TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS (these “T&Cs”) govern the relationship by and between Global Tracking Communications, LLC (“Company”) and the customer named in the Purchase Order (“Customer”), and are effective as of the date Customer signs the Purchase Order (the “Effective Date”). These T&Cs are hereby incorporated into each Purchase Order signed by Customer and are collectively, along with any exhibits, schedules, addenda or written and agreed upon amendments, referred to as this “Agreement”. Company and Customer are each sometimes referred to herein as a “Party” and together as the “Parties”. Execution of a Purchase Order by Customer, whether in writing, on the internet, or via electronic mail shall evidence Customer’s acceptance and agreement to these T&Cs (all of which are incorporated into each Purchase Order) and shall form a binding agreement between the Parties.

Definitions.

    1. Products” means the hardware and related equipment set forth in the Purchase Order or otherwise provided by Company in connection with providing the Services to Customer.
    2. Purchase Order” means the purchase or sales order to which these T&Cs are appended, and any amendments, modifications or supplements thereto that are signed by each of the Parties.
    3. Services” means the Products and the Software set forth in the Purchase Order and subscribed to by Customer.
    4. Software” means the software described in the Purchase Order, together with any software, processes, applications, programs, code or algorithms used to render the Services.

Term.

    1. The initial term of this Agreement begins on the Effective Date and continues for the period specified in the Purchase Order (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each a, “Renewal Term”), unless either Party sends a written termination notice to the other Party no less than 60 days prior to the expiration of the Initial Term or any Renewal Term, as applicable. The Initial Term and any Renewal Term are collectively referred to herein as the “Term”.
    2. Either Party may terminate this Agreement if the other Party is in breach of any material term hereof, and such breach is not cured within 90 days of the non-breaching Party providing written notice of such breach to the breaching party.
    3. In addition to the termination rights set forth in Section 2.2, Company may terminate this Agreement in the event that (a) Customer does not pay any amount due within 30 days of when such amount first becomes due or (b) Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors (in either case, a “Specific Event of Default”). In the event of a Specific Event of Default, Company may, in addition to the other rights set forth in this Agreement, take one or more of the following actions: (i) suspend the Services and impose a reactivation fee on Customer if the Services are subsequently reactivated; (ii) charge interest on fees that are due and payable at the highest rate permitted by law; (iii) terminate the Agreement and require Customer to pay, within 30 days after such termination, all of the fees that would have been due for the Services for the remainder of the then-current Term had this Agreement not been terminated; and (iv) require Customer to return to Company any Products that may be in Customer’s possession (or require Customer to pay the current catalog prices for such Products), unless such Products were previously purchased and paid for by Customer as set forth in the Purchase Order.
    4. In addition to the termination rights in Section 2.2, Customer may terminate this Agreement before the end of the applicable Term provided that Customer pays Company within 30 days after such termination (a) all unpaid fees for the Services through the date of such termination and (b) all fees that would have been due for the Services for the remainder of the then-current Term had this Agreement not been terminated.
    5. Neither expiration nor termination of this Agreement shall terminate those obligations and rights of the Parties pursuant to this Agreement which by their express terms are intended to survive. Without limiting the foregoing, the respective rights and obligations of the Parties under Sections 4–6 and 10–13 shall survive the expiration or termination of this Agreement regardless of when such termination becomes effective.

License Grants.

    1. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive and non-transferable right to access and use the Software during the Term.
    2. Customer grants Company a worldwide license to host, copy, transmit and display Customer’s data inputted into the Software or otherwise created through Customer’s use of the Services. Further, Customer grants to Company the right to access, utilize and use any and all of Customer’s systems, software, hardware, data, services and other property necessary for Company to render the Services, including but not limited to authorizing Company to access Customer’s systems and accounts in order to provide troubleshooting and support services in connection with the Services. In addition, to the extent such systems, software, data, hardware and other property are licensed to Customer, in whole or in part, or are property of or services provided to Customer by a third party, Customer represents and warrants to Company that Customer has the right to allow, or Customer has secured all rights, licenses, and clearances allowing, Company to access, use or utilize such third party property or services in providing the Services. Customer agrees to indemnify and hold harmless Company against all claims arising from Company’s access, use or utilization of property of Customer or that of any third party in connection with providing the Services.

Delivery, Shipping and Installation of the Products.

