TRANSPORTATION SERVICES AGREEMENT

Transcription

1 TRANSPORTATION SERVICES AGREEMENT for BROKERAGE / SUPPLY CHAIN CONSULTING/ TRANSPORTATION MANAGEMENT SERVICES (TMS) / SOFTWARE AS A SERVICE I. PARTIES TO THE AGREEMENT This Agreement is entered into this day of, 20, by and between Hall Enterprises Inc., d/b/a Logistics Planning Services ("LPS" or "BROKER"), with a principal place of business at 731 Bielenberg Drive, Suite 108, Woodbury, MN 55125, and ("CUSTOMER" or "SHIPPER ), with a principal place of business at, collectively, the "Parties". Logistics Planning Services is a Registered Property Broker, Lic. No. MC B. "Registered" means operated under authority issued by the Federal Motor Carrier Safety Administration (or its predecessors) within the U.S. Department of Transportation. II. SERVICES LPS provides transportation brokerage, supply chain consulting, transportation management, and SAAS services to CUSTOMER as a licensed transportation broker. The specific scope of the services to be provided CUSTOMER shall be defined on the attached Statement of Work. The Chart below indicates which services LPS is providing and the transportation role of the CUSTOMER. SERVICES TO BE PROVIDED BY LPS A BROKER TRANSPORTATION MANAGEMENT SERVICES B SUPPLY CHAIN CONSULTING SERVICES (Non- Carrier) SAAS (SOFTWARE AS A SERVICE)

2 LPS is at all times acting as a transportation broker. LPS is not in any circumstances a shipper, carrier, bailee, bailor, consignee, consignor, freight forwarder or warehouseman. The parties intend that any document which references any status other than broker shall be read and interpreted as if LPS is broker and not a shipper, carrier, bailee, bailor, consignee, consignor, freight forwarder, warehouser, or any status other than broker. A. SERVICE (BROKER / TMS) BROKER agrees to arrange for transportation of SHIPPER's freight pursuant to the terms and conditions of this Agreement and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of freight covered by this Agreement. BROKER's responsibility under this Agreement shall be limited to arranging for, but not actually performing, transportation of SHIPPER's freight. The PARTIES may, upon written mutual agreement, include additional service terms as specified in the Statement of Work being attached hereto as Exhibit A (each, an "SOW" or "Statement of Work"). Under no circumstances shall LPS act as or be deemed to be a Carrier. In the event that LPS is identified as a Carrier on any document, such designation shall be deemed to have been a mistake with no legal impact or authority. LPS shall provide CUSTOMER and CUSTOMER's affiliates and/or designees with the services set forth in the respective Statement of Work. As used herein, the term "Services" shall mean services generally involving labor and materials for a specific Statement of Work. This agreement contains the terms by which the SOW(s) shall be performed. In the event of a conflict between the provisions hereof and an SOW, the terms of this Agreement shall control. 1. TERM The term of enrollment in the Program shall be one year from the date hereof (the "Enrollment Date") and thereafter it shall automatically be renewed for successive (1) year periods, unless terminated, upon sixty (60) days prior written notice, with or without cause, by either Party at any time, including the initial term. 2. SHIPPING BROKER agrees to arrange for the transportation of said shipments, as well as any other shipments offered by SHIPPER. Shipper is not restricted from tendering freight to other brokers, or directly to motor carriers. BROKER is not restricted from arranging transportation for other parties. a. SHIPPER shall be responsible to BROKER for timely and accurate delivery instructions and description of the cargo, including any special handling requirements, for any shipment b. Carrier shall authorize BROKER to invoice SHIPPER for services provided by the Carrier. Carrier shall further agree that BROKER is the sole party responsible 2

