THIS PIERBRIDGE END USER AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND RIGHTS TO USE OF THE SERVICES. BY YOUR USE OF THE SERVICES YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU SHOULD READ THE TERMS OF THIS AGREEMENT CAREFULLY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE SERVICES ARE FOR BUSINESS OR GOVERNMENT ENTITIES AND NOT FOR USE BY INDIVIDUAL PERSONS OR CONSUMERS IN THEIR PRIVATE CAPACITY.

You may not access the Services if You are one of Our competitors, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

By use of the Services and by submission of any Transtream Agreement to Purchase From, You agree to be bound by the terms of this Agreement.

1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement to Purchase Form” means the order form that is used to confirm Your order for Services, including attachments, addenda and supplements thereto. By submitting an Agreement to Purchase Form, You agree to be bound by the terms of this Agreement. Agreement to Purchase Forms will be deemed incorporated herein by reference.

“Effective Date” means the date that you are provided login credentials to access and use the Purchased Services.

"FedEx EULA" means the end user license agreement governing use of FedEx services found at http://www.fedex.com/us/develo...

“Fees” means the amounts in the Agreement to Purchase form that are payable by You in return for the Purchases Services.

"Malicious Code" means viruses, worms, robots, spiders, bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs.

"Purchased Services" means Services that You or Your Affiliates purchase under a Agreement to Purchase Form, and excludes Services provided to You as part of a free trial.

"Services" means the services that are ordered by You under a free trial or Agreement to Purchase Form and made available to You online via the customer login link and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” do not include Third Party Services.

“SLA” means the service level agreement contained in Schedule 1.

“Term” means the number of months specified in the Agreement to Purchase.

“Third Party Services” means software, web services, applications, or other services provided by a third party carrier, service bureau, portal or other third party that are connected to, accessed and used through the Services.

“Transaction" means an unvoided shipping event stored by the Service that identifies and describes a shipping unit where parcel Transactions are identified by unique label tracking number. Freight Transactions are identified as pallets, rolls, container, or other shipping units described within a freight bill of lading.

"UPS Technology Agreement" means the end user license agreement governing use of UPS services found at https://www.ups.com/assets/res...

"User Guide" means the user guide provided for use with the Services, as updated from time to time.

"Users" means individuals who are authorized by You to use the Services and who have been supplied user identifications and login credential by You (or by Us at Your request). Users will not include Our competitors.

"We", "Our" or "Us" means Pierbridge, Inc. with its principal place of business at 67 Forest St. Suite 288 Marlborough, MA 01752-3199.

"You" or "Your" means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.

"Your Data" means all electronic data or information submitted by You to the Purchased Services.

2. PURCHASED SERVICES

2.1. Provision of Purchased Services. Subject to Your compliance with Clause 5, We will make the Purchased Services available to You during the Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2. Usage. Unless otherwise specified in the applicable Agreement to Purchase Form, Fees for usage of Purchased Services are based on estimated User and Transaction volumes provided by You.

Services are for Your use only and cannot be shared or used by any other person.

3. USE OF THE SERVICES

3.1. Our Responsibilities. We agree to

(i) provide Our basic call center support for the Purchased Services to You at no additional charge during Monday through Friday, 8 a.m. to 5 p.m., (Eastern Time) excluding national holidays,

(ii) use commercially reasonable efforts to make the Purchased Services available on a 24 hour, 7 days a week basis, except: (a) during Schedule Maintenance as set out in the SLA for Purchased Services which will, to the extent practicable, be schedule during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday (Eastern Standard Time), or (b) where this is any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks,

(iii) update the Service to fix defects, provide enhancements, and features which You will accept as part of the Services, and

(iv) provide the Purchased Services only in accordance with applicable laws and government regulations.

3.2. Our Protection of Your Data. We will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data except to anonymize it, (b) disclose Your Data except as provided in Sections 6.4 (Your Data) and 7.3 (Compelled Disclosure), unless expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

3.3. Your Responsibilities. You will:

(i) be responsible for Users’ compliance with this Agreement and all aspects of Your use of the Services,

(ii) be responsible for the accuracy, quality and legality of Your Data, Your authorization to use Your Data with the Services, the means by which You acquired Your Data, and the accuracy of Third Party Services,

(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations.

