resolve any Claim to allow use of the Hosted Programs, (iv) obtain for Client a subscription to continue using the Hosted Programs, (v) terminate the subscription for the infringing Hosted Programs, or (vi) terminate the Agreement.
6.1.5. The indemnification obligations set forth in this Section 6.1 are subject to the Following conditions: (i) Client shall give Rock Solid written notice of any Claim for which Client intends to claim indemnification within 30 days of the Claim; (ii) Client shall give Rock Solid the sole right to control and direct the investigation, defense and settlement of the Claim, including selection of defense counsel; and (iii) Client shall reasonably cooperate with Rock Solid in the investigation, defense and settlement of the Claim. Reasonable out-of-pocket expenses incurred by Client in providing such assistance will be reimbursed by Rock Solid. Client shall not settle or compromise any Claim, and any such settlement or compromise shall be void as against Rock Solid and shall terminate Rock Solid’s obligation to indemnify Client with respect to such Claim.
6.1.6. Client acknowledges and agrees that the remedies provided in this Section 6.1 are the sole and exclusive remedies of Client, and consequently the sole and exclusive liability of Rock Solid, with respect to any Claim.
6.2. Rock Solid Warranties; Time Period; Disclaimers
6.2.1. Warranty for the Hosted Programs and Hosting Services. Subject to Client’s compliance with its obligations under Section 4.2 and Section 4.3, Rock Solid represents and warrants that the Hosted Programs and Hosted Services will perform in all material respects in accordance with the documentation provided by Rock Solid. This warranty shall apply for a period of thirty (30) days following its discovery by Client and any breach not reported within such period will be deemed waived and accepted by Client.
6.2.2. Warranty for Data Importation. Subject to Client’s compliance with the terms of Section 4.2, Rock Solid represents and warrants that the importation of data by Rock Solid will conform in all material respects with the written documentation provided by Rock Solid. This warranty shall apply until the earlier of (i) the expiration of five (5) business days from the date the data at issue is imported, and (ii) the date the database is first altered in any way by the Client. Any breach not reported within such period will be deemed waived and accepted by Client.
6.2.3. Warranty for Certain Third Party Services. Rock Solid represents and warrants that (i) Third Party Services shall be provided in a professional manner, consistent with reasonable industry standards, upon timely receipt of properly entered, formatted and coded data files, documents, balancing totals or the required information from Client, and (ii) only applies to the independent third party performing the Third Party Services. Changes in laws or regulations may, in the future affect or limit Rock Solid’s ability to provide the guarantee set forth in clause (ii) of the previous sentence.
6.2.4. Warranty for Other Services. Rock Solid warrants that the Support Services, the Training Services and any other service set forth in an Order Form(s) or Addendum agreed to by Client (excluding services contemplated by Section 6.2.1 and 6.2.2, and Third Party Services) will be performed in a manner that is consistent with generally accepted industry standards for such Service. With respect to training Services, Rock Solid does not guarantee any specific results, and the results Client may realize is primarily dependent on Client’s ability to utilized and implement ideas, concepts, and practices presented in the training Services. Any breach not reported to Rock Solid by Client within Thirty (30) days of its discovery will be deemed waived and accepted by Client.
6.2.5. Disclaimers. THE WARRANTIES SET FORTH IN THIS SECTION 6.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY ORAL REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF ROCK SOLID AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Rock Solid does not warrant that the Hosted Programs or the Third Party Services will operate in the combinations that Client may select for use, that the operation of the Hosted Programs or the Third Party Services will be uninterrupted or error-free, free of viruses or any other malicious code, or fit for its intended purpose, or that all Hosted Program errors or the Third Party Services errors will be corrected. Any description of the Hosted Programs contained on Rock Solid’s website or promotional materials is for the sole purpose of identifying them, and any such description is not a part of the basis of the bargain and does not constitute a warranty or representation.
