4.1 Text Messaging Service. TransPlus does not charge a fee for the text messaging service associated with the Software (“Texting”). TransPlus is not responsible for any charges from a user’s service provider that may result from Texting. It is Customer’s responsibility to obtain approval from the recipient prior to using Texting. Customer acknowledges that text messages are distributed via third-party mobile network providers and, therefore, TransPlus cannot control, and hereby disclaims, any warranties relating to message delivery. Customer acknowledges that, depending on the recipient’s mobile provider service, it may not be possible to transmit the text message to the recipient successfully. The use of a cellular device for phone calls or text messages while driving is dangerous and, in most jurisdictions, illegal. Customer is hereby advised to notify recipients that they should refrain from texting or otherwise using a cellular device while operating a motor vehicle.
4.2 Pre-Release Testing/Early Access/Trial License. Subject to the foregoing, TransPlus may provide Customer with a free testing arrangement of certain Software or Services, whether written, verbal or implied, in connection with pre-release or early access testing of code that is not generally or commercially available, or a trial license of commercially and generally available software (“Test Software”). If Customer has been granted a license key prior to placing an Order for licenses, or prior to such licenses being generally available to TransPlus’ commercial customers, in the absence of a written arrangement defining the scope of a trial, pre-release or early access testing arrangement, a 30-day non-production internal test license or access period shall be assumed (“Test License”). Notwithstanding any terms and conditions described in this Agreement to the contrary, any Test License shall be subject to the following: (a) the Test License(s) shall be of limited duration and shall expire automatically upon completion of the pre-release, early access or trial test period, (b) the Test License shall terminate immediately without notice from TransPlus if Customer fails to comply with any provision of this Agreement, (c) the Customer may terminate the Test License earlier at any time by destroying and/or returning to TransPlus all copies of the Test Software (to the extent software has been provided), (d) upon any expiration or termination of the Test License, the Customer must return and/or destroy all copies of the Test Software, and (e) TransPlus shall have the right to terminate all access to the Test Software without notice to Customer upon expiration or termination of the Test License. Customer acknowledges and agrees that (i) TransPlus is under no obligation to deliver or develop generally available or production versions of any pre-release or early access software, or any features or functionality therein, and (ii) any Test Software-related feedback shall be deemed TransPlus’ confidential information, and TransPlus is free to use such feedback for any purpose, without permission or license from, or payment to, Customer.
4.3 Professional Services. TransPlus may, in its sole discretion, offer professional services, including, but not limited to, implementation, set-up, integration, training, custom development or other professional services made available to Customer by TransPlus pursuant to a statement of work executed by both of the parties or as may be provided on an Order for initial professional services associated with implementing the Software or Subscription Services. Except for professional services described in the initial order form (if any), until the Customer has ordered such professional services pursuant to a statement of work or subsequent order, TransPlus will have no obligation to provide professional services to Customer. In the event any professional services include the creation of any improvement to, or modification of, the Software or Subscription Services, all intellectual property rights in and to such improvement or modification shall be owned by TransPlus.
4.4 Escrow. Customer may opt to enlist in the escrow program by signing a Beneficiary Enrolment Notification, in which case, it will agree to be bound by the terms and conditions of the software escrow agreement between TransPlus and its then-current escrow services provider. Enrolment in the escrow program is subject to the payment by Customer of a separate annual fee.
4.5 Interfaces. Interfaces to third party vendor systems may be available, as indicated in the Documentation. Customer shall act as a liaison between TransPlus and any third party vendor(s) with which the Software or Subscription Services shall interface. Customer shall have its third party vendor available at the time that TransPlus is scheduled to install the interface and in order to assist with installation, as required by TransPlus. Transactions processed by a third party vendor system may be subject to separate licensing requirements. Customer acknowledges and agrees that it has the sole obligation to obtain, or cause its third party vendor to obtain, any and all such licenses. TransPlus does not warrant the functionality of the third party software nor the integration features from version to version.
4.6 Implementation, Training and Consulting. Customer acknowledges that TransPlus’s services are scheduled on a first come, first served basis, and shall be mutually agreed upon by TransPlus and Customer subject to TransPlus’s availability. If Customer cancels a scheduled and confirmed training session, Customer will be responsible for TransPlus’s standard cancellation fees and any other charges as specified in the applicable Order. Before training and implementation begins, Customer agrees to undergo an implementation and training preparedness program in accordance with TransPlus’ then-current procedures, which will ensure that Customer’s environment is prepared for the training and implementation.
