PER DIEM PLUS
FLEETS USER AGREEMENT
THIS PER DIEM PLUS FLEETS AGREEMENT (“Agreement”) is and
between Per Diem Plus, LLC, a Missouri limited liability company ("Per
Diem Plus"), and the undersigned (“Company”) effective on (“Effective
Date”).
WHEREAS, Per Diem Plus has the right to license the software
defined below as Licensed Software; and
WHEREAS, the parties desire that Per Diem Plus license to Company
the rights use Per Diem Plus’s software product subject to the terms and
conditions hereof;
NOW, THEREFORE, in consideration of the foregoing, and in
reliance on the mutual agreements contained herein, the parties agree as
follows:
1.
Definitions.
1.1."Licensed
Software" means Per Diem Plus ® Mobile App for Android and iOS software,
any improvements or modifications made thereto, for use by truck drivers on
mobile digital devices which automatically activate after defined number of
miles driven, track locations relative to defined tax home, calculate a per
diem tax deduction if the applicable government tax agency requirements are
met, and provides a mechanism by which drivers can upload and categorizes
receipts and records of travel and other expenses.
1.2."Fleets
White Labeled Product", “Fleets Premium”, herein referred to as “White Label”
and/or “White Labeled Product” means a Company rebranded version of the
Licensed Software only to be marketed and promoted by Company for Member
Subscribers as described in accordance with Exhibit A.
1.3.“Member
Subscribers” means Truck Drivers of Company who have signed up and enrolled
(subscribed) to the White Label Product on the Platform.
1.4.“Platform”
shall mean Google Play Store and Apple App Store.
1.5."Proprietary
Rights" means any and all rights, whether registered or unregistered, in
and with respect to patents, copyrights, confidential information, know-how,
trade secrets, moral rights, contract or licensing rights, branding features,
and confidential and proprietary information protected under contract or
otherwise under law, and other similar rights or interests in intellectual or
industrial property.
1.6."Branding
features" means proprietary domain names, trade names, trademarks, logos,
or other distinctive branding features.
2. Grant of License and Restrictions. Subject to the terms and conditions herein,
Per Diem Plus hereby grants to Company a non-exclusive, United States license, subject
to Per Diem Plus Proprietary Rights, to use Per Diem Plus Fleets app and/or distribute
the Licensed Software in White Labeled Product format only to Member Subscribers.
3.
Limitations
on License. Company is not authorized (i) to incorporate the
Licensed Software into any product or code other than the White Labeled Product,
or (ii) to attempt to distribute the Licensed Software on a standalone basis,
independent of the White Labeled Product, nor may Company sublicense the right
to White Label Product to any third party.
4.
Branding
Requirements; “White Label” Rights and Obligations. Marketing and promotion
of the White Labeled Product is authorized only with the Company Branding features,
which shall be created in conjunction with Company and approved in advance by
Per Diem Plus in advance as set forth in Exhibit B. Company does not acquire
any rights to Per Diem Plus Branding features or associated goodwill
hereunder. All marketing rights and
licenses granted herein for Licensed Software are subject to the branding
requirements contained herein.
5.
Proprietary
Rights Notice(s). Company shall affix Proprietary Rights notices to the
advertisement and distribution of White Labeled Product in accordance with Exhibit
A.
6.
Branding
Features. Parties recognize
that the branding features used by both parties have different images and truck
driver perceptions.
7.
Reservation
of Rights. All rights not expressly granted to Company herein are
expressly reserved by Per Diem Plus including but not limited to Per Diem Plus
retaining all rights to license the Licensed Software to truck drivers and to
other white label companies.
8.
White
Label Licensing Fee.
Licensee shall pay Enrollment and Recurring Monthly License Fees in
accordance with Exhibit A attached. Licensee has the right to review
account and billing records
9.
Marketing
and Support Obligations. Each party shall perform the marketing and
support obligations in accordance with Exhibit B attached.
10.
Warranty
Disclaimers. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EACH
PARTY ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, EITHER
EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WITH
REGARD TO THE SOFTWARE AND ANY RELATED WRITTEN MATERIALS, SYSTEM INTEGRATION,
AND DATA ACCURACY. EACH PARTY
ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT EXPRESSLY
SET OUT HEREIN.
11.
Indemnification.
