LICENSE AGREEMENT
This License Agreement (hereafter, “the Agreement”) is entered into as of this ____ day of ___________, 2013, by and between accufRATE, Inc., a California corporation, (hereafter, “Licensor”), and ________________, a, _________________________ (“Licensee”), both of whom may collectively be referred to as the “Parties”.
RECITALS
A. 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 bill 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. Licensee desires to acquire a license to use the Software and Documentation in order to gain said functionality over the Internet and Licensor desires to grant Licensee a license.
AGREEMENT
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows:
1. Definitions
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. “Authorized User” refers to Licensee.
c. “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, copies of which are attached hereto, marked as Exhibit “B” and incorporated herein by reference.
d. “Carrier” refers to companies that provide the necessary services to move freight shipments both national and international.
e. “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.
f. “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.
g. “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.
h. “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.
i. “Intermodal” refers to any type of freight that is moved via train.
j. “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.
k. “Licensed Materials” refers to the Software and the Documentation defined herein.
l. “Licensee” refers to ________________, and includes any employee, consultant, or contractor of Licensee, provided that the employee, consultant, or contractor is using the Software in the performance of his or her duties as an employee, consultant, or contractor of Licensee.
m. “Licensor” refers to accufRATE, Inc., a California corporation.
n. “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.
o. “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.
p. “Manifest” refers to a document provided by the Carrier that shows all Shipments for a given time period by a given Carrier.
q. “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.
r. “PRO Number” refers a carrier generated tracking number given to a specific shipment.
r. “Quote” refers to a price provided by a Carrier for a given Shipment.
s. “Quote Number” refers to a Carrier generated quote number that can be used for billing purposes.
t. “Shipment” refers to any freight transportation service provided through the Software.
u. “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, provides 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.
v. “Tariff” refers to a pricing program provided by a Carrier that gives the owner of the Tariff specific discount levels and accessorial pricing.
w. “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.
x. “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.
y. “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. Grant of License
a. Grant
Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a limited, nonexclusive, nontransferable license to use the Licensed Materials (“License”).
b. License Restrictions
No Right to SubLicense. Licensee shall not, either voluntarily or by operation of law, sublicense, assign, sell, encumber, pledge, transfer, or grant any concession for all or any part of Licensee’s License hereunder, or permit the License to be used or utilized by anyone other than Licensee, or Licensee’s authorized employees, or sublicense the Licensed Materials or Software to anyone, without notifying Licensor in writing at least twenty (20) days prior to any anticipated sublicense start date and first obtaining Licensor’s written consent in each instance, which consent shall not be unreasonably withheld. Any Sublicensee must agree in a writing provided to Licensor, to be bound by the terms and conditions of this License and execute Licensor’s Standard Sublicense Agreement. Any violation of this clause may be grounds for termination of this License. It is necessary for Licensor to anticipate usage and capacity of its system in order to accommodate any sublicensee. Thus the addition of sublicensees or any unanticipated users can cause the system to crash and cause Licensor severe damage.
c. Licensor owns all rights
Licensor owns and retains all right, title, and interest in the Licensed Materials, Software, Documentation, and any and all related materials. Licensee acquires no ownership rights whatsoever. This Agreement does not transfer ownership rights of any description in the Software, Documentation, or any related materials to Licensee or any third party. Licensee shall not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Licensee shall not distribute the Software to any persons or entities other than Licensee’s employees, consultants, or contractors. Licensee may not sell the Software to any person or make any other commercial use of the software. Licensor shall retain all copyright and trademark notices on the Software and Documentation and shall take other necessary steps to protect Licensor’s intellectual property rights. Licensee 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, Licensee 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.
3. License and other Fees
a. License Fee
In consideration for the License granted to Licensee under this Agreement, and for other services provided by Licensor, Licensee shall pay Licensor a monthly license fee, an annual service fee and a fee for each Bill of Lading generated from information obtained from utilization of the Licensed Materials and such other fees as are set forth in Exhibit “A”. The fees which Licensee shall pay to Licensor for use of the License, are set forth on a fee schedule found in Exhibit “A”, which is attached hereto and incorporated herein by reference.
4. Licensor and Licensee’s Obligations
a. Licensor’s Obligations
Upon execution of this Agreement, Licensor shall allow Licensee 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 Licensor.
b. Support and Maintenance
Licensor shall provide Licensee with reasonable technical support in connection with Licensee’s use of the Software. Upon the execution of this Agreement, and on each anniversary of its execution, Licensee shall pay Licensor the annual support and maintenance fee set forth in the fee schedule, Exhibit “A”. Licensor shall provide Licensee with all modifications, bug fixes, and updates for the Software as part of this support and maintenance obligation. However, Licensor has no obligation to provide Licensee with subsequent product releases.
c. Licensee’s Obligations and Manifest Data
Licensee shall comply with all the terms and conditions imposed upon it by its Carriers’.
