This “License Key Terms and Conditions” apply to the STRAX® SOFTWARE AND LICENSED SERVICES, AND SUPPLIER-PROVIDED EQUIPMENT provided in whole or in part by STRAX INTELLIGENCE GROUP, LLC (hereinafter referred to as the “SUPPLIER”) to CUSTOMER. This “License Key Terms and Conditions” are incorporated into the CUSTOMER’S Agreement with SUPPLIER, by reference, and are valid and enforceable under the same terms as the other terms of the CUSTOMER’S Contract with SUPPLIER. CUSTOMER agrees to be bound by this “License Key Terms and Conditions.” All CUSTOMER personnel and end-users who receive/use the Services and/or Content shall be informed of the CUSTOMER’S obligations under these Key Terms and Conditions and shall agree to its terms, or the CUSTOMER will not allow the personnel to access the Services and/or Content. To the extent any provision in this “License Key Terms and Conditions” conflict with a term or condition in the CUSTOMER’S Agreement with the SUPPLIER, these Key Terms and Conditions shall prevail.
1 SUPPLIER-PROVIDED STRAX® SOFTWARE AND LICENSED SERVICES, AND SUPPLIER-PROVIDED EQUIPMENT
SUPPLIER will make the STRAX® Software and Licensed Services, and the Supplier-Provided Equipment available pursuant to this Agreement, these Key Terms and Conditions, and any SUPPLIER-approved Statements of Work, addendums and appendices attached hereto.
1.1 STRAX® SOFTWARE ADVANCED SUPPORT OPTION
If the Customer has elected to receive the Advanced Support Option, then during the term of this agreement, SUPPLIER will provide telephone or electronic support during SUPPLIER’s regular business hours and by telephone for after-hours support, 24 hours a day, 7 days a week. SUPPLIER’S NOC will monitor the performance of SUPPLIER 24 hours a day, 7 days a week, targeting service availability of 24 hours a day, 7 days a week, except for Maintenance.
1.2 UNSCHEDULED MAINTENANCE
SUPPLIER will communicate by written Notice the date and time that the STRAX® Software and Licensed Services will be unavailable. There may be instances where SUPPLIER must interrupt the STRAX® Software and Licensed Services with little or no notice in order to protect the integrity of the Platform due to security issues, virus attacks, or other unforeseen circumstances.
1.3 PLANNED DOWNTIME
SUPPLIER will give seven (7) days advanced written notice of Planned Downtime for the STRAX® Software and Licensed Services. Planned Downtime shall not constitute a breach of SUPPLIER’s obligations under the Agreement.
1.4 PREVENTATIVE MAINTENANCE
SUPPLIER will give written notice of Preventative Maintenance to the STRAX® Software and Licensed Services approximately eight (8) hours prior to commencement. Preventative Maintenance includes items with the environment that require SUPPLIER to take quick action to avoid emergency maintenance needs in the future. SUPPLIER, whenever possible, will perform these activities during low platform utilization time periods.
1.5 EMERGENCY MAINTENANCE
SUPPLIER will contact its affected users immediately before, during, or immediately after an Emergency Maintenance event (the “event”) for the STRAX® Software and Licensed Services. Emergency Maintenance includes changes that are required immediately to avoid, reduce, or minimize impacts to the STRAX® Software and Licensed Services.
1.6 OTHER; FORCE MAJEURE
SUPPLIER will give Notice immediately in the event of any unavailability to the STRAX® Software and Licensed Services caused by circumstances beyond SUPPLIER’s reasonable control, including but not limited to: an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving SUPPLIER‘s employees), Internet service provider failure or delay, Non-SUPPLIER Application, or denial of service attack.
1.8 USE OF THE STRAX® SOFTWARE AND LICENSED SERVICES
SUPPLIER will provide the STRAX® Software and Licensed Services under a license, for as long as the Customer Contract is valid and current. The License granted to the Customer is non-exclusive but limited to only the Customer. The Customer may not sublicense the STRAX® Software and Licensed Services. The License may be revoked by SUPPLIER at any time if the Customer breaches the Customer Contract.
1.8.2 USAGE LIMITS
The STRAX® Software and Licensed Services are subject to usage limits including, for example, the quantities specified in the Customer Agreement or any Statement of Work (“SOW”) entered into by the Customer and SUPPLIER; unless otherwise specified, are defined and limited as follows:
(i) A “quantity” refers to the number of named Users authorized to use the STRAX® Software and Licensed Services, and the Service and Content may not be accessed by more than that number of Users;
(ii) A User’s password may not be shared with any other individual; and
(iii) Except as set forth herein, a User authorization may only be reassigned to a new individual replacing one who will no longer use the STRAX® Software and Licensed Services.
