Locus Standard Terms

These Locus Standard Terms govern the Framework Agreement, entered into between the Locus entity (“Company”) and the Customer named in the Framework Agreement. These Locus Standard Terms and the Framework Agreement shall be collectively referred to as the “Agreement”.

1. Definitions

   1. “Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party hereto, or by an entity which owns or controls a Party hereto, as applicable.

   2. “Confidential Information” means any information disclosed by one Party to the other, including but not limited to the terms of the Agreement, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the Receiving Party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Platform and the Software and all pricing and commercial information shared by the Company shall be deemed Confidential Information of Company.

   3. “Customer Data” means Personnel and End Customer information, including but not limited to End Customer’s name, address, identification number, title, business address, email address, and IP address.

   4. “Documentation” means any documentation provided by Company for use with the Platform under the Agreement.

   5. “End Customer” means the end customers of the Customer who are the purchasers the products of the Customer.

   6. “Framework Agreement” means the Framework Agreement, entered into between the Parties, which incorporates these Locus Standard Terms by reference.

   7. “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., Indian, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.

   8. “Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party.

   9. “Personnel” shall mean and include the number of identifiable unique persons consisting of Customer’s personnel who are authorized to access and use the Services as determined by the Customer. The Customer shall allot unique login credentials to such personnel of the Customer.

   10. “Platform” means the interface created by Company where Customer can access the Software.

   11. “Software” means all of the (software as a service) applications provided by Company to Customer, as described in the Framework Agreement, including, without limitation, the proprietary software “Locus” which is a comprehensive logistics automation platform, which term shall include source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.

2. SaaS Services and Support

   1. Subject to the terms of the Agreement, Company will provide Customer Services as described under the Framework Agreement executed between the Parties. The Framework Agreement executed between the Parties shall reflect the details of the Services to be provided by the Company, consideration payable, milestones and special conditions, if any.

   2. As part of the registration process, Customer will identify an administrative user name and password for Customer’s company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate in order to avoid any unauthorized access to the Platform.

   3. The Framework Agreement may be amended only by written agreement of the Parties. Company will perform the Services and provide the deliverables described in the Framework Agreement in accordance with the terms and conditions set forth in the Agreement.

   4. Customer acknowledges that the Agreement is a services agreement and the Company will not be delivering copies of the Software to Customer as part of the Services.

3. Restrictions and Responsibilities

   1. Company will host and maintain the Platform and Customer Data on servers operated and maintained by or at the direction of Company. Company may in its sole discretion modify, enhance or update or otherwise change the Platform.

   2. Customer will cooperate with the integration of the Customer’s current information systems and data into the Platform, as well as cooperating with the gathering of Customer Data.

   3. Customer shall provide all the required information and assistance to the Company to enable the Company to deliver the Services. Customer acknowledges that the Company’s ability to deliver the Services in the manner provided in the Agreement may depend upon the accuracy and timeliness of such information and assistance. Accordingly, the Company shall not be liable for any delay in provision of Services, provided that such delay is a consequence of ant act or omission of the Customer.

   4. Customer shall comply with all applicable local, state, national and laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other Intellectual Property Right without first obtaining the permission of the owner of such rights.

   5. Customer hereby agrees to take specific consent from the owners and individual subjects of the personally identifiable information (“PII”) to share such information with the Company in accordance with the requirements detailed under applicable laws. The Customer hereby agrees to comply with all applicable laws and any other rules made thereunder while using and sharing any PII.

      Customer will inform and obtain all necessary rights, permission and legally adequate consent from all necessary parties:

      (a) to share PII of such parties with the Company or any third-party service provider as may be necessary for the Company to provide the Services under this Addendum or the Agreement; (b) to allow Company to send SMS messages to such parties in connection with the Services hereunder, or to provide any communications, including via automated voice dialling, pursuant to this Agreement; and (c) for Company to provide Customer with detailed trip information, including real- time delivery status, for the deliveries made on behalf of the Customer. Customer agrees that Company may disclose PII to such service providers or third-party entities as identified by the Customer, or to the Company’s advisors, auditors or other third parties as reasonably required in connection with the performance of its obligations or the provision of Services to Customer under this Addendum, the Agreement, any amendments made thereunder.

   6. Customer shall notify the Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security and provide reasonable assistance to stop any unauthorized use of the Services.

   7. Customer shall be solely responsible for the acts and omissions of its Personnel. The Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Personnel.

   8. Further, Customer may not remove or export or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

   9. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Company may monitor Customer’s use of the Services and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

   10. Customer shall not, and shall not permit anyone to: (i) copy or republish the Services, Software or the Platform, (ii) make the Services available to any person other than authorized Personnel, (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Services, Documentation or Platform, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services or (vii) access the Services, Platform or use the Documentation in order to build a similar product or competitive product or (viii) remove any proprietary notices or labels. Subject to the limited licenses granted herein, the Company shall own all right, title and interest in and to the Software, Platform, services, Documentation, and other deliverables provided under the Agreement, including all modifications, improvements, upgrades, derivative works and Intellectual Property Rights therein.

   11. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. Grant of License

   1. Subject to the terms and conditions of the Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable and worldwide license for the Term, to use and permit Personnel to use the Platform solely for use as it relates to creating an interface for the management of the Customer’s and its Affiliates’ materials and information. It is hereby clarified that the license granted under the Agreement is for the Platform and does not include licenses for any upgrades or new versions of the Platform or the Software (“Upgrades”) that may be developed by the Company. It is expressly agreed between the Parties that all Upgrades shall be subject to such additional fee as may be notified by the Company in writing. It is further agreed that Upgrades, if any, will be activated subject to the additional fee being approved by the Customer and execution of an amendment by the authorized signatories of both Parties.

