By using any of the software, services, applications, or licensed intellectual property (collectively, the “Services”) of Dray Master, Inc., a Nevada corporation (“Dray Master” or Company) you agree to the terms of this Master Services Agreement (“Agreement”). If you do not agree to this Agreement, you must not use any of the Services. This Agreement is a legally binding document between you and Dray Master. This Agreement governs your use of all of the Services and is effective as of the date you first use any of the Services (the “Effective Date”). This Agreement expires at the end of the Term. You and Dray Master may individually be referred to as a “party” herein, or collectively as the “parties”.
1.1 “Affiliate” means, for a party at a given time, an entity that is directly controlled by, under common control with, or controls that party, where “control” means an ownership, voting or similar interest representing more than fifty percent (50%) of the total interests then outstanding of that entity.
1.2 “Authorized Users” means you and your Affiliate’s employees, contractors and service providers who are authorized to use your unique username to access the Software and/or Services.
1.3 “Customer Data” means any of your data that Dray Master receives through its provision of the Services.
1.4 “Intellectual Property Rights” means all Dray Master and its Affiliates’ worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications and moral rights, whether registered or unregistered.
1.5 “Software” means Dray Master’s commercial rate management software (including any updates, upgrades, or modifications thereto) in machine-readable format, or in any form that Dray Master provides to you pursuant to the agreement of the parties.
1.6 “SOW” means the statement of work between you and Dray Master.
1.7 “Term” means the term during which you may use the Services.
1.8 “You” or Your refers to the individual using the Services, the entity that you represent or your Affiliates and Authorized Users.
2.1 Authorized Users. You and your Authorized Users may use the Services pursuant to the terms of this Agreement. You are responsible for your Authorized Users’ compliance with this Agreement.
2.2 Non-exclusive License to Use Services. Dray Master grants you a nonexclusive, non-sublicensable, non-transferable worldwide license to use the Services during the Term solely for your internal business purposes, as is further described in (a) and (b) below.
2.3 Restrictions. You agree you will not:
3.1 Your Ownership. As between you and Dray Master, you retain all right, title and interest in and to the Personally Identifiable Customer Data and all related Intellectual Property Rights. You grant Dray Master a royalty-free, non-exclusive, non-transferable, worldwide right and license to use Customer Data (including both Personally Identifiable Customer Data and Non-Personal Customer Data, as defined below) to (i) provide the Services to you under this Agreement, and (ii) make improvements, enhancements, or modifications, to the Services from time to time. Dray Master will not sell or resell your Personally Identifiable Customer Data to any third party, except as expressly authorized by you in writing.
3.2 Dray Master Ownership. Dray Master retains all right, title and interest in and to the Services, including all related Intellectual Property Rights. Your rights to use the Services are only those expressly granted in this Agreement. All Services are licensed and not sold, as applicable, even if Dray Master uses words like “sale” or “purchase” in sales materials. Dray Master retains all rights to use Non-Personal Customer Data.
3.3 Feedback. If you provide any suggestions to Dray Master regarding the Services, you grant Dray Master a royalty-free, non-exclusive, transferable, sub-licensable, worldwide, perpetual, irrevocable license to use the suggestions and incorporate them into the Services without restriction.
4.1 Your Use of the Software.
4.2 Your Profile. You agree to provide accurate and complete Customer Data to Dray Master to create a customer profile as part of your use of the Software. Dray Master will assign a unique username as described in Section 4.1(a) above so you can log into the Software via your user account. You agree to keep your unique username and any other log in information strictly confidential only to be used by your Authorized Users, and agree not to share such information with third parties.
4.3 Your Visibility. You may select whether your profile is “visible” or “not visible” to other users within the Software. If you choose to remain visible to other users within the Software, you agree that other users may contact you or your Affiliates via the profile information you provide in the Software, or use your visible profile information to request a quote from you. If you choose to remain “not visible”, your profile will not be visible to other users of the Software, and other users of the Software will not have access to your profile information, but you will still be able to access and use rate data and related information.
4.4 Dray Master’s Profile Rights. Dray Master may suspend or terminate your profile within the Software upon breach or Termination of this Agreement, or upon you discontinuing any Services, with or without notice to you.
4.5 Dray Master Support. Dray Master will provide you internet-based support (via e-mail or other electronic means) in the event you need assistance with your access to or use of the Services. Dray Master may provide phone-based support depending on your subscription for the Services.
4.6 Dray Master Security. Upon written request, Dray Master will provide you with a summary of its data security policy.
5.1 Monthly Fees. In exchange for Dray Master granting you the License and providing the Services, you agree to pay Dray Master a monthly service fee (the Monthly Service Fee) for the term of this Agreement. The Monthly Service Fee is exclusive of any federal, state, or local sales, excise or other similar taxes applicable to the purchase of the Software. The Monthly Service Fee, along with the fees described below, will be further detailed in the SOW between you and Dray Master.
