PCS SOFTWARE LICENSE AGREEMENT

[LAST UPDATED: December 5, 2022]

THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOUR USE OF PRODUCT(S) PROVIDED BY PCS AND/OR ITS THIRD-PARTY PARTNERS.

BY PLACING AN ORDER FOR ANY PRODUCT(S) FROM THIS WEB SITE, YOU ACCEPT AND ARE BOUND BY THIS AGREEMENT. DO NOT PLACE AN ORDER IF YOU DO NOT INTEND TO BE BOUND BY THIS AGREEMENT.

YOU MAY NOT ORDER OR OTHERWISE OBTAIN SERVICES FROM THE WEB SITE IF YOU (A) DO NOT AGREE TO THIS AGREEMENT, (B) ARE NOT THE OLDER OF (I) AT LEAST 18 YEARS OF AGE OR (II) THE REQUISITE AGE TO FORM A BINDING LEGAL CONTRACT WITH PCS, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE WEB SITE OR ANY PRODUCTS BY APPLICABLE LAW.

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY PCS, THE PRODUCTS SHALL ONLY BE USED IN THE UNITED STATES OF AMERICA OR CANADA. YOU SHALL NOT USE ANY PRODUCTS PROVIDED BY PCS AND/OR ITS THIRD-PARTY PARNTERS OUTSIDE THE UNITED STATES OF AMERICA OR CANADA, AND PCS SHALL HAVE NO LIABILITY IN RELATION TO SUCH USE (INCLUDING WITHOUT LIMITATION AS MAY BE CREATED BY FOREIGN DATA PROTECTION LAWS). YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD PCS HARMLESS FROM ANY CLAIMS RELATED TO YOUR USE OF ANY PRODUCTS OUTSIDE THE UNITED STATES OR CANADA.

PCS MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT IN ITS SOLE DISCRETION. PCS WILL NOTIFY YOU OF ANY SUCH CHANGES BY POSTING THE LATEST VERSION AND DATE POSTED ON THE WEB SITE. BY CONTINUING TO USE ANY PRODUCTS AFTER THE DATE THE UPDATED VERSION OF THIS AGREEMENT IS POSTED ON THE WEB SITE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS CONTAINED IN SUCH UPDATED VERSION OF THIS AGREEMENT.
BY USING THE WEB SITE, YOU ALSO ACCEPT AND AGREE TO PCS’ PRIVACY POLICY. IN THE EVENT OF A CONFLICT BETWEEN THE PRIVACY POLICY AND THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL.

This PCS Software License Agreement (this “Agreement”) is entered into as of the first date You place an order for access to any Products (“Order”) from the Web Site (“Effective Date”). This Agreement is entered into by and between PCS Software, Inc., a Texas corporation (“PCS”) with offices located at 2103 CityWest Blvd, Building 4, Suite 700, Houston, Texas 77042 and the individual or entity placing the applicable Order (“You”, and collectively with PCS, the “Parties”). If the Order is placed by an individual in his or her capacity as an employee, agent or other representative of a legal entity, “You” shall refer to the legal entity such individual represents. All exhibits attached hereto and other PCS terms referenced herein are hereby incorporated by reference and part of this Agreement.

1. General Terms and Conditions of Subscription.

1.1 You Agree that Your Order is an offer to purchase access to all Products listed in Your Order pursuant to the terms and conditions of this Agreement. PCS must affirmatively accept Your Order; otherwise PCS has no obligations to You, including any obligations to grant You access to any Products. PCS may choose not to accept any Orders in its sole discretion. After having received Your Order, PCS will send You a confirmation email with Your Order number and details of the Products You have Ordered. Acceptance of Your Order and the mutually acceptance of this Agreement shall take place upon confirmation within the shopping cart. This Agreement governs You and Your authorized users’ (“Users”) use of the Software as a Service application (“Service”) and the related software and updates (“Software”) that PCS provides to You in connection with the Service (together, Service and Software are the “Products”). Additional terms are stated at the PCS web site, www.pcssoft.com (the “Web Site”) and are incorporated herein by reference. The use of Products without a current, valid subscription is strictly prohibited.

1.2 All Products delivered to You under this Agreement are licensed and not sold. The provisions of any relevant license agreement included with the Software shall also govern Your use of such Software used with the Service.

