This Platform Service Agreement ("Agreement") between eAudit, LLC ("Consultant"), with a notice address of 407 Evans Street, Greenville, NC 27858, and the particular individual or business entity completing Consultant's online registration process ("Client") is entered into as of the date that Client completes Consultant's online registration process (the "Effective Date"). The parties hereto agree as follows:
Scope of Work
Consultant is a consulting company that specializes in small parcel transportation costs management. Consultant has developed valuable proprietary systems and trade secrets regarding small parcel transportation efficiency and is being retained by Client to assist Client in its efforts to optimize its small parcel transportation shipping. Consultant will provide Client with access to Consultant's Client-Specific small parcel data dashboard ("Dashboard"), a proprietary optimization program that allows Client to view historical shipping data to enable Client to predict and optimize future small parcel spending (the "Platform Services"). Consultant may provide additional Platform Services at various levels through the Dashboard at Client's election, including but not limited to report building, package tracking, carrier agreement compliance, as set forth below.
Consultant's Access to Carrier Information
In order to provide the Platform Services to Client, Consultant will need to obtain all relevant information regarding the parcel delivery services provided by Carrier to Client, including, without limitation, pick-up date, service levels, delivery date and time information, billing information, invoices, address information, and rates and discount information (collectively, the "Carrier Information"), either directly from Client or via Client's account on Carrier's website. Consultant generally will use the Carrier Information to verify the accuracy of Carrier Information and generate statistical data related to Client's shipping activities in order to perform the Platform Services. Client hereby (i) authorizes Consultant to log on and/or into the Client Accounts to obtain any and all Carrier Information necessary to perform the Platform Services (ii) agrees to provide Consultant with any and all Carrier Information in its possession (in any form) necessary to perform the Platform Services, and (iii) agrees and understands that Consultant may engage and share Carrier Information with an outside service provider, affiliate, or other entity for the purpose of performing the Platform Services. Client further agrees that, in the event that Consultant is unable to electronically access any Carrier Information, Client will promptly provide Consultant with any and all Carrier Information requested by Consultant. Client acknowledges and agrees that the terms of this Agreement and Consultant's provision of the Platform Services comply with all applicable agreements between Client and small parcel transportation carriers regarding small parcel shipments (collectively, the "Carrier Agreements"). Client acknowledges and agrees that it is voluntarily entering into this Agreement and that it will indemnify, defend, and hold harmless Consultant from and against any and all claims, expenses, liabilities, and obligations of any kind incurred by, or asserted against, Consultant, including, without limitation, reasonable attorney fees and court costs, in connection with Consultant's provision of the Platform Services. In the event that Client reasonably determines that it is prohibited from disclosing any such Carrier Information to Consultant by the terms of a binding confidentiality agreement, non-disclosure agreement, or any similar agreement, Client covenants to cooperate with Consultant in good faith to implement a procedure that allows the subject Carrier Information to be disclosed to, or for the benefit of, Consultant for the limited purposes of enabling Consultant to perform the Platform Services and calculate the remuneration owed by Client to Consultant under this Agreement. The provisions of this section will survive the termination of this Agreement.
Platform Services and Add-Ons
Consultant offers various Platform Services at differing service levels based on the number of packages Client ships per month ("Service Tiers"). Each Service Tier is assigned a corresponding flat monthly rate (the "Service Tier Rate"), which Service Tier Rate is set forth on Consultant's website (www.eaudit.com or any other website then-used by eAudit, LLC to advertise the Platform Services). Subject to the below-described pricing adjustments, following Client's selection of the desired Service Tier, Client will pay to Consultant each month the Service Tier Rate as published on Consultant's website on the date Client enters into this Agreement. In addition to the Platform Services included in the Service Tier selected by Client, Client may elect to purchase optional, separate Platform Services ("Add-Ons"), the description and individual costs of which are set forth on Consultant's website ("Add-On Rates"). All Add-On Rates, if any, shall be added to the Service Tier Rate, which sum shall equal the total monthly payment to be paid by Client to Consultant ("Total Compensation"). Subject to the requirement for a particular Service Tier or Add-on, Client has the right to upgrade or downgrade its Service Tier and add or remove Add-ons by contacting Consultant.