4.7 Payment Terms. Customer agrees to pay to TransPlus all fees as set out in the Order (“Fees”). All Fees are payable in accordance with the terms set out in, and in the currency specified in, the Order. Unless otherwise indicated on the invoice or Order, all invoices are due upon receipt. In the event that additional user or vehicle licenses, or other Software modules or interfaces are added, the Fees payable under this agreement will be adjusted accordingly to reflect additional coverage. TransPlus reserves the right to renew the Maintenance Period and the Order Form associated with this Agreement upon such additions, whereby a credit will be issued for the remaining months of previous Maintenance Period and Order Form. Customer must notify TransPlus of any invoice dispute by the date that is 30 days following the date of the relevant invoice, after which date the invoice shall be deemed accepted by Customer and will be due and payable in full. If Customer initiates a dispute with regard to an invoice, any undisputed amounts charged on such invoice will remain due and payable. TransPlus reserves the right to charge, and Customer agrees to pay, a late fee on the past-due, unpaid balance of undisputed invoiced from the due date until paid equal to the lesser of one and one half percent (1.5%) per month, or the maximum amount permitted by law. Customer will be responsible for paying all taxes, duties or similar governmental assessments, including, without limitation, sales taxes, excise, use, goods and services taxes or similar taxes, customs duties and similar charges, associated with the Software, and imposed upon the Fees (other than taxes associated with TransPlus’s net income or TransPlus’s authority to do business in a particular jurisdiction) (“Taxes”). If, for whatever reason, Customer is required by law to withhold any Taxes from Fees, Customer shall gross up its payments to TransPlus so that TransPlus receives Fees in full and free of any deductions.
4.8 Ownership. TransPlus retains all ownership and intellectual property rights in and to the Software, the Subscription Services and related Documentation. Customer acknowledges that it is only licensing the right to use the Software and Documentation and that no sale or other transfer of any title or ownership of any kind to the Software, the Subscription Services or Documentation is contemplated hereunder, other than, as applicable, the sale of the limited licenses expressly granted in Section 1. At all times Customer will own all intellectual property rights in any data entered or submitted by the Customer by means of the Software or Subscription Services (the “Customer Data”).
4.9 Confidentiality. Customer will hold in strict confidence and not disclose to third parties any confidential information of TransPlus, including the Software, the Subscription Services or the Documentation, and any updates or upgrades related thereto, the terms of the Order and fees paid or payable by Customer to TransPlus. TransPlus will hold in strict confidence and not disclose to third parties, or use for any purpose except to provide the Software, Subscription Services and related services to Customer, any confidential information of Customer, provided that TransPlus may provide to third parties summary level data (being non-identifying customer data used only in the aggregate), and may disclose Customer Data if compelled by law to do so.
4.10 Limited Warranty; Disclaimer.
4.10.1 Warranty for Software. TransPlus warrants that, as of the date the Software is made available to Customer via electronic download or on physical media and for a period of 90 days thereafter (the “Warranty Period”), the Software will perform substantially in accordance with the corresponding Documentation and that the media on which the Software is furnished, if any, will be free from defects in materials. Non-substantial variation of performance from the Documentation does not establish a warranty right. All warranty claims must be made within the Warranty Period. TransPlus’ entire liability, and Customer’s exclusive remedy, under any warranty will be, at TransPlus’ option, for TransPlus to attempt to correct or work around errors, to replace defective media on which the Software is made available, if any, or to refund the license fees for the Software involved. Any refund is subject to the return of the Software or defective media to TransPlus.
4.10.2 Warranty for TIP Participants. If the Customer is a participating in the TIP and Customer has paid the applicable TIP Fee, TransPlus warrants that during the term of this Agreement, it will maintain the Software in accordance with the terms and conditions of this Agreement, based on the professional standards that it utilizes for all of its commercial customers participating in the TIP.
4.10.3 Warranty for Subscription Services. If Customer has paid for access to the Subscription Services, TransPlus warrants that the Subscription Services will conform in all material respects to the Documentation. As Customer’s sole remedy for any breach of this warranty, if Customer brings to TransPlus’ attention any incidence of non-conformance, TransPlus will use reasonable efforts to correct the error.