3.4. Use of Service.

You will not:

(i) make the Services available to anyone other than Users,

(ii) sell, resell, rent or lease the Services,

(iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,

(iv) use the Services to store or transmit Malicious Code,

(v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein,

(vi) attempt to gain unauthorized access to the Services or their related systems or networks,

(vii) breach this Agreement or terms of use provided by Third Party Service providers,

(viii) use the Services in any unlawful manner or activity, or in any manner that could disable, damage, overburden, or impair the Services or their availability,

(ix) interfere with the proper operation of the Services, attack the Services via a denial-of-service or other attack, or

(x) interfere with any other user of the Services.

3.5. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, number of Transaction, tracking or rate calculation requests processed. Any such limitations are specified in the Agreement to Purchase Form. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

3.6 Hardware and Software Requirements.

In order to access the Services and receive Communications, You must have at a minimum:

  • (i) An Internet Browser which supports HTML and SSL-encryption, such as Microsoft Internet Explorer or Apple Safari,
  • (ii) A means to print or store notices and information through Your browser software, and
  • (iii) A personal computer or equivalent device capable of connecting to the Internet via DSL, Cable Modem, Network (e.g., Wireless Access Protocol), dial up modem, or equivalent, and that supports the foregoing requirements.

Without limiting anything else in this Agreement, We will not be liable for any delay or disruption to the Services if such delay or disruption is caused by Your failure to comply with this section 3.6.

4. THIRD PARTY SERVICES AND PRODUCT PROVIDERS

4.1. Acquisition of Third Party Services. We may integrate, or make available, Third Party Services from time to time for Your convenience or use. Any acquisition by You of such Third Party Services and any exchange of data between You and any Third Party Service provider, is solely between You and the applicable Third Party Services provider. We do not warrant or take any responsibility for Third Party Services, whether or not they are designated by Us as “certified” or otherwise. You are responsible for verifying the accuracy, suitability, continuous operation, and security measures related to Third Party Services. If You are using FedEx services, You are subject to the FedEx EULA. If You are using UPS services, You are subject to the UPS Technology Agreement.

4.2. Third Party Services and Your Data. If You use or authorize Us to enable Third Party Services for use with Services, You acknowledge and license such providers of third Party Services, and license Us to allow the providers of those Third Party Services to access Your Data as required for the interoperation of such Third Party Services with the Services. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from interoperation with Third Party Services. The Services will allow You to restrict such access by restricting Users from installing or enabling such Third Party Services for use with the Services

4.3. Integration with Third Party Services. The Services may contain features designed to interoperate with Third Party Services (e.g., Google, accounting systems, order management systems, Outlook, FedEx FSMS, UPS Web Services, other transportation APIs, etc). To use such features, You may be required to enter into a Third Party Service provider license to obtain permission to access to such Third Party Services. If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features or any Third Party Services at any time without entitling You to any refund, credit, or other compensation from Us.

5. USAGE FEES AND PAYMENT FOR PURCHASED SERVICES

5.1. Usage Fees. You must pay all usage Fees specified by the due date and on the terms specified on an Agreement to Purchase Form. Except as otherwise notified by Us in writing:

(i) Usage Fees are based on actual usage of the Services in accordance with the terms specified on the Agreement to Purchased Form, and

(ii) Usage Fees paid are non-refundable.

5.2. Invoicing and Payment. You agree to provide Us with: (i) valid and updated credit card information, (ii) a valid purchase order, or (iii) an alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Agreement to Purchase Form for the initial Term and any renewal Term(s) as set forth in Section 11.2 (Agreement Term). Such charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Agreement to Purchase Form. If the Agreement to Purchase Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Agreement to Purchase Form.

5.3. Overdue Charges. If any charges are not received from You by the due date specified on an Agreement to Purchase Form, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future renewal periods and Agreement to Purchase Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid Fees obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.

5.5. Taxes. Unless otherwise stated, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with the Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We, or Our licensors, reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Restrictions. You agree to not:

(i) permit any third party to access the Services except as permitted herein or in a Agreement to Purchase Form,

(ii) create derivative works based on the Services, or create applications or program code using the Services except as authorized by Us in writing,

(iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes,

(iv) reverse engineer the Services, or

(v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services in any way.

