GLOBAL TARIFF AGREEMENT
This Global Tariff Agreement (hereafter, “the Agreement”) is entered into as of this _____ day of _____________, 20___, by and between AccufRATE, Inc., a California corporation, (hereafter, “AccufRATE”), and _____________________, a _________________ (“Provider”), both of whom may collectively be referred to as the “Parties”.
- AccufRATE develops and markets computer software applications for the transportation industry. This software includes but is not limited to:
- The ability to obtain freight quotes in real-time from transportation and freight service providers.
- The ability to generate a bills of lading.
- The ability to automatically dispatch a shipment to the service provider selected.
- The ability to track and trace shipment information in an automated manner.
- The ability to obtain tracking numbers and apply them to shipments in an automated manner.
- The Ability to automatically obtain the scanned images of POD’s, BOL’s and W&I certificates.
AccufRATE provides these services to various forms of transportation and freight providers including but not limited to LTL, TL, Parcel, Ocean and Air freight over the Internet, which may be more particularly described in any user manuals and other written or electronic media or materials created by AccufRATE to describe the functionality and use of the Software (hereafter, the “Software” or “Documentation”); and
B. Provider owns or holds the rights to certain tariffs and services that it desires to
offer to Users of AccufRATE’s services; and
C. AccufRATE has the ability to make the Provider’s tariffs and services available to
certain other third party customer’s of AccufRATE (“User” or “Users”).
NOW THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, and in consideration of the promises and covenants set forth herein, the Parties hereby agree as follows:
For the purposes of this Agreement, the following terms or abbreviations shall be defined as follows:
a. “Air Freight” refers to any freight that is moved by air via common air transportation providers such as commercial airline and also cargo air transportation providers such as FedEx.
b. “Bill of Lading” refers to the official document prepared by the Carrier duly accepting the goods for Shipment containing information like item, quantity, value, vessel details, date, port, consigner , consignee etc. Bill of lading is a contract to carry the goods to the said destination based on which seller can claim consideration and buyer can take delivery of the goods. AccufRATE uses a standard VICS Bill of Lading or an AccufRATE BOL if the User chooses.
c. “Carrier” refers to companies that provide the necessary services to move freight shipments both national and international.
d. “CL” refers to Container Load services provided by Carriers. Generally shipments of this nature take up the total space of a 20’ or 40’ ocean container. Shipments of this nature are generally floor loaded and unpalletized.
e. “Documentation” refers to all user manuals and other written or electronic media and material created by AccufRATE to describe the functionality or assist in the use of the Software.
f. “Expedited” refers to any freight that is moved in an on demand manner. Freight of this nature is generally moved via commercial airlines and requires specialized services to pick up the freight, deliver it directly to the air line for shipment, pickup services at the destination directly from the air line and final mile delivery to the consignee to ensure the fastest possible time to delivery.
g. “Global Tariffs” are any and all tariffs which Provider makes available to Users for an agreed upon markup negotiated directly between Provider and User and that which AccufRATE is charging a fee to Provider for its ability to publish said tariffs within this platform.
h. “Intermodal” refers to any type of freight that is moved via train.
i. “LCL” refers to Less Than Container Load services provided by Carriers. Generally shipments of this nature are up to 6 pallets in size and take up less than half the space of a 20’ ocean container.
j. “Licensed Materials” refers to the Software and the Documentation defined herein.
k. “LTL” refers to Less Than Truck Load services provided by Carriers. Generally shipments of this nature are under 10 pallets in size or take up less than one third the space of a standard 53’ trailer.
l. “Provider” refers to the owner of a tariff that has the rights to resell the rates and services given to him/her as a Third Party Provider from a Carrier.
m. “Manifest” refers to a document provided by the Carrier that shows all Shipments for a given time period by a given Carrier.
n. “Parcel and Small Package” refers to any freight that is classified as a parcel, envelope or small package. These services are always provided by specialized carriers such as UPS, FedEx and DHL.
o. “Quote” refers to a price provided by a Carrier for a given Shipment.
p. “Quote Number” refers to a Carrier quote number used for billing purposes.
q. “Shipment” refers to any freight transportation service provided through the Software.
