This Transportation Management System User Agreement (“Agreement”) dated as of _______________, 20__ (“Effective Date”) is entered into by and between STAAR Supply Chain Solutions, LLC (“STAAR SCS”), with an address at having its principal place of business at 560 Myrtle St., Reynoldsville PA 15851 and a California address of 1859 Orange Ave, B Costa Mesa, CA 92627 and ________________________ (“User”), a __________________ with an address at ____________________________________________.

RECITALS

WHEREAS, STAAR SCS provides, inter alia, transportation logistics cost saving solutions through a managed universe and a transportation management system (“TMS”) hosted on a multimode shipsite; and

WHEREAS, User desires to utilize the TMS and/or other services provided by STAAR SCS;

NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, STAAR SCS and User intending to be legally bound agree as follows:

1. TERMS AND CONDITIONS ON USE OF TMS

1.1 By subscribing for access to, and use of, the TMS, User agrees to be bound by this Agreement and, upon notice of same to Buyer, the associated Privacy Policy, Data Processing Agreement and Cookie Policy which may be adopted and revised from time to time by STAAR SCS.

1.2 During the term of the Agreement, STAAR SCS grants to User a non-exclusive, non-transferable right for User to access and use the TMS and the associated services and benefits associated with the subscription level chosen by User. User shall be entitled to access and use the TMS and the associated services and benefits for User’s own internal business operations and to facilitate the label and shipping process for User.

1.3 User shall not transfer, sell, lease, or lend the TMS or the associated services or benefits, or any software or systems used to provide the TMS or the associated services or benefits, or any contents, information, tools, and resources therein, to any third party.

1.4 STAAR SCS shall have the right to monitor use of the TMS and the associated services and benefits by User. This audit right includes but is not limited to (i) electronic monitoring at any time, and (ii) an on-site audit, which may be conducted not more than once per year upon reasonable notice to User (and which shall be conducted in a manner so as not to unreasonable interfere with User’s business).

1.5 STAAR SCS is not responsible for inability to perform or access TMS or the associated services or benefits due to improperly formatted or corrupted files, viruses on media provided by User, or User’s incompatible backup media or software. User acknowledges that transferring User data in connection with the use of the TMS or the associated services or benefits is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data, or damage to media that may give rise to loss or damage. User is responsible to adopt reasonable measures to limit the impact of such problems.

1.6 User shall be liable and responsible for any and all activities conducted through its account, whether or not such activities have been authorized by User. STAAR SCS will deem any communication, data transfer, or use of the TMS or associated services or benefits received under User’s account names and passwords to be for User’s benefit and use.

2. PLATFORM PRICING

Platform pricing – if applicable – is subject to change at any time in the sole discretion of STAAR SCS. Any price changes will be applicable in months subsequent to the announcement of the price changes to the Users, either as provided for notices in this Agreement, or as posted at: https://ship.sscsship.com/login.

3. PROPRIETARY RIGHTS

3.1 User acknowledges and agrees that it is purchasing access to the TMS only, and that all aspects of the TMS are and shall remain the sole and exclusive property of STAAR SCS and, under all circumstances, all title thereto shall remain solely and exclusively in STAAR SCS. User further acknowledges and agrees that all applicable rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the TMS are and, under all circumstances, shall remain solely and exclusively in STAAR SCS. User’s license to use the TMS is revocable at any time and not transferrable or assignable without STAAR SCS’s written consent.

3.2 Nothing in this Agreement shall be construed to grant User any ownership rights of any kind with respect to any portion of STAAR SCS’s proprietary software and products or any intellectual property rights thereto. All rights, title and interest in and to, and ownership of, STAAR SCS’s proprietary software and products and any modifications and derivative works thereof, will remain at all times solely and exclusively with STAAR SCS. User acknowledges and agrees that all applicable rights to patents, copyrights, trademarks, trade secrets, and other intellectual property rights in or relating to STAAR SCS’s proprietary software and products, shall remain solely and exclusively with STAAR SCS. Except as expressly permitted under this Agreement, no license to User under any trademark, patent or copyright or other intellectual property right that is now or hereafter owned by STAAR SCS is either granted or implied by this Agreement.

3.3 User will not, and will not allow User’s personnel (or any User subcontractors) to (i) copy, modify, disassemble, decompile or reverse engineer any of STAAR SCS’s proprietary software and products (or any component thereof) or permit any third party to do so; or (ii) disclose, distribute, or otherwise attempt or purport to license or dispose of STAAR SCS’s proprietary software and products.