6.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no ownership right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

6.4. Your Data. By submitting Your Data to the Service, You hereby license Us to:

(i) use Your Data in providing the Services to You and any Third Party Services You may select.

(ii) transmit Your Data to Third Party Service providers, and

(iii) collect, use, and share Your Data and related information with third parties, as long as it is grouped with other User data, presented in an aggregate and anonymized form, and does not personally identify You.

6.5. Suggestions. If You provide Us with any unsolicited suggestions, You acquire no ownership, intellectual property rights or the right to receive royalties in the event We modify our software or Services to incorporate such suggestions.

6.6. Federal Government End Use Provisions. Where You are a Federal Government body, Your technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. The Services are commercial items or services developed or enabled exclusively at private expense, with no federal funding.

7. CONFIDENTIALITY AND DATA PROTECTION

7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information will include the Services; and Confidential Information of each party will include the terms and conditions of this Agreement and all Agreement to Purchase Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

Confidential Information (other than Your Data) does not include any information that

  • (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
  • (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
  • (iii) is received from a third party without breach of any obligation owed to the Disclosing Party,
  • (iv) was independently developed by the Receiving Party, or
  • (v) is necessary for the Receiving Party to perform its obligations for the Disclosing Party.

7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Agreement to Purchase Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law, regulation or the rules of a recognized stock exchange to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.4 Data Protection. The Parties must at all times comply with applicable data protection laws and regulations, including the requirements of the Australian Privacy Act 1988 and the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), in the collection, storage, use and disclosure of any personal or sensitive information and data they collect, use or otherwise access in connection with the services under this Agreement, and shall oblige their personnel to observe those data secrecy requirements pursuant to the relevant regulations. Legitimate data protection obligations of the parties pertaining to possible commissioned data processing (especially relating to maintenance and/or support services or defect remedy) are set forth in Exhibit G to this Agreement and which forms an integral part of this Agreement.

8. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that:

  • (i) we have validly entered into this Agreement with You and have the legal power to do so,
  • (ii) the Services will perform materially in accordance with the User Guide,
  • (iii) we will make reasonable efforts to ensure the functionality of the Services will not be materially decreased during a Term, and
  • (iv) We will use all reasonable endeavours to not transmit Malicious Code to You, but We will not be liable if You, or any User, upload a file containing Malicious Code into the Services and You later download that file containing Malicious Code. For any breach of a warranty above, Your sole and exclusive remedy will be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.

8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8.1 (OUR WARRANTIES) AND 8.2 (YOUR WARRANTIES) HEREIN, THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE, AND NEITHER PARTY MAKES ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY THIRD PARTY SERVICES ARE PROVIDED ONLY WITH SUCH WARRANTIES AS THE THIRD PARTY MAY MAKE AVAILABLE TO YOU, IF ANY.

8.4. Non-GA Services. From time to time We may invite You to try, at no charge, certain of Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.

9. INDEMNIFICATION

9.1. Indemnification by Us. We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and will indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your Use of such Services upon 30 days’ written notice and refund to You any prepaid Fees covering the remainder of the Term.

9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data infringes or misappropriates the intellectual property rights of any third party, or Your use of the Services harms or violates the rights of a third party or violates applicable law (a "Claim Against Us"), and will indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. WITH THE EXCEPTION OF SECTION 9 ( INDEMNIFICATION) NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER FOR THE THEN CURRENT TERM OF THE AGREEMENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU TO US AS PROVIDED HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (PAYMENT FOR PURCHASED SERVICES). IN NO EVENT SHALL WE BE RESPONSIBLE FOR DAMAGES ARISING FROM THIRD PARTY SERVICES, INCLUDING BUT NOT LIMITED TO INACCURATE THIRD PARTY DATA, CARRIER RATE MISCALCULATIONS, INCORRECT CARRIER BILLINGS, REGULATORY NON-COMPLIANCE, AND SECURITY BREACHES. ANY CAUSE OF ACTION OR CLAIM YOU HAVE ARISING OUT OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.3 Force majeure. No failure or omission by the parties to perform any of their obligations under this Agreement or any Order Form, other than an obligation to pay money will be a breach of this Agreement or create any liability if such failure or omission arises from any cause or causes beyond the control of the relevant party (including but not limited to natural disasters, terrorism, war, rebellion, insurrection, riot, invasion, strikes and lockouts).

