Master Service Terms
UPDATED ON 09/27/2018
1. AGREEMENT STRUCTURE
A. Order Form. Order form (each, a “Order Form”) for products (“Products”) and Services in any Order Form may be executed by Axis TMS and Company. Each Order form includes terms related to the quantity, delivery, total fees due and any other information applicable to each specific order for the Products and Services. The Order Form shall be incorporated by reference into, subject to, and made a part of, this MSSLA.
B. Attachment of the Agreement. Any and all additional Order Forms relating to this Agreement shall be incorporated by reference into, subject to, and made a part of this MSSLA. Defined terms contained in any Order Form without definition shall have the meanings ascribed to them in this Agreement.
2. TERM OF LICENSE If Company has purchased a license of this software, with specific starting and ending dates, the term of this Agreement is described in Company’s Order Form. Upon termination of the license, Company will seize usage and shall retain all its data and records before the expiration date. If company has the Enterprise Edition, it will destroy the original and all copies of the Software in whatever form they may be. In either event, Company must destroy all copies of the Software. Notwithstanding anything else to the contrary in this Agreement, none of Axis TMS’s intellectual property rights in the Software or otherwise licensed to Company under this Agreement survive expiration of the Term of this Agreement.
3. GRANT OF LICENSE – SOFTWARE
3.1 License. In consideration of payment of licensing fees for the Software, Axis TMS hereby grants during the term of this Agreement to Company, along with its subsidiaries and affiliates, a non-transferable, non-exclusive, royalty-free license of its copyright and patent rights in such Software.
Software license shall commence on the date of Order Form delivery of such Software to Company. The Software and documentation may be used by Company solely for Company’s business operations in accordance with the terms of this Agreement, and Company shall be responsible for the compliance of any permitted agents, employees, or independent contractors of Company using the Software with the terms of the Agreement.
Subject to the terms of this Agreement, Axis TMS grants to you during the License Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Employee Users to access and use the Axis TMS Service (and any Axis TMS Materials provided to You) to allow You to perform Transportation Management duties, automated faxing/emailing, provide you sales leads, bid on broker shipments (must have carrier authority), post shipments from your brokerage (Must have broker authority) and other related business functions that the Axis TMS Service is designed to perform, subject to the following restrictions: (i) Your use of the Axis TMS Service may not be on behalf of third parties unless a separate agreement between You and Axis TMS permits use of the Axis TMS Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and Axis TMS, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Axis TMS Service or the Axis TMS Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Axis TMS Service or Axis TMS Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Axis TMS Service or Axis TMS Materials in order to build a similar or competitive product or service; (iv) Your use of the Axis TMS Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by You (Axis TMS may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) Your use of the Axis TMS Service must not cause undue strain or stress on the Axis TMS network through excessive API calls or other non-standard use; and (v) Your use of the Axis TMS Service must comply with the separate Customer Subscription Agreement posted on the Axis TMS website (www.axistms.com/legal) as updated by Axis TMS from time to time.
3.2 Title. All title and intellectual property rights in and to the Software are owned by Axis TMS. All rights not expressly granted in the Software under this Agreement are reserved by Axis TMS.
3.3 Express Exclusion – Background Technology. For purposes of clarification and not to alter the scope of the licensed granted by Axis TMS to Company under this Agreement, Company agrees that Axis TMS possesses right, title, or interest in various computer code, pre-existing development tools, routines, subroutines, and other programs, data, and materials that Axis TMS may include in, or provide with, the Software (“Background Technology”) and that Axis TMS has not granted any right, title, or interest to Company in the Background Technology except as necessary to operate the Software for its intended purpose.
3.3 Modifications. Axis TMS reserves the rights, but not the obligation, to make commercially reasonable modifications to the Software to the extent such modifications do not materially negatively impact Company’s use of the Software. If Company uses the Software as modified for at least thirty (30) days, Company irrevocably waives any right to assert that the modifications materially negatively impact Company’s use of the Software.