The SUPPLIER has based the Customer’s STRAX® Licensed Services fees upon a predicted usage level to match the Customer Category assigned. The SUPPLIER and the Customer will periodically review the Customer’s actual usage level, and the SUPPLIER may re-categorize the Customer to the appropriate Customer Category to match the actual usage by the Customer. The SUPPLIER will also advise the Customer from time-to-time as to periods or events of excessive use. The Customer and SUPPLIER will confer immediately to discuss the root cause of the excessive use events and whether the events may be reduced or prevented going forward. The goal of the SUPPLIER and the Customer is to keep the usage of the STRAX® Licensed Services within an expected and reasonable range, and not to increase fees. To do so, the Parties will use their best efforts to keep the actual usage within the predicted level of usage for the Customer’s assigned Customer Category.
1.8.3 THE CUSTOMER’S RESPONSIBILITIES
The Customer shall be responsible for:
(i) compliance with these Key Terms and Conditions and all Documentation related to the STRAX® Software and Licensed Services;
(ii) the accuracy, quality, and legality of the Data and how the Customer acquired the Customer’s Data;
(iii) preventing unauthorized access to or use of the STRAX® Software and Licensed Services, and notifying SUPPLIER promptly of any such unauthorized access or use; and,
(iv) using the STRAX® Software and Licensed Services only in accordance with these Key Terms and Conditions, this Agreement, Documentation, and all applicable federal, state, and local laws and government regulations;
(v) providing qualified personnel who can perform the Customer’s duties and tasks under this Agreement and any Statemewnt of Work (SOW) as may be reasonably required to permit SUPPLIER to perform the Services;
(vi) providing SUPPLIER with access to the Customer’s personnel, sites and facilities during the Customer’s normal business hours and as otherwise reasonably required by SUPPLIER to perform Services;
(vii) providing SUPPLIER with such on-site working space and support as SUPPLIER may reasonably request; and
(viii) making available to SUPPLIER any data, information, and any other materials required by SUPPLIER to perform the Services, including, but not limited to, any data, information, or materials specifically identified in the Agreement of any SOW.
The Customer shall not:
(i) make the STRAX® Software and Licensed Services available to, or use the STRAX® Software and Licensed Services for the benefit of, anyone other than the intended End-User(s), unless expressly agreed to in writing, by SUPPLIER;
(ii) sell, resell, license, sublicense, distribute, make available, rent or lease the STRAX® Software and Licensed Services, to any third-party nor use the software on devices other than with the designated System with which it was furnished;
(iii) attempt to gain unauthorized access to or copy the STRAX® Software and Licensed Services or its related systems or networks;
(iv) permit or enable direct or indirect access to or use of the STRAX® Software and Licensed Services in a way that circumvents a contractual usage limit, or use any of SUPPLIER’S Services to access or use any of SUPPLIER’S intellectual property except as permitted under this Agreement;
(v) copy the STRAX® Software and Licensed Services or any part, feature, function or user interface thereof, or use the STRAX® Software and Licensed Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; and/or
(vi) reverse engineer the STRAX® Software and Licensed Services (to the extent such restriction is permitted by law).
2 STATEMENTS OF WORK (SOW); DESIGNATED CONTACTS; OWNERSHIP; SIMILAR SERVICES
In addition to the STRAX® Software and Licensed Services to be provided by SUPPLIER pursuant to this Agreement, SUPPLIER may provide for the integration of external systems, data feeds, databases, devices or other services and solutions with SUPPLIER provided solutions or Service Platform, STRAX®. The SUPPLIER may provide one or more pieces of equipment (the “SUPPLIER-Provided Equipment”) to be integrated into the STRAX® Software and Licensed Services. For such efforts, SUPPLIER and the Customer will execute one or more SOW’s, in a form agreed to by the SUPPLIER which will describe the specific services to be performed by SUPPLIER and paid for by the Customer. Each Statement of Work, whether expressly referring to this Agreement or not, will form a part of this Agreement and will be subject to the terms and conditions contained in these Key Terms and Conditions. The SUPPLIER-Provided Equipment shall have only those warranties and guarantees as provided by the equipment manufacturer, and the Supplier makes no additional warranties or guarantees of any kind to the Customer.