11. AGREEMENT TERM AND TERMINATION

11.1. Agreement Term. The Agreement to Purchase Form will specify the start date and duration of the Term for Services provided under this Agreement. Except as otherwise specified in the applicable Agreement to Purchase Form, the Term will automatically renew for additional periods equal to the expiring Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Term. The pricing during any such renewal term will be the same as that during the prior term unless We have given You written notice of a pricing increase at least ninety (90) days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed the percentage increase in the Consumer Price Index (CPI) for the relevant Services in the immediately prior Term, unless the pricing in such prior term was designated in the relevant Agreement to Purchase Form as promotional or one-time. CPI as used herein means the U.S. Consumer Price Index for all Urban Consumers.

11.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.3. Refund or Payment upon Termination. Upon any termination for cause by You, We will refund You any prepaid Fees covering the remainder of the Term after the effective date of termination. Upon any termination for cause by Us, You will pay any unpaid Fees or service fees covering the remainder of the term of all Agreement to Purchase Forms after the effective date of termination. In no event will any termination relieve You of the obligation to pay any Fees or service fees payable to Us for the period prior to the effective date of termination.

11.4. Return of Your Data. We make reasonable efforts to maintain data for a rolling twelve (12) month period. Upon request by You made within thirty (30) days after the effective date of termination, We will make available to You a file of Your Data for the twelve (12) months prior to the date of termination in comma separated value (.csv) format along with attachments in their native format. After such thirty (30) day period, We will have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data Our systems or otherwise in Our possession or under Our control. We will not be required to store transactions any longer than twelve (12) months, unless otherwise agreed in writing by both parties.

11.5. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), Section 6 (Proprietary Rights), Section 7 (Confidentiality), Section 8.3 (Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11.4 (Refund or Payment upon Termination), Section 11.5 (Return of Your Data), Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and Section 14 (General Provisions) will survive any termination or expiration of this Agreement.

12. PRIVACY

You agree that We may electronically provide You with information about Your account, including disclosures that may be required by applicable federal or state law (collectively, “Communications”), which may include, but are not limited to, the following:

  • (i) An initial disclosure statement, Agreement, or other agreement documents (generically, “Agreement”) governing the Agreement or account terms and conditions;
  • (ii) Letters or notices regarding the Agreement or account, including customer service responses or announcements;
  • (iii) Any privacy policy (“Privacy Policy”) or changes to the Privacy Policy at www.pierbridge.com/privacypoli... that pertain to the Services; and
  • (iv) Other disclosures, notices and communications in connection with the application for, the opening, maintenance, or collection of Fees for Purchased Services.

You may withdraw Your Consent to Us sending You electronic communications by contacting Us, subject to any applicable Agreement provisions for termination:

Attention: Director of Finance and Administration
Pierbridge, Inc.
67 Forest St. | Suite 288 |

Marlborough, MA 01752-3199


Email: info@pierbridge.com
Telephone: 508-630-1220

13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

13.1. General. You are contracting with Us under this Agreement. You should direct notices to:

Attention: Director of Finance and Administration
Pierbridge, Inc.
67 Forest St. | Suite 288 |

Marlborough, MA 01752-3199

Email: info@pierbridge.com
Telephone: 508-630-1220

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon:

(i) personal delivery,

(ii) the second business day after mailing, or

(iii) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim).

Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.

13.3. Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, and all matters arising out of or related to this Agreement, and the parties hereby agree to, and irrevocably waive contest to, jurisdiction and venue within the state courts of the Commonwealth of Massachusetts. The parties agree that this Agreement is not subject to and will not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this Agreement, regardless of form, may be brought more than four (4) years after the claiming party knew or should have known of the cause of action. The Services are offered from within the United States, and are not intended for use by those outside the United States, and We make no representation or claim as to whether the Services or content thereon are appropriate or lawful for any other jurisdiction; if You access the Services from outside the United States, You do so on Your own initiative and are responsible for compliance with all applicable laws.

13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14. GENERAL PROVISIONS

14.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You will not permit Users to access or use Services in a U.S.-embargoed country (e.g., Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.