11.1
Company
Indemnity. Company shall indemnify, defend and hold Per Diem Plus and
its employees, officers, directors, and licensors harmless from any and all
liabilities, losses, claims, demands, actions, proceedings, damages, costs and
expenses including without limitation, reasonable legal fees and expenses in
connection with any suit or claim arising out of Company's marketing or
distribution of the Licensed Software.
11.2
Limitation
of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL PER DIEM PLUS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING
WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR
PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR
INABILITY TO USE THIS PRODUCT, EVEN IF PER DIEM PLUS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PER DIEM PLUS’S ENTIRE LIABILITY
UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID BY COMPANY
FOR ONE LICENSE OF WHITE LABELED PRODUCT.
12.
Ownership
and Title of Licensed Software. Title to the Proprietary Rights
embodied in the Licensed Software shall remain in and be the sole and exclusive
property of Per Diem Plus. Company receives no title, license or interest in
the Licensed Software as a result of this Agreement, and Per Diem Plus receives
no title, license or interest in Company’s intellectual property as a result of
this Agreement. Company shall take
no action to challenge the validity of any of Per Diem Plus’s Proprietary
Rights and Per Diem Plus may terminate this Agreement upon notice to Company if
such event occurs.
13. Member Subscriber Account
Ownership/Exclusivity.
13.1. Account Ownership. Company shall obtain sole and exclusive
ownership of the Member Subscriber account. During the Term, Company shall take no
action, directly or indirectly, by itself or through other third parties to
solicit the Member Subscriber Account for the purpose of the Member Subscriber
modifying, terminating or moving said account to a competitor of Per Diem Plus.
13.2. Exclusivity. Company has the
sole and exclusive ownership of the White Labeled Product,
14.
Reciprocal
Disclosure of Confidential Information. The parties anticipate that
each may disclose confidential information to the other. Accordingly,
the parties desire to establish in this Section terms governing the use and
protection of certain information one party ("Owner") may disclose to
the other party ("Recipient").
For purposes hereof, "Confidential Information" means the
terms and conditions hereof, and other information of an Owner (i) which
relates to designs and programming techniques embodied in the Licensed Software
in the case of Per Diem Plus and the White labeled Products in the case of Company,
and the business models and plans, and technical information and data of an
Owner or its customers or suppliers regarding the Licensed Software in the case
of Per Diem Plus and the White labeled Products in the case of Company, or (ii)
which, although not related to the Licensed Software or White labeled Products,
is nevertheless disclosed hereunder, and which, in any case, is disclosed by an
Owner in document or other tangible form bearing an appropriate legend
indicating its confidential or proprietary nature, or which, if initially
disclosed orally or visually is identified as confidential at the time of
disclosure and a written summary hereof, also marked with such a legend, is
provided to Recipient within fifteen (15) days of the initial disclosure. Recipient
may use Confidential Information of Owner only for the purposes of this
Agreement and shall protect such Confidential Information from disclosure to
others, using the same degree of care used to protect its own proprietary
information of like importance, but in any case, using no less than a
reasonable degree of care. Recipient may disclose Confidential Information
received hereunder only as reasonably required or permitted hereunder and only
to its employees or contractors who have a need to know for such purposes and
who are bound by signed, written agreements to protect the received
Confidential Information from unauthorized use and disclosure. The restrictions
of this Agreement on use and disclosure of Confidential Information shall not
apply to information that: (i) is in the possession or control of Recipient at
the time of its disclosure hereunder; (ii) is, or becomes publicly known,
through no wrongful act of Recipient; (iii) is received by Recipient from a
third party free to disclose it without obligation to Owner; or (iv) is
independently developed by Recipient without reference to Confidential
Information. All Confidential
Information shall be returned to the Owner at the end of the Term or
Termination.
15.
Injunctive
Relief. The parties hereby agree that any breach of any provision of
this Agreement regarding confidentiality or protection of Proprietary Rights
would constitute irreparable harm, and that the aggrieved party shall be
entitled to specific performance and/or injunctive relief in addition to other
remedies at law or in equity.
16.
Term
and Termination.
16.1.
Term
of Agreement. Subject to
Section 16.3, the initial term of this Agreement shall commence as of the
Effective Date hereof. The
Effective Date shall be set forth on page 1. Subject to Section 16.3, the Term shall
automatically renew for annually unless one party gives the other party sixty
(60) days’ notice of non-renewal.