5.2 Onboarding Fees. Dray Master may charge you a one-time onboarding fee (the Onboarding Fee) set forth in the applicable SOW. If you choose to subscribe to the Services for a certain amount of time determined by Dray Master, Dray Master may fully or partially waive the Onboarding Fee.
5.3 Customer-Facing Rate Portal Fees. If you choose to create a customer-facing rate portal (CFRP) within the Software, you agree to pay Dray Master a monthly fee for access to and use of the CFRP (the “CFRP Fee”).
5.4 Continued Access and Use With Continued Payment. So long as you pay the Monthly Service Fee, and, as applicable, the Onboarding Fee and CFRP Fee, you will maintain your License to access and use the Software, which License shall include annual maintenance and enhancements by Dray Master.
5.5 Transition Fees. Immediately following the expiration or termination of this Agreement for any reason, Dray Master will cooperate with and assist you to ensure a smooth transition of services; provided, however, that Dray Master may charge in advance per hour rates for such assistance which rates shall be no higher than those rates normally charged by Dray Master for similar services to third parties.
5.6 Non-Payment of Fees. In the event you do not pay the Monthly Service Fee or, as applicable, the Onboarding Fee or CFRP Fee, Dray Master has the right to revoke the License and immediately terminate your access to the Services, with or without notice to you.
7.1 Services Warranty.
7.2 Disclaimer. The express warranties set forth in this Section 7 are in lieu of all other warranties. To the extent permitted by law, Dray Master disclaims all other warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement), and any warranties arising from usage of trade, course of dealing or course of performance, or fitness for a particular use. Dray Master does not warrant that the Services will meet your requirements or that they will be accurate or operate without interruption or error. Dray Master further does not warranty compatibility with any third-party applications, or continued compatibility with any third-party application with which it is currently compatible. You agree you have not relied on any promise, warranty, or representation not expressly provided in this Agreement.
8.1 Dray Master Indemnification.
8.2 Customer Indemnification. You will defend Dray Master against any unaffiliated third party claim (1) that the Customer Data infringes any patent, trademark or copyright, or misappropriates a trade secret of any third party; or (2) arising from your failure to comply with applicable privacy or data-related laws with respect to Customer Data (“Customer Data Claim”). You will indemnify Dray Master from the resulting costs and damages finally awarded against Dray Master to that third party by a court of competent jurisdiction or agreed to in settlement. Your obligations apply only if Dray Master: (i) promptly notifies you of the Customer Data Claim in writing, (ii) allows you sole control over the defense for the claim and any settlement negotiations, and (iii) reasonably cooperates in response to your requests for assistance. Dray Master may not settle or compromise any Customer Data Claim without your prior written consent.
9.1 Exclusion of Damages. You agree Dray Master will not be liable for any lost profits or business opportunities, loss of use, business interruption, or any indirect, punitive, special, incidental or consequential damages under any theory of liability. This exclusion applies regardless of whether you have been advised of the possibility of those damages.
9.2 Cap on Monetary Liability. You agree the maximum aggregate liability for Dray Master under this Agreement will not exceed an amount equal to the total fees paid or payable to Dray Master for your use of the Services in the twelve (12) months prior to the event giving rise to the claim.
9.3 Further limitations. Dray Master’s licensors and third-party service providers have no liability of any kind under this Agreement, and you may not bring a claim directly against any of them under this Agreement.
9.4 Exclusions. The exclusions and limitations in section will not apply to: (1) either party’s violation of the other party’s or its licensor’s Intellectual Property Rights; (2) either party’s obligations in section; (3) your payment obligations under section 5; (4) either party’s liability for death or personal injury caused by its negligence; or (5) any liability that cannot be excluded under applicable law.
10.1 Your General Obligations. You agree not to reproduce, duplicate, copy, sell, or otherwise disclose, or disseminate the Software, including operating instructions.
10.2 Confidential Information. Each party (the Disclosing Party) may from time to time during the term of this Agreement disclose to the other party (the Receiving party) certain non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, personnel, planning and other information (Confidential Information). The Disclosing Party shall mark all such Confidential Information in tangible form with the legend ‘confidential’, ‘proprietary’, or with similar legend. With respect to Confidential Information disclosed orally, the Disclosing Party shall describe such Confidential Information as such at the time of disclosure, and shall confirm such Confidential Information as such in writing within thirty (30) days after the date of oral disclosure.
10.3 Restrictions on Disclosure of Confidential Information. Except as expressly permitted by this Agreement, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know the Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. The Receiving Party shall provide copies of such written agreements to the Disclosing Party upon request.