3 for payment of its invoices and that, under no circumstance, will Carrier seek payment from the shipper, consignee or BROKER's customer c. Carrier shall agree that, at no time during the term of its contract with BROKER, shall it have an "Unsatisfactory" safety rating as determined by the Federal Motor Carrier Safety Administration (FMCSA). If Carrier receives an Unsatisfactory safety rating, it shall immediately notify BROKER. BROKER shall not knowingly utilize any carrier with an unsatisfactory safety rating in the performance of this Agreement. d. Carrier shall agree that the terms and conditions of its contract with BROKER shall apply on all shipments it handles for BROKER Any terms in a tariff that are referenced in the carrier contract which are inconsistent with the contract shall be subordinate to the terms of the contract. e. Carrier shall expressly waive all rights and remedies under Title 49 U.S.C., Subtitle IV, Part B to the extent that they conflict with the contract. f. BROKER further warrants it will require proof of insurance and operating authority from each Carrier and, should BROKER utilize the services of any Carrier or other broker on SHIPPER's behalf, which Carrier and/or broker does not have proof of insurance and/or operating authority, BROKER agrees to indemnify and hold harmless SHIPPER from all legitimate claims not paid by Carrier, including but not limited to cargo loss and damage claims. 3. FREIGHT CARRIAGE BROKER warrants that it has entered into, or will enter into, bilateral contracts with each carrier it utilizes in the performance of this Agreement. BROKER further warrants that those contracts comply with all applicable federal and state regulations and shall include the following provisions: a. Carrier shall agree to defend, indemnify and hold BROKER and SHIPPER harmless from all damages, claims or losses arising out of its performance of the Agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death. b. Carrier shall agree that its liability for cargo loss or damage shall be no less than that of a Common Carrier as provided for in 49 USC (the Carmack Amendment). Exclusions in Carrier's insurance coverage shall not exonerate Carrier from this liability. For shipments outside of the United States the terms in Foreign Shipments Appendix D of this Agreement shall apply. 4. INSURANCE: 3

4 a. BROKER shall verify that each carrier it utilizes in the performance of this Agreement has insurance coverage as defined below. b. Upon request, CARRIER shall furnish BROKER with Certificate(s) of Insurance, or insurance policies. LPS will request that Carrier provide thirty (30) days advance written notice of cancellation or termination, and unless otherwise agreed, subject to the following minimum limits: General liability $1,000,000.00; motor vehicle (including hired and non-owned vehicles) $1,000,000.00, ($5,000,000 if transporting hazardous materials including environmental damages due to release or discharge of hazardous substances); cargo damage/loss, $100,000.00; workers compensation with limits required by law. Except for the higher coverage limits which may be specified above, the insurance policies shall comply with minimum requirements of the Federal Motor Carrier Safety Administration and any other applicable regulatory state agency. Nothing in this Agreement shall be construed to avoid or limit CARRIER s liability due to any exclusion or deductible in any insurance policy. c. Carrier shall agree that the provisions contained in 49 CFR et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage. 5. RECEIPTS AND BILLS OF LADING If requested by SHIPPER, BROKER agrees to provide SHIPPER with proof of acceptance and delivery of such loads in the form of a signed Bill of Lading or Proof of Delivery, as specified by SHIPPER. SHIPPER's insertion of BROKER's name on the bill of lading shall be for SHIPPER convenience only and shall not change BROKER's status as a property broker. The terms and conditions of any freight documentation used by BROKER or carrier selected by BROKER may not supplement, alter, or modify the terms of this Agreement. 6. CLAIMS a. Freight Claims: BROKER shall assist SHIPPER with filing of claims for cargo loss or damage with CARRIER. Claims must be filed within one hundred eighty (180) days from the date of such loss, shortage or damage, which for purposes of the Agreement shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. SHIPPER must file any civil action against Carrier in a Court of Law within two (2) years from the date the carrier or BROKER provides written notice to SHIPPER that the carrier has disallowed any part of the claim in the notice. Carriers utilized by BROKER shall agree in writing with BROKER to be liable for cargo loss or damage as outlined above. The carriers' cargo liability for any one shipment shall not exceed $100,000.00, unless BROKER is notified by SHIPPER of the increased value prior to shipment pickup and with reasonable advance notice to allow BROKER and/or the carrier to procure additional insurance coverage. It is understood and agreed that the BROKER is not a Carrier 4