6.3. Exclusive Remedies. For any breach of the representations and warranties contained in Section 6.2, Client’s exclusive remedy, and Rock Solid’s entire liability, shall be as follows:
6.3.1. With respect to a breach of the representation and warranty set forth in 6.2.1, Rock Solid shall correct the errors that caused Rock Solid to breach its Warranty to Client.
6.3.2. With respect to a breach of the representation and warranty set forth in 6.2.2, upon verification of the error, Rock Solid shall, at its option, either correct the database or refund the amount paid for the data import service as specified on the Order Form(s).
6.3.3. With respect to a breach of the representation and warranty set forth in 6.2.3, (i) in the case of Electronic Services, subject to the terms of Section 6.4, Client shall have such remedies as may be available under law.
6.3.4. With respect to a breach of the representation and warranty set forth in 6.2.4, Rock Solid shall re-perform the applicable Service.
6.4. Exculpation of certain Claims; Limitation on Liability.
6.4.1. Rock Solid uses unrelated third parties to provide the Third Party Services, and the availability, and accuracy of such third Party Services is not within Rock Solid’s control. Client hereby waives any and all liability and claims which Client may have against Rock Solid in connection with the Third Party Services, except as specifically set forth in Section 6.3, and for liability directly caused by the gross negligence or willful misconduct of Rock Solid.
6.4.2. Client shall be liable for, and Client hereby waives any and all liability and claims which Client may have against Rock Solid for, (i) any inaccuracy in Client Data provided by Client, (ii) the consequences of any instructions Client may give to Rock Solid, (iii) maintaining and backing up any Client Data, and (iv) Client’s failure to protect user account names and passwords. In addition, Rock Solid is not responsible for (v) Client’s access to the Internet, (vi) interception or interruptions of communications through the Internet or (VII) changes or losses of data through the Internet, in each case, other than to the extent caused solely by Rock Solid.
6.4.3. In connection with the use of the Hosted Programs and the Third Party Services, Rock Solid may provide or make available to Client certain templates and forms. Client hereby waives any and all liability and claims which Client may have against Rock Solid or any third party in connection with the use, modification, and/or customization of such templates and forms, except for liability directly caused by the gross negligence or willful misconduct of Rock Solid.
6.4.4. Rock Solid shall not have any liability under the Agreement for any disclosure or modification of Client Data, or for any consequences that may arise from such modifications (including, but not limited to, incorrectly modified or lost data), in either case, made by means of access to the API by or on behalf of Client, or by means of access by any third party to the extent such third party obtained access to the API as a result of disclosure by Client of any keys, user IDs or passwords to such third party, any breach of this Agreement by Client, or any negligence by Client, its employees, agents or representatives.
6.4.5. Limitation of Liability. In no event shall either party be liable under the Agreement for any indirect, incidental, special, consequential or punitive damages, or damages for business interruption, loss of profits, revenue, data or use, or cost of cover suffered by the other party or by any third party, whether in an action in contract or tort, and even if the party has been advised of or is aware of the possibility of such damages. Rock Solid’s total liability for damage suffered by Client or any of its affiliates under the Agreement or related to the Services shall in no event exceed an amount equal to three (3) time the average monthly fee paid by client to Rock Solid under the Agreement.
6.4.6. This section 6.4 sets forth the full extent of Rock Solid’s liability for damages resulting from this Agreement and the Services, regardless of the form in which such liability of claim for damages may be asserted. The provisions of the Agreement allocate the risks between Rock Solid and Client. The parties agree that Rock Solid’s pricing and other terms and conditions of the Agreement reflect the allocation of risk and the limitation of liability specified herein, and Client acknowledges that without such limitation on liability and Client’s agreement to maintain redundant copies of all data provided to Rock Solid in connection with the Services, Rock Solid would not have entered into this Agreement.
7.1. Fees, Invoicing and Payment; Suspension of Service.
7.1.1. Client shall pay the fees set forth on the Order Form(s) (or any Addendum, as the case may be) for the Services. If Client elects to use the Rock Solid API, the fees set forth on the Order Form or Addendum(s), or the Rock Solid API Developer’s Agreement do not include any costs, fees or charges that may be imposed by a third party with respect to Client’s use of the External System.