r. “Software” refers to AccufRATE’s computer program and website that provides a market place for Providers and Users to exchange services that include but is not limited to freight rates, LTL services, TL services, LCL services, CL services, Parcel and Small Package Services, Air Freight, Expedited services and Intermodal services. The Software also allows Users and Providers to generate shipping documents, dispatch freight shipments for pickup by Carriers, automatically attaches PRO numbers assigned by Carriers, provide track and trace capabilities automatically and Image Retrieval of standard documents used in the freight industry including but not limited to Bills of Lading, Proof of Delivery and W & I Certificates.
s. “Tariff” refers to a pricing program provided by a Carrier that gives the owner of the Tariff specific discount levels and accessorial pricing.
t. “Third Party Tariff” refers to any Tariff that can be used to pickup and deliver any freight from any point to any other point, that a given Carrier is capable of doing.
u. “TL” refers to Truck Load services provided by Carriers. Generally shipments of this nature are over 10 pallets in size of take up more than one third the space of a standard 53’ trailer.
v. “User” or “Users” refers to any and all, third party customers of AccufRATE which may contract with Provider to purchase Providers tariffs and services.
2. AccufRATE will make Provider’s Global Tariff available to AccufRATE’s customers who shall be referred to herein as “Users”.
3. Grant of Right to List Tariffs
Subject to the terms and conditions set forth in this Agreement, AccufRATE hereby grants to Provider a limited, nonexclusive, nontransferable right to list and otherwise make its tariffs available to AccufRATE Users at prices, it determines in its sole discretion, and to use AccufRATE’s software platform and marketplace and the Licensed Materials (“Grant”).
- Grant Restrictions
No Right to Assign or Substitute another Provider. Provider shall not, either voluntarily or by operation of law, sub grant, assign, sell, encumber, pledge, transfer, or grant any concession for all or any part of Provider’s Grant hereunder, or permit the Grant to be used or utilized by anyone other than Provider, or Provider’s authorized employees, or sub grant the Licensed Materials or Software to anyone, without notifying AccufRATE in writing at least thirty (30) days prior to any anticipated sub grant start date and first obtaining AccufRATE’s written consent in each instance, which consent shall not be unreasonably withheld. Any substitute or assigned new Provider must agree in a writing provided to AccufRATE, to be bound by the terms and conditions of this Grant and execute AccufRATE’s Standard Agreement. Any violation of this clause may be grounds for termination of this Grant
- AccufRATE owns all rights
AccufRATE owns and retains all right, title, and interest in the Licensed Materials, Software, Documentation, Grant and any and all related materials. Provider acquires no ownership rights whatsoever. This Agreement does not transfer ownership rights of any description in the Software, Documentation, Grant or any related materials to Provider or any third party. Provider shall not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Provider shall not distribute the Software to any persons or entities other than Provider’s employees, consultants, or contractors. Provider may not sell the Software to any person or make any other commercial use of the software. AccufRATE shall retain all copyright and trademark notices on the Software and Documentation and shall take other necessary steps to protect AccufRATE’s intellectual property rights. Provider may not remove, obscure or modify any copyright or other notices included in the Software, Documentation, and any and all related materials. Other than as specifically permitted in this Agreement, Provider may not use the Software, Documentation, and any and all related materials, for commercial purposes, including but not limited to the sale of the Software, Documentation, and any and all related materials, or the reproduction or distribution of same in any form.
Provider shall pay AccufRATE a fee of ________, for each and every PRO number, i.e., tracking number, generated as a result of a User creating a Bill of Lading using said Global Tariffs and a PRO number being assigned by a carrier. Said fees will be due and payable upon receipt of invoice from AccufRATE, regardless of whether or not Provider has successfully collected freight charges from User.
5. AccufRATE and Provider’s Obligations
a. AccufRATE’s Obligations
Upon execution of this Agreement, AccufRATE shall allow Provider access to and utilization of the Licensed Materials via the internet, after first entering a given password(s) and/or other security verification information provided by AccufRATE.
AccufRATE shall provide Provider with reasonable technical support in connection with Provider’s use of the Software. AccufRATE has no obligation to provide Provider with subsequent product releases.
c. Provider’s Obligations and Manifest Data
Provider shall be responsible for verifying the creditworthiness of each and every User, and shall look solely to the User, and not AccufRATE for payment for each and every shipment.