10.4 Exclusions. Notwithstanding anything herein to the contrary, Confidential Information shall not be deemed to include any information which: (1) was already lawfully known to the Receiving Party without obligation of confidence at the time of disclosure by the Disclosing Party as reflected in the written records of Receiving Party; (2) was or has been disclosed by the Disclosing Party to a third-party without obligation of confidence; (3) was or becomes lawfully known to the general public without breach of this Agreement; (4) is independently developed by the Receiving Party without access to, or use of, the Confidential Information of the Disclosing Party; (5) is approved in writing by the Disclosing Party for disclosure; (6) is required to be disclosed in order for the Receiving Party to enforce its rights under this Agreement; or (7) is required to be disclosed by law or by the order of a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto.
10.5 Return or Erasure of Confidential Information. The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible form: (a) upon the written request of the Disclosing Party; or (b) upon the termination of this Agreement, the Receiving Party shall certify promptly and in writing that it has done so. Except for the rights expressly described herein, neither party is granted any rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered), or any other rights, franchises or licenses of the other party.
10.6 Remedies. The discloser may seek an injunction to prevent the actual or threatened unauthorized disclosure of Confidential Information.
11.1 Term. This Agreement will remain in effect until the later of (1) the end of the period identified in the applicable SOW or (2) the termination or expiration of all Services under this Agreement. Either party may terminate this Agreement before the end of the term if expressly permitted by this Agreement. Each Term is a continuous and non-divisible commitment for the full duration of the Term.
11.2 Termination For Convenience. Either party may terminate this Agreement upon ninety (90) days written notice to the other party.
11.3 Termination For Breach. If the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving written notice describing the breach from the other party, the non-breaching party may terminate this Agreement immediately by written notice to the breaching party. Termination under this section will also terminate any Services then in effect. In the event the alleged breach involves nonpayment, the breaching party shall have ten (10) days to cure such breach.
11.4 Termination For Insolvency. Either party may terminate this Agreement effective immediately by written notice if the other party (1) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or (2) becomes subject to control of a trustee, receiver or similar authority, or to any bankruptcy or insolvency proceeding. Termination under this section will also terminate any Services then in effect.
11.5 Effect of Expiration or Termination. Upon termination or expiration of Services, you and your Affiliates will stop using and Dray Master will stop providing the applicable Services. Upon request following termination or expiration of this Agreement, Dray Master and you will each delete any Confidential Information of the other party.
11.6 Survival. The following Sections will survive termination or expiration of this Agreement: 3, 4, 5, 7, 8, 9, 10, and 12.
12.1 Assignment. Neither party may assign its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party. But either party may assign this Agreement without consent to its Affiliates or to any successor or assign that has acquired substantially all of its business relating to this Agreement. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any purported assignment in violation of this section is void.
12.2 Governing Law and Exclusive Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Nevada, without regard to its choice of law provisions. By executing this Agreement, the parties agree and submit to personal jurisdiction in the State of Nevada for the purposes of any suit or proceeding arising out of or related to this Agreement or its validity, interpretation, construction, performance, breach, enforcement, or remedies, and the parties agree that any such suit or proceeding shall be venued only in the state or federal courts located in Clark County, Nevada.
12.3 Compliance with Laws. Each party will comply with any statutes and regulations that apply to it in its performance under this Agreement.
12.4 Notice. All notices will be in writing and deemed given the second business day after mailing if sent by a recognized overnight courier (receipt requested). Dray Master will send notices to you at the address listed in your profile in the Software, or the address listed in the applicable SOW. You agree to send notices to Dray Master at: Dray Master Inc., 405 Max Court, Suite 241A, Henderson, NV 89011, Attn: Travis Barnier, Phone: (702) 425-3110, Email: firstname.lastname@example.org.
12.5 Force Majeure. Neither party will be liable for any delay or failure to perform any obligations under this Agreement or any Services (except for payment obligations), due to any cause beyond its reasonable control including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, supply failures by third party service providers (including internet service provider failures or delays, or denial of service attacks), earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
12.6 Entire Agreement. The Agreement, as it may be amended from time to time, along with the Ancillary Documents incorporated herein, as they may be modified from time to time, constitutes the entire agreement of the parties regarding its subject matter. The Agreement supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, between the parties regarding its subject matter.
12.7 Counterparts. Each party may sign this agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.
12.8 Waiver and Amendment. The waiver of a breach of any provision of the Agreement will not constitute a waiver of any other provision or any later breach. Any modification of this Agreement must be in writing and signed by the party against whom the modification will be enforced.
12.9 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture or agency relationship. Neither party has any authority to assume or create any obligation of any kind in the name of or on behalf of the other party.
12.10 Third Party Rights. Other than as expressly provided in the Agreement, the Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to the Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
12.11 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the maximum extent feasible or permitted by law.
12.12 Construction. The Services will be provided in the English language. The words “include” and “including” mean “including but not limited to.” Section headings are for convenience only and are not to be used in interpreting this Agreement.
End of Agreement. This document was last updated March 1, 2020.