2. Term and Termination.

2.1 The initial term of the Subscription is for three (3) years from the date of the Client’s initial use of the Service (the “Initial Term”). Unless either Party provides sixty (60) days’ prior written notice to the other of its intent not to have the Agreement renew, after the Initial Term, this Agreement shall automatically renew for subsequent one (1) year terms (each, a “Renewal Term” and collectively with the Initial Term, the “Term”). The Subscription Fees shall not increase for the first twelve months following the Effective Date (the “Fixed Fee Period”). Upon the expiration of the Fixed Fee Period, the Subscription Fee may be subject to an annual increase in an amount not to exceed the Consumer Price Index (CPI) for all items for the preceding twelve-month period (as published by the U.S. Bureau of Labor Statistics) plus 4%. Any marketing incentives or discounts applied to the monthly Subscription Fee are for the Initial Term only.
2.2 If You cancel any Order, in whole or in part, before the end of the term length stipulated on such Order (“Order Term”), You must pay, (a) the balance of any deferred implementation or setup fees, and (b) all remaining payments that would have been due under such Order until the end of the Order Term but for such early cancelation. You acknowledge and agree that all Subscription Fees and other fees and charges under this Agreement or Orders are not refundable under any circumstances.

2.3 PCS may terminate this Agreement or any Order hereunder, effective on written notice to You, if You (a) fail to pay any amount when due hereunder; or (b) otherwise breach any of Your obligations under this Agreement or the applicable Order (including such obligations as are contained in Sections 4.8, 9 or 12 of this Agreement).

2.4 PCS may discontinue the provision of any or all Products by sending notice to Your email address on file not less than sixty (60) days before the discontinuation date.

2.5 PCS may terminate this Agreement, effective immediately upon written notice to You, if You: (a) become insolvent or are generally unable to pay, or fail to pay, Your debts as they become due; (b) file, or have filed against You, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) make or seek to make a general assignment for the benefit of Your creditors; or (d) apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of Your property or business.

2.6 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided hereunder:

2.6.1 all rights, licenses, consents and authorizations granted by PCS to You will immediately terminate;

2.6.2 You shall immediately cease all use of the Products and (a) promptly return to PCS, or at PCS’ written request destroy, all documents and tangible materials containing, reflecting, incorporating, based on or derived from the Products or PCS’ Confidential Information; and (b) certify to PCS in a written and signed instrument that You have complied with the requirements of this Section 2.6.2;

2.6.3 PCS may disable all Your and Users’ access to the Products; and

2.6.4 except with regards to PCS’ termination pursuant to Section 2.4, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and You shall pay such Fees, together with all previously accrued but not yet paid Fees, promptly upon receipt of PCS’ invoice therefor.

2.7 Survival. The provisions set forth in Sections 2, 3, 7, 8, 11, 12 and 13, as well as any other provisions that, by their nature, should survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement.

3. Payment.

3.1 Commencing upon Your initial Order, You will be billed on a monthly basis at the then-current rate for the Service, as set forth more specifically in the Order (the “Subscription Fee”, and collectively with all other fees payable by You hereunder, the “Fees”). The Subscription Fee shall be invoiced, and payment shall be due and payable upon receipt. At any time, PCS may unilaterally change the price for any Product(s) by giving You at least sixty (60) days prior written notice. You may terminate this Agreement at any time during such sixty (60) day notice period if You do not agree to any such increase in price. If You do not issue such notice of termination during such 60 day period, the new price will be deemed accepted and this Agreement will remain in effect thereafter in accordance with the terms set forth herein. Unless stated otherwise, all prices are stated and shall be paid in United States Dollars. You will pay the amounts stipulated under this Agreement or any Order, including any and all applicable taxes or duties and charges that result directly or indirectly from government regulations or mandates. PCS will endeavor to give You reasonable prior written notice if any such costs and/or charges are implemented after Your access to the Service commences. In addition to all other rights, if any portion of Your bill is not paid when due, PCS may charge You a late fee equal to the lesser of (a) 1½% per month or (b) the maximum rate permitted by law on unpaid balances. PCS shall have the continuing right to approve Your credit and change Your credit terms. The Subscription Fee does not include the initial implementation, setup or integration of the Software, which is priced separately as set forth in the Order. Any on-site training or support requested by You shall be considered Additional Services, and as such, subject to additional charges.

