Terms and Conditions - Lift Pro Platform

Definitions

["Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.]
"Customer Data" means [other than Aggregated Statistics] information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
"Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP [includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but] does not include Customer Data.

Warranty Disclaimer

THE PROVIDER IP AND SERVICES ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

CUSTOMER SHALL ONLY USE PROVIDER IP AND SERVICES SOLELY AS A LIFT PLAN AID. PROVIDER IP AND SERVICES ARE A RECOMMENDATION AND SHALL NOT BE USED AS A SUBSTITUTE FOR CUSTOMER’S AND AUTHORIZED PERSONS’ GOOD JUDGMENT. USE OF PROVIDER IP, SERVICES AND THE INFORMATION PROVIDED THEREIN SHALL NOT SUPERSEDE OR OVERRIDE ANY APPLICABLE OPERATOR’S OR SAFETY MANUALS, INDUSTRY STANDARDS OR REGULATIONS. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE THAT LIFT OPERATIONS ARE SAFE AND ACCURATE IN ALL RESPECTS.

Indemnification

Provider Indemnification.
1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
2. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
3. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data.
Customer Indemnification. To the maximum extent permitted by law, Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from or arising in any manner out of Customer’s use of Provider IP (including the creation of lift plans therefrom), including any direct or Thid-Party Claims for death or injury to persons, damage or injury to property (including equipment), provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 8 EXCEED THE AMOUNTS PAID TO PROVIDER BY CUSTOMER IN THE PRECEEDING 6 MONTH PERIOD.

Limitations of Liability

Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) ANY CRANE, RIGGING OR OTHER FAILURE FOR ANY REASON, (g) INJURY TO PERSON OR PROPERTY INCURRED BY CUSTOMER OR ANY THIRD PARTY, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000.00, WHICHEVER IS LESS.

Intellectual Property Ownership and Feedback

PROVIDER IP

Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.

CUSTOMER DATA

Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer [, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics].

FEEDBACK

If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

Data Protection and Security Certifications

INFORMATION SECURITY POLICY STATEMENT
The security of information in all its forms is of the utmost importance to Senior Management. We acknowledge that as an organization, we can minimize information security risks through the preservation of confidentiality, integrity, and availability of information. This gives confidence to interested parties that risks due to potential incidents are adequately managed. Our ultimate goal to continually improve Information Security Management System performance within the business.
In order to achieve this, the following information security objectives have been established:
- Strategic and operational information security risks are understood and treated to be acceptable to Sarus Lifting
- The confidentiality of client information, product development, and marketing plans is protected
- The integrity of company records is preserved
- Public web services and internal networks meet specified availability standards
To achieve these objectives, we shall act to:
- Communicate this policy to all existing employees and to new employees upon commencement
- Comply with all legislative and other requirements which are relevant to Sarus Lifting
- Make our commitment information security and confidentiality visible to all interested
parties

Ongoing Support

In addition to paragraph 5 of the below SLA, Sarus Lifting will provide unlimited ongoing customer support via the Customer Success Manager assigned to Duffy Crane and Hauling.

Service Level Agreement

This section outlines the service levels to be provided in the delivery of Sarus Lifting. It also provides service delivery parameters, against which the delivery of Software as a Service (SaaS) will be evaluated. Based on this evaluation, Customer may be entitled to an adjustment to the Service Credits for the contracted services.

1. Service uptime commitment
For the purpose of measuring the quality of service that Sarus Lifting is delivering to Customer, Sarus Lifting provides the following commitment:

Sarus Lifting will provide Customer access to the SaaS production application on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9 % (“SaaS Services Uptime Metric”).

The SaaS Services Uptime Metric commences on the Go Live Date. “The Go Live Date” is the date at which Sarus Lifting has concluded end-user testing, Sarus Lifting has prepared production environment, Customer has become familiar with the software, and at which point the Customer end-users access the production environment with production data.

2. Measurement method

On a quarterly basis, the SaaS Services Uptime Metric will be measured using the measurable hours in the quarter (total time minus planned downtime, including maintenance, upgrades, etc.) as the denominator. The numerator is the denominator value minus the time of any outages in the quarter (duration of all outages combined) to give the percentage of available uptime (2,198 actual hours available / 2,200 possible available hours = 99.9 availability). An “outage” is defined as two consecutive monitor failures within a five-minute period, lasting until the condition has cleared.

