Governing Terms and Scope. These Terms and Conditions (the Agreement) govern all usage of the Livegistics, Inc. (Livegistics) on-line services and mobile applications and technology for real-time logistics and tracking and related documentation and all corrections, bug fixes, enhancements, update or other modifications (the Livegistics Platform) together with implementation, consulting and other services (Services) provided by Livegistics for the Client (the Client). The Livegistics Platform subscribed to by Client and any related Services shall be identified in a Project Quote, Order or Statement of Work accepted by Livegistics (an Order). Any different or additional terms set forth in Client’s purchase order or other ordering documents are void unless specifically agreed to by Livegistics in writing.
Orders. The Livegistics Platform modules or functionality subscribed to by Client and all Services of Livegistics shall be set forth in an Order. The Order shall further identify required Services, subscription term, timing and required payments. Estimates provided by Livegistics for time and materials work are not binding in any way on Livegistics. Rates and terms are subject to change, unless such Livegistics Platform is subscribed for and Services are scheduled within the Order validity period.
Grant of License. Provided that Client is in material compliance with this Agreement, Livegistics grants to Client a non-exclusive, non-transferable license to use the Livegistics Platform for the period set forth in an Order for Client’s internal business purposes. In connection with such license, Client shall be permitted to allow internal or external administrative and accounting users, dispatch users and operators (Users) to utilize the Livegistics Platform mobile and tracking applications (Mobile Applications) subject to external users agreeing to Livegistics’ End User License Agreement (EULA). User access to Mobile Applications shall terminate on termination of this Agreement.Client is solely responsible for all activities under Client’s account and for maintaining confidentiality of user names and passwords. Client agrees to immediately notify Livegistics of any known or suspected unauthorized use of Client’s account. Client agrees that only Livegistics shall have the right to alter, maintain, enhance or otherwise modify the Livegistics Platform. Client shall not provide any unauthorized third party with access to the Livegistics Platform and will not directly or indirectly disassemble, decompile or reverse engineer the Livegistics Platform.
Implementation. Upon payment of any applicable fees set forth in each Order, Livegistics agrees to use reasonable commercial efforts to provide standard implementation assistance for the Livegistics Platform only if and to the extent such assistance is set forth on such Order (Implementation Assistance). If Livegistics provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Livegistics otherwise provides additional services beyond those agreed in an Order, Client will pay Livegistics at its then-current hourly rates for consultation.
Support; Service Levels.Subject to Client’s payment of all applicable fees, Livegistics will provide support, maintenance service, and uptime for each the Livegistics Platform in accordance with Livegistics’ then-current standard Support and Availability Policy (the current version of which is attached hereto as Exhibit A).
Ownership.The Livegistics Platform and all intellectual property rights therein are owned exclusively by Livegistics and provided to the Client and Users on a subscription basis only. Livegistics shall have a perpetual royalty free, irrevocable world-wide right and license to incorporate into the Livegistics Platform and recommendations, enhancements, requests or modifications provided by Client relating to the operation of the Livegistics Platform.
Restrictions. Client shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Livegistics Platform(except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Livegistics Platform; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Livegistics Platform; (iv) use the Livegistics Platform for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Livegistics Platform or any portion thereof; (vi) use the Livegistics Platform to build an application or product that is competitive with any Livegistics product or Livegistics Platform; (vii) interfere or attempt to interfere with the proper working of the Livegistics Platform or any activities conducted on the Livegistics Platform; or (viii) bypass any measures Livegistics may use to prevent or restrict access to the Livegistics Platform (or other accounts, computer systems or networks connected to the Livegistics Platform). Client (a) shall use the Livegistics Platform in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Livegistics Platform (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Livegistics Platform in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Data.For purposes of this Agreement, Client Data shall mean any data, information or other material provided, uploaded, or submitted by Client to the Livegistics Platform in the course of using the Livegistics Platform. Client shall retain all right, title and interest in and to the Client Data, including all intellectual property rights therein. Client, not Livegistics, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data. Livegistics shall use commercially reasonable efforts to maintain the security and integrity of the Livegistics Platform and the Client Data. Livegistics is not responsible to Client for unauthorized access to Client Data or the unauthorized use of the Livegistics Platform unless such access is due to Livegistics’ gross negligence or willful misconduct. Client agrees and acknowledges that Client Data may be irretrievably deleted if Client’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Client acknowledges and agrees that Livegistics may (i) internally use and modify (but not disclose) Client Data for the purposes of (A) providing the Livegistics Platform to Client and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Livegistics’ business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Livegistics’ products and Livegistics Platforms). Aggregated Anonymous Data means data submitted to, collected by, or generated by Livegistics in connection with Client’s use of the Livegistics Platform, but only in aggregate, anonymized form which can in no way be linked specifically to Client.
Third Party Services. Client acknowledges and agrees that the Livegistics Platform may operate on, with or using application programming interfaces (APIs) and/or other services or software operated or provided by third parties (Third Party Services), including without limitation through integrations or connectors to such Third Party Services that are provided by Livegistics. Livegistics is not responsible for the operation of any Third Party Services nor the availability or operation of the Livegistics Platform to the extent such availability and operation is dependent upon Third Party Services. Client is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Client Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Livegistics does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Client and a third-party provider is solely between Client and such third party provider and is governed by such third party’s terms and conditions.
