Trusty Ox Systems Ltd. - Terms for Front Foot
Effective Date: July 1, 20014
Last Updated: July 1, 2014
1. THIS IS AN AGREEMENT BETWEEN YOU AND TRUSTY OX SYSTEMS LTD.
This is an agreement ("Agreement") between You, the person, proprietorship, partnership or limited company using a Website, a Service or Software (herein referred to as "You" and/or "Your" as applicable) and Trusty Ox Systems Ltd. ("TOS"). Now therefore, in consideration of the sum of $1.00 paid by each of the parties to the other and of the terms and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
This Agreement governs Your use of any Website owned or operated by TOS, Your use of any Services provided by TOS and Your use of any Software developed by TOS, all of which IS CONDITIONAL ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT.
(a) ”Agreement" means this Agreement and if applicable, a mutually agreed and signed Schedule 1, which is incorporated herein by reference.
(b) “Charge” means the fees due for any and all Services provided by, licenses granted by, access to Websites or Software given by TOS, including any additional service charges, as set out in this Agreement.
(c) “Commencement Date” means the date on which You first had access to or used or installed a Website, a Service or the Software.
(d) “Confidential Information” means any information of a confidential or proprietary nature (irrespective of the form of presentation or communication) relating to the business, operations, customers, sales, processes, budgets, software, smart phone apps, maps, product information, know-how and strategies of TOS;
(e) “Database” means any data entered into or contained within a Website or the Software, including, but not limited to, that entered by You, Your agents, Your sub-contractors, Your employees, Your customers (i.e. energy companies, either directly or via electronic input) or TOS. The Database includes all of the data held in a Website, or the Software, including any derivative datasets that may be created from it.
(f) “Due Date” means thirty days after the invoice date.
(g) “Intellectual Property” means all intellectual property rights (whether registered or unregistered) including but not limited to copyright, database rights, trade secrets, industrial designs, algorithms, designs, patents, moral rights and trademarks.
(h) "Materials" means all documents and information delivered by TOS to You with respect to a Website or the Software or a Service in any form or medium whatsoever including, without restricting the generality of the foregoing, this includes Websites or Software in any media, samples, prototypes, drawings, visual media, video, printed documents, training material or presentations.
(i) “Schedule 1” means the document which outlines additional, agreed terms between You and TOS. Schedule 1 may include but is not limited to such details as a set-up fee, a minimum monthly fee, Your license fee, the fee for Your Service and Your contact details. For the avoidance of doubt, in the absence of a signed Schedule 1, the Charges outlined on Your invoice each month shall be deemed the going-rate and You agree to pay these Charges in accordance with the terms of this Agreement.
(j) “Service” means the combination of any Website, Software, documentation, training, guidance, business processes, video, presentations or consultancy provided by TOS to You in order to fulfil TOS’s obligations under this Agreement. For the avoidance of doubt, the Service also includes the set-up process or data processing done on Your behalf by TOS.
(k) “Set-up Fee” means the fee payable for the initial set-up of the Website, the Software and the system in general.
(l) “Software” means any software supplied by the TOS as part of the Service. This includes, but is not limited to the Website(s) provided by the TOS and the various smart phone applications.
(m) "Technology" means the apparatus, processes, methods, algorithms, software, designs, inventions, technical know-how, information and materials, whether or not they are the subject of the Patents and Registrations, copyright, trade secrets or other forms of intellectual property, owned by TOS and embodied in the Software, Software updates, Websites or the Materials supplied to You in any form by TOS pursuant to this Agreement.
(n) “Term” means the initial term of this Agreement is three years, commencing on the Commencement Date. Upon expiry of the first term, the Term of this Agreement shall automatically renew for successive two-year periods unless terminated by written notice of termination sent by either party to the other at least three (3) months prior to the expiration of the Term currently in effect.
(o) "Trademark" refers to the TOS's trademarks, registered or otherwise, including, but not limited to "Front Foot™”, “Truck Tracks™", “Front Foot n Go” or any such other name or design as may be specified by TOS.
(p) “Truck” means the unique combination of a driver and truck to which the Website or the Software dispatches a job. In most cases, You will be charged for each Truck dispatched by a Website or the Software. For the avoidance of doubt, for each Truck as defined above, that is dispatched a job, You will be deemed liable to pay a Charge. Furthermore, any combination of a different driver and truck is deemed a unique Truck and subject to paying a Charge. By way of example, Bob and Tom own a truck, which they share. Bob and his truck are given a job Monday morning. A Charge is payable that month as this is the first Truck. Tom uses the same truck Monday afternoon to deliver another job. A Charge is also assessed for this because this is deemed a second Truck (i.e. Bob and truck are different from Tom and truck).