3.4 Compliance with Downstream Rights. Axis TMS’s right, title, and interest in the Software may be licensed, sublicensed, or otherwise arise from a third party’s right, title, and interest (“Downstream Rights”) and Company agrees to comply with the terms and conditions governing the conveyance of such Downstream Rights to Axis TMS in connection with Company’s use of the Software.
3.5 Intellectual Property Rights. Axis TMS shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Axis TMS Service and Axis TMS Materials (including application development, business and technical methodologies, and implementation and business processes, used by Axis TMS to develop or provide the Axis TMS Service or Axis TMS Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the Axis TMS Service or Axis TMS Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Axis TMS Service or the Axis TMS Materials may be used by Axis TMS without restriction or obligation to You.
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Axis TMS or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. Axis TMS content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of Axis TMS and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Axis TMS or our licensors except as expressly authorized by these Terms.
3.6 Materials provided to Axis TMS or posted on any Axis TMS web page
Axis TMS does not claim ownership of the materials you provide to Axis TMS (including feedback and suggestions) or post, upload, input or submit to any Axis TMS Site or our associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Axis TMS, our affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. Axis TMS is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Axis TMS’s sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
3.7 Third Party Accounts “Add-Ons”
You will be able to connect your Axis TMS account to third party accounts. By connecting your Axis TMS account to your third-party account, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third-party sites). If you do not want information about you to be shared in this manner, do not use this feature.
Some third-party accounts require payment to be enabled. Add-on pricing varies by add-on.
3.8 Mobile Applications
The Axis TMS Pro mobile application for Android and iOS has an End User License Agreement (EULA) located online at https://axistms.com/legal/eula-for-mobile-app/
4. ACCESS TO SOFTWARE
The Software is licensed to Company to operate by its Departments and Employees. If you use this site, you are responsible for maintaining the confidentiality of your account and employee accounts and passwords and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or employee accounts. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Axis TMS is not responsible for third party access to your account that results from theft or misappropriation of your account. Axis TMS and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
The Software may have access by for from, computer systems owned, leased, or otherwise controlled by Company. Access to login can be accessed from Google Chrome browser by visiting the following URL Address: https://pro.axistms.com
Company cannot run multiple instances of the Axis TMS product on the same server/same host ID if using the Enterprise Edition.
(a). The Software may be accessed by Internal Employee Users
(b). Company shall take all reasonable actions to prohibit unauthorized access or use of the Software caused by Company’s actions or inactions.
5. SUPPORT AND MAINTENANCE SERVICES
5.1 At Axis TMS’s discretion, which may include the imposition of fees, Axis TMS may provide Company with support services related to software. Support hours are 9am to 5pm Monday to Friday. All US holidays will have no support available for day of the holiday. Enterprise Support varies on plan purchased. The support hours will be listed on the order form for Enterprise Orders.
5.2 Maintenance Services Based on Type of License Ordered.
5.2.1 License Designated as Subscription. For Axis TMS Technology with a License designated as “Subscription,” Maintenance Services are included in the price of the License and provided during the Term for such License without the need for a separate Fee other than the Fee paid for the License. In such case, the period for Maintenance Services is the same period as the Term under the Subscription License Order Form. Subscription License will automatically renew annually after the initial term unless Customer gives a written sixty (60) day notice to Axis TMS.
6.1 Company may not reverse engineer, de-compile, disassemble or otherwise attempt to create the source code, underlying ideas, underlying user interface techniques, or algorithms of or from the Software directly or indirectly by any means whatsoever.
