These Software Subscription & Services Terms & Conditions (“Terms & Conditions”), including the exhibits hereto, form part of an agreement (this “Agreement”) by and between S2Q Systems, LLC, an Ohio Limited Liability Company (“S2Q”) and each customer (“Customer”) that has executed and/or is subject to one or more S2Q order forms (each an “Order”).  This Agreement is comprised of such Order and these Terms & Conditions, which are incorporated therein, and is effective as of the date the former has been executed by both Customer and S2Q or otherwise takes effect (“Effective Date”).    Each of S2Q and Customer is a “Party,” and are together the “Parties,” to this Agreement.

 1.   LICENSE.      Pursuant to the terms of this Agreement, the S2Q proprietary software referenced in an Order, including related user guide, manuals and updates provided by S2Q to Customer (collectively, the “Software”) and the use thereof is licensed to Customer and not sold.  Except as otherwise expressly provided, and consistent with each Order, S2Q and/or its service providers will provide access to the Software via the Internet to Customer’s Authorized Users, which may be used solely for Customer’s internal business purposes.

(a)  Only those officers, directors, employees, vendors and agents of Customer designated by Customer to use the Software, up to but not exceeding the number of users duly authorized and paid for pursuant to an Order, may access and use the Software (“Authorized Users”), provided that; Customer shall at all times be and remain responsible and liable for the actions of Authorized Users, including their strict compliance with the terms of this Agreement. 

(b) The rights granted hereunder are non-exclusive, non-transferable and terminable as provided herein.

(c) This Agreement is a subscription that contemplates one or more Orders, each of which incorporates and is subject to these Terms & Conditions.  In the event of any conflict between these Terms & Conditions and the terms of an Order, the terms of such Order shall prevail only if they expressly identify the provision hereof to be modified or overridden and recite the Parties’ express intention to do so.

2.      RESTRICTIONS.  Except as expressly authorized herein, Customer may not, directly or indirectly:

(a) Copy, modify, distribute or publicly display the Software, in whole or in part;

(b) assign, sublicense, rent, lease, lend, transfer or otherwise make available the Software to any other party or in any type of environment not directly related to Customer’s internal business purposes;

(c)  use the Software in excess of the levels (by resources and users) agreed to and paid for by Customer pursuant to an Order;

(d) cause or permit reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompilation, disassembly, modification, translation, or any attempt to extract or reproduce the source code of the Software or create derivative works of the Software; or

(e) benchmark, evaluate or use the Software for the purpose of competing with S2Q.

3.    FEES & TAXES.  Customer will pay to S2Q all fees set forth in each Order, on such terms as prescribed therein (“Fees”), provided that; in the absence of a different payment schedule in an Order, such Fees will be due and payable by Customer on a monthly basis in advance. Customer will pay the appropriate government agency (or reimburse S2Q) any taxes or charges imposed in connection with the Fees under this Agreement, including, but not limited to, sales, use, VAT, excise, customs duties and other similar taxes (other than taxes based on S2Q's net income or property), to the extent that Customer is not exempt from such taxes or charges. S2Q will collect all such taxes and charges, as it is required, unless Customer provides S2Q with proof of exemption. 

Each Order indicates the monthly volume of Software-generated quotes and/or individual employee logins (“Users”) allowed to Customer under the terms provided therein (the “Service Tier”).  In the event that the monthly volume of quotes actually generated by Customer and/or number of Users (the “Actual Volume”) exceeds the Service Tier specified in the Order, S2Q may charge Customer in arrears for the applicable Service Tier for the Actual Volume for that month.  In the event that the Actual Volume exceeds the Service Tier for two (2) consecutive monthly billing cycles, S2Q may treat the Order as permanently modified to match the Service Tier to such Actual Volume.  In such event, if the Actual Volume later decreases, the Service Tier shall not be later reduced unless agreed to in a signed writing by S2Q.  