(q) “Website” or “Websites” any website or webpage owned or operated by TOS.
(r) “Working Day” means a day other than Saturday, Sunday and Statutory Holidays in the Province of British Columbia, Canada.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY (See Sections 8, 9, and 10); AND AN EXCLUSIVE REMEDY (See Section 9). THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST PROVIDE WRITTEN NOTICE TO TOS THAT YOU WANT TOS'S SERVICES TO YOU TO BE STOPPED IMMEDIATELY. FAILURE TO PROVIDE SUCH NOTICE WITHIN FOURTEEN DAYS OF YOUR FIRST ACCESS TO A WEBSITE SHALL BE DEEMED AS YOUR ACCEPTANCE OF THESE TERMS.
2. HOW TOS MAY MODIFY THIS AGREEMENT
TOS reserves the right to change the terms, conditions, privacy policies, and notices under which it offers a Website, a Service or its Software, including any charges associated with the use of a Website, a Service or Software. You are responsible for regularly reviewing these terms, conditions, privacy policies and notices, and any additional terms posted on a TOS Website, statement, invoice or email. Your continued use of a Website, Service or Software after the effective date of such changes constitutes Your acceptance of and agreement to said changes.
3. ADDITIONAL TERMS
Any TOS Website may itself contain additional terms (for example, codes of conduct or guidelines) that further govern use of that TOS Website, Service or Software, including without limitation, particular features or benefits (for example, routing directions or participation in an online forum). If any terms contained in this Agreement conflict with any terms contained within a non-TOS Website, Service or Software, then the terms in this Agreement shall control.
4. NO UNLAWFUL OR HARMFUL USE OF THIS WEBSITE
You will not use a Website, Service or Software in any way that is unlawful, or harms TOS, its affiliates, TOS's customers, Your customers, resellers, third parties, distributors, TOSs and/or suppliers (each, a "TOS Party" and collectively, the "TOS Parties") or any customer of an TOS Party, as determined in TOS's sole discretion. TOS may tell You about certain specific harmful uses in a code of conduct or other notices available through an TOS Website, but has no obligation to do so. You may not use a Website, Service or Software in any way that breaches any code of conduct, policy or other notice applicable to a Website, Service or Software. Without limiting the generality of this section, You may not use a Website, Service or Software in any manner that could damage, disable, overburden, or impair any TOS Website (or the network(s) connected to any TOS Website) or interfere with any other party's use and enjoyment of TOS Websites, Services or Software. Failure to do so may result in Your loss of access, without any recourse by You, to the Website, Service or Software or any combination thereof.
5. INFORMATION YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For information You post or otherwise provide to TOS through a Website, Service or Software, including but not limited to Your driver, job, truck, trailer, safety, email, sms, fax, contact details, telephone numbers, logos, images, trademarks, customer names/addresses or order details (a "Submission"), You grant TOS a perpetual, royalty free, sub-licensable, fully transferable license to all of Your rights, including any intellectual property rights and associated moral rights in the Submission including, but not limited to the rights to (1) use, copy, distribute, transmit, publicly display, reproduce, edit, modify, translate and reformat Your Submission and (2) to sublicense these rights, to the maximum extent permitted by applicable law. At TOS’s sole discretion, TOS may remove Your Submission from a Website, a Service or Software at any time without recourse by You. For each Submission, You warrant that You have all rights necessary for You to make the grants in this section. To the maximum extent permitted by applicable law, TOS may monitor Your e-mail, or other electronic communications and may disclose such information in the event it has a good faith reason to believe it is necessary for purposes of ensuring Your compliance with this Agreement, and protecting the rights, property, and interests of the TOS Parties or any customer of a TOS Party or any governmental body.
6. END USER LICENSES
Your use of any Software associated with a Website or a Service will be governed by the terms and conditions of the end user license agreement ("EULA") associated with such Software. TOS reserves all rights to such Software not expressly granted to You in this Agreement. Such Software is protected by copyright and other intellectual property laws and treaties. TOS or its suppliers own the title, copyright, and other intellectual property rights in such Software, and such Software is licensed, not sold. You will not disassemble, decompile, or reverse engineer, such Software, except and only to the extent that such activity is expressly permitted by applicable law. TOS may automatically check Your version of such Software and may automatically download upgrades to such Software to Your computer to update, enhance and further develop a Website or a Service.