6.2 Restrictions. Unless otherwise specifically permitted in the Agreement, Company shall not have the right to sell, resell, distribute, license, sub-license, rent, lease, permit access to, or use of, or otherwise transfer any Axis TMS Technology to any other third party, and specifically agrees not to (a) provide usage of any Axis TMS Technology to any third
parties; (b) generate income from any third parties’ use of any Axis TMS Technology; or (c) generate income by acting as an agent for a third party and processing the business information of other third parties, except that, subject to the terms and conditions of the Agreement, (i) a Related Entity may access and use Axis TMS Technology pursuant to a License for the same
purposes that the Company may access and use such Axis TMS Technology, (ii) an Authorized Contractor may access and use Axis TMS Technology pursuant to a License solely for the purposes of providing on-site technical development for Company and/or data integration on behalf of Company, or for hosting any Company-Licensed Products on Devices at a Company
Location, as may be permitted in an Order; and (iii) Trading Partners can view certain Software Program features and information about transactions that they send and receive as contemplated in Documentation. If Company permits any Related Entity or Authorized Contractor access to, or use of, any Axis TMS Technology (including any Documentation) pursuant to a License as permitted under the terms and conditions of the Agreement, Company agrees that it will be directly liable for any acts or omissions of its Related Entities or Authorized Contractors regarding such Party’s access to, or use of, any Axis TMS Technology in violation of the terms of the Agreement. Except as otherwise expressly permitted under the Agreement,
including any Order Form, Company shall not have any right to use any Axis TMS Technology, in whole or in part, for any other use or purpose whatsoever and any right not expressly or specifically provided to Company under the Agreement shall be reserved by Axis TMS and its suppliers. In this respect, Company acknowledges that any Licenses granted to Company
do not provide it with title to or ownership of the Axis TMS Technology, or any other Axis TMS products, software or services, or any other right to access or use the same other than a limited right under the terms and conditions of the Agreement. Further, Axis TMS and its suppliers may use, sell, assign, transfer and license copies of, and rights relating to, any Axis TMS Technology to any and all third parties free from any claim whatsoever on the part of Company.
6.3 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the Axis TMS Service. Any replication or use of any aspect of the Front End Code or other Axis TMS application or Services for any purpose designed or intended to compete with Axis TMS solutions is strictly prohibited.
7. EXPORT RESTRICTIONS
Company agrees that it will not export or re-export the Software to any country, person, entity, or end user subject to U.S.A. export restrictions. Restricted countries currently include, but are not necessarily limited to, Cuba, Iran, Libya, North Korea, Sudan, and Syria. Company warrants and represents that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Company’s export privileges. Company acknowledges and agrees that it is responsible for compliance with any and all export rules and regulations.
8. INTEGRATIONS OF THIRD PARTY TECHNOLOGIES INTO AXIS TMS PLATFORM
We do not guarantee any third-party integration and require an integration form to be filled out with a signed approval from Axis TMS Integrations Team. We do not guarantee any estimated delivery time.
We have every right to deny an integration if we choose to do so. Fees may be applied for integrations at the set cost per integration/doc type and some may have increased fees which vary case by case basis.
To learn about the fees, please visit our billing policy by visiting this link: https://www.axistms.com/legal/billing-policies
Please request an integration type and integration form by emailing firstname.lastname@example.org
9. RELATIONSHIP OF THE PARTIES AND SERVICES
9.1 Axis TMS shall provide to Company all consulting services more fully described in the Statement of Work (“SOW”) and made a part of this Agreement or such other Statements of Work which may be added from time to time (“Consulting Services”).
9.2 Company Covenants. Company hereby agrees that it shall make the following available to Axis TMS when and as requested by Axis TMS. All necessary, accurate and reliable information, data files, documents and other records and access to Company personnel reasonably request by Axis TMS to perform the obligations described in the Statement of Work.
9.3 Independent Contractors. Nothing contained in this Agreement will create a joint venture or partnership, establish a relationship of principal and agent, establish a relationship of employer and employee, or any other relationship of a similar nature between the Parties. Neither Party will represent the other Party in any capacity, bind the other Party to any contract, or create or assume any obligation on behalf of the other Party for any purpose whatsoever, except as expressly authorized by this Agreement. Except as expressly required by this Agreement, Provider retains sole and absolute discretion as to the manner and means of carrying out its obligations under this Agreement, and Company will have no right or obligation to direct or control Provider’s working conditions or activities.