    1. Risk of loss shall pass to Customer when the Products are delivered to a common carrier for shipment. Company shall not be liable for any delay in transportation of the Products or the delay or non-delivery of the Products, if such delay or non-delivery is the result of any cause beyond the reasonable control of Company. If Customer breaches this Agreement, Company may decline to make further shipments without in any way affecting its rights under this Agreement.
    2. Customer shall have five days after receipt of the Products to inspect and to test the Products (the “Inspection Period”). Any of the Products not rejected by Customer at the end of the Inspection Period shall be deemed accepted by Customer, subject to the applicable Product Warranty (as defined below), if any. Customer’s sole remedy in respect of any non-conforming Products shall be limited to Company’s repair or replacement of such Products.
    3. If Customer, or its employees, representatives or sub-contractors, undertake to install the Products, Company shall not be liable for any loss or damage, arising directly or indirectly, as a result of such installation and Customer shall indemnify, defend and hold harmless Company and its directors, officers, employees, agents, representatives and affiliates from and against any claim of any kind that arises out of, or relates to, installation of the Products.
    4. Subject to Section 4.6, title to the Products is and will remain vested in Company, and Customer will not acquire any title or ownership interest in the Products. During the Term, Customer is responsible for all loss and damage to the Products. Customer agrees that it will not permit any lien, encumbrance or security interest to attach to the Products. At the end of the Term, Customer will contact Company to receive a return location for the Products and must then, at Customer’s expense, uninstall, package and return the Products to the address provided by Company within 45 days after the end of the Term. If Customer does not return the Products, then Customer shall be liable to pay Company’s then current catalog prices for the Products upon receipt of an invoice from Company.
    5. Subject to Section 4.6, Company reserves a purchase money security interest in the Products. Customer agrees to execute any document appropriate or necessary to perfect such security interest, or in the alternative, Company may file this Agreement as a financing statement and/or chattel mortgage.
    6. If Customer is purchasing the Products, as set forth in the Purchase Order, the legal and beneficial ownership of the Products shall only pass to Customer after payment in full to Company of the price of the Products, and Sections 4.4 and 4.5 will cease to apply to the applicable Products upon Company’s receipt of such payment in full.

Payment, Fees and Taxes.

    1. All fees and other amounts due pursuant to this Agreement are payable in U.S. Dollars. Payment of all invoices shall be made by Customer within 30 days of the date on the invoice. Company may require Customer to provide Company with Customer’s banking or credit or debit card information, in which case Customer irrevocably and continuously authorizes Company to charge and pay all invoices by credit/debit card or automatic debit, as applicable. If Customer has not paid an invoice within 30 days of its receipt, Customer shall pay (in addition to the invoiced amount) a late fee equal to the lesser of five percent (5%) of such invoice amount or $250.00. In addition, any amounts not timely paid shall accrue interest at the highest rate allowed at law from the date of the invoice until paid in full. If Customer has not paid the invoice in full within 30 days of the invoice date, Company may pursue any of the rights set forth in Section 2.3.
    2. Customer authorizes and consents to Company performing a background check and collecting credit information and any other relevant information about Customer for purposes of making credit determinations in connection with this Agreement (including but not limited to providing Customer’s information to credit reporting agencies and obtaining credit references and reports).
    3. Fees for the Services may be set forth in the Purchase Order. If no fees are specified in the Purchase Order, Company’s standard fees for such or like services then in effect shall apply. Fees are exclusive of any and all applicable taxes (including, but not limited to, all sales, use, rental receipt and personal property taxes), surcharges, regulatory fees, levies, duties and pass-through charges (such as telecommunications charges, if billed through Company) (collectively, “Taxes and Charges”). Customer is responsible for the payment of all Taxes and Charges as and when due; however, Company may include such Taxes and Charges in its invoices to Customer if Company chooses to do so. Customer shall pay Company all Taxes and Charges set forth in each invoice. The failure of Company to collect Taxes and Charges, whether or not legally obligated to do so, shall not relieve Customer of its obligation to pay such Taxes and Charges.

Confidential Information.