2.1 CHANGES TO STATEMENTS OF WORK
Any request to change an SOW shall be submitted to the SUPPLIER in writing, for approval by SUPPLIER. Written requests to change the scope of Services described in a Statement of Work (each such request, a “Change Order Request”) are subject to the approval of SUPPLIER and subject to the payment of any additional fees, costs or expenses resulting from the Change Order Request. If the Change Order Request requires personnel or schedule adjustments, the Customer agrees to pay a reasonable and equitable adjustment to the fees and/or schedule, as applicable. SUPPLIER will continue to perform Services pursuant the existing Statement of Work and will have no obligation to perform any Change Order Request unless and until the Parties have agreed in writing to such an equitable adjustment, and such fees, costs, and expenses are agreed to be paid to SUPPLIER by the CUSTOMER (Net 30 days from date of Invoice).
2.2 DESIGNATED CONTACTS
SUPPLIER and the Customer will designate for the Agreement and in each SOW an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters.
2.3 ACCEPTANCE CRITERIA
The Acceptance Criteria for an SOW including the STRAX® Software and Licensed Services and/or SUPPLIER-Provided Equipment shall be as agreed upon by the Customer and SUPPLIER in the SOW.
2.4.1 OWNERSHIP OF INTELLECTUAL PROPERTY (IP) AND WORK PRODUCT
SUPPLIER owns and shall continue to own or shall own without limitation all IP developed by SUPPLIER during the term of this Customer Agreement. In certain limited cases, SUPPLIER may develop IP for the Customer, under a specific Statement-of-Work from the Customer, which SUPPLIER agrees to develop IP as “Work Product” in return for the compensation stated therein. In those certain limited and specific instances, the Work Product developed and paid for by the Customer will be owned by the Customer. In those instances, in return for the development of the IP by SUPPLIER and as additional compensation to SUPPLIER, the Customer grants or shall grant to SUPPLIER a perpetual, irrevocable, non-exclusive, fully paid right and license to Use the Work Product and to sub-license the Work Product. For the avoidance of doubt, “Work Product” subject to this clause 2.5.1, is only that “Work Product” created expressly for the Customer, under an SOW, paid-for Customer and agreed to in advance by SUPPLIER. The Customer may not retroactively claim any IP developed by SUPPLIER, which is not covered by an SOW.
2.4.2 INTEGRATION SOFTWARE
SUPPLIER will retain ownership of all of the Integration software, and no ownership of the Integration software is transferred to the Customer by this Agreement. If SUPPLIER grants or has granted a license to use the Integration Software to the Customer, the license shall expire upon the termination or cessation of this Agreement with the Customer. Any software provided with the solution(s) for the Customer or in connection with the Services is proprietary to SUPPLIER and/or its supplier(s)/partners and is licensed to the Customer and on a non-exclusive, non-transferable, non-sub-licensable basis. The Customer shall hold the software in strict confidence and not disclose it to any third party, nor remove any trademarks or proprietary markings from the software or its output.
2.5 SIMILAR SERVICES
Nothing in this Agreement will be deemed to restrict or limit SUPPLIER’s right to perform similar services for any other party or to assign any employees of SUPPLIER to perform similar services for any other party, provided that SUPPLIER complies with its obligations with respect to Customer Confidential Information.
3 EQUIPMENT AND SYSTEM SOFTWARE; CUSTOMER AND/OR END-USER LICENSE AGREEMENT
3.1 NO MODIFICATION OF EQUIPMENT AND SYSTEM SOFTWARE BY CUSTOMER
THE SOFTWARE PROVIDED IS CRITICAL TO THE SAFE OPERATION OF THE EQUIPMENT AND/OR SYSTEM. If the Customer permits the modification of the software by any person other than a SUPPLIER employee or agent, any applicable warranties will be voided, and the Customer shall indemnify and defend SUPPLIER against any claims for personal injury or property damage, and from civil or criminal penalties, relating to use of the Equipment and/or System following such modification.
3.2 ADDITIONAL AGREEMENTS MAY BE REQUIRED FOR USE
A separate “End User License Agreement” (individually or collectively a “EULA”) between SUPPLIER and the Customer and/or the software owner may be required to use the software.
Unmanned Vehicles, including Unmanned Aerial Vehicles (“UAV,” aka “Drones”) supply location (i.e., GPS coordinates) for the Vehicle Location and the Field of view of the camera at a particular point in time. The accuracy of this information is on a “best-effort” basis, and the accuracy of information may vary during use. The CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR THE CUSTOMER’S USE OF SOLUTIONS.