9.4 Subcontracting. Axis TMS shall have the right to engage subcontractors to perform Consulting Services.
10. CONFIDENTIAL INFORMATION
10.1 Confidential Information. During the course of this Agreement, each Party may obtain information from the other which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information includes, but is not limited to: (a) information disclosed by a Party relating to or included in the Products and Services,
product development strategy and activity, marketing strategy, corporate assessments and strategic plans; pricing, financial, statistical and accounting information; information regarding the parties or their suppliers, personnel, investors, contractors or Company’s; software, source code, systems, processes, designs, schematics, methods, techniques, algorithms, formulae, inventions and discoveries; policies, guidelines, procedures, practices, disputes and litigation; (b) other confidential, proprietary or trade secret information disclosed by a Party that is identified in writing as such at the time of its disclosure or that a reasonable person would deem confidential under the circumstances; (c) the terms of this Agreement; and (d) any compilation or summary of information or data that is itself confidential.
10.2 Obligations. Neither Party shall use, disseminate, reproduce or permit to be used, disseminated or reproduced, or in any way disclose the other Party’s Confidential Information to any person or entity except as specifically permitted in this Agreement or required by law. Absent prior written consent of the other Party, each Party shall disclose Confidential Information only to those of its personnel who have (a) a need to know such Confidential Information in the performance of their obligations under this Agreement and (b) previously agreed to be bound by terms and conditions of confidentiality at least as restrictive as those set forth in this Agreement. Each Party shall keep all Confidential Information disclosed to it in connection with this Agreement in strict trust and confidence, using commercially reasonable measures at least equal to those used by such Party with respect to its own Confidential Information of a similar nature.
10.3 Exceptions. The restrictions on use and disclosure of Confidential Information set forth herein shall not apply to any particular Confidential Information when and to the extent that the Confidential Information: (a) is or becomes generally available to the public through no fault of the receiving Party (or anyone acting on its behalf); (b) was previously rightfully known to the receiving Party free of any obligations of confidentiality; (c) is subsequently disclosed to the receiving Party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligations of confidentially; (d) is independently developed by the receiving Party or a third party without reference or access to the disclosing Party’s Confidential Information; or (e) is otherwise agreed upon by the parties not to be subject to the restrictions
set forth herein. The Party claiming any of the above exceptions has the burden of providing evidence of applicability. The receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the receiving Party shall use all reasonable efforts to provide the disclosing Party with at least 10 days prior notice of such disclosure; (ii) the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished; and (iii) the receiving Party shall use reasonable efforts to seek from the Party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
10.4 Privacy and Security. Company bears sole responsibility and liability for ensuring that all Company’s Data and Company’s use of the Software complies with all applicable law, including but not limited to, privacy and security related law such as The Health Insurance Portability and Accountability Act of 1996, The Health Information Technology for Economic and Clinical Health (HITECH) Act, The Children’s Online Privacy Protection Act of 1998, and The Gramm–Leach– Bliley Act and any and all “litigation holds” and e-discovery procedures.
11. DEFINITION OF LOSS AND LOSSES.
11.1 “Loss” or “Losses” includes, without limitation: (a) all costs and reasonable attorneys’ fees paid or payable by an Indemnitee defense of any claim subject to indemnification under Section 14.10, whether prior to, at trial or any other proceeding and in any appeal or other post judgment proceeding; and (b) all losses and damages incurred by any of the Indemnitee and all damages paid or payable to any other person, including without limitation, for property
damage and for personal injury, sickness and death; (c) all interest, costs, fines, taxes, premiums, assessments, penalties, and expenses; and (d) all other liabilities of any kind or nature.
11.2 Exceptions. The indemnification obligations described above will not apply to a Loss to the extent that Loss was caused by: (a) the Indemnitees’ negligent acts or omissions; (b) the Indemnitees’ breach of any representation, warranty or covenant in this Agreement or elsewhere; (c) the Indemnitees’ intentional misconduct; or (d) the Indemnitees’ violation of any applicable law.