3.2 All Fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, You are responsible for all sales, use, value-added and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by You hereunder, other than any taxes imposed on PCS’ income.

3.3 All amounts payable to PCS under this Agreement shall be paid by You to PCS in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

3.4 Prior to or on the Effective Date, You shall register Your payment information (i.e., ACH or credit card) with PCS’ payment express platform so as to enable You to timely remit, and PCS to timely collect, all Fees due and payable to PCS hereunder.

4. Service and Obligations.

4.1 Subject to Your compliance with the terms and conditions of this Agreement and Orders hereunder, PCS grants to You during the applicable Order Term a personal, non-exclusive and non-transferable license to access and use the Service for Your internal business purposes and not for the benefit of any third party. Notwithstanding the foregoing, Your license to access and use the Service is limited to the level of Service (e.g., Silver, Gold or Diamond) and number of permitted Users set forth in the Order, as may be amended by the Parties from time to time in accordance with this Agreement.

4.2 Subject to Your compliance with this Agreement and Orders hereunder, if selected by You, You shall also have a personal, non-exclusive and non-transferable license to access and use the Software modules or APIs (as applicable) set forth in the Order during the applicable Order Term. Such license is solely for Your internal business purposes and not for the benefit of any third party. The Fees, if any, payable by You in exchange for Your right to access such modules or APIs shall also be as set forth in the Order. Notwithstanding anything to the contrary, to the extent any modules or APIs set forth in the Order connect to or interoperate with any third-party products, Your use of such modules, APIs and third-party products shall be subject to Section 10 of this Agreement.

4.3 Subject to Your compliance with the terms and conditions of this Agreement and Orders hereunder, if selected by You, You shall also have a personal, non-exclusive and non-transferable license to access and use the additional Software set forth in the Order during the Term. Such license is solely for Your internal business purposes and not for the benefit of any third party. The Fees, if any, payable by You in exchange for Your right to access such additional Software shall also be as set forth in the Order. Notwithstanding anything to the contrary, to the extent any additional Software set forth in the Order is (a) resold by PCS on behalf of a third-party or (b) connects to or interoperates with any third-party products, Your use of such additional software and third-party products shall be subject to Section 10 of this Agreement.

4.4 Unless otherwise expressly set forth herein, You are responsible for providing Your own mobile devices and for downloading and installing the Software. The Software is licensed to You subject to any terms and conditions presented when You downloaded it from a source authorized by PCS, as well as those contained in this Agreement or the applicable Order. In the event of a conflict, this Agreement will control. You are licensed to use the Software only with the Service, and Your license will end when Your subscription to the Service ends.

4.5 The Products are copyrighted and licensed, not sold, and are PCS’ Confidential Information. You will retain any and all copyright notices and proprietary legends on all copies of the Products and the media on which they are delivered. Any attempt by You to transfer a Product to a third party is void and will automatically cause Your license to end.

4.6 You are solely responsible for installing, configuring, and using the Products, including account set up, configuration settings, compliance with applicable laws and regulations (including those related to data privacy), and establishing any credit card processing or other services. You will provide PCS access to Your network, system, data, and relevant information as required for PCS to provide the Service. To use the Service, You must maintain Internet access at Your own expense. PCS IS NOT RESPONSIBLE FOR AND DOES NOT WARRANT THE PERFORMANCE OF ANY INTERNET SERVICE OR THIRD-PARTY PROVIDER OR ITS SERVICES, AND YOU AGREE THAT PCS HAS NO LIABILITY TO YOU, USERS OR ANY THIRD PARTY FOR SUCH PERFORMANCE OR SERVICES. As between the Parties, title to the Products and other hardware, software, systems, documentation, and other intellectual property provided by PCS to You remains with PCS. You shall take all commercially reasonable actions necessary to protect PCS’ Intellectual Property Rights in connection with Your use of the Products. You will use all reasonable efforts to prevent any unauthorized access to, or use of, the Products or their respective documentation, and You will promptly notify PCS if any such unauthorized access or use occurs.