16.2(a) Termination by Per Diem Plus. This Agreement may be terminated by Per
Diem Plus by written notice to Company upon the happening of any of the
following: (i) violation by Company of any regulations or laws or governmental
decrees or requirements of the United States or the conviction of a criminal
offense in any court of competent jurisdiction; (ii) insolvency or the
adjudication of bankruptcy or the petition for or consent to or becoming
subject to any relief under any bankruptcy, reorganization or moratorium statutes
or similar debtor relief laws by or of Company; (iii) a breach of Sections 3,5,
6, 13, 14, and 17 of this Agreement; and (iv) any material
breach by Company of any provision of this Agreement that is not cured within
thirty (30) days after written notice by Per Diem Plus to Company specifying
the alleged breach in reasonable detail.
16.2(b) Termination by Company. This Agreement may be terminated by Company
by written notice to Per Diem Plus upon the happening of any of the following:
(i) failure by Per Diem Plus, unexcused by the provisions of this Agreement, to
deliver services as stated in Exhibit B; (ii) insolvency or adjudication of
bankruptcy or the petition for or consent to or becoming subject to any relief
under any bankruptcy, reorganization or moratorium statutes or similar debtor
relief laws by or of Per Diem Plus; and (iii) any other material breach by Per
Diem Plus of this Agreement and which is not cured within thirty (30) days
after written notice by Company to Per Diem Plus specifying the alleged breach
in reasonable detail.
16.3
Effect
of Expiration or Termination. Upon the expiration or termination
hereof, all rights and licenses granted herein shall terminate, and Company
shall cease the marketing of White labeled Products. Each party shall promptly
return all Confidential Information of the other party. Per Diem Plus will pay Company
any amounts due and owing as of the date of termination. The terms and conditions of Sections 3,
6, 8, 10, 11, 12, 14, 16 and 22, and any payment obligations, and any rights of
action for breach of this Agreement that may have arisen prior to termination
or expiration, shall survive any termination or expiration of this Agreement.
17.
Assignment.
This Agreement shall inure to the benefit of, and be binding upon, any
successor to all or substantially all of the business and assets of each party,
whether by merger, sale of assets, or other agreements or operation of
law. Except as provided above, Company
shall not assign this Agreement or any right or interest under this Agreement
without Per Diem Plus’s prior written consent. Any attempted assignment or
delegation in contravention of this Section shall be void and ineffective.
18.
Independent
Contractors. The
relationship of the parties is that of independent contractor, and nothing
herein shall be construed to create a partnership, joint venture, franchise,
employment, or agency relationship between the parties. Company shall have no
authority to enter into agreements of any kind on behalf of Per Diem Plus and
shall not have the power or authority to bind or obligate Per Diem Plus in any
manner to any third party.
19.
Force
Majeure. Neither Per Diem
Plus nor Company shall be liable for damages for any delay or failure of
delivery arising out of causes beyond their reasonable control and without
their fault or negligence, including, but not limited to, Acts of God, acts of
civil or military authority, fires, riots, wars, embargoes, epidemics,
Microsoft/Windows or Google blocks/lockouts or communications failures. Notwithstanding anything to the contrary
contained herein, if either party is unable to perform hereunder for a period
of thirty (30) consecutive days, then the other party may terminate this
Agreement immediately without liability by ten (10) days written notice to the
other.
20.
Notices. Any notice or communication required or
permitted to be given hereunder may be delivered by hand, deposited with an
overnight courier, sent by e-mail or facsimile (provided delivery is
confirmed), or mail (registered or certified only), return receipt requested,
to the address set forth below or such other addresses as the parties may
designate from time to time in writing in accordance with this Section. Notice by mail shall be effective on the
date it is officially recorded as delivered to the intended recipient by return
receipt or equivalent. Notices sent
by facsimile or email shall be deemed effective on the date sent provided that
delivery is confirmed.
21. Treatment of Information. Per Diem Plus warrants that it will
conform to laws regarding security and gathering of personal data.
22.
Miscellaneous.
This Agreement shall be construed under the laws of Missouri, without regard to
its principles of conflicts of law. Per Diem Plus and Company agree to submit
to the personal jurisdiction of any court of competent subject matter
jurisdiction in the state of Missouri. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter of this
Agreement and merges all prior communications, understandings, and agreements.