    1. In connection with this Agreement, each of the Parties may disclose to the other Party information that relates to the disclosing Party’s, or disclosing Party’s customers’, business operations, financial condition, customers, products, services or technical knowledge (“Confidential Information”). Except as otherwise specifically agreed in writing, each Party agrees that (a) all information communicated to it by the other in connection with this Agreement and identified as confidential, (b) all information identified as confidential to which it has access in connection with this Agreement and (c) all information communicated to it that reasonably should have been understood to be confidential, will be “Confidential Information” and will be deemed to have been received in confidence and will be used only for purposes of this Agreement.
    2. Each Party’s Confidential Information will remain the property of that Party except as otherwise expressly provided in this Agreement. Each of the Parties will use reasonable care to safeguard and to prevent disclosing to third parties the Confidential Information of the other Party. Each Party may disclose relevant aspects of the other Party’s Confidential Information to its affiliates and employees to the extent such disclosure is reasonably necessary for the performance of its obligations, or the enforcement of its rights, under this Agreement; provided, however, that such Party will use reasonable efforts to ensure that all such persons comply with the confidentiality provisions contained in this Section 6. Company may disclose Customer’s Confidential Information to third party service providers provided that such third parties are restricted to using the Confidential Information for the sole purpose of providing the Services. Each Party will be responsible for any improper disclosure of Confidential Information by such Party’s affiliates, employees, agents, or contractors.
    3. Neither Party will: (a) use, or make any copies of, the Confidential Information of the other Party except to fulfill its rights and obligations under this Agreement; or (b) acquire any right in or assert any lien against the Confidential Information of the other Party. Neither Party may withhold the Confidential Information of the other Party or refuse for any reason (including due to the other Party’s actual or alleged breach of this Agreement) to promptly return to the other Party its Confidential Information (including copies thereof) if requested to do so. Upon expiration or termination of this Agreement and completion of a Party’s obligations under this Agreement, each Party will (except as otherwise provided in this Agreement) return or destroy all documentation in any medium that contains or refers to the other Party’s Confidential Information, and retain no copies. Subject to the foregoing confidentiality obligations, either Party may retain copies of the Confidential Information of the other Party to the extent required to document its performance or for compliance with applicable laws or regulations.
    4. This Section 6 will not apply to any particular information that either Party can demonstrate: (a) was rightfully known to the receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) was or is received by the receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the receiving Party can demonstrate was or is independently developed by the receiving Party without reference to or use of any Confidential Information. In addition, a Party will not be considered to have breached its obligations under this Section 6 for disclosing Confidential Information of the other Party to the extent required to satisfy any legal requirement of a competent governmental or regulatory authority, provided that promptly upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party prior to making such disclosure and provides a reasonable opportunity to the other Party to object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or (subject to applicable law) take such other action as it considers appropriate to protect the Confidential Information.
    5. In addition to the foregoing obligations, Customer agrees to hold the Software, and all usernames and passwords for the Services, in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein, to anyone other than a permitted user having a need for such disclosure, and then only to allow use of the Software as authorized herein. Customer shall take all reasonable steps to ensure that the provisions of this Section 6 are not violated by any employee, permitted user or any other person under Customer’s control or in its service. Customer shall be responsible for all access to the Services via its usernames and passwords, even if not authorized by Customer. If Customer believes that a password or other means to access Customer’s account has been lost or stolen or that an unauthorized person has or may attempt to use the Services, Customer must notify Company immediately. Further, Customer shall take all reasonable steps to ensure it does not transmit worms or viruses or any code of a destructive nature that may negatively affect the Services.

Ownership; Restrictions on Use.

    1. As between the Parties, Company retains all ownership of, and all intellectual property rights, in the Software and all software, equipment, processes and facilities utilized by or on behalf of Company to provide the Services, including all patents, trademarks, copyrights, trade secrets, and other property or intellectual property rights. Customer shall acquire no rights therein other than those limited rights specifically conferred by the license terms herein. Customer may not create derivative works based upon the Software or develop or request third parties to develop or modify any software based on ideas, processes or materials incorporated into the Software. Customer shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Software. All rights related to the Software that are not expressly granted to Customer under this Agreement are reserved by Company. In the event that Customer provides Company with any comments, suggestions or other feedback with respect to the Services, Company has the right to use such feedback in any way without restriction or obligation to Customer. Company shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from the feedback, including, without limitation, any modifications or enhancements to the Software or the Services.
    2. Customer may access and use the Services for Customer’s internal business use only, and not for the benefit of, or to provide services to, any third party. The Services granted under this Agreement may not be sold, resold, assigned, leased, rented, sublicensed or otherwise transferred or made available for use by third parties by Customer. Customer will not use the Services any for illegal, fraudulent or abusive purposes or in a way which would negatively affect Company’s reputation in the business community. Customer shall not gain or attempt to gain unauthorized access to any portion of the Software, the Products or their related systems or networks, for use in a manner that would exceed the scope of the Services granted under this Agreement, or facilitate any such unauthorized access for any third party. If any unauthorized access occurs, Customer shall promptly notify Company of the incident and shall reasonably cooperate in resolving the issue. Customer shall not reverse engineer, decompile, or disassemble the Software or the Products or otherwise attempt to discover the source code to the Software or the Products nor permit any third party to do so. Customer shall not attempt to disable or circumvent any security measures in place. Customer may not knowingly reproduce or copy the Software or the Products, in whole or in part. Customer shall not knowingly use the Services to store or transmit infringing, libelous or otherwise unlawful or tortuous material or any material in violation of third party privacy rights. Customer shall not interfere with or disrupt the integrity or performance of the Services or third party data contained therein. Customer will not access or utilize access to the Software, the Products or Company Confidential Information in connection with the development of, or assisting any third party in development of, any product or service that is competitive with the Services. Customer will not assert or encourage, assist or authorize any others to assert any claims of patent or intellectual property infringement against Company or any of its vendors, customers, end users, licensors, sublicensees or transferees.