5 and that the BROKER shall not be held liable for loss, damage or delay in the transportation of SHIPPER's property unless caused by BROKER's negligent acts or omissions in the performance of this Agreement. BROKER shall assist SHIPPER in the filing and/or processing of claims with the Carrier. If payment of claim is made by BROKER to SHIPPER, SHIPPER automatically assigns its rights and interest in the claim to BROKER so as to allow BROKER to subrogate its loss. In no event shall BROKER or BROKER's Carrier be liable to SHIPPER or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment, unless SHIPPER has informed BROKER in written or electronic form, prior to or when tendering a shipment or series of shipments to BROKER, of the potential nature, type and approximate value of such damages, and BROKER specifically agrees in written or electronic form to accept responsibility for such damages. NOTE: Concealed damage claims must be filed within five (5) days of shipment delivery to ensure that liability for proving loss or damage remains with the carrier. b. All Other Claims: The PARTIES shall notify each other within sixty (60) days of learning of any claims other than cargo loss or damage claims, and shall file any such claims with the other Party within one hundred eighty (180) days from the date of notice. Civil action, if any, shall be commenced in a Court of Law within two (2) years from the date either Party provides written notice to the other Party of such a claim 7. INSURANCE BROKER agrees to procure and maintain at own expense, at all times during the term of this Agreement, the following insurance coverage amounts: A. Comprehensive general liability insurance covering bodily injury and property damage $1,000,000 per occurrence B. Contingent Cargo Insurance $25,000 each occurrence C. Errors and Omissions Insurance $2,000,000 (for data on common insurance coverage limits see BROKER shall submit to SHIPPER a certificate of insurance as evidence of such coverage and which names SHIPPER as "Certificate Holder". 8. SURETY BOND BROKER shall maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration is the amount of $100,000 and furnish SHIPPER with proof upon request. 5

6 9. INDEPENDENT CONTRACTOR It is understood between BROKER and SHIPPER that BROKER is not an agent for the Carrier or SHIPPER and shall remain at all times an independent contractor. SHIPPER does not exercise or retain any control or supervision over BROKER, its operations, employees, or carriers. 10. HAZARDOUS MATERIALS SHIPPER and BROKER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR and 173 et seq. to the extent that any shipments constitute hazardous materials. SHIPPER is obligated to inform BROKER immediately if any such shipments so constitute hazardous materials. SHIPPER shall defend, indemnify and hold BROKER harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of SHIPPER's failure to comply with applicable hazardous materials laws and regulations. 11. GENERAL BROKER/TMS SERVICES The parties acknowledge that the general BROKER/TMS services to be provided by LPS to CUSTOMER on the Enrollment Date include, without limitation: (a) LPS shall make available to CUSTOMER, through the internet, access to the system so that CUSTOMER can contract for transportation services with Service Providers in accordance with the Service Provider Contracts then in effect; (b) LPS through its freight payment service, shall receive, pre-audit and pay (and if necessary contact the Service Provider for adjustments in) all invoices for services provided by a Service Provider to CUSTOMER through the Program which invoices are forwarded the freight payment service by the Service Provider or by CUSTOMER; and (c) LPS freight payment service shall provide CUSTOMER with various standard accounting and logistics reports and Internet access to transportation data; and (d) LPS shall provide loss & damage freight claims processing on behalf of CUSTOMER with transportation Service Providers for claims exceeding the filing minimum in effect at that time; and (e) LPS shall provide toll-free telephone support to CUSTOMER for transportation services questions. B. SERVICE: (SUPPLY CHAIN CONSULTING / SAAS) 1. ENROLLMENT Subject to the terms and conditions of this Agreement, CUSTOMER hereby subscribes to the services provided by the Supply Chain Consulting group of LPS, or subscribes to a SAAS relationship with LPS. As a condition of enrollment, CUSTOMER subscribes to the services provided under the statement of work or formal agreements negotiated or hereafter negotiated by LPS and providers of transportation services (the "Service 6