4. INTELLECTUAL PROPERTY.  S2Q or its affiliates retain all right, title and interest in and to the Software and all related patents, patent rights, copyrights, trademarks, trade secrets and other proprietary rights (collectively, “Intellectual Property”) therein, which is protected by applicable Intellectual Property laws. Customer may not remove any product identification, copyright, trademark or other Intellectual Property notices from the Software.  S2Q reserves all rights not expressly granted hereunder.  

5.     MUTUAL CONFIDENTIALITY. Each Party (for purposes of this provision, “Recipient”) agrees that it will not disclose Confidential Information of the other Party (for purposes of this provision, “Discloser”) to any third party, or use Discloser’s Confidential Information for any purpose other than performing under this Agreement.  Notwithstanding the foregoing, S2Q may use, without disclosing, Customer's Confidential Information for internal purposes only to improve the performance of the Software.

(a)   ”Confidential Information” means proprietary or confidential  information, including, among other things (i) such information relating to products or services provided by  a Discloser, financial information, software, flow charts, techniques, designs, specifications, development and marketing plans, strategies, and forecasts; (ii) as to S2Q and its licensors, the Software; (iii) as to Customer, all data uploaded to the Software by or on behalf of Customer (“Customer Data”); and (iv) the terms of this Agreement, including without limitation, Software pricing information.

(b)   Exclusions. Confidential Information excludes information that is: (i)  rightfully in Recipient's possession without any obligation of confidentiality; (ii) or becomes a matter of public knowledge through no fault of Recipient; (iii) received by Recipient from a third party without violation of any duty of confidentiality; (iv) independently developed by or for Recipient without use of the Confidential Information; or (v)required to be disclosed by applicable law or court order, provided that; before any disclosure thereof, Recipient will notify Discloser of such requirement and cooperate fully with Discloser (at the latter’s expense) in seeking to protect the confidentiality of such information.

(c)   Customer Data. For the avoidance of doubt, S2Q asserts no proprietary rights to Customer Data and Customer has the right to remove Customer Data from the Software at any time or request its deletion therefrom.  Notwithstanding the foregoing, all data produced or derived by the Software or S2Q from Customer Data (including, but not limited to, quotes, reports, compilations, or demographic information) is the sole property of S2Q, and remains in the custody and control of S2Q. Customer is solely responsible to secure proper authorization (by consent or otherwise) to process any Customer Data, for the accuracy thereof and for the selection and implementation of controls on access to and use of such Customer Data, including that stored or residing in the Software.  Customer understands and agrees that the Software is not designed to store or process personally identifiable information, HIPPA data, or any other form of specifically regulated data (“Protected Data”), and Customer should not attempt to provide, store, process, or use any Protected Data through the Software unless specifically permitted in writing by S2Q to do so. S2Q shall implement and maintain administrative, physical and technical safeguards and other security measures that at a minimum satisfy generally applicable industry standards pertaining to the Software, including standards in the trucking and shipping industry, and that are designed to ensure the security and confidentiality of Customer data, which shall not include any Protected Data, that is accessed, hosted, stored, transmitted or otherwise processed by S2Q or the Software hereunder, including anticipated threats to the security and integrity of such Customer data and unauthorized or unlawful processing, loss, destruction, use, disclosure or acquisition of or access to any such Customer data held or accessed by S2Q.

6.      WARRANTIES. Subject to Customer’s fulfillment of its obligations under this Agreement, S2Q hereby represents and warrants as follows:

a) Availability.  Except as otherwise provided herein or in an Order, S2Q will employ commercially reasonable efforts to maintain the availability of the Software as much as possible, excluding maintenance outages (which S2Q will undertake to schedule reasonably in advance), provided that; S2Q's sole liability and Customer’s exclusive remedy for failure to maintain that level of availability, as documented in writing by Customer within ten (10) days following the end of the relevant month and confirmed by S2Q, will be an equitable adjustment (e.g., credit) in the Fees otherwise due to S2Q for the succeeding month;