Additional Customer Acknowledgements and Obligations; Privacy Notice.

    1. Customer and users of its vehicles shall remain responsible for observing all relevant laws and regulations in addition to codes of safe driving and Company will under no circumstance be liable for any fine, penalty, or punishment related thereto. Customer will defend, indemnify, and hold Company harmless from and against any, violation, loss, cost, or expense arising from or related to Customer’s or users of its vehicles failure to observe any applicable traffic laws, ordinances, rules or regulations of any kind.
    2. Company is not an insurer and does not insure the Services or Customer’s assets. Customer must obtain or cause its customers to obtain insurance for the Services or assets in an amount which Customer deems sufficient. The monthly amount paid by Customer is based upon the Services provided by Company and is unrelated to the value of Customer’s property or assets. Customer hereby waives all subrogation and other rights of recovery against Company that any insurer or other person may have.
    3. Customer shall comply with all domestic and foreign trade regulations and export control laws. The Products, the Software and any underlying information accessed or transferred using the Services may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. § 2401, et seq.) and the Export Administration Regulations (50 C.F.R. § 730-774), as well as the import regulations of other countries. Except as authorized by Company and the U.S. export control laws, Customer agrees not to export or re-export any of the Products or the Software to any foreign country. Any information transferred by Customer using the Services to any foreign country, entity, or person must comply with the U.S. Export Administration Act and the Export Administration Regulations.
    4. Customer acknowledges and agrees that, in providing the Services, Company or the Independent Service Providers (as defined below) may access, use, copy, store, collect and disclose GPS coordinates that show the location of items that Customer chooses to track using the Services (“Location Information”) in accordance with this Agreement, and that Company or the Independent Service Providers may retain Location Information on their servers so long as Customer continues to receive the Services or for any period during which there is a dispute between Customer and Company. Further, Customer grants Company (at no cost) the right to use and allow third parties to use anonymized location, time, speed and other information obtained from Customer’s vehicles for data analysis, training, benchmarking and other related purposes.
    5. The Services may include features that allow Customer to capture audio and video recordings of Customer’s employees or authorized personnel while using Customer’s vehicles. Customer shall inform its employees and authorized personnel of any audio or video monitoring equipment on Customer’s vehicles. Customer acknowledges and agrees that copies of such recordings may be retained by the Company or its Independent Service Providers, and that such recordings may be used by Company or its Independent Service Providers to fulfill its obligations or exercise its rights under this Agreement. Without limiting the foregoing, Company may access, use or disclose such recordings and/or other information about Customer in order to: (a) comply with the law or legal process served on Company; (b) enforce and investigate potential violations of this Agreement (including without limitation use of the Services or Products to participate in, or facilitate, activities that violate the law); (c) protect the rights, property, or safety of Company, its employees, its customers or the public; or (d) conduct research or development on the Services. Customer shall indemnify and hold harmless Company, its Independent Service Providers and each of their respective employees from and against any and all claims, damages, losses and expenses, including but not limited to attorney’s fees and costs incurred in connection with complying with any requests from a governmental agency, arising out of or related to the audio or video recording features of the Services purchased by Customer. Company will not be responsible or liable in any respect for Customer’s failure to inform Customer’s employees of the use of any audio or video monitoring equipment used on Customer’s vehicles.
    6. Customer agrees that Company may monitor or record Customer conversations with Company personnel involved in providing the Services under this Agreement. Further, Customer acknowledges that Company cannot ensure privacy in connection with providing the Services and, as a result, Company will not be liable to Customer for any claims, losses, damages or costs resulting from any lack of privacy. Customer acknowledges and agrees that, while Company will not identify Customer personally, it may analyze and distribute Customer information and statistics to offer new products, to enforce the terms of this Agreement or to comply with contractual obligations that Company may have with its Wireless Providers (as defined below) or other third-party licensors in order to offer the Services (collectively, the “Independent Service Providers”). Customer also grants Company full authority, without limitation, to provide any governmental authority, without Customer’s knowledge or further permission, with past, present, or future information concerning the Services. Information provided may or may not include information derived from cameras or other recording devices. Customer waives any and all claims against Company for any actions taken by Company that it reasonably determines are legally required to comply with any demand for cooperation with any such governmental authority. To the extent that a locality regulates privacy-related matters, Customer waives its right to claim any breach of privacy against Customer or any of its agents or employees in connection with Company providing the Services, and Customer further agrees to fully indemnify and hold Company harmless against any claims from any third parties related to privacy-related matters.