7 2. FEES Providers") whereby the Service Providers agree to provide supply chain consulting services upon certain terms, conditions and rates to CUSTOMERS. LPS may also provide Software as a Service to the customer under the detailed terms outlined in a statement of work. In addition to those terms set forth in the SOW, CUSTOMER shall pay to LPS a Supply Chain & Transportation Services Consulting fee or a SAAS fee to be outlined based on the scope of work. During the Term of the Agreement, LPS shall provide to CUSTOMER those services which LPS is required to provide to CUSTOMER as set forth in the respective SOW. 3. DEVELOPED INFORMATION Unless otherwise set forth in a SOW, the parties acknowledge and agree that LPS will at all times retain and have sole and exclusive title to and ownership of all (i) deliverables, documentation and information provided by LPS to CUSTOMER under or in connection with a SOW, whether provided in hard-copy or electronic form, including, without limitation, all methodologies, processes, programs, tools/templates, software, templates, specifications, materials, analyses and assessments, and (ii) works of authorship, inventions, discoveries, concepts, ideas, designs, methods and information, whether or not patentable or copyrightable, developed, acquired, made, conceived or worked on by LPS or any of its employees or agents, either solely or jointly with others, in connection with the performance of services under or in connection with a SOW. LPS warrants and represents that no trade secrets or other confidential information of any person, firm, corporation or government agency will be negligently or knowingly disclosed by LPS to CUSTOMER in connection with the Services and that no third partyowned intellectual property will be used or incorporated by LPS in performance of the services, either directly or indirectly, unless LPS is permitted by law to do so. LPS also warrants that none of the provisions of this Agreement or Services to be performed by LPS contravenes or is in conflict with any agreement of LPS. 4. SERVICES INDEMNITY LPS warrants and represents that the Services shall be performed in a timely, professional and workmanlike manner and will comply in all material respects with the SOW. LPS further warrants and represents that all work product and Services developed or performed hereunder will be of original development by LPS and will not knowingly infringe upon or violate any known patent, copyright, trademark, trade secret, or other property right of any third party. LPS agrees that any intentional damage arising from any breach, only after LPS receives notice of the alleged breach and has opportunity to remedy the alleged breach, of this representation and warranty shall be promptly remedied by LPS at its sole expense. 7

8 Except as provided below, LPS with defend CUSTOMER against any claim, suit, action or proceeding alleging that the purchase or use by CUSTOMER of any LPS Service infringes a valid U.S. patent or copyright ("Services Claim"), and LPS will indemnify and hold harmless CUSTOMER against any and all finally awarded costs and expenses, including attorneys' fees, in connection with any such Services Claim. a. If the use of any LPS Service is enjoined or subject to a Services Claim, LPS may, at its option and expense, either procure for CUSTOMER the right to continue to use the affected Service, replace the affected Service with substantially equivalent, non-infringing service, or modify the affected Service so that it becomes non-infringing. In the event that none of the foregoing options is commercially reasonable, LPS may terminate the Service. b. LPS shall have no obligation to defend, indemnify or hold harmless Customer for any Services Claim or portion thereof that arises from (i) any negligent or willful act or omission by or attributable to CUSTOMER; (ii) any combination, use or operation of any Service with equipment or services provided by CUSTOMER or any third party; (iii) any addition to or modification of the Service by CUSTOMER, any third party or LPS at CUSTOMER's request; (iv) use of other than the then current unaltered release of any LPS-provided software used in the Service provided LPS has made such release available to CUSTOMER; (v) any equipment, system, product, process, method or service of CUSTOMER which otherwise infringed any U.S. patent or copyright asserted against CUSTOMER prior to the supply of the Service to CUSTOMER hereunder; (vi) functionality provided by LPS at the direction of CUSTOMER, its agents, employees, or other contractors (including the provision of functionality in accordance with technical specifications provided by the provision of functionality in accordance with technical specifications provided by CUSTOMER); or (vii) use or operation, by CUSTOMER, its agents, employees, or other contractors, of the Service other than as specified in this Agreement. The foregoing states the entire obligation of LPS to CUSTOMER and is CUSTOMER's sole and exclusive remedy with respect to any claim of infringement of any intellectual property right of any kind, including the manufacturers' or owners' indemnities applicable to the Service and software that LPS is authorized to pass through for the benefit of CUSTOMER, if any, and LPS disclaims all other warranties and obligations with respect thereto. C. OTHER PROVISIONS 1. ACKNOWLEDGMENTS CUSTOMER acknowledges that the Service Provider is solely responsible to provide any transportation services contracted for by CUSTOMER from such Service Provider through the Program and that LPS has no obligation to CUSTOMER under any Service Provider contract and CUSTOMER s sole remedies in the event of a breach of a Service Provider contract shall be 8