b) Performance.  Except as otherwise provided herein or in an Order, for a period of ninety (90) days following commencement of Customer’s access to the Software in connection with the applicable Order, the Software will perform in substantial conformity with its user guide, provided that; (i) this warranty will not apply to any non-conformity caused by factors other than the Software (including, e.g., Authorized Users’ incompatible browsers, third-party software, Customer’s hardware, misuse of the Software, Customer-controlled configuration of the Software, etc.) or that cannot be replicated by S2Q, and (ii) S2Q's sole liability and Customer’s exclusive remedy for any asserted breach of such warranty will be for S2Q to modify the Software and/or user guide to correct such non-conformity.  In addition to the foregoing, Customer expressly acknowledges and accepts responsibility for reviewing all quotes generated by the Software, as well as for any special or hazardous materials handling expenses, costs, and/or surcharges related to said quotes, and releases, waives, and forever holds harmless S2Q from any and all liability, claims, damages, or costs directly or indirectly related to quotes generated by the Software, and/or the making or performance of agreements generated thereby;

c)  Services. S2Q shall perform such consulting, development, implementation, support or other professional services as Customer has purchased pursuant to an Order (collectively, “Services”) in a timely and workmanlike manner using qualified personnel, consistent with generally-accepted industry standards and terms of the applicable Order and any related statement of work executed by the Parties (“Statement of Work”), provided that; Customer acknowledges that S2Q's performance of such Services depends directly on Customer’s timely commitment, cooperation and participation and agrees to appoint a project manager to serve as Customer’s point of contact for the Services, with authority to act on behalf of the Customer in all matters regarding the Services, including (a) managing Customer personnel and responsibilities; (b) serving as the interface between S2Q and all participating Customer  personnel and departments; (c) participating in project status meetings; (d) promptly securing and providing any necessary information, data, and/or decisions reasonably requested by S2Q; (e) resolving schedule deviations caused by Customer; (f) resolving  (or escalating to resolution, as necessary) project issues; (g) addressing any special invoice or billing requirements associated with the Services; and (h) approving any adjustments to Fees for Services; and

d)  Malware. S2Q has used commercially reasonable efforts consistent with industry standards (i) to scan for and remove any known viruses from the Software, and (ii) to avoid incorporating into the Software any computer code not reflected in its documentation that is designed to delete, interfere with, or disable the normal operation of the Software (excluding S2Q license keys, or login/encryption features).

EXCEPT FOR THE FOREGOING WARRANTIES, S2Q DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE MAY NOT BE ERROR FREE NOR ITS USE UNINTERRUPTED.

7.   SUPPORT. S2Q will provide such maintenance and support Services for the Software as Customer has purchased under the relevant Order.

8.  TERM & TERMINATION. Except as otherwise expressly provided in an Order, each Order will have a two (2) year term and will automatically renew upon expiration thereof, unless either Party provides at least sixty (60) days’ advance notice of non-renewal. Either Party may terminate this Agreement or an Order, upon a material breach by the other Party, which has not been cured within thirty (30) days after written notice of such breach, including but not limited to Customer's failure to pay any amounts due on an Order. Customer may also terminate this Agreement for convenience upon sixty (60) days’ advance notice to S2Q and payment of the balance due upon any Orders. Termination of this Agreement will not change Customer’s payment obligations under any Order, nor entitle Customer to any refund of Fees. Upon termination of this Agreement for any reason, Customer and all Authorized Users must immediately cease use of the Software (whether still accessible to Customer or Authorized Users or not).