4.7 You are licensed to possess and use only the object code form of the Software.

4.8 Except as expressly permitted under this Agreement, You shall not:

4.8.1 copy, modify, or create derivative works or improvements of any Product;

4.8.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Product to any third party, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

4.8.3 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Product, in whole or in part;

4.8.4 bypass or breach any security device or protection used by any Product or access or use any Product other than by an authorized User through the use of his or her own then valid access credentials;

4.8.5 input, upload, transmit, or otherwise provide to or through any Product, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system, or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby (collectively, “Harmful Code”);

4.8.6 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner any Products or PCS’ provision of services to any third party, in whole or in part;

4.8.7 remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Product, including any copy thereof;

4.8.8 access or use any Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other PCS customer), or that violates any applicable law;

4.8.9 access or use any Product for purposes of competitive analysis, the development, provision, or use of a competing software service or product or any other purpose that is to the PCS’ detriment or commercial disadvantage; or

4.8.10 otherwise access or use any Product beyond the scope of the authorization expressly granted to You under this Agreement.

4.9 Upon termination or expiration of any Order or expiration of any licenses to You hereunder, You will immediately stop using all applicable Products and destroy all copies in Your or Users’ possession unless PCS directs otherwise.

4.10 From time to time during the term of this Agreement, You may request certain additional services (“Additional Services”) to modify, adapt, enhance, improve, or other otherwise customize Your specific needs. Additional Services shall be performed only upon completion of a work order, and You will be charged at an hourly rate of $205.00. Any and all modifications, adaptations, enhancements, improvements or other changes to the Products resulting from Additional Services shall remain the property of PCS, and You agree to cooperate and take any and all actions as may be requested of You by PCS to acknowledge, effectuate and respect PCS’ ownership therein.

5. Interruption of Service. All Products are provided on an “as-is” basis without any guarantees of availability or uptime. You are aware that interruptions may occur from time to time for a variety of reasons, and therefore the availability of the Products and/or any data from the Products is not guaranteed. PCS shall not be liable for any loss or damage arising from the Products, or their delays or interruption, transmission errors, defects or any other causes. PCS shall have no liability for Service or other Product outages.

6. Representations and Warranties.

6.1 You represent, warrant and covenant to PCS that:

6.1.1 if You are a legal entity,You are duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of Your incorporation or other organization;

6.1.2 You have the full right, power, and authority to enter into and perform Your obligations and grant the rights, consents, and authorizations You grants or are required to grant under this Agreement;

6.1.3 if you are a legal entity, Your acceptance of this Agreement by the individual who submitted an Order to PCS has been duly authorized by all necessary corporate or organizational action; and

6.1.4 by submitting an Order to PCS, this Agreement creates legal, valid, and binding obligations upon You, and is enforceable against You in accordance with its terms; and

6.1.5 You own or otherwise have and will have all necessary rights and consents in and relating to Customer Data so that, as received by PCS and processed in accordance with this Agreement, neither You nor PCS will infringe, misappropriate, or otherwise (a) violate any rights of any third party or (b) violate any law, regulation or governmental order.

6.2 DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OR OTHER GUARANTEE OF ANY KIND. WITHOUT LIMITING THE FOREGOING, PCS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PCS MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS, OR ANY OUTPUT OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY MATERIALS.

7. Indemnification.

7.1 You shall indemnify, defend, and hold harmless PCS and its subcontractors, affiliates, agents and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “PCS Indemnitee”) from and against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees and any other expenses of whatever kind, including attorneys’ fees (collectively “Losses”) incurred by such PCS Indemnitee in relation to any third-party claim, demand, suit, action, investigation, allegation or other proceeding (each, a “Third-Party Claim” and collectively, “Third-Party Claims”) arising out of or resulting from, or are alleged to arise out of or result from:

7.1.1 Customer Data, including any processing of Customer Data by or on behalf of PCS;

7.1.2 any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of You or any User, including PCS’ compliance with any specifications or directions provided by or on behalf of You or any User;

7.1.3 allegation of facts that, if true, would constitute Your breach of any of Your representations, warranties, covenants, or obligations under this Agreement;

7.1.4 negligence or more culpable act or omission (including recklessness or willful misconduct) by You, Users, or any third party on behalf of You or any User, in connection with this Agreement; or

7.1.5 personal injury, death or damage to personal property arising out of Your or Users’ use of the Products in conjunction with any inherently dangerous activities, such inherently dangerous activities to include freight transportation and any failure to take proper and reasonable safety precautions in relation thereto.