11.3 Under no circumstances shall Axis TMS be liable to the Company or anyone claiming through the Company for loss of profits, loss of use, or incidental, special, or consequential damages, whether based on contract, tort, strict liability, or any other theory or form of action, even if Axis TMS has been advised of the possibility of any of the foregoing, arising out of
or in connection with the Services. By way of example and not limitation, Axis TMS shall not be liable for personal injury or property damage.
12. REPRESENTATIONS AND WARRANTIES
12.1 General Representations. Each Party represents that it validly exists in good standing; it has the requisite power and authority to execute, deliver, and perform its obligations hereunder; and it is not a Party to any Agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other Party to perform fully its respective obligations hereunder.
12.2 Axis TMS Representations and Warranties. Axis TMS warrants for a period of one year from the date of shipment or download notification by Axis TMS to Company, Axis TMS’s reseller, and/or the reseller’s companies, as applicable, that the Software, in its unmodified form as initially delivered, will perform in all material respects in accordance with Axis TMS’s published specifications. Axis TMS’s sole obligation and liability shall be to replace or repair, at Axis TMS’s option, the Software found to be defective and subject to this warranty so that it will perform in material conformance with the applicable published specifications.
EXCEPT AS OTHERWISE PROVIDED, AXIS TMS AND EACH SUPPLIER OF ASSOCIATED SOFTWARE AND SOFTWARE COMPONENTS INCLUDED IN THE AXIS TMS SOLUTION DISCLAIMS ALL WARRANTIES (EXPRESS OR IMPLIED) INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, QUALITY PERFORMANCE, AND FITNESS FOR USE, OR FOR A PARTICULAR PURPOSE. AXIS TMS DOES NOT WARRANT THAT THE SOFTWARE
WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. SOME STATES PROHIBIT EXCLUSION OR LIMITATION OF DAMAGES FOR CONSUMER PRODUCTS. IF COMPANY’S PRINCIPAL PLACE OF BUSINESS IS LOCATED IN ONE OF THESE STATES, THESE LIMITATIONS MAY NOT APPLY TO COMPANY. THIS WARRANTY
PROVIDES COMPANY WITH SPECIFIC LEGAL RIGHTS, AND COMPANY MAY HAVE OTHERS DEPENDING ON THE STATE IN WHICH COMPANY’S PRINCIPAL PLACE OF BUSINESS IS LOCATED.
12.3. Limitation of Liability. IN NO EVENT SHALL AXIS TMS, ITS SUPPLIERS, OR ITS PARTNERS BE LIABLE TO COMPANY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF BUSINESS, REVENUE, SAVINGS, PROFITS, USE, DATA, GOODWILL, OR ANY OTHER DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, INABILITY TO USE, UNAUTHORIZED ACCESS, LOSS OF DATA, INCLUDING BUT NOT LIMITED TO, COMPANY DATA, OR PERFORMANCE OF THE SOFTWARE OR ANY AXIS TMS PRODUCT EVEN IF AXIS TMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR OTHER CLAIMS.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ANY EVENT, AXIS TMS’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, PRODUCT LIABILITY, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY WILL NOT EXCEED THE GREATER OF $1.00 OR THE
FEES PAID BY COMPANY FOR THE APPLICABLE SOFTWARE.
The limitations and exclusions of Axis TMS’s liability described in this section also apply to any third-party supplier of materials supplied to Licensee and included in the Axis TMS Solution. The limitations and exclusions of the liabilities of Licensor and its third-party supplier(s) are not cumulative. Each such third-party supplier is an intended beneficiary of this section.