14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

14.7. Attorney Fees. You will pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Agreement to Purchase Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this Section will be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We will refund to You any prepaid Fees covering the remainder of the Term after the effective date of termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Agreement to Purchase Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Agreement to Purchase Form, the terms of such exhibit, addendum or Agreement to Purchase Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Agreement to Purchase Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.

TECHNICAL SUPPORT

Technical Support is available during normal business hours, 9am - 6pm EST/EDT for all business days except for:

· New Year's Day (January 1)

· Good Friday (Friday before Easter Sunday)

· Memorial Day (Last Monday of May)

· Independence Day (July 4)

· Labor Day (First Monday of September)

· Thanksgiving (Fourth Thursday of November)

· Day after Thanksgiving (Fourth Friday of November)

· Christmas Day (December 25)

Technical Support is provided by e-mail at help@pierbridge.com.

· Contact support via email

· Support Technician will respond/escalate as necessary.

· All correspondence and notes will be logged in the support case by the Support Technician

· The case will be handled by the person who logged the case until resolution or a workaround is provided.

· Escalation to other resources within Pierbridge may happen based on escalation rules or in the event that the Support Technician determines that the issue is such that it requires escalation.

 

SCHEDULE 1 - SERVICE LEVEL AGREEMENT (“SLA”)

This Service Level Agreement (“SLA”) is incorporated into the Agreement and applies to all Purchased Services Customers. Any capitalized term used in this SLA, which is not defined herein, will have the meaning as defined in the Agreement. Except as expressly set forth in this SLA, nothing in this SLA is intended to expand or otherwise modify the parties’ respective rights and obligations as provided under the Agreement and the terms and conditions of the Agreement will continue in full force and effect. This SLA does not apply to the availability of Services available during trial periods, or of Third Party Services. The SLA is binding only on Us and does not apply to any third parties.

The issuance of SLA Credits (defined below) is Your sole and exclusive remedy and Our sole and exclusive obligation, for any failure by Us to satisfy the requirements set forth in this SLA.

SLA Credit Claim

To claim a credit You will follow the Approved Procedure set forth in Section 2.3. The claim will be reviewed by Us, and any credit for Verified Outages (“SLA Credits”) will be issued as provided below.

1. DEFINITIONS

Claimed Outage means the period (measured in minutes) during which Customer claims a Loss of Service during a Measurement Period as reported using the Approved Procedure.

Excluded Minutes for all users means the periods during which the Purchased Services are not available for the following reasons:

  • (i) During Our scheduled system upgrades, enhancements and routine maintenance activities which are announced to You via email or through the Purchased Services at least two days advance notice or for maintenance determined by Us to be an emergency upon notice provided through the Customer Portal (“Scheduled Maintenance”);
  • (ii) Any period of non-availability of a service relating to any third party, including any service provided by a third party;
  • (iii) Your use of the Purchased Services or any of Your User’s use of the Service is in violation of the Agreement;
  • (iv) Issues relating to Your Data;
  • (v) Problems with Your access to Internet, or any telecommunication, hosting, or other service provider;
  • (vi) Problems related to integration with Your systems;
  • (vii) System administration, commands, file transfers performed by Your representatives;
  • (viii) Events described in the Force Majeure provision, Section 3.1;
  • (ix) Suspension of Your access to the Purchased Services as provided in the Agreement;
  • (x) Problems caused by Your use of the Purchased Services or any of Your User’s use of the Service not in accordance with the User Guide, or after We advised You or any of Your Users to modify such use, if You or any of Your Users End User did not modify its use as advised;
  • (xi) Problems arising from Services made available during trial periods and
  • (xii) Problems arising from Third Party Services, or any third party’s software, hardware, service, connectivity, or other technology or equipment.

Measurement Period means the relevant initial Term or renewal period.

Qualifying Outage Minutes mean the aggregate of all minutes of a Verified Outage during a Measurement Period, minus any Excluded Minutes in that Measurement Period.

Purchased Services means the Services ordered by You and accepted by Us as provided in the Agreement.

Loss of Purchased Services means Your inability to access and use Purchased Services. If You can access and use substantially all of the Our Purchased Services, there is no Loss of Purchased Services.

Verified Outage means a Claimed Outage for a particular Service that has been verified by Us using Our monitoring logs of accessibility of the Purchased Services.

