Terms of Service

Last Modified: December 8, 2023

This Customer Terms of Service is made and entered into as of the subscription date (the “Effective Date”), by and between the end user (“Customer”), and crmSeries (“Vision”).

RECITALS

WHEREAS, Customer has provided to Vision certain proprietary data and other information regarding its operations (the “Proprietary Information”) in order to assist Vision in developing a web-based software application and related services, customized for use in the heavy equipment industry;

WHEREAS, Vision has developed and continues to enhance the web-based software application, and related services; and

WHEREAS, Customer desires to purchase these services, including access to the software application from Vision and Vision desires to provide such services to Customer.

NOW THEREFORE, in consideration of the premises and mutual representations, agreements, covenants, and warranties contained herein, the parties agree as follows:

1.             Vision Services.

1.1          Services Provided.  Vision shall provide to Customer the services which are set forth, together with their charges, on Schedule A attached hereto and incorporated herein (the “Services”).

1.2          Enhancements and Improvements.  General enhancements and updates to the existing Services provided hereunder shall be made available to Customer at no additional cost, but any new feature or service that may be developed or acquired by Vision during the term of this Agreement may, at Vision’s option, and subject to Customer’s acceptance, be made available to Customer at Vision’s then-current price for such new feature or service, and upon such other terms as Vision may reasonably deem appropriate. 

2.             Installation, Conversion, and Training.

2.1  Data Conversion In connection with Customer’s use of the Services under this Agreement, Vision shall provide Customer with import function within crmSeries to upload tab delimited data (equipment, revisit, and company) into Customer’s database.  If Customer’s data is required for import into Customer’s crmSeries database and the import function for the specific data does not exist and is valid data for crmSeries, Vision shall assist Customer with the import.  Data Conversion fees rates are set forth in Schedule C attached hereto and incorporated herein.

2.2          Software.  In connection with enabling Customer’s use of the Services under this Agreement, Vision shall provide to Customer the software set forth on Schedule B attached hereto and incorporated herein (the “Software”). 

2.2          Training.  Vision shall provide such training and other assistance as Vision and Customer jointly deem necessary to assure that Customer’s personnel are able to make effective use of the Services.  raining shall take place via the Internet at such times as are mutually agreeable to the parties hereto and at the rates set forth in Schedule C attached hereto and incorporated herein.

3.             Ownership.

3.1          Services and Software.  The parties agree that Vision will be and remain the owner of all rights in any Services and Software created by Vision during the course of this Agreement, even if such Service or Software was created while using the Proprietary Information made available to Vision by Customer.  For the purpose of accessing the Services, Vision or its third party provider grants Customer a non-transferable and non-exclusive right and license to use the object code of the Software. Subject to the limited licenses granted herein, Customer acquires no right, title or interest to any Services or Software created by Vision. Customer shall not modify, reverse engineer or decompile the Software, or create derivative works based on the Software. Customer shall not distribute the Software to any persons or entities other than Customer’s employees, consultants or contractors.

3.2          Enhancements and New Features.  Vision will retain exclusive ownership of all enhancements and updates to its Services, including any Software, as well as any new feature or services that may be developed or acquired by Vision during the term of this Agreement.

4.             Charges and Payments.

4.1          General.  Customer shall pay for the Services in accordance with Schedule A attached hereto, which may be adjusted from time to time by mutual written consent of the parties.  The charges for any partial month of service shall be prorated on the basis of a 30-day month.

4.2          Billing.  Vision shall invoice Customer monthly for all applicable charges.  If payment is not received by Vision within thirty (30) days of Customer’s receipt of the invoice, Customer agrees to pay Vision interest on any invoice amount outstanding after the due date at the then prime lending rate established by Chase Manhattan Bank plus one percent (1%), or the statutory maximum rate per annum, whichever is lower.  In the event Customer shall dispute any amount of any invoice, Customer shall promptly notify Vision of the dispute in writing, specifying in detail the basis for the dispute.  Failure to give such notice within ten (10) days of receipt of Vision’s invoice shall constitute a waiver of any objections to such invoice, except as to mathematical errors.  Customer shall pay to Vision that portion of the invoice not in dispute.  The parties shall endeavor to resolve any such disputes as promptly as possible.

4.3          Taxes, Utilities and Exclusions.  All charges shall be exclusive of any federal, state or local sales, use, excise, ad valorem or personal property taxes levied, or any fines, forfeitures, or penalties assessed in connection therewith, as a result of this Agreement or the installation or use of the Services hereunder.  Any such taxes which may be applicable will be paid by Customer.

5.             Term and Renewal of Agreement.

5.1          Initial Term.  The “Initial Term” of this Agreement shall begin as of the date of execution of this Agreement and continue for a period of one (1) month.

5.2          Automatic Renewal.  This Agreement shall continue thereafter for successive one (1) month terms until terminated by either party upon thirty (30) days written notice before the end of the then-current term.

6.             Effect of Termination.

6.1          Outstanding Amounts.  Upon termination of the Agreement for whatever cause, all unpaid amounts due to Vision pursuant to this Agreement, as of the date of termination, shall become immediately due and payable, and all Software provided by Vision shall, unless otherwise agreed to in writing by the parties, be promptly returned to Vision at Customer’s sole cost.

6.2          Customer Proprietary Information.  Upon termination of the Agreement for whatever cause, Vision shall immediately cease and desist from any and all use of Customer’s Proprietary Information.  Within five (5) business days of termination of this Agreement, Vision shall remove or destroy all Proprietary Information and related content that identifies Customer from Vision’s website and shall return to Customer all Proprietary Information in the same condition and format provided by Customer.  For the absence of doubt, this Section shall not be construed to limit the use by Vision of the modifications and enhancements made to the Software on the basis of Proprietary Information provided by Customer pursuant to the terms of this Agreement.