13. Termination, Cancellation, Refunds
You may cancel your account at any time. Your account may differ from other suites of add-on’s of the Axis TMS service, which is agreed by you upon the order placed and explained in the agreement (“License Agreement”), which describes the specific products and services under the full Axis TMS Service. Any cancellation here under shall not operate to relive the customer of any financial or other obligations in these terms or otherwise. There are no refunds allowed at any time. If account was cancelled manually by customer without any billing delinquency, the customer for a subsequent period of 90 days shall be entitled to request its data from Axis TMS, the customer may not alter or input changes to that data. The data request is on request only, the account wil be disabled from login unless requested to access its data, this period shall last for 12 hours maximum per request. After 90 days following the effective cancellation of a customer’s cancellation date, Axis TMS has the right to purge all of the customer’s data from the Axis TMS system. All customers must comply with the Axis TMS billing policy posted on the Axis TMS website (“https://www.axistms.com/legal/billing-policies/”) and if at any time these terms is determined to be invalid or unenforceable, no other terms shall be affected and the billing policy terms shall remain valid and enforceable as written. Please contact us at email@example.com with any questions.
14.1 Billing Policy. The billing policy shall be incorporated by reference into, subject to and made a part of, this MSSLA. This will be executed by Company and Axis TMS.
14.2 Entire Agreement. There are no other agreements, representations, warranties, or conditions other than those contained herein. No change, modification, or alteration of this agreement shall be effective unless in writing and signed by the parties.
- 3 Assignment. This Agreement may not be assigned by Axis TMS without Company’s prior written consent, which consent will not be unreasonably withheld. Any purported assignment without this consent will be void and of no legal effect, provided however, Company and Axis TMS may assign this Agreement at any time without the other’s consent in connection with a merger, acquisition, sale, consolidation, or other similar transaction involving Company, and Axis TMS may assign this Agreement at any time without Company’s consent to the extent appropriate to engage subcontractors to perform the Services. The rights and obligations of this Agreement will survive any assignment or other transfer or succession and will be fully binding upon any permitted assignee, transferee, or other successor of either Party.
14.4 Copyright. The Software is protected by United States copyright law, as well as, other intellectual property laws and international treaty provisions. Company acknowledges that no title to the intellectual property in the Software is transferred to Company. Company further acknowledges that title and full ownership rights to the Software will remain the exclusive property of Axis TMS and Company will not acquire any rights to the Software except as expressly set forth in this license. Company agrees that any copies of the Software will contain the same proprietary notices which appear on and in the Software.
14.5 Force Majeure. If Axis TMS shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder by reason of any force majeure, including but not limited to, natural disaster, war, riot, civil commotion, explosion, fire, government action, epidemic, or other circumstance beyond its reasonable control, then Axis TMS shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail.
14.6 Use of Company’s Name. Company agrees that Axis TMS may disclose Company’s name in its company lists and may disclose Company’s trademark and/or logo on its Web site, or in its advertising, press releases, as a company of Axis TMS.
14.7 Waiver. No waiver of any provision of this Agreement or of the rights and obligations of the parties will be effective unless in writing and signed by the Party waiving compliance. This waiver will be effective only in the specific instance and for the specific purpose stated in the writing.
14.8 Severability. If any term, clause, or provision of this Agreement is deemed invalid or unenforceable for any reason, the remainder of this Agreement will remain valid and enforceable in accordance with its terms to the fullest extent permitted by law.
14.9 Integration and Amendment. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement and understanding relating to the subject matter of this Agreement This Agreement may not be amended except pursuant to a written document signed by Company and Axis TMS.
14.10 Indemnification. Axis TMS shall defend, indemnify and hold Company, its parent company and any subsidiaries, related and affiliated companies of each, and the officers, directors, agents, employees and assigns of each (collectively, “Indemnified Parties”), harmless from all costs and expenses incurred, including reasonable legal fees, and defend against suits based on any claim that the use of the Axis TMS product under this Agreement infringes on any patent, copyright, trademark, trade secret or other proprietary right of a third party, provided Company gives Axis TMS prompt written notice of such suits, permits Axis TMS to control the defense thereof and cooperates with Axis TMS in its defense efforts.