Licensee shall allow Licensor 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. Licensee shall provide Licensor with all requested information necessary for Licensor to access Licensee’s Manifest data, including but not limited to, Licensee’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 Licensee’s have Tariffs for, or they want to use, and execute Licensor’s authorization form authorizing said audit and verification, which permits Licensor to act on behalf of Licensee regarding carrier authorizations for use with accufRATE.
5. Term and Termination
a. Term
This Agreement and the License 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
Licensee may terminate the Agreement at any time on ninety (90) days’ prior written notice to Licensor.
c. Termination for Cause
Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement as follows:
i. By Licensor, upon fifteen (15) days’ written notice, if Licensee fails to pay the amounts due to Licensor pursuant to this Agreement;
ii. By Licensor, upon fifteen (15) days’ written notice, if there is a change in control of Licensee, whether by sale of assets, stock, or otherwise;
iii. By Licensor for any breach of this Agreement, other than failure to make payments under Section 3;
iv. By Licensee for any material breach of this Agreement by Licensor that is not cured within ten (10) days of receipt by Licensor of a written notice specifying the breach and requiring its cure; or
v. By either party, immediately upon written notice, if: 1) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; 2) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days; or 3) the other party is adjudged bankrupt.
- Rights on Termination
Licensor 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 Licensee under this Agreement cease and Licensee will promptly cease all use of the Licensed Materials, Software and Documentation. Sections 3, 4(c), 6, 7, 8, and 9 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.
- Understanding
Licensee understands that it is only getting information that is available upon various Carriers’ websites, and that Licensor is not responsible for the reliability, veracity or trustworthiness of any such Carrier, or third parties’ information. Licensor is only responsible for delivering information from Carrier’s that Licensee authorizes.
6. Warranties, Disclaimer, and Limitations
a. Warranties
Licensor hereby warrants to Licensee that Licensor is the owner of the Software and the Documentation or has the right to grant to Licensee the license 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.
b. Disclaimer
THE WARRANTIES SET FORTH IN THIS SECTION, ARE IN LIEU OF ANY 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, Licensee’s exclusive remedy shall be for Licensor to promptly replace defective Software. If Licensor is unable to replace the Software within thirty (30) days of written notification by Licensee of a defect, Licensee’s sole remedy is to terminate this Agreement, and Licensee 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 Licensor for the past thirty (30) days of usage immediately prior to any alleged breach.
d. Limitation of Liability
LICENSOR 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 LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT, FOR THE PAST THIRTY (30) DAYS OF USAGE IMMEDIATELY PRIOR TO ANY ALLEGED BREACH.
7. Indemnity
- Indemnity
Licensee is responsible and indemnifies and holds Licensor harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Licensee’s use of the Software pursuant to this Agreement.
- Condition to Indemnification
Should any claim subject to indemnity be made against Licensor, then Licensee agrees to provide Licensor with prompt written notice of the claim. Licensor will control the defense and settlement of any claim under this Section. Licensor agrees to cooperate with the Licensee and provide reasonable assistance in the defense and settlement of such claim.
8. Confidentiality, Nondisclosure, and Non-circumvention
a. Confidentiality
Licensee acknowledges that the Software and Documentation is copyrighted, contains valuable proprietary products and trade secrets of Licensor 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 Licensor that Licensee learns or has learned during or prior to the entering into this Agreement, is, or may be, valuable, confidential, and proprietary information of the Licensor.
Licensee further acknowledges that the rates and fees charge for this License are confidential and not be disclosed to anyone. ____ [Initial here]
Licensor will keep treat the rates and pricing information and customer information provided it by Licensee confidential, and shall not disclose it to any third parties.
During the period this Agreement is in effect, and at all times afterwards, Licensee, 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 Licensor.
b. Limitations on Confidentiality Restrictions
Section 8(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. Licensee 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
Licensor and Licensee acknowledge that any breach of this Section 8 by Licensee will irreparably harm Licensor. Accordingly, in the event of a breach, the Licensor is entitled to promptly seek injunctive relief, in the courts, either prior to the initiation of an arbitration or after, against Licensee in addition to any other remedies that Licensor may have at law or in equity.
9. General Provisions
a. Assignment
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 8120
d. Notices
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:
To Licensor:
accufRATE, Inc
25060 Avenue Stanford, Suite 210
Valencia, California 91355.
Attn: Harutiun Ekmekjian, President
To Licensee:
Attn: _______________, ________________________
- Publicity
At any time after the date that the Parties have both executed this Agreement, Company, may at its option, and upon Licensee’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, Licensee does hereby give Company permission, at Company’s sole option, to publish Licensee’s logo on Company’s website.
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.
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.
h. Severability
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. 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.