4.10.4 Warranty Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION 4.10, TRANSPLUS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, SECURITY AND NON INFRINGEMENT. TRANSPLUS ALSO MAKES NO WARRANTY REGARDING (I) NON INTERRUPTION OF USE, (II) FREEDOM FROM BUGS, (III) THE AVAILABILITY AND/OR FUNCTIONALITY OF THIRD PARTY PRODUCTS, SERVICES, API’S, AND/OR INTEGRATIONS THAT ARE MADE AVAILABLE BY ANY THIRD PARTY, AND/OR (IV) THAT ANY PRODUCT OR SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE OR THE SUBSCRIPTION SERVICES AND THEIR FUNCTIONALITY IN ANY COMMUNICATION WITH CUSTOMER CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS REPRESENTATiON, WARRANTY OR GUARANTEE. OTHER THAN THE EXPRESS WARRANTIES CONTAINED HEREIN AND STATUTORY WARRANTIES AND REMEDIES THAT CANNOT BE DISCLAIMED OR WAIVED UNDER APPLICABLE LAW, THE SOFTWARE, SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, AS APPLICABLE, ARE PROVIDED AS-IS AND WITH ALL FAULTS TRANSPLUS DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. THE PARTIES AGREE THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE IF THE SOFTWARE, THE SUBSCRIPTION SERVICES OR THE PROFESSIONAL SERVICES ARE SUITABLE FOR CUSTOMER’S REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
4.11 Limitation of Liability. TRANSPLUS’ ENTIRE LIABILITY FOR ALL CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, THE SUBSCRIPTION SERVICES AND THE PROFESSIONAL SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO AND WILL NOT EXCEED, IN THE AGGREGATE THE AMOUNT PAID TO TRANSPLUS UNDER THIS AGREEMENT FOR THE SPECIFIC SOFTWARE OR SERVICE THAT CAUSED THE DAMAGE OR THAT IS THE SUBJECT MATTER OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL TRANSPLUS BE LIABLE FOR LOSS OF DATA, INCOME, PROFIT OR SAVINGS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY PARTY, INCLUDING THIRD PARTIES, EVEN IF TRANSPLUS OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
4.12 Indemnification. TransPlus will defend Customer in respect of any claims brought against Customer by a third party based on the claim that the Software or Subscription Services infringes the intellectual property rights of that third party. TransPlus will pay any award rendered against Customer by a court of competent jurisdiction in such action, provided that Customer gives TransPlus prompt notice of the claim and TransPlus is permitted to have full control of any defence. If all or any part of the Software or Subscription Services becomes, or in TransPlus’s opinion is likely to become, the subject of such a claim, TransPlus may either modify the Software or Subscription Services to make it non-infringing or terminate this Agreement as it relates to the infringing portion of the Software or Subscription Services and refund any amount prepaid by Customer for services that have not yet been used. This is TransPlus’s entire liability concerning intellectual property infringement. TransPlus will not be liable for any infringement or claim based upon any modification of the Software or Subscription Services developed by Customer, or use of the Software or Subscription Services in combination with software or other technology not supplied or approved in advance by TransPlus, or use of the Software or Subscription Services contrary to this Agreement or the Documentation. Likewise, Customer will indemnify TransPlus in respect of any claim arising out of TransPlus hosting Customer Data or unauthorized changes to, or us of, the Software or Subscription Services by Customer.
4.13 Term and Termination.
4.13.1 Term. For customers which have purchased a license to the Software, this Agreement and the related license will remain in effect until terminated by either party as provided herein. With respect to customers participating in the TIP or who have purchased access to the Subscription Services, the participation in the TIP or access to the Subscription Services, will remain in effect for a period of one (1) year, or such other period indicated in the Order, commencing on the Effective Date (“Initial Term”), and shall be automatically renewed until terminated by either party by providing the other with 90 days’ written notice prior to the end of the Initial Term or any renewal term. For greater clarity, a customer which has purchased a license to the Software, but which opts out of or fails to renew their participation in the TIP, shall not be able to access any of the support or maintenance services detailed in Section 2.
4.13.2 Termination. TransPlus will have the right to terminate this Agreement and any license granted hereunder immediately on notice to Customer if Customer: (a) violates the license, usage or confidentiality restrictions of this Agreement, (c) fails to make any payments when due, or (c) files a petition in bankruptcy, has such a petition filed against it, which petition is not discharged within sixty (60) days after such filing, makes an assignment for the benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession of Customer’s assets. In addition, TransPlus will have the right to terminate this Agreement any license granted hereunder if Customer breaches any other obligation or provision of this Agreement which breach remains uncured for a period of thirty (30) days after receipt of notice thereof from TransPlus. For customers of the TIP (who are, for greater certainty, not subscribers of the Subscription Services), if this Agreement is cancelled and at a later time reinstated, a charge equal to 50% of the then-current annual TIP Fee will be billed to Customer in respect of each calendar year for which Customer was not participating in the TIP subsequent to its cancellation of this Agreement.