9 against the Service Provider. CUSTOMER acknowledges that: LPS has the right to amend or terminate the Agreement and the Program at any time; that LPS has the right to amend or terminate any Service Provider Contract at any time; and that CUSTOMER's sole remedy in the event of an amendment to the Agreement, the Program or any Service Provider contract shall be to terminate this Agreement upon notice to LPS in accordance with the terms hereof, if not sooner terminated. CUSTOMER acknowledges that LPS is a licensed transportation broker and that LPS sole obligations to CUSTOMER are to provide, during the Term, those services to CUSTOMER which are to be provided in each SOW. CUSTOMER acknowledges that LPS makes no representations as to the qualifications or fitness of any Service Provider except that LPS makes the sole warranty that LPS has qualified service provider s safety record, validated its insurance and negotiated pricing and service contracts with those transportation Service Providers as having Contracts or signed agreements with LPS from time to time. CUSTOMER agrees that the rights granted hereunder for CUSTOMER to use and participate in the Program and the Service Provider Contracts do not create any agency or employment relationship between CUSTOMER and LPS except for the relationship of transportation broker between LPS and the CUSTOMER. CUSTOMER acknowledges that it makes no representations concerning, or has no liability to CUSTOMER for any Internet problems which CUSTOMER may incur in trying to use the Program. CUSTOMER acknowledges that CUSTOMER is a mere licensee of LPS as to the Program and CUSTOMER shall acquire no ownership interest in the Service Provider Contracts, or in LPS, or any legal or equitable interest in any of the foregoing. Upon request by LPS, CUSTOMER shall acknowledge to any third party that CUSTOMER is a mere licensee under the Program and the Service Provider Contracts. The Program and data is protected by a fully redundant infrastructure; managed firewall and is certified as Level 1 SAS 70 compliant corporation. 2. INDEMNIFICATION LPS shall defend, indemnify, and hold harmless CUSTOMER, its directors, officers, employees, agents, affiliates, designees and subcontractors (the CUSTOMER Indemnitees ) from and against all liabilities, damages, losses, settlements, penalties, fines, costs or expenses (including reasonable attorneys fees) incurred by or asserted against any CUSTOMER Indemnitee arising out of, relating to, or occurring as a result of (a) performance of the Services, (b) any breach of LPS' representations, warranties, or covenants hereunder, (c) the negligent, reckless or intentional misconduct of LPS or any of its employees, agents, vendors, or contractors or (d) the intentional misappropriation by LPS or its employees, agents, vendors, or contractors of any Confidential Information. LPS will defend, indemnify, and hold harmless, at its own cost, the CUSTOMER Indemnitees from and against any and all liabilities, claims and demands for injury to or death of persons or damage to property arising out of or in connection with the performance of Services under this Agreement. CUSTOMER Indemnitee may seek indemnification from LPS provided that, the CUSTOMER Indemnitee will: a) give prompt written notice that includes facts giving rise to any claim for indemnification and failure to give such notice shall not relieve LPS of its obligations, except to the extent it is prejudiced by the failure to give notice; and b) reasonably cooperate in the defense of the claim when appropriate. LPS shall actively defend any claim in good faith and will not compromise or settle any claim without the prior written consent 9

