Terms and Conditions tca best prcactice
AGREEMENT TO PARTICIPATE IN TCA BENCHMARKING TIER 1 PROGRAM-INGAUGE (Existing Best Practice Group Members)
THIS AGREEMENT (“Agreement”) is made and entered into by your Company, an existing Best Practice Groups member, (“User”) and Truckload Carriers Association (“TCA”) for the purpose of setting forth the terms and understandings by which User will participate in the TCA Benchmarking Tier 1 Program-inGauge (“Tier 1”), including but not limited to User’s subscription to access the Tier 1 website platform for obtaining comparisons of benchmarking data. This Agreement is effective upon your acceptance of the Agreement by typing in the word “Yes” and clicking the “Accept” button. You represent and warrant that you have the right and ability to act on behalf of User and to bind User with respect to the rights and obligations set forth in this Agreement.
BY TYPING IN THE WORD “YES” AND CLICKING THE ACCEPT BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS OF THE AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.
- Subscription to Tier 1 Website. Subject to the terms and conditions herein, TCA grants to User a nonexclusive, non-transferable, non-sublicensable, revocable license to access the Tier 1 website provided by or for TCA or its duly designated licensors and/or contractors, and/or their successors and/or assigns and made available to User pursuant to this Agreement solely for User’s own internal business purposes.
- Comparisons. In order to participate in Tier 1, User must agree to the terms of this Agreement, agree to the inGauge Antitrust Safeguards (“Safeguards”) which follow this Agreement, and pay the inGauge Subscription Fee set forth in Paragraph 9 below. User shall then complete an inGauge Carrier Application (“Application”) and the inGauge Carrier Survey Form (“Survey”), consisting of questions relating to various topics/key performance indicators (KPIs) and financial data. Based on the Application and Survey, User shall receive a comparison to other Users/participants in Tier 1 (inGauge) and/or Tier 2 (Best Practice Groups), including comparisons to the group average, without the identification of individual companies (the “inGauge Comparison”). The information in the Comparison shall be an aggregate of the data provided by participants in Tier 1 and Tier 2.
- Antitrust Compliance. User’s participation in Tier 1 and use of the Tier 1 website is subject to User’s review of and agreement to abide by the Safeguards, which follow this Agreement. By entering into this Agreement, User agrees to comply with the terms of the Safeguards with respect to Tier 1, the Tier 1 website, and any related activities.
- Antitrust Legal Responsibility. As a condition of participation in Tier 1 and use of the Tier 1 website, User acknowledges that there may be legal and antitrust risks involved with taking part in Tier 1 and that User has been informed of those risks. User agrees to assume full responsibility for evaluating its legal and antitrust risk associated with participating in Tier 1. User further recognizes that it must consult with its own legal counsel for the purpose of assessing all individual legal and antitrust risk associated with its participation in Tier 1. User agrees that it waives and releases TCA, and its contractors, including StakUp, Inc. and their respective officers, directors, employees, contractors, agents, and attorneys or legal counsel, from any and all potential antitrust liability that may arise from User’s participation and involvement in Tier 1.
- Participation. User’s membership in Tier 1 is on a voluntary basis.
- Confidential Information and Trade Secrets. User agrees to provide complete, accurate, and timely financial and operating data, that is consistent with the Safeguards, in the format requested by TCA, or its contractor. All Applications, Surveys, Comparisons, surveys, special reports or other data and information which User obtains or gains access to as a result of its participation in Tier 1 shall hereinafter be referred to as “Confidential Information/Trade Secrets”. The Confidential Information/Trade Secrets are for User’s own internal use only, and User agrees to hold all Confidential Information/Trade Secrets in confidence and not discuss, disclose, transmit, or otherwise communicate them to others or make any unauthorized copies of the Confidential Information/Trade Secrets; and to take all reasonable action necessary or appropriate, to prevent unauthorized use or disclosure of the Confidential Information/Trade Secrets.