4.13.3 Early Termination. In consideration of the implementation and investment costs which are intended to be amortized over the Initial Term indicated on the Order, as well as the pricing structure set out on the Order, Customer agrees to pay liquidated damages if Customer elects early termination of the TIP or the Subscription Services, as applicable, during the Initial Term (other than pursuant to Section 9(b)) equal to the average monthly fees paid or payable to TransPlus by Customer during the preceding three-month period multiplied by the number of months remaining in the Initial Term, along with any outstanding fees for services ordered but not yet paid for by Customer since the date of this Agreement. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. Customer acknowledges that the actual damages likely to result from a breach of the Initial Term by Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty.
4.13.4 Effect of Termination. Sections 4.8, 4.9, 4.11, 4.12, 4.13.4 and 4.14 will survive any termination of this Agreement. Upon termination, a Customer which had access to the Subscription Services may make a request, in writing, for the return of Customer Data. This request must be made within 30 days of the termination date provided for in the notice of termination. Customer acknowledges that TransPlus has no obligation to maintain the Customer Data of any customer which had access to the Subscription Services after 60 days beyond the termination date.
4.14.1 Assignment. This Agreement will extend to and be binding upon the successors, legal representatives and permitted assigns of the parties. However, this Agreement and the licenses granted hereunder may not be assigned, sub-licensed, or transferred (by operation of law or otherwise) by Customer without the prior written consent of TransPlus.
4.14.2 Purchase Orders Not Binding. No terms or conditions contained in any purchase order or other instrument issued by Customer purporting to cover the purchase of licenses to the Software or maintenance thereof, or any other products or services provided by TransPlus shall be binding on the parties and any such order or other instrument shall be null and void and shall have no legal force or effect.
4.14.3 No Waiver. The failure of either party to enforce any provision of this Agreement will not be construed to be a waiver of such provision, nor affect the validity of this Agreement or any part thereof, or the right of the other party to enforce any provision.
4.14.4 Force Majeure. Other than with respect to the obligation to pay fees hereunder, neither party shall be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, epidemics, pandemics, the spread of infectious diseases’ quarantines, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of the parties and notwithstanding any of the foregoing that are ongoing as of the date of this Agreement, so long as its effects are not reasonably foreseeable as of the date of this Agreement), provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses commercially reasonable efforts to promptly correct such failure or delay in its performance.
4.14.5 Severability. If any provision of this Agreement, or part thereof, is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision, or part thereof, shall be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, or part thereof, which remaining provisions or parts thereof shall remain in full force and effect.
4.14.6 Publicity. Except as may be required by applicable law, neither party shall disclose the terms of this Agreement or issue a press release in connection with the subject matter of this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, TransPlus shall be permitted to name Customer as a customer of TransPlus on TransPlus’ website and in other TransPlus marketing materials and each party shall have the limited right to disclose the terms of this Agreement to its bona fide accounting, tax and legal advisors.
4.14.7 Independent Contractor. The relationship of the parties established by this Agreement is that of independent contractors. This Agreement does not establish an agency, joint venture or partnership relationship between TransPlus and Customer. Neither party is permitted to bind, or to enter into obligations on behalf of, the other party.
4.14.8 Governing Law; Disputes. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. TransPlus and Customer hereby submit to the non-exclusive jurisdiction of the courts of Province of Ontario located in the City of Toronto. The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.
4.14.9 Dispute Resolution. Upon any dispute between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute over a period of 30 days. If the dispute is not resolved in this 30 day period, either party may submit the dispute to final, non-appealable, binding arbitration under the Canadian Arbitration Association Arbitration Rules. The place of the arbitration shall be Toronto, Ontario. The foregoing provision shall not limit the ability of a party to seek injunctive relief.
4.14.10 Order Terms. The terms and conditions of sale set out in the Order shall apply to all orders in connection with this Agreement.
4.14.11 Entire Agreement. This Agreement, along with the Order, constitutes the full and complete statement of the agreement between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous agreements, understandings or communications, whether written or verbal, relating to such subject matter. This Agreement may not be varied other than in writing executed by the duly authorized representatives of both parties.
4.14.12 Counterparts. This Agreement may be executed in counterparts (including by way of e-mail delivery of a Portable Document Format (PDF), or by using a web-based e-signature platform such as DocuSign), each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.