10 of the CUSTOMER Indemnitee, which will not be unreasonably withheld. If LPS does not actively defend any claim in good faith, CUSTOMER Indemnitee may defend the claim, consent to any judgment or may settle the claim as reasonably appropriate without consent from LPS and LPS will remain responsible to indemnify the CUSTOMER Indemnitee pursuant to this Agreement. CUSTOMER shall defend, indemnify, and hold harmless LPS, its directors, officers, employees, agents, affiliates, designees and subcontractors (the LPS Indemnitees ) from and against all liabilities, damages, losses, settlements, penalties, fines, costs or expenses (including reasonable attorneys fees) incurred by or asserted against any LPS Indemnitee arising out of, relating to, or occurring as a result of (a) defects in CUSTOMER'S products known to CUSTOMER, (b) any breach of CUSTOMER'S representations, warranties, or covenants hereunder, (c) the negligent, reckless or intentional misconduct of CUSTOMER or any of its employees, agents, vendors, or contractors or (d) the intentional misappropriation by CUSTOMER or its employees, agents, vendors, or contractors of any Confidential Information. CUSTOMER will defend, indemnify, and hold harmless, at its own cost, the LPS Indemnitees from and against any and all liabilities, claims and demands for injury to or death of persons or damage to property arising out of or in connection with the performance of Services under this Agreement. LPS Indemnitee may seek indemnification from CUSTOMER provided that, the LPS Indemnitee will: a) give prompt written notice that includes facts giving rise to any claim for indemnification and failure to give such notice shall not relieve CUSTOMER of its obligations, except to the extent it is prejudiced by the failure to give notice; and b) reasonably cooperate in the defense of the claim when appropriate. CUSTOMER shall actively defend any claim in good faith and will not compromise or settle any claim without the prior written consent of the LPS Indemnitee, which will not be unreasonably withheld. If CUSTOMER does not actively defend any claim in good faith, LPS Indemnitee may defend the claim, consent to any judgment or may settle the claim as reasonably appropriate without consent from CUSTOMER and CUSTOMER will remain responsible to indemnify the LPS Indemnitee pursuant to this Agreement. At no time will CUSTOMER, BROKER or Carrier be liable for consequential damages tied to any service provided under this Agreement whether or not tied to a loss or damage claim. 3. DISPUTES In the event of a dispute arising out of this Agreement, including but not limited to Federal or State statutory claims, the Party's sole recourse (except as provided below) shall be to arbitration. Proceedings shall be conducted under the rules of the (select one): Transportation Arbitration and Mediation PLLC (TAM) American Arbitration Association (AAA) Transportation ADR Council, Inc. (ADR) DRC (Fruit and Vegetable Dispute Resolution Corp.) for fresh product related 10

11 claims Arbitration shall be upon mutual agreement of the Parties, or if no agreement, then at BROKER s sole discretion. Arbitration proceedings shall be started within eighteen (18) months from the date of delivery or scheduled date of delivery of the freight, whichever is later. Upon agreement of the Parties, arbitration proceedings may be conducted outside of the administrative control of the TAM, AAA, ADR, or DRC. The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The rationale and reasoning of the decision of arbitrator(s) shall be fully explained in a written opinion. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of arbitrators. Arbitration proceedings shall be conducted at the office of the AAA, ADR, DRC or TAM nearest St Paul, Minnesota or such other place as mutually agreed upon in writing, or by conference call or video conferencing upon agreement of the Parties, or as directed by the acting arbitration association. Provided, however, either Party may apply to a court of competent jurisdiction for injunctive relief. Unless preempted or controlled by federal transportation law and regulations, the laws of the State of Minnesota shall be controlling notwithstanding applicable conflicts of laws rules. The arbitration provisions of this paragraph shall not apply to enforcement of the award of arbitration. a. Subject to the time limitation set forth in above, for disputes where the amount in controversy exceeds $50,000, BROKER shall have the right, but not the obligation, to select litigation in order to resolve any disputes arising hereunder. In the event of litigation the prevailing Party shall be entitled to recover costs, expenses and reasonable attorney fees, including but not limited to any incurred on appeals. b. Subject to the time limitation set forth in above, for disputes where the amount in controversy does not exceed $10,000, BROKER shall have the right, but not the obligation, to select litigation in small claims court order to resolve any disputes arising hereunder. The prevailing Party shall be entitled to recover costs, expenses and reasonable attorney fees, including but not limited to any incurred on appeals. 4. LEGAL COMPLIANCE Both parties shall materially comply with all applicable laws, codes, regulations, ordinances and rules promulgated by any and all federal, state, municipal or other legislative bodies, courts or agencies. Both parties shall, at their expense, procure and maintain all permits or licenses which may be required at any time in connection with their performance hereunder for the procurement, storage or use of related equipment, materials or supplies and shall furnish to the other party, upon request, copies of each such permit or license. 5. CONFIDENTIAL INFORMATION 11