   2. Company reserves all rights to the Platform and the Software not otherwise expressly granted in this clause 4.

   3. Customer hereby grants Company a royalty-free, non-exclusive, non-transferable, limited license during the Term to use Customer’s Marks for the purpose of including Customer’s Marks in any of Company’s Customer lists, marketing and promotional materials, website of the Company and testimonials, solely for the purpose of identifying Customer as a customer of Company.

5. Limited Platform Warranty

   1. Company warrants to Customer that during the Term, the Platform will perform substantially in accordance with the terms of Documentation. The foregoing warranty shall not apply to performance issues of the Platform (i) caused by factors outside of Company’s reasonable control; (ii) that result from any improper actions or inactions of Customer or any third parties; or (iii) that result from Customer’s data structure, operating environment or equipment. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

   2. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 5, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SOFTWARE OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, results that may be obtained from USE of the Services, NONINFRINGEMENT, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY SO, THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.

6. Confidentiality

   1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. The Receiving Party agrees: (i) to use and reproduce the Confidential Information of the Disclosing Party only for purposes of exercising its rights and performing its obligations under the Agreement and only to the extent necessary for such purposes, (ii) to restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors (“Representatives”) who have a bona fide need to know for such purposes provided that such Representatives are bound by confidentiality obligations, and (iii) to not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. Notwithstanding the foregoing, it shall not be a breach of the Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has, if legally permitted, given the Disclosing Party prior notice to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. In the event the Disclosing Party fails to obtain a protective order against such disclosure, the Receiving Party may disclose Confidential Information to the extent legally required.

   2. Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) as evidenced by written records, was rightfully known to the Receiving Party, without obligation of confidentiality (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as evidenced by written records; or (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of confidentiality obligations. In addition to the foregoing, the data derived by the Company in accordance with Clause 7.2 below in its aggregated and de-identified form shall not be deemed to be within definition of Confidential Information.

   3. Remedies. The Receiving Party agrees that a breach of this Clause 6 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

7. Proprietary Rights

   1. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services, Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, (c) all Intellectual Property Rights related to any of the foregoing, and (d) any depersonalized, aggregated data, information or analysis derived from Customer Data.

   2. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to or derived from the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

   3. No rights or licenses are granted except as expressly set forth herein.

8. Term and Termination

   1. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:

   2. if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party;

   3. if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing;

   4. Violation of the provisions of clause 11.1 of these Terms.

   5. Upon termination of the Agreement (i) the license granted under the Agreement shall be revoked with immediate effect and the Customer shall immediately cease using the Software and the Platform; (ii) Company shall, upon receipt of a written request from the Customer, promptly return, or at the other Party’s request, destroy all Confidential Information of the Customer (including without limitation the Customer Data and the Documentation). Customer shall return or destroy if requested by the Company all Confidential Information of the Company. All other rights and obligations of the Parties under the Agreement shall expire upon termination of the Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination. All clauses which naturally survive the termination of the Agreement shall continue to apply. In the event of termination of the Agreement by the Customer for convenience prior to the expiry of the Lock-In Period or termination of the Agreement by the Company for breach committed by the Customer during the Lock-In Period, the Customer shall be liable to pay the Company Fee for the balance term of the Lock-In Period.

9. Indemnification

   1. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses resulting from third party claims arising due to (a) any breach of the Agreement by such Party, (b) any gross negligence or wilful misconduct (c) breach of Intellectual Property Rights; (d) violation of any applicable statute, regulation, or law (a “Claim”). This indemnity does not apply to, and Company will have no obligation to the Customer for, any infringement or misappropriation claim that arises from (i) modifications to the Platform/Software by anyone other than Company; (ii) modifications to the Services based upon specifications furnished by the Customer; (iii) Customer’s use of the Services/Software other than as specified in the Agreement or in the applicable documentation accompanying the Agreement, (iv) use of the Platform/Software in conjunction with third-party software, hardware or data other than that approved by Company, (v) where Customer continues an alleged infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement or (vi) any combination of the foregoing. Customer shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Company all reasonable information and assistance regarding such claim.

   2. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defence (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.

   3. In the event any portion of the Services are held or believed by Company to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Platform is used or accessed, then in addition to any other rights in this clause 9, Company (where the Infringing Materials are the Services) or Customer (where the Infringing Materials are the Customer Data or Customer Marks) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other Party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other Party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate the Agreement, provided that in such case Company shall promptly refund to Customer all unused License Subscription Fees paid by Customer to Company.

   4. THIS CLAUSE 9 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.

10. Limitation of Liability

    1. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY IS WITH RESPECT TO CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE COMPANY FOR ANY CLAIMS ARISING OUT OF THE AGREEMENT SHALL IN NO EVENT EXCEED FEE PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THE AGREEMENT IN THE THREE (3) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

11. Miscellaneous

    1. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom the Restricted Party worked to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this clause, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement for “cause”.

    2. The Customer hereby expressly acknowledges and agrees that the Company may share additional information about the additional products, services or other communication with the Customer and its Personnel through its newsletters vide email - locus-users@locus.sh.

    3. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under the Agreement without consent. The Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. All notices will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

    4. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under the Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.