The User shall look solely to Provider in the event of any dispute or issue or problem, and for any and all remedies for any issues related to their shipment or any and all claims. Provider is responsible for all User claims and hereby agrees to indemnify and hold AccufRATE harmless from and for any and all losses, liability, or damages arising out of, or incurred in connection with, the User’s use of Provider’s tariffs.
Provider shall at all times conduct themselves with the same of higher level of competence and User responsiveness, as is typical in the industry, and shall treat and service all Users in the same or better manner than they treat their other tariff users. Notwithstanding the foregoing, Provider shall endeavor to respond to all User inquires within 24 hours of receipt of an email or voice mail and within 48 hours of receipt of a written inquiry. Any and all billing disputes are to be handled responsively and professionally by Provider. Provider shall hold themselves to the highest professional standards in the industry. ____ [Initial here]
Provider shall comply with all the terms and conditions imposed upon it by its Carriers’. Provider shall allow AccufRATE the right, in real time, to monitor all its Manifest data on a daily basis, from and for all their Carriers used in the AccufRATE system for the purposes of auditing and verifying compliance with this Agreement. Provider shall provide AccufRATE with all requested information necessary for AccufRATE to access Provider’s Manifest data, including but not limited to, Provider’s, Web logo, company name, address, phone, fax, main contact information, billing contact information, the names of carriers they want to access or use, usernames, passwords, account numbers, bill to zip codes, for all Carriers Provider’s have Tariffs for, or they want to use, and execute AccufRATE’s authorization form authorizing said audit and verification, which permits AccufRATE to act on behalf of Provider regarding carrier authorizations for use with AccufRATE.
6. Term and Termination
This Agreement and the Grant granted under it, becomes effective on this ___ day of ____________, 20__ and is effective for a term of Twelve Months, 12 Months, (“Term”) unless terminated sooner as provided for hereinafter. This Agreement shall automatically renew for an additional Term, unless either Party notifies the other in writing at least sixty (60) days before its expiration of their intention to allow this Agreement to terminate at the end of the initial Term.
b. Termination for Convenience
Either Party may terminate the Agreement at any time by either party giving thirty (30) days prior written notice to the other. Provider shall have the right to terminate the use of a tariff to any User at the Provider’s discretion. Provider must inform all Users that usage of said tariff(s) can be cancelled at anytime
- Rights on Termination
AccufRATE has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Software or Documentation. On termination all rights granted to Provider under this Agreement cease and Provider will promptly cease all use of the Licensed Materials, Software and Documentation. Sections 3(c), 8, 9, and 10 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
7. Terms and Conditions
Provider understands that it is only getting information that is available upon various Carriers’ websites, and that AccufRATE is not responsible for the reliability, veracity or trustworthiness of any such Carrier, or third parties’ information. AccufRATE is only responsible for delivering information from Carrier’s that Provider authorizes.
8. Warranties, Disclaimer, and Limitations
AccufRATE hereby warrants to Provider that AccufRATE is the owner of the Software, Documentation and AccufRATE market or has the right to grant to Provider the Grant to use the Software and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party.
THE WARRANTIES SET FORTH IN THIS SECTION, ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: 1) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; 2) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND 3) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
c. Remedies for Breach of Warranty
In the event of any breach of warranty, Provider’s exclusive remedy shall be for AccufRATE to promptly replace defective Software. If AccufRATE is unable to replace the Software within thirty (30) days of written notification by Provider of a defect, Provider’s sole remedy is to terminate this Agreement, and Provider does hereby agree to accept, as its sole remedy and as full and complete damages for all breaches, a refund of the fees it paid AccufRATE for the past thirty (30) days of usage immediately prior to any alleged breach.
d. Limitation of Liability
ACCUFRATE IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY PROVIDER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF ACCUFRATE OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCUFRATE’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY PROVIDER TO ACCUFRATE UNDER THIS AGREEMENT, FOR THE PAST THIRTY (30) DAYS OF USAGE IMMEDIATELY PRIOR TO ANY ALLEGED BREACH.