14.11 Legal Fees. In the event Axis TMS shall enforce any part of this Agreement through legal proceedings, Company agrees to pay to Axis TMS any costs and attorneys’ fees reasonably incurred by Axis TMS in connection therewith. Any amount not timely paid by Company to Axis TMS under this Agreement bears interest at the rate of eighteen percent (18%) per year and a
late charge equal to five percent (5%) of the amount unpaid which interest and late charge shall be immediately due and payable. Company’s duties to pay interest, late charges, and attorneys’ fees shall survive termination of this Agreement and shall survive and not merge with any judgment obtained against Company.
14.12 Miscellaneous. If you acquired the Software in the United States, this Agreement is governed by the laws of the state of Michigan. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. If you acquired the Software outside of the United States, then local laws may apply.
14.13 Governing Law and Venue; Cumulative Remedies. This Agreement shall be construed in accordance with the internal laws of the state of Michigan. Any dispute arising out of or related to this Agreement shall be resolved in the courts of the State of Michigan in Winnebago County. Each Party consents to the personal jurisdiction of the courts of the State of Michigan and waives any right to assert that the forum is inconvenient for such Party or the presentation of its case.
14.14 Dispute Resolution. The Parties will work together to resolve any dispute by escalating it to higher levels of management. Then if necessary in each Party’s sole judgment, the Parties shall consider using mutually agreed alternative dispute resolution before resorting to litigation. This paragraph will not prevent or delay either Party from initiating litigation in its sole judgment.
14.15 Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed to have been given when received, or on the fifth (5th) day after mailing by United States mail (registered or certified) postage pre-paid, or via nationally recognized overnight courier.
Notices will be sent to the below addresses as may be updated by the parties:
Axis TMS Corp
PO BOX 328
ROYAL OAK, MI 48067
14.16 Headings, Recitals and Attachments. The headings of the articles and sections of this Agreement are included for convenience only, and shall not affect the construction or interpretation of its provisions. The Recitals of this Agreement are hereby incorporated in and made part of this Agreement. The SOWs and/or Order Forms, referenced in this Agreement will be subject to the terms of this Agreement. These Agreements may be executed in one or
more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Execution and delivery of these Agreements may be evidenced by facsimile or PDF transmission.
14.17 Survival. The provisions of the following sections will survive any termination: Relationship of the Parties, Confidential Information, Representations and Warranties, Indemnification, Duties Upon Expiration or Termination, Survival, and General. In addition, the following will survive: any provisions in SOWs and Order Forms which would reasonably be expected to survive.
14.18 Links to Third Party Sites Axis TMS may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Axis TMS and Axis TMS is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Axis TMS is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Axis TMS of the site or any association with its operators.
Certain services made available via Axis TMS are delivered by third party sites and organizations. By using any product, service or functionality originating from the Axis TMS domain, you hereby acknowledge and consent that Axis TMS may share such information and data with any third party with whom Axis TMS has a contractual relationship to provide the requested product, service or functionality on behalf of Axis TMS users and customers.
15. ELECTRONIC COMMUNICATIONS
Using and visiting Axis TMS website or subdomains or sending emails to Axis TMS constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing. This also includes SMS (Text Messages) sent to your Drivers by the Axis TMS system. Axis TMS will send SMS / Text Messages to your Driver(s) mobile number. Axis TMS is not liable for any text message charges.
16. USE OF COMMUNICATION SERVICES
The Site may contain bulletin board services, chat areas, news groups, bid boards, transportation communities, personal web pages, accounting data, calendars, and/or other message or communication facilities designed to enable you to communicate with the Axis TMS network at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, bid, send and receive messages and material that are proper and related to the particular Communication Service.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.
Axis TMS has no obligation to monitor the Communication Services. However, Axis TMS reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Axis TMS reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Axis TMS reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Axis TMS’s sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Axis TMS does not control or endorse the content, messages or information found in any Communication Service and, therefore, Axis TMS specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Axis TMS spokespersons, and their views do not necessarily reflect those of Axis TMS.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.