Parties agree that the Per Diem Plus White Label Agreement with Company is
terminated effective __X__.
This Agreement may be modified only by a written agreement signed by the
parties. The failure of either party to enforce at any time any of the
provisions hereof shall not be a waiver of such provision, or any other
provision, or of the right of such party thereafter to enforce any provision
hereof. Parties agree to submit any
and all controversies under this Agreement to a minimum of one day mediation
prior to initiating litigation.
With respect to the Mediation process, all costs of the Mediator will be
divided 50/50 between the parties.
Each party is responsible for their own travel and preparation
expenses. If any provision of this
Agreement is deemed to be unlawful or unenforceable, such provision shall be
deemed severable, and the other provisions shall remain in full force and
effect. The failure of either party
to exercise, in any respect, any right provided for herein shall not be deemed
a waiver of that right or any other right in this Agreement. The headings herein are provided for
ease of reference only and are not to be used in interpreting the provisions of
this Agreement. Exhibits A and B
are attached hereto and incorporated herein as if fully set forth. This White Label Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same Agreement and shall become a binding agreement when signed by all
parties.
EXHIBIT
A
WHITE LABEL
LICENSE FEE
1. Proprietary
Right Notice(s) for White Labeled Licensed Products. The Parties agree that a copyright
notice shall at all times appear (somewhere) on promotional material in a type
size that is clearly readable as follows: "Copyright © Per Diem Plus, LLC. All rights reserved worldwide".
2. License
Fee.
a. Initial
Setup Fee:
i. FLEETS:
The standard fee for the White Labeled Licensed product is $49.00.
ii. FLEET
WHITE LABEL: The standard fee for the White Labeled Licensed product is
$449.00.
iii. FLEETS
PREMIUM: The standard fee for the White Labeled Licensed product is $1,249.00.
b. Service
Fees: During the Term, Company shall pay a fee of $5.00/month per driver,
and the following:
i. FLEETS:
$17.00/Month/Active Driver
ii. FLEET
WHITE LABEL: $15.00/Month/Active Driver
iii. FLEETS
PREMIUM: $ Month/Active
Driver
1. Managed
Web Services (MWS): A fee of $325/month representing MWS cloud storage will be
charged upon release of the White Label Product.
EXHIBIT B
MARKETING AND
SUPPORT OBLIGATIONS
1.
Per Diem Plus’s Obligations.
Per Diem Plus shall perform the following obligations at its cost and
expense, unless otherwise indicated.
1.3 Technical
Support Consultation. Per Diem Plus shall be responsible for providing “First
Line” technical support directly to Member Subscribers and answering general
inquiries.
1.4 Error
Correction. Per Diem Plus shall undertake commercially reasonable efforts to
correct any (i) failure of the Licensed Software to conform, and (ii) any error
in the Licensed Software caused by Per Diem Plus that materially affects the
use of the Licensed Software.
1.5 Improvements; Upon Licensee’s request, Per Diem Plus shall
consult with Licensee on specific changes, modifications or improvements to the
White Labeled Product: but in all events Licensee shall be responsible for all
costs involved and Per Diem Plus shall own all Proprietary Rights resulting
from or arising from said changes, modifications of improvements MADE BY Per
Diem Plus at Licensee’s instructions.
Per Diem Plus shall provide the same nonexclusive license described in
Section 2 for said changes, modifications or improvements during the remainder
Term of the Agreement.
1.6 Provision
of Promotion Materials. Per Diem
Plus shall provide/ upload graphical assets provided by Licensee for the White
Labeled version of the Licensed Software to be as shown on the Platform during
Term of Agreement.
·
Per Diem Plus shall create / provide Company
informational brochures, graphics and Company-branded instructional videos for
using the White Labeled Product.
2. Licensee’s
Obligations. Licensee shall perform
the following obligations at its cost and expense, unless otherwise indicated.
2.1 Marketing
and Distribution. Licensee shall be
solely responsible for preparing all marketing and promotional material for the
White Labeled Product. All such
material must be approved by Per Diem Plus in advance and shall be owned by
Licensee unless it contains Proprietary Rights of Per Diem Plus. If so, Per Diem Plus will provide a
non-exclusive license to use same during the Term.