9.  INDEMNIFICATION. 

a)  S2Q will indemnify, defend and hold harmless Customer from and against any judgment, damage, injury, loss or expense (including reasonable attorney fees) resulting from any claim brought by a third party alleging that the Software infringes or misappropriates such third party’s Intellectual Property rights existing as of the Effective Date, provided that Customer immediately notifies S2Q of the assertion of such claim, acknowledges S2Q's control over the defense and/or settlement thereof and cooperates fully with S2Q in connection with same. This section represents Customer’s sole and exclusive remedy and S2Q's sole liability for any third party Intellectual Property claims.

b) Customer will indemnify, defend and hold harmless S2Q from and against any judgment, damage, injury, loss or expense (including reasonable attorney fees) resulting from any claim brought by any third party based upon S2Q's possession, storage or processing of any Customer Data or other data provided to S2Q by Customer, regardless of the grounds or legal theory upon which such claim is based, provided that S2Q immediately notifies Customer of the assertion of such claim and communicates regularly with Customer in connection with same. This section represents S2Q's sole and exclusive remedy and Customer’s sole liability for any third party claims based on Customer Data or other data provided to S2Q in connection with this Agreement.

10.  LIMITATIONS OF LIABILITY. S2Q SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, NEGATIVE INTERACTION WITH AND/OR DAMAGE TO THIRD-PARTY SOFTWARE, OR DAMAGE TO OR LOSS OR DISCLOSURE OF DATA), REGARDLESS OF WHETHER ARISING UNDER CONTRACT OR TORT LAW OR OTHER LEGAL THEORY AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF.   UNDER NO CIRCUMSTANCE WILL S2Q's TOTAL, CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER RESULTING FROM ONE OR MORE CLAIMS AND ARISING UNDER ANY LEGAL THEORY, EXCEED THE TOTAL FEES PAID TO S2Q DURING THE SIX (6) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY.

11. MISCELLANEOUS TERMS.

a)  Survival, Waivers. Sections 2, 4, 5, 8, 9,10 and 11 of these Terms & Conditions shall survive termination hereof, as shall any provisions which by their nature survive.  Any waiver by a Party of any breach of this Agreement will not be construed as a waiver of any continuing or succeeding breach.

b)  Assignment. Customer may not assign or transfer this Agreement, including any Order, or any right or obligation hereunder to any third party without S2Q's prior written consent, except that this Agreement and all Orders may be assigned to the buyer of all, or substantially all, the assets or business of Customer provided that S2Q receives written notice thereof.

c)  Notices. Any notices under this Agreement must be in writing and must be delivered by registered mail (or by courier or overnight service with tracking number) to the receiving Party at the address shown in the latest Order or to such other address as either Party designates by notice as provided herein.

d)  Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of Ohio, without regard to its choice of law principles. Any dispute between the Parties related to this Agreement must first be addressed by the relevant executives of each Party, who shall meet upon the written request of either Party in a good faith attempt to resolve all outstanding issues before either initiates any adversarial proceeding.  If a resolution has not been reached within ten (10) days after such meeting, either Party may require the dispute to be determined by binding arbitration before a single arbitrator in Cleveland, Ohio, under the then-current Commercial Arbitration Rules of the American Arbitration Association. Notwithstanding the foregoing, nothing in this Agreement will prevent S2Q from obtaining injunctive relief in any court of competent jurisdiction, without the necessity of posting bond or demonstrating immediate, irreparable harm, in order to protect its Intellectual Property rights in the Software.

e)   Enforceability. If any term of this Agreement is held invalid or unenforceable, the remaining terms shall remain in effect.

f)   Entire Agreement and Changes. These Terms & Conditions, including the exhibits hereto, and the Order(s) (including any related Statement of Work), embody the complete and exclusive Agreement of the Parties regarding the subject matter hereof and supersede any prior or contemporaneous communications, negotiations or agreements between the Parties relating to same. This Agreement may not be modified except in writing executed by both Parties.  Similarly, any Statement of Work for Services hereunder may only be modified pursuant to a change request (that describes, at a minimum, the changes requested and the resulting effects on the related Services and Fees for same) submitted in writing by one Party and expressly approved by the other, as reflected in a project change authorization executed by both Parties.

g)   Force Majeure. Neither Party shall be liable for any failure or delay in performance due to events or circumstances beyond its control.