HWY LABS, INC.
SOFTWARE AS A SERVICE AGREEMENT
THIS Software as a Service Agreement (the “Agreement”) is entered into as of today (the “Effective Date”), by and between Hwy Labs, Inc., DBA Hwy Haul, a Delaware corporation having its principal place of business at 900 Lafayette St, Suite 307, Santa Clara, California, (the “Company” or “Hwy Haul”), You on behalf of your company (the “Customer”). The Company and the Customer are hereinafter sometimes referred to collectively as the “Parties” and individually as a “Party.”
WHEREAS, Company has developed a next generation digital freight platform (the “Hwy Haul Platform” or the “Platform”) and provides transportation brokerage services (collectively, the “Services”), as further described in Exhibit A.
WHEREAS, Customer wishes to use Company’s Platform and Services described herein to provide transportation brokerage services (the “Customer Services”) through the Company’s Platform to Customer’s own customers (the “Customer Users”), and Company wishes to provide the use of Company’s Services to Customer under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform and Services.
1.2. “Application” means any Company application accessed by the Customer or its Authorized Users (including Customer’s customer) from Company’s webpage, the Apple App Store, Google Play Store, or its equivalent to access the Platform and the Services provided under this Agreement.
1.3. “Authorized Users” means all users, including but not limited to Customer Users, and Customer’s employees, contractors, agents, who are authorized by Customer to access the Services and the Platform pursuant to Section 2.
1.4. “Customer Data” means data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Platform. For the avoidance of doubt, Customer Data includes the insurance policies and information reflecting the access or use of the Platform by or on behalf of Customer or any Authorized User and personal information about Customer Users and Customer’s employees and contractors including business title, place of business, business email, etc.
1.5. “Customer Users” means the Customer’s customers, including but not limited to carriers and shippers, who are authorized by Customer to access the Services and the Platform pursuant to Section 2 and who Customer will provide
1.6. “Deliverable” means any item to be delivered by Company to Customer as part of the Services and identified as a “deliverable” in an applicable Service Order.
1.7. “Documentation” means any documentation provided by Company for use with the Platform under this Agreement.
1.8. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Customer or any Authorized Users from accessing or using the Services or Platform as intended by this Agreement.
1.9. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any source code, software, patent, copyright, trademark, trade secret, database protection, know-how, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.10. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.11. “Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party.
1.12. “Permitted Use” means any use of the Services or the Platform by the Customer or an Authorized User for the benefit of the Customer and/or its Authorized Users solely for their internal business operations.
1.13. “Platform” has the meaning ascribed to it in the first recital, including the hardware, servers, software, systems, software application, and other equipment used by Customer to provide the Services and is commonly known as the Platform.
1.14. “Process” means to take any action or perform any operation or set of operations, which is performed on personal data, Customer Data, content, or other information, whether or not by automated means, such as including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
1.15. “Resultant Data” means information, data and other content that is derived by or through the Platform from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
1.16. “Service Level Agreement” means the service level agreement defining the uptime and support availability for the Platform and Services as described in Exhibit B attached hereto.
1.17. “Service Order” means a service order in a form agreed to by the Parties, signed by both Parties, which, among other things, describes the Services, any Deliverables, any customization, the prices, the term of the Service Order, and any special terms.
1.18. “Services” means the services, as more fully described in Exhibit A, provided under this Agreement in a Service Order, including access to the Platform and the services related thereto, any maintenance, training, configuration, data extraction, data feed, support, hosting, professional, and any other service provided by Company to Customer as identified in a Service Order.
1.19. “Territory” means the place where the Services are to be provided and, if not specified in the Service Order, will mean the United States, Canada, and Mexico.
2. ACCESS TO SERVICES.
2.1. Access to the Platform and the Services. Subject to and conditioned on Customer’s payment of the Fees and Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Company hereby grants to Customer, and Customer hereby accepts, a limited, non-exclusive, non-transferrable, non-sublicensable, non-assignable right to access the Platform and Services in accordance with the terms of this Agreement and any applicable Service Order. The right to access the Platform and the Services, granted hereunder, will apply in the Territory to the Customer and its Authorized User. The Platform and Services may be used by Customer and its Authorized Users under the terms and conditions of this Agreement.
2.2. Platform and Services. The Platform offered pursuant to this Agreement and the Services offered hereunder are more fully described in the applicable Service Order.
2.3. Service Levels. Company will use commercially reasonable efforts to provide access to the Platform and the Services in accordance with the Specifications and the conditions hereof, including the Service Level Agreement attached hereto as Exhibit B. Notwithstanding the foregoing, Company is not responsible for providing support services directly to Customer Users, unless otherwise specified in writing. In addition, Customer acknowledges and agrees that Customer is solely responsible and liable for any Losses arising out of or relating to Customer Services provided to Customer Users, and Customer will indemnify, defend, and hold harmless Company from and against any and all Losses incurred by Customer Users.