4. PAYMENT PROVISIONS

4.1 Upon submitting a signed and completed Agreement, the User will be obligated to deliver to STAAR SCS, in the amount set forth herein, (i) the payment of the applicable fees for the for the first month and (ii) a service retainer (“Service Retainer”) in the same amount (one month’s fees). The Service Retainer will be held as a retainer for performance of all of User’s obligations under this Agreement and is not intended to be a reserve from which fees may be paid. In the event that User owes other fees, it may not rely on deducting them from the Service Retainer, but must pay them separately. Subject to the complete satisfaction of User’s obligations under this Agreement, STAAR SCS will return the Service Retainer, or any balance after deducting outstanding fees and other costs due within thirty (30) days (or earlier if required by applicable law) after the later of (i) the termination or expiration of this Agreement, and (ii) the date on which User provides all account information necessary to make such payment.

4.2 STAAR SCS accepts payment of all amounts specified in this Agreement solely by direct withdrawal from User’s bank account or by credit card payment. User is required to maintain sufficient money in its bank account to pay the fees described in this Agreement and to inform STAAR SCS promptly of any changes to the account.

4.3 The User is subject to the subscription fees based on the Platform Pricing set forth herein. STAAR SCS reserves the right to modify the Platform Pricing at any time, provided that the new Platform Pricing shall be applicable to all Users subscribing to access the TMS at the same Platform Pricing level and does not apply to any period for which a User has already paid or to the remainder of the then current month. During the Term of this Agreement, STAAR SCS will process payment for subscriptions and other then-outstanding fees, in advance, and no later than the fifth (5th) business day of each month. User shall be responsible for having the necessary funds available in its payment account or within the available limits of User’s credit card as of the first (1st) day of the month.

4.4 An administrative late charge of $35.00 charged for any monthly usage fee not paid by the applicable due date (including any electronic transaction that is declined and any returned checks), and an additional $50.00 shall be charged for each 10 days thereafter that such amount remains unpaid. Additionally, any amounts payable by User hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law, from the due date until the date such amount is paid.

4.5 Without limiting the additional fees and charges that shall be payable by User pursuant to Section 5.4, if applicable, STAAR SCS shall have the right, exercisable in its sole and absolute discretion, to suspend User’s access to, and use of, the TMS and associated services and benefits, in the event that User has not paid any amounts due hereunder by the time such payment is due.

4.6 The fees listed in this Agreement or on STAAR SCS’s website or in its promotional materials do not include taxes; there shall be added to all payment hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on STAAR SCS’s net income. If STAAR SCS is found to be responsible for the withholding and payment of taxes on behalf of User, User agrees to indemnify STAAR SCS with respect to the full amount of taxes due, together with applicable interest and penalties. If User is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to completely offset such tax so that the amount remitted to STAAR SCS, net of all taxes, equals the amount invoiced or otherwise due.

5. REPRESENTATIONS AND WARRANTIES

5.1 Each party hereto represents and warrants to the other that: (i) it is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has the full right and power to enter into and fully perform this Agreement in accordance with its terms; (iii) this Agreement constitutes a legal, valid and binding agreement of such party, enforceable against such party in accordance with its terms; and (iv) it will comply with all applicable laws and regulations in the exercise and performance of its rights and obligations under this Agreement.

5.2 User acknowledges that impenetrable security cannot be attained in real-world environments and that STAAR SCS does not and could not guarantee that any network, computer systems, or any portions thereof are secure. STAAR SCS does not warrant that use of the TMS or the associated services or benefits will be uninterrupted or error-free, free of viruses or any other malicious code, or fit for its intended purpose, or that all TMS errors will be corrected. Any description of the TMS contained on STAAR SCS’s website or promotional materials is for the sole purpose of identifying them, and any such description is not a part of the basis of the bargain and does not constitute a warranty or representation.

5.3 STAAR SCS warrants that it owns all right, title, and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by this Agreement, the TMS and any associated services or benefits provided to User hereunder.

5.4 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, STAAR SCS SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR PAST DEALINGS BETWEEN THE PARTIES.