7.2 Indemnification Procedure. Upon receipt of notice from a PCS Indemnitee regarding a request for indemnification pursuant to Section 7.1, You shall promptly assume control of the defense of the applicable Third-Party Claim(s). At Your sole cost and expense, You shall employ counsel acceptable to PCS in its sole discretion to handle and defend the same. PCS and/or the applicable PCS Indemnitee may participate in and observe the proceedings with counsel of its own choosing. You shall not settle any Third-Party Claim without PCS’ prior written consent, which consent PCS may withhold in its sole discretion. If You fail or refuse to promptly assume control of the defense of such Third-Party Claim, the PCS Indemnitee shall have the right, but not obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to You, in each case in such manner and on such terms as the PCS Indemnitee may reasonably deem appropriate. You shall be solely responsible for all Losses incurred by PCS or such PCS Indemnitee should the PCS Indemnitee resort to remediating the Third-Party Claim in accordance with the preceding sentence. A PCS Indemnitee’s failure to perform any obligations under this Section 7.2 will not relieve You of Your obligations under this Section 7, except to the extent that You can factually demonstrate You have been materially prejudiced as a result of such failure.

7.3 Mitigation. If any Product is, or in PCS’ opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Your or any User’s use of the Products is enjoined or threatened to be enjoined from using such Product as provided by PCS to You, PCS may, at its option:

7.3.1 obtain the right for You to continue to use the Products as contemplated by this Agreement;

7.3.2 modify or replace the Product, in whole or in part, to seek to make the Product (as so modified or replaced) non-infringing, while providing substantially similar features and functionality, in which case such modified or replaced version will constitute the Product, as applicable, under this Agreement; or

7.3.3 by written notice to You, terminate this Agreement and/or the applicable Order Form, in whole or in part, with respect to all or part of the Products and require You to immediately cease any use of the Products or any specified part or feature thereof.

8. Mutual Liability Limitations

8.1 PCS AND ITS SUBCONTRACTORS, AFFILIATES, AGENTS AND LICENSORS (INCLUDING WITHOUT LIMITATION EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS) SHALL HAVE NO LIABILITY, WHETHER IN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY, OR OTHERWISE ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY ORDER HEREUNDER: FOR ANY (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES; (B) LOSS OF PROFITS OR REVENUE; OR (C) FOR LOSS OF TIME, OPPORTUNITY, OR DATA.

8.2 THE AGGREGATE LIABILITY OF PCS AND ITS SUBCONTRACTORS, AFFILIATES, AGENTS AND LICENSORS FOR ANY AND ALL LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER SHALL NOT EXCEED THE GREATER OF (A) $1,000 AND (B) THE AMOUNT OF SUBSCRIPTION FEES PAID BY YOU TO PCS IN THE ONE (1) MONTH PRECEDING THE EVENT(S) GIVING RISE TO THE CLAIM(S). FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS IN THE AGGREGATE, AND IS NOT MULTIPLIED IN THE EVENT OF MULTIPLE CLAIMS.

8.3 EACH CLAUSE AND PHRASE OF THIS SECTION 8 IS SEPARATE FROM EACH OTHER CLAUSE, AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS ELSEWHERE IN THIS AGREEMENT, AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY, ANY TERMINATION OF THIS AGREEMENT, OR SEVERABILITY OF ANY CLAUSE OF THIS AGREEMENT.

9. Data and System Security

9.1 PCS has implemented physical, technical, and administrative safeguards designed to secure Personal Information (as defined in Section 12) from unauthorized access, use, alteration, or disclosure. PCS will exercise commercially reasonable efforts to: (a) maintain an appropriate level of physical security controls over its data center; (b) periodically test its systems for security breach vulnerabilities; (c) use commercially reasonable efforts to protect its systems from unauthorized access; and (d) maintain safety and physical security procedures with respect to its access and maintenance of Your data. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT (X) PCS DOES NOT GUARANTEE THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT THOSE MEASURES OR USE PERSONAL INFORMATION FOR IMPROPER PURPOSES AND (Y) YOU PROVIDE CUSTOMER DATA, PERSONAL INFORMATION AND ALL OTHER DATA TO PCS AT YOUR OWN SOLE RISK.