7.1.2. Invoices for payment of all Services shall be in accordance with the applicable Order Form(s) agreed to by Client. In the absence of specific provisions in the applicable Order Form(s) agreed to by Client, (i) fees for one-time Services (e.g., set-up and Training Services) are due upon acceptance of any Order Form(s) and prior to delivery of the applicable Service, (ii) defined application subscription, use and services fees that are recurring in nature begin on the Activation Date, and shall be payable weekly in arrears and due upon receipt, and (iii) fees that are variable and dependent on actual usage (e.g., per-transaction fees) shall be billed weekly in arrears and due upon receipt.
7.1.3. An administrative late charge of $35.00 per invoice will be charged for any invoice not paid by the applicable due date (including any electronic transaction that is declined and any returned checks), and an additional $35.00 shall be charged for each 30 days thereafter that such invoice remains unpaid. Additionally, any amounts payable by Client hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law, from the due date until the date such amount is paid.
7.1.4. Without limiting the additional fees and charges that shall be payable by Client pursuant to Section 7.1.3, if applicable, Rock Solid shall have the right, exercisable in its sole and absolute discretion, to suspend Client’s access to, and use of, the Hosted Programs, the Third Party Services and the Services, in the event that Client has not paid any amounts due hereunder by the time such payment is due.
7.1.5. Client shall have ninety (90) days from receipt of an invoice to dispute any portion of the invoice and any issue not raised by Client in writing within ninety (90) days from receipt of the invoice is hereby irrevocably waived by Client. To the extent Rock Solid incurs any expenses in collecting (or seeking to collect) unpaid amounts due from Client under the Agreement (including but not limited to, reasonable attorneys’ fees), Client shall be liable for (and promptly reimburse Rock Solid) for any such expenses.
7.1.6. Client’s payment obligation hereunder with respect to the Services may (if authorized by Client) be made by direct withdrawal from Client’s bank account. In the event Client has given such authorization, such withdrawal is subject to the operating roles of the National Automated Clearing House Association (“NACHA”). Rock Solid and Client each agree to be bound by and comply with the NACHA rules applicable to it with respect to such withdrawals. Any authorization given by Client shall remain in effect unless and until revoked in writing by an authorized representative of Client and until Client’s bank and Rock Solid have each received such notice and have had reasonable time to act upon such notice.
7.2. Taxes. The fees listed in the Agreement (including the Order Form(s)) do not include taxes; there shall be added to all payment hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on Rock Solid’s net income. If Rock Solid is found to be responsible for the withholding and payment of taxes on behalf of Client, Client agrees to indemnify Rock Solid with respect to the full amount of taxes due, together with applicable interest and penalties. If Client is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to completely offset such tax so that the amount remitted to Rock Solid, net of all taxes, equals the amount invoiced or otherwise due.
7.3. Variable Use Service Fees. Many variable use service fees are subject to external costs (such as postage rates, paper, etc.) and therefore are subject to change with 30-day written notice to Client.
8.1. Confidential Information
8.1.1. All Confidential Information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (i) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, (ii) as appropriate, to respond to any summons or subpoena or in connection with any litigation, and (iii) to any vendor with which Rock Solid has a relationship that is required to offer the services to Client..
8.1.2. Client acknowledges that Rock Solid or its affiliates may use Confidential Information to evaluate possible commercial arrangements between Rock Solid and Client, and to communicate with Client from time to time regarding Rock Solid’s, its affiliates’ or its recommended vendors’ products and services that may improve the efficiency of Client’s operations or otherwise benefit Client.