- Rights in Tier 1 Information, Forms and Other Intellectual Property. User hereby grants TCA a non-exclusive, unrestricted, royalty-free, perpetual license to all information it submits whether in writing, electronically, orally, or by audio, video, or other recording as part of Tier 1. User recognizes that TCA owns all copyrights or other property rights in all Applications, Forms, Surveys, Comparisons, surveys, special reports, data, industry databases, composites, comparisons, questionnaires, worksheets, forms, analyses, reports, correspondence, memoranda, notes, tables, graphs, best practices presentations, and other intellectual property that it and/or its contractors, including StakUp Inc., and their respective officers, directors, employees, contractors, agents, boards, committees, or task forces create, assemble, or commission in connection with Tier 1 hereafter along with the items listed in the previous sentence (collectively “Works”). TCA shall have all rights in the Works including all uses that are not prohibited by this Agreement. To the extent User is later held to possess any rights in or to such intellectual property, User hereby grants TCA an exclusive, unrestricted, royalty-free license to all such intellectual property allowing TCA all uses, including publication and sale, that are not prohibited by this Agreement.
- Recourse for Violation of Confidentiality/Trade Secrets and/or Information/ Intellectual Property Provisions. User further acknowledges that conduct in violation of the Confidentiality/Trade Secrets and/or Information/Intellectual Property provisions of this Agreement shall result in irreparable harm to TCA and/or other participants in the Tier 1 (“Injured Parties”). User shall be liable for all harm and damages suffered by TCA as a result of User’s violation of the Confidentiality/Trade Secrets and/or Information/Intellectual Property provisions of this Agreement. Further, User, recognizing that mere monetary damages will not make the Injured Parties whole as a result of any breach of these provisions by User, consents to any temporary restraining order, preliminary injunction or similar court action sought by one or more of the Injured Parties to either prevent or stop any publication, disclosure or other unauthorized use of the Confidential Information/Trade Secrets or Works. User agrees that if a court determines that User has breached or threatened to breach this Agreement, including Paragraphs 6 and/or 7 of this Agreement, User shall pay all costs, expenses and disbursements incurred by the Injured Parties in bringing legal action to enforce this Agreement, including the Injured Parties attorneys’ fees and costs.
- Monthly inGauge Subscription Fee. User agrees to pay TCA the applicable inGauge Subscription Fee, which must be paid before User will be permitted access to the Tier 1 website. InGauge Subscription Fees are specified in the Monthly inGauge Subscription Fees Schedule, the current version of which is provided below. TCA may change the above-referenced fees at anytime and without advance notice to User. Tier 2 (Best Practice Groups) participants who subscribe to Tier 1 on or before October 31, 2015, will be provided with up to six (6) months of free access to and use of Tier 1, (the “Incentive Period”) with such Incentive Period in no event extending beyond March 31, 2016.
- Taxes. All quoted fees exclude taxes. User is responsible for the payment and remittance of all applicable federal, state and local taxes, value added or sales or use taxes, levies and assessments pertaining to all fees assessed under the Agreement (except taxes based upon TCA’s net income). If TCA is required to collect any such taxes from User, User shall pay and remit such taxes to TCA.
- Limitation on Liability/Indemnification. TCA does not make any warranty, express or implied, regarding the data contained in any Works or other forms of publication or distribution, or its fitness for a particular purpose or use. TCA disclaims any obligation to verify the accuracy or completeness of any data supplied by User, other participating carriers and users, or any other individual or entity. Neither TCA, its contractors, including StakUp, Inc. nor any of their respective officers, directors, employees, contractors, agents, or TCA’s attorneys or legal counsel, shall be liable to User or others for any loss, damage, or expense, including but not limited to compensatory, direct, indirect, consequential, punitive, special or exemplary damages, attorneys’ fees, legal costs, and/or any loss of business or profits arising out of or in any way connected with alleged defects in the data, delays in the delivery of Applications, Forms, Surveys, Comparisons, reports or Works, use of the data by User or other participating carriers or users, or release of confidential information. TCA’s sole obligation to User for any alleged defect or delay shall be to provide User with as accurate a copy of the affected Works as can be reasonably generated after User has given TCA written notice of the defect or delay. User agrees to defend, indemnify, and hold harmless TCA, and its contractors, including StakUp, Inc., and their respective officers, directors, employees, contractors, agents, and TCA’s attorneys and legal counsel, from any compensatory, direct, indirect, consequential, punitive, special, or exemplary loss, damage, fine, civil penalty, expense, including reasonable attorneys’ fees and legal costs for any action, or claim arising out of or in any way connected with User’s participation in Tier 1, any act or omission of User which violates the law, or any other obligations under this Agreement. This Paragraph 11 shall remain in full force and effect both during and after termination of this Agreement.