2.4. Ownership of Platform. Except as otherwise expressly provided in this Agreement, as between the Parties:
(i) Company has and will retain sole control over the operation, provision, maintenance and management of the (a) Platform; and (b) the Services. Company will determine in good faith the selection, deployment, modification, support, maintenance, repair upgrades, updates, corrections, repairs, and replacement of the Platform and Services; provided, however, that Company will not modify the Platform or Services to remove any material features and will not modify any feature used by Customer or it Authorized Users without Customer’s prior written consent;
(ii) Customer has and will retain sole control over all Customer Data, except as set forth herein or in the applicable Service Order, and the operation, maintenance and management of, and all access to and use of, its systems, and sole responsibility for all access to and use of the Platform and Services by any Authorized Users by or through such systems or any other means controlled by Customer or any Authorized User; and
(iii) Company will have the right to review and monitor the use of the Platform and Services by Customer and its Authorized Users to ensure compliance with the terms of the Documentation, this Agreement and any applicable Service Order.
2.5. Changes. Company reserves the right, in its sole discretion, to make any changes to the Platform and Services that it deems necessary or useful or requested by the Customer to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services, or (iii) the cost efficiency or performance of the Platform; or (b) to comply with applicable law, provided that with respect to (a), Company will notify Customer in advance of making any changes to remove any material features or make any changes to any feature that is used by the Customer or any of its Authorized Users, without Customer’s prior written consent; and with respect to (b) provide reasonable notice to the Customer of the change.
2.6. Reservation of Rights. Except for the rights to access the Platform and Services, granted in Section 2.1 above for the Term set forth in this Agreement or the applicable Service Order, nothing in this Agreement grants any title or ownership interest in or to any Intellectual Property Rights in the Platform or Services, whether expressly, by implication, estoppel or otherwise. All title and ownership interest in and to the Platform and Services are and will remain with Company.
2.7. Authorization Limitations and Restrictions. Customer’s access to and use of the Platform or any Services is subject to the restrictions in this Section 2.7. Customer agrees to be bound by and liable for the actions of its Authorized Users and will not permit any Authorized User to access or use the Platform or the Services, except as expressly permitted by this Agreement or the applicable Service Order. The Parties agree and the Customer acknowledges that a violation of this Section 2.7 will be deemed a material breach of this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer or its Authorized Users will not, except as this Agreement expressly permits:
(i) copy, modify or create derivative works or improvements of the Platform or Services, except that, in the case of Documentation, Customer may create a reasonable number of copies of the written Documentation and training materials for training purposes;
(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Platform or Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(iii) reverse-engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform or Services, in whole or in part;
(iv) bypass or breach any security device or protection used by the Platform or Services or access or use the Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
(v) input, upload, transmit or otherwise provide to or through the Platform or Services, any information or materials that Customer knows to be unlawful or injurious, or contain, transmit or activate any Harmful Code;
(vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform, Services, or Company’s provision of services to any third party;
(vii) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof, provided that Company will not include its name or trademark or any proprietary rights notices in any feature that is Customer Client facing without Customer’s prior written consent;
(viii) access or use the Platform or Services in any manner or for any purpose that violates any applicable law;
(ix) access or use the Platform to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation;
(x) access or use the Platform or Services for purposes of competitive analysis of the Platform or Services, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; or
(xi) otherwise access or use the Platform or Services beyond the scope of the authorization set forth in this Agreement or in any manner or for any purpose that is unlawful under applicable law.
2.8. Customer Liability. Customer is liable for the failure of it or any of its Authorized Users for any violation of the provisions in this Section 2.8, including any person who obtains any Access Credentials of an Authorized User. Customer agrees to defend, indemnify, and hold Company and its Affiliates and their employees, directors, officers, contractors and agents (collectively “Indemnitees”) from any and all Losses resulting from or in connection with a violation of this Section 2.8 by it, its Authorized Users or any persons who gets access to the Access Credentials of its Authorized Users.
2.9. Works Made for Hire. Except as specifically stated in a Service Order, the Parties do not contemplate the development by Company of any custom-developed deliverables or work product for Customer (“Work Made for Hire” or “Work Product”) as defined in the US Copyright Act of 1976. In the event Customer requests such Work Product by Company in the future, the Parties will agree to the governing terms at that time and set forth in a Service Order. Unless expressly stated in a Service Order, nothing provided under this Agreement will be considered Work Made for Hire, including deliverables and other work under this Agreement. Moreover, any suggestions or product feedback rendered by Customer or its Authorized Users relating to the Platform or the Services (collectively “Feedback”) will not be considered “works made for hire,” or comparable terms, as defined in the United States Copyright Act of 1976, as amended, or other federal or state laws. Unless otherwise agreed to in writing by the Company, all rights in and to the Platform, the Services, and the Feedback are expressly reserved by Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an unrestricted license to use any Feedback given to Company, including all Intellectual Property Rights relating thereto.