12 In the course of this Agreement, either Party may become the recipient of Confidential Information from the other. As such, each Party shall receive and hold all Confidential Information acquired from the other in strict confidence. The furnishing of Confidential Information by either Party shall not constitute or be construed as a grant of any express or implied license or other right, or a covenant not to sue by LPS to CUSTOMER or CUSTOMER to LPS. As used herein, the term Confidential Information shall mean information disclosed and identified as "Confidential Information" by either Party not generally known to the public, including, but not limited to: technical information, trade secrets, manufacturing processes or devices, techniques, data, formulas, inventions (whether or not patentable), designs, plans, drawings, know-how, specifications and characteristics of current products or products under development; research projects, methods and results, matters of a business nature such as information about pricing, costs and margins, pricing policies, markets, sales, supplies and customers, products, marketing or strategic plans, competitive information, financial information, and personnel records and other information of a similar nature; provided, however, that Confidential Information shall not include any information (a) which is known to the other Party prior to receipt from the other Party as demonstrated by contemporaneous written documentation; (b) which is or becomes public knowledge without breach of either Party's obligations to the other; (c) which is rightfully acquired by either Party from a third party without restriction on disclosure or use, as shown by written contemporaneous documentation; (d) which is publicly disclosed or used following either Party's receipt of written consent for such disclosure or use by an authorized officer of the other Party; or (e) for which disclosure is compelled by deposition, subpoena or other judicial requirement or governmental action, as evidenced by advice of legal counsel, provided that the respective Party give prompt advanced written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is reasonably possible, practicable and legally permissible to permit the other Party to obtain a protective order or take other responsive action. Furthermore, each party hereby warrants and represents to the other that it: a. will disclose such Confidential Information only to its employees and agents who have a reasonable business need to know the Confidential Information and who are subject to restrictions at least as stringent as those set forth in this Agreement to keep such information confidential. b. shall not, directly or indirectly, disclose or use Confidential Information, in whole or in part, for any purposes other than those expressly permitted by this Agreement. c. shall not, without the prior written consent of an authorized officer of the other Party, use the other Party's name in any publicity, advertisement or news release (nor will either Party disclose to any third party the existence, or the terms and conditions of this Agreement). d. shall not use Confidential Information for its own benefit (other than in the performance of its obligations hereunder) or the benefit of any other Party. 12

13 Upon the other party's request or upon termination of this Agreement, at either Party's option, the other Party shall immediately return or destroy all written, graphic, and other tangible forms of Confidential Information (and all copies) in the other Party's possession or control. 6. ASSIGNMENT LPS may freely assign this Agreement to its parent company, PARENT. An assignment to PARENT does not require pre-approval. Notice shall be given in a reasonable period of time after assignment. LPS shall remain responsible for all obligations under this Agreement arising through the date LPS gives notice of assignment. This Agreement is personal to LPS and CUSTOMER may not assign its obligations thereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. 7. NOTICE Any notice, request or demand required or desired to be given hereunder shall be in writing and shall be considered effective when delivered in person, upon mailing by certified mail or via Fed Ex or other nationally recognized courier at the following address: If to LPS: If to CUSTOMER: Kirsten Hall, CEO Logistics Planning Services 731 Bielenberg Drive, Suite 108 Woodbury, MN CHOICE OF LAW AND VENUE This agreement and each SOW shall be governed by the laws of the State of Minnesota, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. 9. SEVERABILITY In the event any of the terms of this Agreement are determined to be invalid ir unenforceable, no other terms shall be affected and unaffected terms shall remain valid and enforceable as written. The representations, rights and obligations of the parties hereunder shall survive termination of this agreement for any reason. 10. COUNTERPARTS This Agreement may be executed in any number of counterparts each of which shall be deemed to be a duplicate original hereof. 11. FORCE MAJEURE 13