7. INFORMATION AVAILABLE FROM THIS WEBSITE
TOS does not warrant or guarantee the accuracy or timeliness of any information available on a Website, its Software or provided as part of a Service, including but not limited to Your Submissions, even if such information appears in any e-mail, pager, mobile phone or other alerts available through an TOS Website. TOS does not authorise the use of information available from a Website, Service or Software, including financial and marketing information, for any purpose except to support the operation of Your business as defined herein, and prohibits to the maximum extent allowable by law the resale, redistribution, and use of this information for other commercial purposes.
A Website, a Service or the Software may be unavailable at certain times to allow for maintenance and upgrades. Although TOS will endeavour to notify You in advance of any service unavailability, this cannot be guaranteed and TOS reserves the right to alter or withdraw the service at any time without recourse by You.
8. TOS MAKES NO WARRANTY
TOS PROVIDES ITS WEBSITES AND ITS SERVICES "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOS MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. TOS DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF A WEBSITE OR A SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
9. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
IN NO EVENT WILL TOS OR TOS PARTIES BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF A WEBSITE OR A SERVICE OR SOFTWARE, EVEN IF SUCH TOS OR TOS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH A WEBSITE, A SERVICE OR THE SOFTWARE, OR YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST TOS OR ANY TOS PARTY WITH RESPECT TO THIS AGREEMENT OR A WEBSITE OR A SERVICE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE OR THE SERVICE.
For the avoidance of doubt, You also agree to indemnify and hold TOS, its directors and TOS Parties harmless and to keep them indemnified against all direct or indirect loss, costs, expenses - including legal expenses, damages – including consequential damages or claims arising from Your use of a Website, Service or Software.
10. CHANGES TO A WEBSITE OR SERVICE; ADDITIONAL LIABILITY LIMITATION
TOS MAY CHANGE A WEBSITE OR A SERVICE OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. AS YOU USE A WEBSITE, A SERVICE, OR SOFTWARE, YOU SHOULD EXPECT TO RECEIVE, ACCESS OR USE INFORMATION , MATERIALS, GRAPHICS, SOFTWARE, DATA AND CONTENT (collectively, "Content") ORIGINATED BY TOS AND TOS PARITES. WITHOUT LIMITING THE GENERALITY OF SECTIONS 8 AND 9, YOU ACKNOWLEDGE AND AGREE THAT TOS IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 8 AND 9, YOU ACKNOWLEDGE AND AGREE THAT TOS IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THIS WEBSITE, (2) ANY INCOMPATIBILITY BETWEEN THIS WEBSITE AND OTHER WEBSITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THIS WEBSITE IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THOUGH LINKS CONTAINED ON THIS WEBSITE, OR (5) THE CONTENT OF ANY SUBMISSION. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 8, 9 AND 10 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
11. TERMINATION; ACCESS RESTRICTION
Notwithstanding TOS’s right to terminate this Agreement at the end of each Term as defined in Section 1.1 (n), TOS may also terminate this Agreement, or terminate or suspend Your access to a Website, a Service or its Software at any time, with or without cause, with or without notice. Upon such termination or suspension, Your right to use a Website, a Service or the Software will immediately cease without recourse by You. UPON SUCH TERMINATION OR SUSPENSION, ANY INFORMATION YOU HAVE STORED ON A WEBSITE OR A SERVICE OR IN THE SOFTWARE MAY NOT BE RETRIEVED LATER EXCEPT AS PROVIDED BY LAW. You many terminate this Agreement upon ninety days written notice to TOS .
11.1. Upon termination of this Agreement, howsoever occasioned:
(a) all rights and licenses granted by TOS to You hereunder shall immediately terminate;
(b) You shall immediately deliver up, or at the election and direction of TOS destroy and provide evidence of the destruction satisfactory to TOS, all of the Materials or Technology, any written or electronic documents or records containing reference to the Software;
(c) any fees outstanding up to the effective date of termination shall immediately become due and payable;
(d) The termination of this Agreement shall otherwise be without prejudice to any rights or obligations which shall have accrued prior to such termination and shall not destroy or diminish the binding force or effect of any of the provisions of this Agreement which are expressly or by implication provided to come into force upon or continue in force after such termination.
12. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
Claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the British Columbia, Canada, without reference to conflict of laws principles. All other claims, including, without limitation, claims under or for violation of consumer protection laws, unfair competition laws, and in tort, will be adjudicated under the laws of British Columbia, Canada.
13. INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. TOS may assign this Agreement, in whole or in part, at any time with or without notice to You. You may not assign this Agreement, or assign, transfer or sublicense Your rights, if any, in a Website, a Service or the Software. Except as expressly stated herein, this Agreement constitutes the entire agreement between You and TOS with respect to Websites, Services and Software and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and TOS with respect to a Website or a Service.
In this Agreement, unless the context otherwise requires:
(a) the clause headings are included for convenience only and shall not affect the construction of nor form a part of this Agreement and they are not intended to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof;
(b) words denoting the singular shall include the plural and vice versa; and
(c) a reference to any statute, enactment, regulation or other similar instrument shall be construed as a reference to the statute, enactment or regulation as amended or re-enacted from time to time.
(d) The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
14. YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND TOS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO A WEBSITE, A SERVICE OR THE SOFTWARE MUST COMMENCE WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. INTELLECTUAL PROPERTY
A Website and the Software is copyright Trusty Ox Systems Ltd. All information contained in a Website, the Software, as part of a Service or the Materials or Technology is the property of TOS or used by You under license. You may not use, copy or publish information from a Website, a Service or the Software without TOS's prior written consent.
All trademarks, databases, website addresses (i.e. URLs), Submissions, source code and software are owned by or properly licensed to TOS and may not be used without prior written consent. For the avoidance of doubt, You agree and acknowledge that all customer databases, usage data, traffic data, statistics, website addresses (i.e. URLs), email addresses, customer provided content and information, website copy and graphic designs are owned by TOS.
Any rights not explicitly granted herein are reserved by TOS.
TOS makes no representations about Your business, its quality, its service or its fitness for purpose. Nor does TOS attest to the availability, technical merit or legal right of You to provide Your products or services. You accept full responsibility for the goods and services provided by You regardless of Your use or reliance on a Website, a Service or Software.
17. NO WAIVER
No failure or delay on the part of TOS to exercise its rights nor any default by TOS shall be construed to prejudice TOS's right of termination or cancellation for default or for any other subsequent defaults.
18. PASSWORD PROTECTION
You agree to keep you password protected and confidential at all times. You are fully responsible for all jobs and activities processed through Your use of a Website, a Service or the Software. You therefore agree to indemnify and hold TOS and its directors harmless against any use, authorised or otherwise, of Your account and/or a Website, a Service or the Software.
19.1 All payments in relation to a Website, a Service or the Software provided by TOS are non-refundable.
19.2 You shall pay TOS the Charges in accordance with this Clause 19 and all payments must have cleared TOS’s bank by the Due Date or You will be subject to additional service charges.
19.3 TOS shall charge You in monthly arrears, with credit terms of thirty days. For the avoidance of doubt, invoicing shall take place at the end of each calendar month and Your payment in full is due thirty days thereafter.
19.4 If You have any questions regarding any Charges that have been applied to Your account, You must contact TOS in writing within thirty days of the payment due date. Failure to question a Charge within the thirty day period will be deemed as irrevocable acceptance of the Charge. Failure to use a Website, the Service or the Software will not be deemed a basis for refusing to pay any Charges applied to Your account by TOS in accordance with this Agreement.
19.5 All Charges are expressed exclusive of any value added tax, including but not limited to the Goods and Services Tax or the applicable Provincial Sales Tax or the Harmonised Sales Tax. You shall pay all such taxes, in addition to the Charges, in the manner and at the rates prescribed by law from time to time.
19.6 If You fail to make any payment to TOS under this Agreement by the Due Date then, without prejudice to any other right or remedy available to TOS, TOS may charge You the sum due at the rate of 8% per annum above the base lending rate of the Bank of Canada prevailing on the due date, from the due date for payment until the date on which the obligation to pay such sum is discharged.
19.7 TOS reserves the right to suspend or terminate Your access to a Website, a Service or the Software without notice upon rejection or failure of completion of any Charge when TOS believes You are liable for the Charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to TOS. For the avoidance of doubt, charges will continue to accrue despite the loss of access to a Website, a Service or the Software caused by a Customer's non-payment.
19.8 Termination of this Agreement, however caused, will not invalidate any claim by TOS for monies due prior to termination of this Agreement, and such monies will remain payable to TOS by You as per the terms and conditions of this Agreement.