9.2 “Customer Data” means Personal Information You provide to PCS or which PCS otherwise obtains under and in accordance with this Agreement or any Order. You acknowledge and agree that PCS retains the right to re-use and redistribute in an aggregate or unidentifiable way any Customer Data. You hereby irrevocably grant to PCS all such rights and permissions in or relating to Customer Data as are necessary or useful to PCS, its subcontractors, and each of their personnel to enforce the rights and obligations of the Parties under this Agreement or any Order. PCS may disclose Customer Data upon request of state and federal regulatory agencies with oversight of Your business. You are responsible for all Customer Data, including its legality, reliability, integrity, accuracy, and quality. You will comply with privacy laws, regulations, or other legal duties which apply to Customer Data and will implement appropriate measures to ensure compliance. You warrant that (a) You have obtained and will maintain all authorization from all third parties (including customers and Users) necessary for PCS to provide the Products without violating any law, regulation or governmental order, and (b) neither You nor Users will use any Product in a manner that would violate a law, regulation or governmental order.

9.3 PCS may retain, disclose, and use all non-Personal Information data, including Shipper, Carrier and Load Data, and elements related to Shipper, Carrier and Load Data, which it creates in the ordinary course of business. You acknowledge and agree that some Shipper, Carrier and Load Data may be based upon Customer Data. “Shipper, Carrier and Load Data” means anonymized or aggregated data which has had all personally identifiable information removed. PCS owns all rights, title and interest in and related to Shipper, Carrier and Load Data, including such as are necessary to use such Shipper, Carrier and Load Data for the development of artificial intelligence, machine learning or other commercial offerings.

9.4 You acknowledge and agree that You are solely responsible for (a) securing and protecting Your networks and information and (b) employing recommended security measures on wireless and mobile data networks, including use of encryption and password protection.

9.5 You acknowledge and agree that (a) PCS does not control the transfer of data over telecommunications facilities, and that use of or connection to the Internet is inherently insecure and provides opportunity for unauthorized access by third parties, and (b) PCS is not responsible for any delays, delivery failures, or any other loss or damage resulting from such transfer. PCS does not warrant that third party Internet sites will be accessible without interruption, will meet Your requirements or expectations or those of any third party, or will be free from errors, defects, design flaws, or omissions. You are solely responsible for all data backup and recovery. You will follow PCS’ password security policies, and You will guard passwords against misuse. PCS may direct You to change one or more passwords to one that is more secure.

9.6 You will not use, nor will You permit any third party to use, any Product to upload, post, or otherwise transmit any data that: (a) is deceptive, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) is harmful to minors in any way; (c) You do not have a right to transmit under any law or applicable contractual or fiduciary relationships; (d) infringes any patent, trademark, trade secret, copyright, or other proprietary rights of PCS or any third party; (e) constitutes unsolicited or unauthorized advertising or promotional materials; (f) is designed to access or monitor any material or information on any PCS system using any manual process or robot, spider, scraper, or other automated means; (g) violates privacy or other laws; or (h) contains Harmful Code. You will indemnify, defend and hold harmless the PCS Indemnitees from any claim or Losses related to Your failure to comply with this Section 9.

9.7 With respect to any PCS computer system, network, or service, You shall not: (a) impersonate any person or entity; (b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any data; (c) develop or deploy restricted access pages or hidden pages or images; (d) interfere with or disrupt PCS websites, servers, systems, or networks; (e) violate any applicable law or regulation; (f) stalk or otherwise harass PCS or any third party; (g) use, or attempt to use, any system or account without the owner’s permission; or (h) interfere with, defeat, or circumvent any security function.

10. Third-Party Products

10.1 YOUR RIGHTS TO USE ANY PRODUCT OR SERVICE BEARING THE LOGO OR COPYRIGHT OF A THIRD PARTY, WHETHER PROVIDED TO YOU VIA PCS OR OTHERWISE, WILL BE AS STATED IN THE APPLICABLE END USER LICENSE AGREEMENT OR OTHER RELEVANT AGREEMENT ISSUED BY SUCH THIRD PARTY. YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN WITH RESPECT TO OBLIGATIONS TO COLLECT FEES OWED, AS THE CASE MAY BE, PCS HAS NO OBLIGATIONS OR LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES OR YOUR USE THEREOF. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU HEREBY WAIVE ANY RIGHTS OR CLAIMS YOU MAY HAVE AGAINST PCS UNDER THIS AGREEMENT, APPLICABLE LAW OR OTHERWISE WITH RESPECT TO YOUR USE OF THIRD-PARTY PRODUCTS AND SERVICES. ALL PRODUCTS, INCLUDING WITHOUT LIMITATION THIRD-PARTY PRODUCTS, ARE PROVIDED “AS IS” WITHOUT A WARRANTY FROM PCS. ACCORDINGLY, PCS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