Telecommunication Carriers.

    1. Wireless communication used in the Services are provided by third party telecommunications providers (the “Wireless Providers”). Customer acknowledges and agrees that: (a) Customer has no contractual privity with the Wireless Providers, their affiliates or their contractors; (b) Customer is not a third party beneficiary of any agreement between Company and the Wireless Providers; (c) the Wireless Providers have no liability of any kind to Customer, whether for breach of contract, warranty, negligence, strict liability in tort, failure to deliver information over the wireless networks or otherwise; and (d) the Wireless Providers cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Services. In connection with the foregoing, Customer hereby waives any and all claims against the Wireless Providers, their affiliates and their contractors in connection with Customer’s use of the Services.
    2. The Services are dependent on the coverage and calling areas of cellular networks owned and operated by the Wireless Providers. Actual coverage and operation of the Services depends on system availability and capacity, the Internet, system and equipment upgrades, repairs, maintenance, modifications and relocation, Customer’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, acts of God and other conditions beyond Company’s reasonable control. Company will not be responsible for any limits in coverage of the cellular networks, performance degradation of the cellular networks, or failure of performance by the Wireless Providers. Customer acknowledges that coverage and calling areas may be interrupted, halted, or curtailed or the quality of the transmission may be diminished at any time.

Warranties; Disclaimers.

    1. The Products may include a manufacturer’s warranty, and information concerning any applicable warranty for the Products may be provided to Customer upon Customer’s request (the “Product Warranty”). The Product Warranty is only available to Customer in the event of a malfunction related solely to a manufacturing defect and only entitles Customer to a replacement Product provided by Company; provided, however, that if Customer purchased the Products, Customer shall pursue any warranty claims directly with the manufacturer and Company shall not be responsible for providing any replacement Product. The Product Warranty shall be null and void in the event of: (a) any alteration or modification to the Products made by any third party; (b) use of the Products other than in the ordinary course of business of Customer; (c) damage caused by any third party or any external force (including but not limited to misuse, tampering, accidents, neglect, abuse, physical damage to the Products caused by weather, etc.); or (d) damage caused by the connection of the Products to any other third party products or software. If Company determines that a malfunction is due to a problem with Customer hardware or other software, it will be Customer’s responsibility to obtain and pay for any repairs or modifications.
    2. Any Product Warranty claim made by Customer must be made in writing and delivered to Company in accordance with the notice provisions contained in this Agreement. Under no circumstances will Company be liable for any costs or expenses incurred by Customer (e.g., repair or replacement costs) in the event of Customer’s non-compliance with this provision. Customer’s sole remedy in respect of any defective Product will be the Product Warranty (if available).
    3. Company expressly disclaims, and Customer expressly assumes, all risk for loss or damage to Customer’s monitored vehicle, its contents, and for personal injury to persons occupying or affected by Customer’s monitored vehicle.
    4. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS AND THE SOFTWARE ARE PROVIDED “AS IS” AND NEITHER COMPANY NOR THE INDEPENDENT SERVICE PROVIDERS MAKE ANY OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, THE SOFTWARE OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND COMPANY AND THE INDEPENDENT SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL SUCH WARRANTIES. NO EMPLOYEE OR AGENT OF COMPANY HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO CUSTOMER, WRITTEN OR ORAL. NEITHER COMPANY NOR THE INDEPENDENT SERVICE PROVIDERS WARRANT THAT (A) the Services or the operation of any of the Software shall be uninterrupted or error free, (B) ANY DATA SENT BY OR TO CUSTOMER, OR SENT BY THE PRODUCTS, WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE AMOUNT OF TIME, OR WITHOUT BEING INTERCEPTED OR (C) the Software will operate in combination with other hardware or software, other than hardware and software expressly approved by Company. Customer acknowledges and agrees thaT Company and THE INDEPENDENT SERVICE PROVIDERS are not responsible for (i) the accuracy or integrity of any data submitted by Customer or its users, (ii) the performance of Customer’s or its users’ equipment, (iii) delivery of services or connectivity provided by third parties to Customer and its users, or (iv) any downtime, loss or corruption of data that occurs as a result of transmitting or receiving data or viruses via the Internet.
  1. Indemnification by Customer.