6. INDEMNIFICATION

6.1 STAAR SCS shall indemnify, defend and hold harmless User from and against any and all suits, proceedings, claims, demands, or causes of action by a third party that the TMS infringes upon or misappropriates any United States copyright, patent, trade secret or other intellectual or industrial property right of any kind or nature whatsoever (a “Claim”).

6.2 STAAR SCS shall have no liability under the Section 7.1 to the extent a Claim is attributable to (i) combination or use of the TMS with any item, component, product, material, software or process not provided by TMS, if liability would not have arisen but for such combination or use with such item, component, product, material, software or process; (ii) use of the TMS in any way not authorized nor contemplated by the Agreement, if liability would not have arisen but for such unauthorized use; or (iii) any breach by User of the Agreement, if liability would not have arisen but for such breach.

6.3 In the event the TMS is held by a court of competent jurisdiction to, or is believed by STAAR SCS to, infringe or misappropriate any third party right, STAAR SCS shall have the option, at its expense, to (i) modify the TMS to be non-infringing, (ii) replace the TMS with a non-infringing substitute, (iii) resolve any Claim to allow use of the TMS, (iv) obtain for User a subscription to continue using the TMS, (v) terminate the subscription for the infringing portions  of TMS, or (vi) terminate the Agreement..

6.4 Promptly after receipt by an indemnified party (“Indemnitee”) of notice of any claim or the commencement of any action involving the subject matter of the foregoing indemnity provisions, such Indemnitee will promptly notify the indemnifying party (“Indemnitor”) of such claim or action. Upon proper notification, the Indemnitor shall have the right, but not the obligation, to control the defense of the Indemnitee against any such third-party claims, utilizing counsel chosen in Indemnitor’s sole discretion, provided that the Indemnitee may participate in any such defense, at its own expense, by separate counsel of its choice, and further provided that any such participation shall not limit Indemnitor’s right to control such defense. Indemnitor shall obtain the prior written approval of the Indemnitee before ceasing to defend against any third-party indemnification claim or entering into any settlement, adjustment or compromise of such claim and such approval shall not be unreasonably delayed, conditioned, or withheld. The Indemnitee shall cooperate with the Indemnitor in the provision of any such defense by providing to the Indemnitor all such information, assistance and authority as may reasonably be requested by the Indemnitor, all at Indemnitor’s sole expense.

6.5 User acknowledges and agrees that the remedies provided herein are the sole and exclusive remedies of User, and consequently the sole and exclusive liability of STAAR SCS, with respect to any Claim.

7. TERM; TERMINATION

7.1 The Term of this Agreement is one month with automatic renewal for additional one-month terms until either party sends the other party a 30 day advance written notice of termination. The Term commences upon the later of (i) the date on which payment of the applicable fees for the first month and Service Retainer has cleared or (ii) the Effective Date.

7.2 STAAR SCS may terminate this Agreement upon ten (10) days prior written notice for non-payment of fees.

7.3 STAAR SCS may terminate the Agreement immediately if User becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeded, or if any such proceeding is instituted against User.

7.4 STAAR SCS may terminate the Agreement immediately in the event that User violates any applicable law or regulation, or otherwise exposes STAAR SCS to civil or criminal liability.

7.5 STAAR SCS may suspend or terminate the Agreement immediately in the event of any wrongful or unauthorized access to or use of the TMS or associated services or benefits by User or by a third-party utilizing User’s account name and password.

7.6 Effect of Termination. Upon termination of the Agreement, access to and use of the TMS and associated services and benefits shall be terminated. Termination of the Agreement (i) shall not relieve any party from any liability that may have arisen prior to such termination, nor shall such termination relieve User of its obligation to pay all fees that have accrued or are otherwise owed by User under the Agreement, and any unpaid fees related to the initial term or any renewal term, and (ii) shall not limit either party from pursuing other remedies available to it, including injunctive relief. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.

8. LIMITATION OF LIABILITY 

8.1 IN NO EVENT SHALL STAAR SCS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS AND GOODWILL, LOSS OF USE OF DATA, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 STAAR SCS uses unrelated third parties to provide certain services, and the availability and accuracy of such third-party services is not within STAAR SCS’s control. User hereby waives any and all liability and claims which User may have against STAAR SCS in connection with the third-party services, except as specifically set forth herein, and for liability directly caused by the gross negligence or willful misconduct of STAAR SCS.