19.9 In the event TOS stops providing the Service due to non-payment by You, You acknowledge and agree to indemnify TOS against any loss of profit, loss of business, loss of goodwill, or any indirect or consequential loss whatsoever, howsoever arising from the loss of a Website, a Service or the Software.
19.10 In the absence of a signed Schedule 1, You agree to pay the Charges as stated on Your monthly statement.
20. LICENSE GRANT
TOS hereby grants You a non-exclusive, non-transferable and non-sub-licensable licence to i) use a Website, ii) use the Materials, iii) use the Service and if applicable, iii) install the Software subject to the terms of this Agreement and solely for the purposes of running Your business more effectively. Your license shall begin on the Commencement Date of this Agreement, and subject to the provisions for earlier termination, continue for the Term.
21. SALE OF THIRD PARTY PRODUCTS OR SERVICES
From time to time, TOS may offer third party products or services to You. This may include, but is not limited to gps hardware. You hereby agree and acknowledge that, to the fullest extent of applicable law permits, these products or services are sold “as is” with no warranty intended or implied by TOS.
(a) You agree to assign to TOS all rights to any improvements developed either by You or jointly with TOS, including any Intellectual Property rights, and to co-operate in enabling TOS to perfect such rights by registration or otherwise.
(b) In the event that clause 22(a) is for any reason unenforceable or is contrary to law or is inconsistent with TOS's rights including intellectual property rights, You agree to grant TOS an exclusive, worldwide, royalty free, sub-licensable, transferable license for a period of twenty five (25) years in respect of any such improvements.
23. SERVICE LEVEL OUTLINE
TOS has invested in and developed a unique command and control system for trucking companies. The system has two components: a variety of web and software applications that work together to enable operational efficiencies and the supporting IT infrastructure and documentation. This Agreement enables You to license the Website, Services, Software, Materials and to receive the on-going support services required to help You achieve your business goals.
23.2. Service Description
You wish to improve the operational effectiveness of Your business and have therefore outsourced certain activities and processes to the TOS. As such, the TOS shall provide access to a Website, the Service and the Software from the Commencement Date, subject to the terms of this Agreement.
The Service will enable You to quickly dispatch your fleet in an efficient way, increase the level of automation of data capture tasks and centralise some of the communications between staff and drivers.
23.4. Boundaries of Service Features and Functions
TOS provides You with a working dispatch system that you can modify and use in many different and unique ways. The operation of the TOS’s Websites, Software and the maintenance and accuracy of the operational data however, remains with You.
23.5. User Requirements
The user’s requirements as defined in this Agreement are for a system that can:
• load or capture data from standardised spread-sheets (i.e. run-sheets);
• dispatch loads in an efficient manner;
• send messages to drivers and record these communications in a central database; and
• enable the job completion process for a driver and/or dispatcher
These are all provided through a Website and/or the Software being licensed as part of this Agreement.
23.6. Service Level Performance Measures
23.7. TOS’s Responsibilities
The TOS will provide the people, processes and monitoring tools necessary for the Websites and the Software and:
23.8. Your Responsibilities
Your responsibilities and/or requirements in support of this Agreement include:
23.9. TOS customer service centre contact information
Online – www.thefrontfoot.com
23.10. Hours of Coverage
23.11. Response Times and Escalation
For all requests, the TOS’s goal is to have a staff member assigned and acknowledge requests within one business day of receipt.
Incident Response: Incidents should be reported to the customer service centre whose details are included in this section 23.9.
Prioritisation: Incidents will be prioritised on the following criteria:
i) affect on availability of system,
ii) proper operation of the system,
iii) improvments/requested changes to the system
Service Request Escalation Information: The escalation process shall rise through the TOS’s standard chain of command.
23.13. Other Requests
Requests for service features and functions not yet implemented can be submitted by You to TOS and may be chargeable. Any change to the Website or the Service or the Software shall be agreed in writing between the parties.
23.14. Maintenance and Service Changes
In the event of a planned service outage, the TOS will give You no less than one week’s notice, although in most cases, such outages will be planned during non-peak times for You.
23.15. Reviewing and Reporting
You have the right to ask for an operational review every quarter. As such time, TOS may provide performance and availability reports for discussion.
24. FEE CHANGES
24.1. TOS shall be entitled on two (2) months’ prior written notice to increase or decrease Charges or Minimum Monthly Fee payable by You.
24.4.2. The TOS agrees not to increase either the Charge or the Minimum Monthly Fee for a period of at least one year after the Commencement Date.