3. PAYMENT; TAXES.
3.1. Pricing. Customer will pay Company the fees for use of the Platform and Services fees (the “Fees”) in the amount and in accordance with the applicable Service Order. Upon payment of the applicable Fees, Customer will provide Credentials for each Authorized Users, who will be granted access to the Platform and Services. Unless otherwise stated in a Service Order, the Fees will be billed monthly in advance and will not be refundable.
3.2. Taxes. Customer will, in addition to the other amounts payable under this Agreement, pay, if applicable, all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Company’s net income. Customer agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.
3.3. Payment Terms. Customer will pay all Fees and any reimbursable expenses within thirty (30) days after the date of the invoice therefor. Customer will make all payments hereunder in US dollars by check, by automated clearing house (ACH), through a third party payment processor, or as otherwise specified by Company.
3.4. Late Payment. If Customer fails to make any undisputed payment when due then, in addition to all other remedies that may be available, Company may charge interest on the past due amount at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is more.
3.5. No Deductions or Setoffs. All amounts payable to Company under this Agreement will be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason or deduction or withholding of tax as may be required by applicable Law.
4. TERM; TERMINATION.
4.1. Term. This Agreement will commence upon the Effective Date of this Agreement and remain in full force and effect for an initial term of one (1) year (the “Initial Term”) or until all Service Orders associated herewith have expired or terminated, unless this Agreement is terminated earlier as set forth in this Section 4. The Initial Term will automatically renew and extend for additional twelve (12) month periods (each, a “Renewal Term” and, with the Initial Term, collectively, the “Term”), unless one of the Parties gives thirty (30) days’ notice prior to the end of the Term of its intent not to extend to the other Party.
(i) By Either Party. This Agreement or any Service Order may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
(a) if the other Party fails to perform or observe any material term or condition in this Agreement or the Service Order and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party;
(b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding will not have been dismissed or stayed within sixty (60) days after such filing; or
(c) pursuant to any termination clauses in a Service Order, if any.
(ii) For Cause. Each Party will have the right to terminate this Agreement or any Service Order if the other Party breaches any material term or condition of this Agreement or any Service Order and fails to cure the breach within thirty (30) days after written notice.
(iii) Mutual Consent. This Agreement and any Service Order may be terminated at any time upon the mutual written consent of both Parties.
(iv) For Convenience. Company may terminate this Agreement and any Service Order upon thirty (30) days’ notice to the Customer after the Initial Term without cause or penalty for any reason or no reason.
4.3. Early Termination by Customer. Subject to Section 4.2, in the event that Customer provides written notice to Company of Customer’s desire to terminate this Agreement prior to the end of the Term or any applicable Service Order prior to the end of the Order Term, Customer agrees to pay Company a pro-rated termination fee equal to 50% of the Fees (the “Termination Fee”) specified in the applicable Service Order through the end of the Order Term, unless otherwise agreed to in writing by Company.
4.4. Effect of Termination. Upon termination of this Agreement, each Party will promptly return, or, at the other Party’s request, destroy (and provide confirmation of such destruction signed by an applicable employee or officer) all Confidential Information of the other Party (including without limitation the Customer Data and the Documentation). All sections of this Agreement, which by its context and intent, will survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement will expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration will survive such termination.
5. SERVICE ORDERS.
5.1. Service Orders. The Parties will execute one or more Service Orders in materially the same form as Exhibit A or as otherwise agreed to by the Parties, subject to the terms and conditions of this Agreement. Each Service Order must be signed by Customer and Company and include (i) a description the Services, (ii) Deliverables, if any, (iii) customization, if any, (iv) the prices, (v) the term of the Service Order, and (vi) special terms, if any. Each Service Order executed shall constitute a separate agreement that is subject to the terms and conditions of this Agreement and shall be binding, when duly executed by each of the Parties hereto, upon such Parties and their respective successors, legal representatives and permitted assigns. To the extent any provision in a Service Order conflicts with any provision in this Agreement, the provision in the Service Order will control.
6. CUSTOMER OBLIGATIONS.
6.1. Customer Systems and Cooperation. At all times during the Term, Customer will ensure that Customer and Customer’s Authorized Users: (i) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer systems on or through which the Services are accessed or used; (ii) provide Company personnel with such access to Customer’s premises and systems as may be reasonably necessary for Company to perform the Services in accordance with the terms of this Agreement; and (iii) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations hereunder.
6.2. Effect of Customer Failure or Delay. Company is not responsible or liable for any delay or failure of performance caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). In such case, Company will be given an extension of time equal to the number of days solely delayed by Customer to perform Company’s obligations.