    In addition to the other indemnification obligations of Customer set forth in this Agreement, Customer will defend, indemnify, and hold Company, its affiliates and its representatives harmless from and against any loss, cost, or expense, including reasonable attorney’s fees, that Company, its affiliates or its representatives incurs in connection with a third party claim arising from or relating to: (a) any information or other content uploaded, published or displayed through the Services by Customer or its permitted users; (b) any violation of law by Customer; (c) Customer’s or its permitted users’ use of the Services in violation of this Agreement; or (d) Customer’s or its permitted users’ infringement of any third party intellectual property rights. Company will provide Customer with notice of any indemnified claim within a reasonable period of time after learning of such claim, and will reasonably cooperate with Customer in response to Customer’s requests for assistance. Customer may not settle or compromise any indemnified claim without Company’s prior written consent.

  2. Limitation of Liability.

    CUSTOMER WAIVES THE ABILITY TO ASSERT A CLAIM AGAINST COMPANY MORE THAN ONE YEAR AFTER THE FIRST EVENT OR FACT THAT GAVE RISE TO THE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE PRODUCTS, THE SOFTWARE OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S USE OF, OR INABILITY TO USE, THE PRODUCTS, THE SOFTWARE, OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES. COMPANY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE PURCHASE ORDER TO WHICH THE CLAIM RELATES, DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

  3. Miscellaneous.

    1. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
    2. Customer may not assign this Agreement (whether through a sale of assets, merger, or change of control), or any of its interest herein, without the prior written consent of Company. Company may freely assign and transfer this Agreement to any person or entity without the prior written consent of Customer. Any purported assignment, delegation, or transfer in violation of this Section 13.2 is void. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
    3. Any notice or demand which is required or provided to be given under this Agreement shall be deemed to have been effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; or (c) when received, if sent by certified or registered mail, postage and charges prepaid, return receipt requested, in each case to the address identified in the Purchase Order, or to such other address, and to the attention of such other person(s) or officer(s) as either Party may designate by written notice.
    4. In no event will either Party be liable or responsible to the other Party, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, except for any obligations to make payments, when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, an epidemic or pandemic, a national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
    5. The Independent Service Providers (including the Wireless Providers) are express third party beneficiaries of the disclaimers of warranties and limitations of liability set forth in this Agreement. Other than as set forth in this Section 13.5, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    6. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible.
    7. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington and County of New Castle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth in the Purchase Order will be effective service of process for any suit, action, or other proceeding brought in any such court.
    8. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
    9. This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all previous communications, representations or agreements, written or oral, relating to the Services. All other terms and conditions, or variations to these T&Cs, term sheets or Purchase Orders are excluded unless agreed explicitly in writing by an authorized person of Company.
    10. No supplement, modification or amendment of this Agreement shall be binding unless made in a written instrument which is signed by all of the Parties. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    11. The Purchase Order may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and effective.
    12. Company provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data-Commercial Items) and DFAR 227.7202-03 (Rights in Commercial Computer Software or Computer Software Documentation). If any portion of the Software is deemed “non-commercial,” the Software is licensed under the terms hereof and under the RESTRICTED RIGHTS set forth in the applicable FARs and DFARs (and the government’s use, duplication and disclosure rights are restricted as set forth therein). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

Updated August 20, 2020.