Provider is responsible and indemnifies and holds AccufRATE harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Provider’s use of the Software pursuant to this Agreement.
- Condition to Indemnification
Should any claim subject to indemnity be made against AccufRATE, then Provider agrees to provide AccufRATE with prompt written notice of the claim. AccufRATE will control the defense and settlement of any claim under this Section. AccufRATE agrees to cooperate with the Provider and provide reasonable assistance in the defense and settlement of such claim.
10. Confidentiality, Nondisclosure, Non-circumvention and Non-solicitation
Provider acknowledges that the Software and Documentation is copyrighted, contains valuable proprietary products and trade secrets of AccufRATE embodying substantial creative efforts and confidential information, ideas and expressions, and that the Software and all information relating to the business and operations of the AccufRATE that Provider learns or has learned during or prior to the entering into this Agreement, is, or may be, valuable, confidential, and proprietary information of the AccufRATE.
Provider further acknowledges that the rates and fees charged for this Grant are confidential and not be disclosed to anyone. ____ [Initial here]
AccufRATE will keep treat the rates and pricing information and customer information provided it by Provider confidential, and shall not disclose it to any third parties.
During the period this Agreement is in effect, and at all times afterwards, Provider, and its employees, contractors, consultants, and agents, will: 1) safeguard the Software and other confidential information with the same degree of care that it uses to protect its own confidential information; 2) maintain the confidentiality of this information; 3) not use the information except as permitted under this Agreement; and 4) not disseminate, disclose, sell, publish, reverse engineer or otherwise make available the information to any third party without the prior written consent of AccufRATE.
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, or the fees charged, except disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law.
b. Limitations on Confidentiality Restrictions
Section 10(a) does not apply to any information that: 1) is or becomes generally available to the public through no fault of the receiving party; 2) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; 3) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order) and ; 4) is disclosed by the receiving party with the disclosing party’s approval. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information under this Agreement. Provider will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of five (5) years from the date of termination of this Agreement.
c. Injunctive Relief for Breach
AccufRATE and Provider acknowledge that any breach of this Section 10 by Provider will irreparably harm AccufRATE. Accordingly, in the event of a breach, the AccufRATE is entitled to promptly seek injunctive relief, in the courts, either prior to the initiation of an arbitration or after, against Provider in addition to any other remedies that AccufRATE may have at law or in equity.
Provider agrees that for a period of one year after Termination of this Agreement that Provider will not directly or indirectly solicit business from, or back solicit business from AccufRATE’s customers or any of AccufRATE’s Global Tariff Users.
11. General Provisions
This Agreement shall be binding upon the successors and assigns of the Parties to this Agreement.
b. Entire Agreement
This Agreement, along with the Exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the Parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the Parties with respect to the subject matter contained in this Agreement.
c. Modification and Waiver
This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed as follows:
25060 Avenue Stanford, Suite 210
Valencia, California 91355.
Attn: Harutiun Ekmekjian, President
At any time after the date that the Parties have both executed this Agreement, Company, may at its option, and upon Provider’s written approval, which approval shall not be unreasonably withheld, issue a press release to the general public regarding the fact that the Parties have entered into this Agreement. Furthermore, Provider does hereby give Company permission, at Company’s sole option, to publish Provider’s logo on Company’s website.
f. Independent Contractor
Nothing in this Agreement shall be deemed to create an employer-employee, principal-agent, or joint venture relationship. Neither party shall have the authority to enter into any contracts on behalf of the other party.
g. Governing Law, Jurisdiction, and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of California, and the Parties hereby agree that the only appropriate venue for any dispute shall be in the county of Los Angeles, State of California.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
i. Mandatory Arbitration
In the event of any dispute between the Parties arising out of this Agreement, the dispute shall be resolved by arbitration under the rules of JAMS, formerly known as Judicial Arbitration and Mediation, Services, by an arbitrator agreed upon in writing by the Parties. In the event the Parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual arbitrator from JAMS, whose sole function shall then be to appoint a separate, sole arbitrator from JAMS who alone shall resolve the dispute by arbitration.
j. Attorney’s Fees
In the event of any dispute between the Parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney’s fees and costs.