6.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened prohibited activity by Customer or any Authorized User, Customer will, and will cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
6.4. Customer Data. Customer and its Authorized Users will be responsible for protecting the Credentials provided by Company for access to the Platform and Services. Customer will be solely responsible for Customer Data that is made available/transmitted by Customer or its Authorized Users through the Platform. Customer will provide true, accurate, current and complete information as prompted by the signup process and maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete and Customer will ensure that its Authorized Users do the same. The Customer will be responsible for the accuracy, quality, and legality of the Customer Data and the means by which Customer has acquired the data. Customer will defend, indemnify, and hold Company and its Indemnitees harmless from any Losses incurred by Company as a result of Customer’s or its Authorized Users’ violation of this Section 6.4.
6.5. Credentials. Customer will be responsible and liable for any Losses incurred by Company with respect to the use or misuse of the Credentials. Customer must inform its Authorized Users that they may not share their Credentials with anyone else and that they must keep such Credentials confidential. Customer will defend, indemnify, and hold Company and its Indemnitees harmless from any Losses incurred by Company as a result of Customer’s or its Authorized Users’ violation of this Section 6.5.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. Ownership. All right, title and interest in and to the Services and Platform, any changes, corrections, bug fixes, enhancements, customizations, updates, and other modifications thereto including all Intellectual Property Rights therein, are and will remain with Company. Customer has no right, license, or authorization with respect to any of the Platform or Services except as expressly set forth in Section 2.1 in each case subject to Section 2.3. All other rights in and to the Platform and Services are expressly reserved by Company and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
7.2. Customer Data. As between Customer and Company, Customer and Company will jointly own the right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto. Company is permitted to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Customer Data for purposes of providing the Services to Customer and for internal business purposes. Company may use disaggregated and depersonalized Customer Data for benchmarking, quality control, improving the Platform and the Services, and any other lawful purposes.
7.3. Limited Trademark License; Marketing Materials. Customer hereby grants Company a royalty-free, non-exclusive, non-transferable, non-sublicensable, revocable, limited term license to use Customer’s Marks solely for the purpose of aligning the appearance of the Product to Customer’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. Such license will be limited to the duration of this Agreement. During the Term of the Agreement, Company may include Customer in any of Company’s customer lists, solely for the purpose of identifying Customer as a customer of Company. Company will not use any of Customer’s Marks in any manner that Customer, in its sole discretion, deems to be an explicit or implicit endorsement of Company, or which is likely to cause confusion as to Customer’s relationship to Company. Customer and Company acknowledge that the provisions of this paragraph do not convey any right, title or ownership interest in Customer’s Marks to Company.
8. REPRESENTATIONS AND WARRANTY.
8.1. Company Warranty. Company warrants to Customer that during the Term, (a) the Services will perform substantially in accordance with the terms of Documentation, if any Documentation is provided, (b) Company has the right to grant the license granted under this Agreement, or, in the case of any third party software, that it has the right to grant a sublicense to use such third party software, (c) Company has the necessary resources, expertise, and personnel to perform the Services in a professional manner according to the terms and conditions of this Agreement, and any Service Order, and (d) the Services will be free from material defects in design, workmanship, and materials. The foregoing warranty in clause (a) will not apply if (i) caused by factors outside of Company’s reasonable control; (ii) that result from any improper actions or inactions of Customer or its Authorized Users, or any third parties who gets access to the Platform or the Services from the Customer or any Authorized User; or (iii) that result from Customer’s or its Authorized Users’ data structure, operating environment, or equipment.
8.2. Additional Warranties. Company represents and warrants to Customer that in connection with the provision of the Services, Customer will not input, upload, transmit, or otherwise provide to or through the Services or the Platform to the Customer’s systems, any information or materials that Company knows to be unlawful or injurious, or contain, transmit or activate any Harmful Code. In the event a Harmful Code is identified, Company will take all steps necessary, at no additional cost to Customer, to restore and/or reconstruct any and all data lost by Customer as a result of such Harmful Code. Customer represents and warrants to the Company that neither it nor its Authorized Users will input, upload, transmit, or otherwise introduce any Harmful Code into the Platform. Customer agrees to defend, indemnify, and hold Company from any Losses incurred by the company as a result of Customer introducing such Harmful Code into the Platform.
8.3. Data Transfer. Company represents and warrants that it will only transfer (including internal Company transfers that occur beyond the internal firewalls of Company) (i) Customer Data in a secure and confidential manner, including at a minimum, encrypting the data with no less than 128 bit encryption or through establishing a virtual private network with Customer and will comply with all security provisions and procedures set forth in Customer’s security policies and procedures and (ii) in compliance with all applicable privacy and secrecy laws, statutes, rules and regulations.
8.4. Customer Representations, Warranties and Covenants. Customer represents, warrants and covena