- Assignment. User may not assign or otherwise transfer the Agreement or any rights or obligations herein without the prior express written consent of TCA. Subject to the foregoing provisions of this paragraph, the Agreement shall be binding upon and shall inure to the benefit of the parties and their permitted successors and assigns.
- Notices. TCA may send User any notices required or permitted under this Agreement by sending User an email message to the email address listed in User’s account contact information, by sending a letter via certified mail, return receipt requested, to the contact address listed in User’s account contact information or by posting on the Tier 1 website. User may send TCA any notices required or permitted under this Agreement by sending TCA a letter via certified mail, return receipt requested, to TCA’s address as set forth on the Tier 1 website.
- Termination of Agreement. (i) Either TCA or User may terminate this Agreement by providing the other party with at least thirty (30) days advance written notice of such termination; (ii) TCA may terminate this Agreement immediately and without prior notice to User, if User fails to timely pay subscription fees, to timely submit any information required for participation in Tier 1 or User fails to comply with the obligations of User under this Agreement or the inGauge Antitrust Safeguards; (iii) TCA may terminate this Agreement effective on one (1) day’s notice to User if TCA receives notice that Tier 1 and/or Tier 2 may be examined, audited or otherwise investigated by the Department of Justice or any other government agency; and/or (iv) TCA may terminate this Agreement and User’s participation in Tier 1 at any time and without prior notice to User if TCA discontinues or terminates Tier 1.
- Entire Agreement and Amendment. This Agreement and the Antitrust Safeguards which follow this Agreement, and which are all an integral part hereof and are incorporated herein by this reference, contains the entire agreement between the parties regarding Tier 1 and replaces and supersedes any prior written or oral agreements. There are no other agreements or representations not set forth therein. This Agreement may not be modified in any manner, nor may any provision of it or any legal remedy with respect to it be waived except through a written amendment signed by the parties.
- Applicable Law. This Agreement shall be deemed to have been drafted in accordance with the laws of the Commonwealth of Virginia and, in the event of any disagreement or litigation, the laws of the Commonwealth shall apply without regard to conflict-of-laws principles.
- Consent to Jurisdiction and Forum Selection. User agrees that all actions or proceedings arising in connection to this Agreement or resulting from participation in Tier 1 shall be tried and litigated exclusively in either the state and federal courts located in Alexandria, Virginia or the state and federal courts located in Nashville, Tennessee. The parties expressly consent to the jurisdiction of said courts and to such venues. The aforementioned choice of jurisdiction and venue is intended by the parties to be mandatory and precludes the possibility of litigation between User and any other party with respect to this Agreement or participation in Tier 1, in any jurisdiction other than those specified in this paragraph. The parties hereby waive any right they may otherwise have to a jury trial as to any action filed regarding this Agreement and specifically agree that any such action will be heard by the court without the intervention of a jury.
- Savings Clause. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. User further agrees that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, User shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
Monthly Subscription Fees Schedule
Discount/Premium Small Carriers (1-99 Power Units) Medium Carriers (100-499 Power Units) Large Carriers (500+ Power Units) Non Association Member and State Association Member Pricing 20% Premium to TCA Member Rates $264.00 $420.00 $600.00 TCA Member Pricing TCA Member Rates $220.00 $350.00 $500.00 TCA Best Practice Groups Member Pricing 10% Discount to TCA Member Rates $198.00 $315.00 $450.00
*Monthly Subscription Fee Once Incentive Period has expired.