8.1.3. The obligation of Rock Solid set forth in this Section 8.1 shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by Client in connection with any present or future Rock Solid product or service, and, accordingly, neither Rock Solid nor any of its clients or business partners shall have any obligation or liability to Client with respect to any use or disclosure of such information. In addition, with Client’s consent (which is hereby given), Rock Solid may use internet/website analytics software tools and programs to collect, transmit, store, disclose and analyze certain information about the actual use of the Hosted Programs by Clients, Permitted Entities and/or End User Shippers (such as, but not limited to, pages viewed, links clicked, help functions used and other workflow information); such information shall not be considered Confidential Information hereunder and may be used by Rock Solid for the purpose of license administration, error resolution and product analysis and improvement. Rock Solid may provide communication to end-users via knowledge-base listings, online tools, training helps, etc., training information, product use and enhanced offering tools and other communication that enhances the shippers use and benefit.
8.2. Trademarks and Publicity. Except for linking to Rock Solid web sites, Client may not use any Rock Solid logo or trademark, whether or not such mark(s) are registered, without prior written approval from Rock Solid. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Rock Solid name (or any derivative thereof) in Client’s URL, Business Name, or the names of any add-on products or services Client may be offering independent of Rock Solid is strictly prohibited. Additionally, using the Rock Solid name in paid targeted keyword advertising campaigns on search engines is also prohibited. Client shall not use Rock Solid’s name, or any adaptation or variation thereof, in any advertising, promotion or sales literature without Rock Solid’s prior written consent in each instance.
8.3. Governing Law and Dispute Resolution. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of Utah applicable to contracts made and wholly performed in such state. Any controversy or claim arising out of or related to the Agreement, or breach thereof, shall be submitted to the following procedure: (i) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (ii) if no resolution is reached within sixty (60) days of the settlement conference, the parties will submit the dispute to nonbinding mediation in Salt Lake County, Utah under the mediation rules of the American Arbitration Association; and (ii) if no settlement is reached within sixty (60) days of the start of mediation, either party may seek legal redress in a forum of competent jurisdiction.
8.4. Notice. Client agrees to notify Rock Solid of any changes to Client’s business address, business contact, and support contact within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given in writing or as specifically set forth in the applicable section of the Agreement. To expedite order processing, Client agrees that Rock Solid may treat documents emailed or faxed by Client to Rock Solid as original documents; nevertheless, either party may require the other to exchange original signed documents to evidence an order for services.
8.5. U.S. Government. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respect are proprietary data belonging to Rock Solid. If the Hosted Programs and accompanying documentation are used under the terms of a DoD or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
8.6. Non-solicitation. During the term of the Agreement and for six (6) months after any termination or expiration of the Agreement, neither party shall, alone or in association with others, solicit any employee or contractor of the other party to terminate its employment or contracting relationship with the other party. Nothing herein shall preclude either party from hiring employees or contractors of the other party to the extent such employees or contractors respond, without any solicitation by or on behalf of the hiring party, to advertisements or job openings published or otherwise made generally available by the hiring party.
8.7. Other Terms
8.7.1. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other, or subsequent, default or breach.
8.7.2. Except for actions for nonpayment or breach of Rock Solid’s proprietary rights in the Hosted Programs, no action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has accrued.
8.7.3. The Agreement constitute the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement.
8.7.4. Rock Solid may assign this Agreement or any rights or obligations under the Agreement to a third party. Client may not assign the Agreement or any rights or obligations hereunder without the prior written consent of Rock Solid, which consent shall not be unreasonably withheld or delayed; any such assignment without the prior consent of Rock Solid shall be void. Rock Solid may use subcontractors to perform Services under this Agreement; provided, however, that such subcontracting shall not relieve Rock Solid from responsibility for performance of its duties hereunder.
8.7.5. Rock Solid has no obligation to any third party by virtue of this Agreement, including any Associate or Permitted Entity. Providers of Third Party Services shall be third party beneficiaries to this Agreement with respect to the services provided to Client.
8.7.6. If any of the provisions of the Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the fullest extent possible, the economic, business and other purposes of the Agreement.
8.7.7. Client acknowledges and agrees that calls to and from Rock Solid may be monitored or recorded.
Revision Date: May 25, 2018