3. Boundaries and exclusions
The SaaS Services Uptime Metric shall not apply to performance issues caused by the following:
• Overall Internet congestion, slowdown, or unavailability
• Unavailability of generic Internet services (e.g. DNS servers) due to virus or hacker attacks
• Force majeure events
• Actions or inactions of Customer (unless undertaken at the express direction of Sarus Lifting ) or third parties beyond the control of Sarus Lifting
• A result of Customer equipment or third-party computer hardware, software, or network infrastructure not within the sole control of Sarus Lifting
• Scheduled SaaS infrastructure maintenance

In addition to scheduled SaaS infrastructure maintenance, as defined in the Software as a Service data sheet and the terms, upgrades, and patches that occur approximately four times per year may require downtime in addition to the scheduled maintenance. The downtime will be scheduled in advance and coordinated with Customer.
4. Software-as-a-Service credits
Sarus Lifting exceeding, meeting, or failing to meet the SaaS Services Uptime Metric as measured over any quarter may be reflected in adjustments to the duration of the initial contract year for SaaS pursuant to the following schedule (“Service Credits”):

Between 99.9% - 100%

Meets goals

Between 99.0% - 99.8%

Tolerable
Five (5) day extension of term of the SaaS at no cost to Customer

Below 99.0%

Unacceptable
Ten (10) day extension of term of the SaaS at no cost to Customer

SaaS Ratings below 99% for a quarter shall be escalated by both parties to the executive level (or equivalent), as outlined in this schedule.

The SaaS Service Credits shall be cumulative and extend the initial term of the SaaS agreements at no cost to Customer. Therefore, any renewal of SaaS agreement shall be effective after SaaS Service Credits have been fully utilized.

The annual Service Credits are capped at thirty (30) days per annum.

5. Customer support
Sarus Lifting technical support is available from 6:00 am to 6:00 pm (MST) Monday through Friday, excluding all holidays.
The support is provided via the Support portal which is integrated with the Dashboard. Requests for support will be fulfilled based on priorities (Critical, High, Medium, Normal) which are determined by urgency and level of impact. New feature requests are NOT included in customer support.
Service Level response times to service requests are measured once a request is submitted via the Dashboard Support portal. Other forms of contact may affect the ability of Sarus Lifting Support to meet the requests in a timely fashion. Examples include:
-Direct emails to individual support personnel
-Direct phone calls to individual support personnel

6. Response times
The response time measures how long it takes the Sarus Lifting to respond to a support request raised via the Sarus Lifting Support portal.
Sarus Lifting is deemed to have responded when it has replied to the Customer’s initial request. This may be in the form of an email or telephone call, to either provide a solution or request further information.
Guaranteed response times depend on the severity of the issue. They are shown in this table:

Fatal - 10 Minutes

Severe - 15 Minutes

Minor - 30 Minutes

7. Severity levels
The severity levels shown in the tables above are defined as follows:

Fatal (Level 1): Complete degradation — all users and critical functions affected. Item or service completely unavailable.
Severe (Level 2): Significant degradation — many users or critical functions affected.
Minor (Level 3): Limited degradation — a limited number of users or functions affected. Business processes can continue.

8. Measurement and penalties
Response times are measured using the supplier’s support ticketing system, which tracks all issues from initial reporting to resolution.
It is vital the Customer raises every issue via this system. If an issue is not raised in this way, the guaranteed response time does not apply to that issue.
If the supplier fails to meet a guaranteed response, a penalty will be applied in the form of a credit for the Customer.
This means the following month’s fee payable by the Customer will be reduced on a sliding scale.
The level of penalty will be calculated depending on the number of hours by which the supplier missed the response time, minus the downtime permitted by the SLA:

Severity level

Penalty per hour (Prorated to the nearest minute)

1 - 5% of the total monthly fee

2 - 2% of the total monthly fee

3 - 1% of the total monthly fee

Important notes:
• Response time penalties in any month are capped at 50% of the total monthly fee
• Response times are measured during working hours (6 am — 6 pm MST, M-F). For instance, if an issue is reported at 6.00pm with a response time of 60 minutes, Sarus Lifting has until 9:00 am the following day to respond.

9. Minimum Requirements
The required configurations for access to Sarus Lifting include:
• Internet connection with adequate bandwidth
• Google Chrome Internet Browser
• Apple iPhone or iPad running iOS version 7.0+
• Android Tablet or Phone with minimum 1GB RAM and running Android 4.0+