17. IFTA MILEAGE
Axis TMS requires an Telematics provider integration for IFTA mileage to be calculated per each state in the following reports (i) Individual Vehicle (ii.) Complete Fleet.
If subscriber/customer does not have a telematics provider integrated within the Axis TMS system, there is no way for Axis TMS to track mileage per each state accurately.
Axis TMS has the ability to report Gallons Pumped and Diesel Amounts per each individual state but requires a Fuel Card Integration or Manual Fuel Data Input into the Axis TMS System.
18. TRACK AND TRACE
Track and Trace is an add-on that allows Carriers that use the Axis TMS Pro system to send an invitation by email / SMS to their customers. This service allows Carrier Customers to track orders, download invoices and create orders via Web Portal and Mobile Apps. Limited features on mobile apps. This add-on is for an additional cost. View billing policy by visiting this link: https://www.axistms.com/legal/billing-policies/
19.1 Hardware Usage
Customer shall only use the Hardware while under License with Axis TMS along in a careful and proper manner and will comply with all laws, rules, ordinances, statutes, and orders regarding the use, maintenance of storage of the Hardware. Customer shall use hardware only under the locked application information, software, and systems provided by Axis TMS and the information available on the Axis TMS website solely for its own internal business purposes.
Customer shall train employee personnel on how to log in and use the equipment. Customer and Customer’s personnel can use equipment only in the United States, Canada and Mexico.
Customer may not use the equipment for non-commercial or personal use.
19.2 Gateway Licenses
Gateway License requires to be purchased on the Order Form and does not come standard with any hardware. Varies on hardware support. Each Gateway license provides all ongoing elements of the service, including:
- Real-time location and vehicle telematics
- Cellular data connectivity
iii. Axis TMS Pro Driver App (Locked & only applies to Tablets)
- WiFi Hotspot connectivity (Excludes Tablets and OCC ELD devices, only ELD devices WiFI Hotspot)
- Over-the-air software feature upgrades must select “Update” from menu of app.
- Maintenance and Support
19.3 Tablet App Lock. Tablet hardware requires license to use the Tablet Lock feature. The tablet lock feature restricts users from utilizing tablet for personal use. Pricing provided on order form.
19.4 Tablet Network. Tablet hardware requires a license to use 4G / 3G network data. Pricing provided on order form.
19.5 Telematics / ELD. A gateway license is required to use telematics devices. Pricing provided on order form. This applies to all Tracking Devices.
20. FREIGHT RATES, ARRANGEMENTS AND RELATIONSHIP
Freight Rates between Axis TMS Carrier Accounts. Each customer understands and agrees that Axis TMS will not negotiate freight rates between customers or become involved in any manner in the discussion or negotiation of prices for the transportation of freight or providing of equipment between brokers or carriers.
All responsibility for the arrangement of freight rest with the respective subscriber providing the arrangement. With respect to any particular freight load, the involved subscribers are responsible for exchanging appropriate communications and entering into appropriate agreements concerning rates, payment, pickup and delivery schedules, shipper and consignee requirements, freight valuation, and all other details concerning the individual freight movements in question. Axis TMS will not act as a communication conduit between subscribers regarding the movement of particular units or freight shipments. All disputes between subscribers shall be resolved or determined through normal business or legal procedures, without the involvement of Axis TMS. These Terms and Conditions constitute an agreement solely between Axis TMS and the subscriber; subscriber expressly agrees that it is not entitled to any legal remedy against any other subscriber as a result of either subscriber’s entry into these Terms and Conditions.
21. DATA USAGE OF MOBILE APPLICATIONS (ANDROID AND IOS)
Continued use of GPS running in the background can dramatically decrease battery life and may increase data usage costs. Axis TMS is not responsible for any increase of data usage costs or battery life.
22. SMS USAGE
Standard message and data rates may apply. Axis TMS is not liable for any messaging costs. Axis TMS will send SMS to your driver’s mobile phone number if the Yes option is selected in the Driver Profile. Text messages will consist of Order Assignments and Address Data each time you submit an order.