14 In the event that either Party is prevented from performing its obligations under this Agreement because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockout or other labor disputes, such failures to perform (except for any payments due hereunder) shall be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, shall not constitute Force Majeure events. 12. ENTIRE AGREEMENT Unless otherwise agreed in writing, this Agreement contains the entire understanding of the Parties and supersedes all verbal or written prior agreements, arrangements, and understandings of the Parties relating to the subject matter stated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial or arbitration proceeding involving this Agreement. LPS: CUSTOMER: By: Name: Title: Date: By: Name: Title: Date: 14

15 STATEMENT OF WORK EXHIBIT A TRANSPORTATION SERVICES AGREEMENT [Pick the date] LPS agrees to perform the following (include specific deliverables or standards of performance): The Counterparty shall provide the following or preform the following functions: 15

16 STATEMENT OF WORK EXHIBIT A TRANSPORTATION SERVICES AGREEMENT BROKER/SHIPPER PAYMENT TERMS [Pick the date] BROKER shall invoice SHIPPER for its services in accordance with the rates, charges and provisions set forth in the SOW, attached, and any written supplements or revisions that are mutually agreed to between the PARTIES. If rates are negotiated between the PARTIES and not otherwise confirmed in writing, such rates shall be considered "written," and shall be binding, upon BROKER's invoice to SHIPPER and SHIPPER's payment to BROKER. SHIPPER agrees to pay BROKER's invoice within days of invoice date without deduction or setoff. BROKER shall apply payment to the amount due for the specified invoice, regardless whether there are earlier unpaid invoices. Payment of the freight charges to BROKER shall relieve SHIPPER, Consignee or other responsible party of any liability to the carrier for non-payment of its freight charges; and BROKER hereby covenants and agrees to indemnify SHIPPER, Consignee or other responsible party against such liability. DEFAULT. Both parties will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes in good faith. However, if either party materially fails to perform its duties under this Agreement, the party claiming default may terminate this Agreement on 10 (ten) days written notice to the other Party. SHIPPER shall be responsible to pay BROKER for any services performed prior to the termination of this Agreement and for shipments not yet completed and/or not yet invoiced to SHIPPER. Participation Fee. LPS will add a Program participation fees to the net transportation charges billed to CUSTOMER on each freight invoice, individual invoices can be batched for summary invoice payment. LPS a Supply Chain & Transportation Services Consulting fee or a SAAS fee to be outlined based on the scope of work. 1. Enterprise Offering Participation Fee - 15% LTL - TL - Expedite - Parcel - $0.35 on EDI and $1.50/shipment for paper 2. Supply Chain and Transportation Services Consulting Fee - 3. SAAS Fee - ****INSERT DETAILS OF PAYMENT STRUCTURE***** 16

17 STATEMENT OF WORK EXHIBIT A TRANSPORTATION SERVICES AGREEMENT [Pick the date] CUSTOMER agrees to pay via one of the following methods: a) via ACH; or b) via wire transfer. When CUSTOMER for two or more consecutive months delay payment of invoices that have reached credit term, i.e. fifteen (15) days from date of receipt by LPS for parcel & International carriers and thirty (30) days from date of receipt for all others (e.g. LTL, Truckload, Expedite, Others), then LPS may add a late fee of 1.0% to any past due balances. Participation fees shall not apply to charges such as duties and taxes. *LPS Direct is a service offering of LPS and reserves the right to competitively bid on Truckload, Expedite and Specialized Equipment shipments posted on the MyLPS TMS. When these transportation services are utilized, LPS Direct will bill CUSTOMER for those shipments as a transportation services company. These shipments will be processed through the normal freight payment process for CUSTOMER. In instances where LPS Direct bills CUSTOMER, LPS will waive its normal Participation Fee. *LPS Projects is a separate division of Hall Enterprises, Inc. When CUSTOMER elects to utilize this division for transportation services on large capital freight shipments, LPS Projects will bill CUSTOMER for those shipments as a transportation services company (i.e. Carrier). Large capital project shipments shall include, but not be limited to, those shipments that require permitted heavy-haul truckload, rail, barge, crane, rigging and ocean cargo services. These shipments will be processed through the normal freight payment process for CUSTOMER. In instances where LPS Projects bills CUSTOMER, LPS will waive its normal Participation Fee. 17