10.2 Third-party products and services may be advertised or made available to You through the Web Site or by email or other electronic communications, including notifications made through the Service. Any representations or warranties that may be provided in connection with any third-party products or services are provided solely by the applicable third-party provider. PCS will not be responsible for any of Your dealings or interactions with any third-party provider.

10.3 Except as otherwise set forth herein or in the Order, all fees for third-party products or services that are accessible via the Products are to be contracted by You and such third party directly, and You shall be responsible for the purchase and sourcing of such products and/or services.

11. Intellectual Property

11.1 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

11.2 All right, title, and interest in and to the Products, including all Intellectual Property Rights therein, remains with PCS. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to any Products or Third-Party Materials except as expressly set forth in Section 4 or the applicable third-party license regarding such Third-Party Materials. All other rights in and to the Products and Third-Party Materials are expressly reserved by PCS or such third-party providing the Third-Party Materials, as applicable. “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Products that are not proprietary to PCS.

12. Confidentiality

12.1 PCS may disclose or has disclosed to You information that PCS considers confidential, such information including its Products, customers, business plans, Personal Information, derivative works, pricing information, financial information, market information or technical information (“Confidential Information”). You may use Confidential Information only in the furtherance of Your obligations under this Agreement, and shall use no less than a reasonable degree of care to protect Confidential Information and to prevent any use or disclosure of Confidential Information other than as expressly authorized by PCS under this Agreement. “Personal Information” means information relating to an identified or identifiable information (e.g., age, gender, social security number, address, telephone number, email address, and other contact information), finances, employment, or health that is subject to confidentiality obligations under any applicable law or regulation. Personal Information is further covered by PCS’ published Privacy Policy available on its Web Site.

12.2 Confidential Information does not include information that (a) is in or enters the public domain without breach of this Agreement and through no act of You or Users, (b) You were lawfully in possession of without any obligation of confidentiality or nondisclosure prior to receiving it from PCS, (c) You can factually demonstrate was developed by You independently and without use of or reference to PCS’ Confidential Information, or (d) You receive from a third party without restriction on disclosure and without breach of any nondisclosure obligation under this Agreement or otherwise.

12.3 All Confidential Information remains PCS’ property. Upon PCS’ request, You shall delete, destroy or return (at PCS’ option) all Confidential Information in Your or Users’possession or control.

12.4 You shall prevent disclosure Confidential Information to third parties who do not have a need to know pursuant ot this Agreement. Confidentiality obligations under this Agreement shall survive termination of this Agreement or any Order.

12.5 You acknowledge and agree that the Software, source code and other intellectual property underlying the Service is proprietary to PCS and constitutes a valuable trade secret of PCS. You shall not discuss or share the Service or any software, updates or other provided materials, or any portion of them, to third parties without PCS’ prior written consent in each case.

12.6 All pricing information, trade secrets or proprietary information of PCS which is disclosed to You under this Agreement shall be kept confidential by You and shall not be disclosed to any third party, including any of PCS’ competitors.

13. Miscellaneous.

13.1 Governing Law. The laws of the State of Texas, USA govern this Agreement, and the relationships created by it, except for its laws regarding conflicts of law and arbitrability. The Federal Arbitration Act will govern all issues of arbitrability. You may not bring a claim, for breach of this Agreement or otherwise, more than (1) year after the underlying cause of action first accrues.