6.3          Termination of Access.  Immediately upon termination of this Agreement, Customer shall cease all use of the Services.  Within five (5) business days of termination of this Agreement, Vision shall terminate Customer’s website.

7.             Confidentiality.  Vision recognizes and acknowledges that the Proprietary Information constitutes valuable and unique assets of Customer and therefore agrees that it will not, either during or for a period of three (3) years after the term of this Agreement, directly or indirectly, use or disclose any Proprietary Information to any person, firm, corporation, association or other entity, for any reason whatsoever, unless previously authorized to do so by the Customer.  It is understood that the term “Proprietary Information” shall not include any information that has entered or enters the public domain through no fault of Vision.  For the purpose of enforcing this provision, the Customer may resort to any remedy available to it under the law.  For the absence of doubt, the parties desire to make clear that Vision may make the Services, including any Software, available to third parties; provided that Vision does not disclose any Proprietary Information in the course of making those Services available. 

8.             Miscellaneous

8.1          Force Majeure.

If either party is unable to perform this Agreement because of war, fire, civil commotion, acts of terror, freight embargoes, floods or other acts of God, action of any governmental authority (including but not limited to priorities or restrictions effected pursuant to the provisions of emergency legislation) and/or any other cause beyond its control such as DoS attack, immediately upon discovery of its inability to perform, the party unable to perform shall give notice to the other party as provided for herein.  Such notice will excuse both parties’ performance during the continuation of such period of inability.  In order to avail itself of the relief contained herein, a party must act diligently to remedy the cause of or to mitigate or overcome such inability.

8.2          Warranties.  Vision hereby warrants to Customer that it is the owner of the Software and Services or has the right to grant to Customer the license to use the Software and Services in the manner and for the purposes set forth in this Agreement without violating the rights of a third party.

8.3          Disclaimer.  VISION DISCLAIMS ALL WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE FOR DEFECTS IN MEDIA OR MATERIALS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND/OR WORKMANLIKE EFFORT.

8.4          Limitation of Liability.  VISION IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA OR USE OR COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF VISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VISION’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.

8.5          Indemnification.  Customer shall defend, indemnify and hold Vision, its licensors, affiliates, successors, assigns, officers, directors, shareholders and employees harmless from and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments, fines, penalties and expenses (including reasonable attorney’s fees and expenses regardless of whether litigation was commenced) arising from or relating to this Agreement.

9.             Applicable State Law.

The laws of Louisiana shall govern this Agreement and any dispute arising pursuant thereto.  The parties hereby waive any objection to the jurisdiction and proper venue of the Louisiana courts.  Both parties agree that the prevailing party shall be entitled to all legal costs, including reasonable attorney’s fees, associated with enforcing or otherwise obtaining the other party’s compliance with any provisions of this Agreement.

10.          Notices.

Any notice or other communication required to be given pursuant to the Agreement shall be deemed to have been given if in writing and mailed or sent via overnight courier. Your physical address will determine the crmSeries entity entering into this Agreement, the address to which you should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, as set out in the table below. For this Agreement, ‘Customer Location’ means your shipping or physical address.

Customer Location	Address of Notice	Governing Law
North America	Vision Corp. PO Box 86860 Baton Rouge LA 70879	Louisiana

11.          Assignment.

This Agreement shall inure to the benefit of and is binding upon the parties hereto and their respective successors and permitted assigns.  Neither party shall make an assignment of this Agreement to anyone other than an affiliate without obtaining the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed.

12.          Severability.

If one or more provisions of this Agreement, or of any instrument delivered pursuant to this Agreement, shall be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein or therein shall not be affected or impaired thereby.

13.          Schedules.

The Schedules referenced in this Agreement and the specifications referenced therein are a part of this Agreement with the same force and effect as if fully set forth herein.

14.          Counterparts/Facsimile.

This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.  A signature of an authorized officer of a party on a copy of this Agreement received by the other party by facsimile is binding upon the first party as an original.  Both parties agree that a photocopy of such facsimile may also be treated by the parties as a duplicate original.

15.          Entire Agreement.

This Agreement, including any attachments hereto, all of which form a part hereof, contains the entire understanding of the parties with respect to the matters set out herein, superseding all prior and contemporaneous agreements and understandings of the parties.

SCHEDULE A

SERVICES AND PRICES

Monthly per user fee $35 (10 – 100 users) $25 (101+ users)

crmSeries Server and Backup Support $450 per month

Equipment Sales Quote Module Monthly Fee

Up to 50 Equipment Sales Quote Users                              $750.00

51+ Equipment Sales Quote Users                                   $1,080.00

Pricing subject to change and does not include applicable taxes.

DealTracker Module Monthly Fee

1-100 DealTracker Users                                                    $595.00

101 – 200 DealTracker Users                                             $795.00

201+ DealTracker Users                                                     $1,000.00

Field Maintenance Module Monthly Fee                       $995.00

Inventory Request Module Monthly Fee                        $995.00

SCHEDULE B

SOFTWARE

crmSeries Heavy Equipment web

crmSeries Heavy Equipment mobile (iOS and Android)

SCHEDULE C

QUICKSTART

QuickStart Turnkey Setup and Training Services

QuickStart Training Internet (Introduction to crmSeries Heavy Equipment)

QuickStart Training Internet (Administration)

QuickStart Initial Database Setup

QuickStart HE Central Integration

QuickStart crmSeries Connect Automation Setup (ODBC Connection to Receive data from Backend System.  Customer will require knowledge of backend system.)

QuickStart Pricing: $18,000 (One-time Charge)

Pricing subject to change and does not include travel expenses or applicable taxes.  QuickStart does not include customization of crmSeries and will be priced separately.