Pricing and Payment. Unless otherwise provided in an Order, terms of payment are net thirty (30) days from the date of invoice for all subscriptions for the Livegistics Platform or Services. Livegistics may assess late payment charges on amounts not paid within thirty (30) days of the invoice date at the maximum rate allowed by law or 1-1/2% per month, whichever is less. All fees are non-refundable and not subject to set-off. All prices are exclusive of taxes. In the event that Client fails to pay any invoices when due, Client shall be liable for Livegistics collection costs, including attorney fees. In addition, Livegistics may suspend Client’s user and access to the Livegistics Platform and User access to the Mobile Applications.
Term; Termination. The term of this Agreement and any subscription of the Livegistics Platform shall be as set forth in the applicable Order (the Term). The Term shall automatically renew for successive twelve (12) month periods unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the then current Term. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Livegistics may suspend or limit Client’s access to or use of the Livegistics Platform if Client’s account is more than thirty (30) days past due All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability (Surviving Provisions).
.Limited Warranty. Livegistics warrants that the Livegistics Platform will conform in all material respects to published documentation. As Client’s sole and exclusive remedy, Livegistics will correct any material errors, bugs or defects in the Livegistics Platform of which it becomes aware. For purposes of this Agreement, an error, bug or defect is material if it (i) causes the system to crash or experience data loss; or (ii) causes a major component of the Livegistics Platform not to function properly or substantially interferes with the use or operation of the Livegistics Platform.
Disclaimer. LIVEGISTICS MAKES NO WARRANTIES REGARDING THE QUALITY OR RESULTS OF THE LIVEGISTICS PLATFORM. LIVEGISTICS EXPRESSLY DISCLAIMS ANY WARRANTIES OF DURABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR THAT SERVICES WILL MEET ALL OF CLIENT’S NEEDS, OR THAT THE LIVEGISTICS PLATFORM WILL BE ERROR FREE.
Damages and Limitation of Liability. IN NO EVENT SHALL LIVEGISTICS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, OR LOSS OF DATA, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY OR OTHER THEORIES. LIVEGISTICS TOTAL LIABILITY UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNT PAID TO LIVEGISTICS DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE DAMAGE OR LOSS.
Miscellaneous. This Agreement represents the entire agreement between Client and Livegistics with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Client and Livegistics with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Wayne County, Michigan. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; pandemic or epidemic; power failure; denial of Livegistics Platform attacks or similar attacks; Internet failure;; strikes lock-outs or labor disruptions. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
Exhibit A
Livegistics Support and Availability Policy
This Support and Availability Policy (the Policy) sets forth the policies and procedures with respect to the Livegistics Platform subscribed by Client identified on an Order subject to Livegistics Enterprise Terms and Conditions.
Summary:
As further described below, Livegistics will use commercially reasonable efforts to: (i) provide Client with 99.9% availability to the Livegistics Platform (the Livegistics Platform Availability); and (ii) provide standard support to Client.
Availability:
If the Livegistics Platform becomes substantially unavailable to Client due to defects with the Livegistics Platform, Livegistics will respond to Client (i) within eight (8) hours from Client’s notification to Livegistics of such unavailability, if during normal business hours (Monday-Friday, 8:00am – 5:00pm Eastern), or (ii) within eight (8) hours of the start of the next business day, if outside of normal business hours. The Livegistics Platform Availability will be measured on a monthly basis, with all hours weighted equally, but the Livegistics Platform Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime or performance issues resulting from third party connections, Livegistics Platforms or utilities or other reason beyond Livegistics’ control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Livegistics employees), computer, telecommunications, Internet Livegistics Platform provider or hosting facility failures or delays involving hardware, software or power systems not within Livegistics’ possession or reasonable control, and denial of Livegistics Platform attacks). If the Livegistics Platform is unavailable to Client due to defects with the Livegistics Platform beyond the Livegistics Platform Availability metric, then, as Client’s sole and exclusive remedy (and Livegistics’ sole liability), Livegistics will provide Client a credit for the subsequent Livegistics Platform billing cycle as follows:
Availability
Credit
97.5% – 99.8%
5%
95% – 97.5%
10%
< 95%
20%
In order to receive downtime credit, Client must notify Livegistics support within seventy-two (72) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. All credits provided hereunder are nonrefundable. If Client elects not to renew the Agreement, such that the above credit cannot be applied, Client will have the option to receive up to one free month of Livegistics Platform as its sole remedy in lieu of such credit.
Support:
Livegistics will provide support to Client for defects with the Livegistics Platform in accordance with this Policy. Any other support Livegistics Platforms are outside of the scope of this Policy and must be separately agreed in writing by Client and Livegistics. Client may designate up to 2 support contacts (Designated Support Contacts), and all support requests must come through the Designated Support Contacts. Client may update the Designated Support Contacts by providing notice to Livegistics.