Notwithstanding any contrary term or provision of this Agreement, Client acknowledges and agrees that Service Tier Rates and Add-On Rates are subject to change in Consultant's sole discretion, without notice to Client. Any change in the Service Tier Rates or Add-On Rates shall apply to all customers, including Client. Additionally, Client acknowledges that the availability of Add-Ons and the terms and requirements for each Service Tier are subject to change in the discretion of Consultant, without notice to Client, with any such change applying to all customers, including Client.
Client has selected a Service Tier via Consultant's online registration process. By selecting its desired Service Tier, Client agrees that it will ship the number of packages per month allotted for the chosen Service Tier and understands that it will only receive the Platform Services associated with the chosen Service Tier. In the event that Client ships more packages than the maximum number of packages per month for Client's then-current Service Tier, Client has more users access the Dashboard than are permitted for Client's then-current Service Tier, or Client otherwise takes any action that is inconsistent with the terms of the subject Service Tier, Consultant shall have the right to automatically upgrade Client's Service Tier to the appropriate Service Tier for the subject month and charge Client the applicable Service Tier Rate shown at that time on Consultant's Platform Services website, which upgrade shall continue for subsequent months. Additionally, Client has selected any Add-Ons it desires to receive, if any, via Consultant's online registration process.
Term and Termination
The term of this Agreement will begin on the Effective Date and will continue until terminated as provided herein. This Agreement may be terminated as follows:
In the event this Agreement is terminated for any reason, neither party will have any further obligations hereunder, except for obligations that accrued prior to the date of termination and for obligations, promises, or covenants contained herein which expressly survive termination of this Agreement.
Invoice and Payment for the Platform Services
Consultant will send Client a monthly invoice for all the Total Compensation. Client will have fourteen (14) calendar days after the date of Consultant's invoice to review the invoice and contact Consultant with any questions related to the invoice. Any charge that is not disputed within the above-described fourteen (14) day period conclusively shall be deemed to be owed by Client to Consultant. Client and Consultant will use commercially reasonable efforts to resolve any invoice-related disputes. Client will pay the amount due under any invoice within thirty (30) calendar days after the date of Consultant's invoice, which will include the fourteen (14) day review period. If any payment becomes overdue, Client will pay a penalty on the total amount outstanding calculated at the rate of one and a half percent (1.5%) per month or the maximum monthly rate allowed by applicable law, whichever is lower. Nothing herein will excuse Client from paying the full amount due, including penalties, for the services rendered by Consultant hereunder. The provisions of this section will survive the termination of this Agreement.
Intellectual Property Rights
Client acknowledges and agrees that Consultant's proprietary systems, trade secrets, and other intellectual property, including, without limitation, its methods, software, inventions, know how, audit reports, and logos, are the sole property of Consultant. Consultant grants Client a non-exclusive, royalty free, non-transferable, terminable license to use the Dashboard for Client's use of the services provided by Consultant to Client hereunder, including, without limitation, the Platform Services, which license automatically will, without any requirement for notice or any other action, terminate upon the termination of this Agreement. The provisions of this section (other than the above-described license) will survive the termination of this Agreement.
From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the disclosing party and/or its business, products, customers, services, policyholders and/or claimants, including but not limited to information and/or documents concerning; (1) financial information, strategic business plans, policies and/or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing and/or profit information; (4) proprietary and/or confidential intellectual property; and (5) intellectual property of third parties licensed to the disclosing party (collectively, “Confidential Information”) in connection with this Agreement. Each party agrees that during the Term and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, affiliates, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. At the Disclosing Party’s discretion, the Disclosing Party may request all copies of Confidential Information be destroyed and the Receiving Party shall provide certification upon such destruction. For Confidential Information that is not a trade secret, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement, with any such provisions with respect to Confidential Information that constitutes a trade secret always being subject to these confidentiality obligations until the subject Confidential Information no longer is a trade secret. The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
Entire Agreement: This Agreement and all terms and conditions published on Consultant's website (with Consultant's website being incorporated herein by this reference) contain the entire agreement and understanding between Consultant and Client with regard to the subject matter covered herein. There are no conditions precedent or subsequent to the effectiveness hereof, except as stated herein. All prior negotiations, understandings, terms, and conditions are merged into this Agreement.
By continuing, Client agrees to be bound by the terms of this Agreement and electronically signs this Agreement.
ND: 4814-1640-1223, v. 2
5/8/2017 Version of Form