8.3 STAAR SCS’s total liability for damage suffered by User under the Agreement or related to the TMS or the associated services or benefits shall in no event exceed an amount equal to three times the average monthly fee paid by User to STAAR SCS under the Agreement.

9. CONFIDENTIALITY

9.1 All Confidential Information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (i) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, (ii) as appropriate, to respond to any summons or subpoena or in connection with any litigation, and (iii) to any vendor with which STAAR SCS has a relationship that is required to offer the services to User.

9.2 User acknowledges that STAAR SCS or its affiliates may use Confidential Information to evaluate possible commercial arrangements between STAAR SCS and User, and to communicate with User from time to time regarding STAAR SCS’s, its affiliates’ or its recommended vendors’ products and services that may improve the efficiency of User’s operations or otherwise benefit User.

9.3 The obligation of STAAR SCS set forth in this Section 10.1 shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by User in connection with any present or future STAAR SCS product or service, and, accordingly, neither STAAR SCS nor any of its clients or business partners shall have any obligation or liability to User with respect to any use or disclosure of such information. In addition, User gives its consent that STAAR SCS may use internet/website analytics software tools and programs to collect, transmit, store, disclose and analyze certain information about the actual use of the TMS (such as, but not limited to, pages viewed, links clicked, help functions used and other workflow information); such information shall not be considered Confidential Information hereunder and may be used by STAAR SCS for the purpose of license administration, error resolution and product analysis and improvement. STAAR SCS may provide communication to end-users via knowledge-base listings, online tools, training helps, etc., training information, product use and enhanced offering tools and other communication that enhances the shippers use and benefit.

10. NOTICE

Any notice or other communication under this Agreement shall be in writing and effective when delivered in person or, if mailed, when deposited in the U.S. Mail, by registered or certified mail, return receipt requested, addressed to the other party at the address first specified above (or to such address as may be later specified in writing pursuant to this Section).

11. MISCELLANEOUS

12.1 Force Majeure. In the event of delay or inability to deliver or perform any obligation under this Agreement caused by any reason beyond a party’s reasonable control, including but not limited to, acts of God, any government authority or the public enemy, epidemic, quarantine restrictions, strikes, freight embargoes, unusually severe weather, fires, floods, labor disputes, riots, accidents, or voluntary or mandatory compliance with any governmental act, regulation or request, the parties may, without penalty or liability, extend times of performance to the earliest time deemed feasible by mutual agreement of the parties hereto.

12.2 Binding Effect and Assignment. This Agreement and/or each party’s rights and obligations under this Agreement may not be assigned or transferred by either party without prior written consent of the other party; provided, however, that either party may assign or transfer this Agreement upon written notification to the other party to (i) a subsidiary or affiliate of such party provided the assigning party remains liable for its subsidiary’s or affiliate’s performance of the Agreement or (ii) any third party which acquires all or substantially all of such party’s stock or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise, so long as the surviving party in such transaction is not a competitor of the other party and is financially and otherwise capable of performing its obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns, provided that any such assignee shall agree to perform the provisions of this Agreement, including all obligations assumed hereunder.

12.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law’s provisions.

12.4 Dispute Resolution. The Parties hereby consent to the exclusive jurisdiction of the Jefferson County Court of Common Pleas for any action or proceeding brought by either of them on or in connection with this Agreement or any alleged breach thereof. With regard to any such proceedings, each of the Parties hereto consents to such courts’ exercise of personal and subject matter jurisdiction over it, waives any venue objections to such courts, and agrees to accept service of process in the manner set forth notices in this Agreement. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and expenses incurred in any litigation in addition to any other relief to which it is entitled.

12.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to negotiate in good faith a substitute, valid and enforceable provision which most nearly affects the parties’ intent in entering into this Agreement.

12.6 No Waiver. Neither party’s failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or forfeiture of any such rights.

12.7 Entire Agreement. This Agreement represents the entire agreement between the parties as to the matters set forth herein and supersedes all prior discussions or understandings between them. This Agreement may be modified only by a writing signed by an authorized representative of User and STAAR SCS.

12.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures to this Agreement pursuant to this Agreement transmitted by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original document, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original for all purposes.

12.9 Call recording. User acknowledges and agrees that calls to and from STAAR SCS may be monitored or recorded.

IN WITNESS WHEREOF, STAAR SCS and User have executed this Agreement as the date first written above.