System Availability (“SA”)

This means the period of time (in minutes) during any complete calendar month that the Services are able to respond to requests, excluding periods of Scheduled Maintenance and any Excluded Minutes. SA will terminate upon receipt by personnel of one party of actual notice that the Service is not available to receive or respond to requests, and will recommence upon verification by the other party that the Service is available to receive or respond to requests. For clarity, all Excluded Minutes will count for and be included within SA.

“System Availability Percentage” or “SAP” means System Availability expressed as the following percentage: SAP = (SA x 100)/CP; SAP is measured monthly with a “monthly/quarterly/annual” objective. "CP” is “Calendar Period" which is 1 month = 31 days = 43200 minutes, less any Excluded Minutes.

2. COMMITMENT

2.1 Purchase Services Commitment

We will use commercially reasonable efforts to ensure that the SAP of Purchased Services will be 99.5%.

2.2 SLA Credits

For each thirty (30) continuous-minute period of Qualifying Outage Minutes for a Service in a Measurement Period, We will provide a SLA Credit of 5% of the monthly Fees for the relevant Service which was subject to the Loss of Service during the Measurement Period up to a maximum SLA Credit of 100% of the monthly Fees. Any period of Qualifying Outage Minutes for a Service which is less than 30 continuous minutes will not be eligible for an award of SLA Credits.

2.3 Approved Procedure

To be eligible to receive SLA Credit, You must notify us by email of a Claimed Outage Period. Your notice must include Service type, dates and times, error messages received (if any), contact information, and full description of the interruption of Service including logs, if applicable.

We will review the details of the Claimed Outages against the Verified Outages and our accounting department will communicate the SLA Credits (if any) to You by return email notification. Our determination of SLA Credits is final.

Any false or duplicative claims for Claimed Outages will incur a fee of $50 per incident for such claims and may result in suspension of the Services.

The SLA Credit may not be used to reduce the payments due in a renewal period below zero. Subject to section 2.4 and section 2.5, We will apply the SLA Credits to Your future invoices for the relevant Purchased Services subject to Our standard policies.

2.4 Ineligible Customers

You will not be eligible to receive any SLA Credits if:

  1. You are overdue in the payment of any Fees (including Fees in relation to Services affected by the Claimed Outage) at the time a Claimed Outage is being reviewed or SLA Credit is being determined;
  2. You have been overdue more than 3 times in the payment of Fees in the previous 12 calendar months; or
  3. You are in breach of this Agreement and the breach remains unremedied to Our reasonable satisfaction at the time the SLA Credit is being determined.

2.5 Use of SLA Credits

Subject to Section 2.4, SLA Credits will be applied to future invoices and cannot be used to reduce payments due in a renewal term below zero. You cannot transfer or sell any SLA Credits. SLA Credits will expire on termination or expiration of the Agreement.

2.6 Errors and Remediation

We will use commercially reasonable efforts to address errors identified in the Services as follows:

  1. Severity 1 issues - those issues that are causing an interruption of business. That is, You are unable to process Transactions at all. We will respond to You within one (1) hour of receipt of the issue report.
  2. Severity 2 issues - those issues that are hampering business. That is, the Purchased Service is substantially impaired. We will inform or respond to You within four (4) hours of receipt or recognition of the issue.
  3. Severity 3 issues - those issues that may be related to technical questions regarding Services or one-off Transaction failures. We will respond to You by the end of the following business day after receiving the issue.

2.7 Escalation Process

All problems with a Severity Level of 1 to 2 will be escalated if a solution or plan of resolution cannot be achieved within the designated notice period described above. Escalations will occur in accordance with the following schedule:

a) Severity 1 Level Issue

Hours 0 to 4: Support management and engineering personnel are notified and actively working the event.

Hour 5: Development management are notified and involved in the problem resolution.

Hour 6: Vice President in charge of operations and engineering are notified and involved in the problem resolution.

Hour 8: Executive management team including the CTO is notified and involved in the problem resolution.

b) Severity 2 Level Issue

Hours 0 to 72: Our Support personnel will work to resolve the problem and will attempt to provide a solution within 72 hours after problem identification. If problem identification has not occurred within this timeframe, the problem will be considered Severity 1 and We will follow the escalation procedures as outlined in Severity 1.

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