13.2 Dispute Resolution. You agree to give PCS prompt written notice of any claim, controversy, or dispute arising under or related to this Agreement or any Order, and agree to engage in good faith discussions to resolve the matter. If such discussions fail to promptly resolve the matter, PCS may refer the matter to mediation before a mutually agreed mediator. Any controversy, claim, or dispute which is not resolved through the aforementioned procedures will be resolved by arbitration under the then-current Commercial Arbitration Rules of the American Arbitration Association. The duty and right to arbitrate will extend to any employee, officer, director, shareholder, agent, or Affiliate, of a Party to the extent that right or duty arises through a Party or is related to this Agreement. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction. The arbitration will be held in Houston, Texas, USA. This Section 13.2, and the obligation to mediate and arbitrate, will not apply to claims for misuse or infringement of PCS’ intellectual property or Confidential Information, or collection of sums owed to PCS under this Agreement. Notwithstanding anything to the contrary, the arbitrator will not have authority to award damages inconsistent with the limitations and exclusions set forth in this Agreement.

13.3 Force Majeure. PCS shall have no liability for events beyond its reasonable control (including failure to fulfill its obligations hereunder due to such events), including acts of God or government, civil commotion, acts of military authority, war, riots, terrorism (foreign or domestic), acts of public enemy, court orders, strikes, fires, or epidemics.

13.4 Publicity. You agree that PCS may (a) reference Your execution of this Agreement and Your status as a user of the Products and (b) use Your logos in Product literature, advertisements, articles, press releases, marketing literature, presentations, social media, and the like.

13.5 Assignment. Except as permitted by this Section 13.5, neither Party may assign this Agreement or its rights or obligations under it without the express consent of the other Party. PCS may use affiliates, contractors, or suppliers to act on its behalf, and may assign this Agreement to an Affiliate or third party upon prior written notice to You.

13.6 Independent Contractors. The Parties are independent contractors to one another. Employees of one Party will not be deemed to be or act as employees or agents of the other Party. A Party will not be responsible for compensating; providing insurance or benefits; making unemployment, Social Security or Medicare contributions; or withholding taxes or other withholdings against earnings of the other’s employees or contractors.

13.7 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable in whole or in part, it will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remaining provisions will remain in full force and effect. Terms intended by the Parties to survive termination of this Agreement will survive termination. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provisions of this Agreement.

13.8 Entire Agreement. This Agreement and any relevant license agreement(s) referenced herein, constitutes the entire agreement between You and PCS, and supersedes any and all prior agreements, negotiations and communications (whether written, oral or electronic) with respect to the subject matter hereof. No change, modification, or waiver of the terms and conditions of this Agreement shall be binding on PCS unless made in writing by an authorized representative of PCS.

13.9 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such Party may reasonably designate from time to time in accordance with this Section 13.9):
If to PCS: PCS Software, Inc.
2103 CityWest Blvd
Building 4, Suite 700
Houston, TX 77042
c/o: Legal Dept.

If to You: Client Billing Details as entered on Order

Notices sent in accordance with this Section 13.9 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fifth (5th) business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

13.10 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, Orders and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

13.11 Headings. The headings of this Agreement are for reference only and do not affect the interpretation of this Agreement.

13.12 No Third-Party Beneficiaries. Except as expressly set forth herein, (a) this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and (b) nothing herein is intended to or shall confer upon any third party any equitable right or remedy of any nature whatsoever under or by reason of this Agreement.

13.13 Waiver of Jury Trial. You irrevocably and unconditionally waive any right You may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

13.14 Equitable Relief. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 12, 4.8 or 9.6 would cause PCS irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, PCS will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

13.15 Feedback. If You or any User, employee, contractor or agent sends or transmits any communications or materials to PCS suggesting or recommending changes to the Products, including new features or functionality relating thereto (collectively, “Feedback”), PCS is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You hereby assign to PCS on behalf of Yourelf and Your Users, employees, contractors and/or agents, all right, title, and interest in and to (including all Intellectual Property Rights), and PCS is free to use without any attribution or compensation to any party such Feedback for any purpose whatsoever. For the avoidance of doubt, PCS is not obligated to use any Feedback or take any action with regards thereto.

13.16 Acceptance; Enforceability. BY PLACING AN ORDER FOR ANY PRODUCT(S) FROM THE PCS WEB SITE, YOU ACCEPT AND AGREE TO, ON BEHALF OF YOURSELF AND ALL USERS, ALL TERMS AND CONDITIONS COTAINED IN THIS AGREEMENT AND YOUR ORDER(S). DO NOT PLACE AN ORDER IF YOU DO NOT INTEND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT OR YOUR ORDER(S).