3.3 WIRELESS TELECOMMUNICATIONS, NETWORK, AND/OR INTERNET SERVICES
If the equipment or system requires, or the Customer requests as part of the services covered by this Agreement, the Customer authorizes SUPPLIER to make all necessary requests for information, service, orders or equipment in any respect on behalf of the Customer to any entity providing wireless, network, telecommunications, Internet, or satellite networks (hereinafter “Communication”) equipment, facilities or services used to transmit data (“Data”) under this agreement. The Customer understands and agrees that there will be times when the System is unable to secure, maintain, or transmit Data, and thus, no Data or System activity will be received. The Customer also understands and agrees that Data cannot be collected when the transmission mode is or becomes non-operational or if the System and/or any related equipment is damaged, not adequately charged, or is otherwise non-operational.
The Customer acknowledges that the use of radio frequencies, cellular devices, and wireless equipment may be regulated and controlled by the Federal Communications Commission and changes in rules, regulations, and policies may necessitate SUPPLIER’s discontinuance of any portion of the STRAX® Software and Licensed Services and/or the SUPPLIER-Provided Equipment, Systems, Services hereunder or the transmission of any Data. The Customer agrees that the liability of any third-party service provider, including but not limited to any wireless service/equipment provider, is only that of the third-party service provider and not SUPPLIER.
3.4 GPS SERVICES
If the Equipment uses GPS technology and GPS satellite networks, the Customer understands and agrees that such Equipment will not transmit Signals in all locations; particularly in remote or enclosed areas, or on all asset types, at all times. The area in which the Equipment is located and/or the condition/type of asset on which the Equipment is fixed/mounted may affect the transmission of signals and/or availability of wireless service and/or reception and technology used by the Equipment. The GPS location functionality in the Equipment will not work unless GPS satellite signals are unobstructed and available in that area where the asset is located. The GPS signals may be impaired or blocked by wireless phone network congestion or jamming, hills, tall buildings, tunnels, weather, electrical system design, and/or the condition of the asset being tracked. The mapping data, including reverse geocoding provided as part of the System, is based on the most current map information available to SUPPLIER but may be inaccurate or incomplete. For example, the mapping data may not include information about private roads, seasonal roads, closed roads, or new roads.
4 PROPRIETARY RIGHTS AND LICENSES
4.1 THIRD-PARTY IP
The solution(s) provided by SUPPLIER constitute and/or incorporate valuable proprietary and confidential information and may contains trade secrets of SUPPLIER and/or its suppliers/partners and are/may be protected by patents or copyrights. Without the prior written consent of SUPPLIER, the Customer shall not make available to any person other than SUPPLIER, the System or any portion thereof, in any form, including but not limited to flow charts, diagrams, code or any technical or business information relating to the use of the System.
All Customer personnel and End-Users who receive/use the Services and/or Content shall be informed of the Customer’s obligations under these Key Terms and Conditions and shall agree to its terms, or the Customer will not allow access to the Services and/or Content. The provisions of this Section shall survive the termination or expiration of the Agreement.
4.2 LICENSE TO HOST CUSTOMER’S DATA AND APPLICATIONS
The Customer grants to SUPPLIER, SUPPLIER’S Affiliates, and applicable contractors a worldwide, limited-term license to host, copy, transmit and display the Customer’s Data.
4.3 LICENSE TO USE FEEDBACK
The Customer grants to SUPPLIER a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into SUPPLIER’S services any suggestion, enhancement request, recommendation, correction, or other feedback provided by the Customer or End-Users relating to the operation of SUPPLIER’S or SUPPLIER’S Affiliates’ services.
4.4 MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Any Mutual Confidentiality and Non-Disclosure Agreement previously, or contemporaneously, entered into by the Parties, is incorporated herein by reference.
5 WARRANTIES AND LIMITATIONS
5.1 STRAX® LICENSED SERVICES WARRANTIES
SUPPLIER WARRANTS THAT THE STRAX® LICENSED SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION PROVIDED BY SUPPLIER. NEITHER SUPPLIER NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE STRAX® LICENSED SERVICES WILL BE PERFORMED ERROR-FREE, VIRUS-FREE OR MAL-WARE FREE, OR UNINTERRUPTED, NOR THAT SUPPLIER WILL CORRECT ALL STRAX® LICENSED SERVICES ERRORS. NEITHER SUPPLIER NOR ANY OF ITS SERVICE PROVIDERS ARE OR WILL BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS. CUSTOMER ACKNOWLEDGES THAT SUPPLIER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES AND THAT THE STRAX® LICENSED PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SUPPLIER (EXPRESS OR IMPLIED) WITH RESPECT TO THE PLATFORM.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SUPPLIER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SUPPLIER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOLUTIONS, CONTENT, AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. SUPPLIER DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
5.2 THIRD-PARTY WARRANTIES
SUPPLIER shall, to the extent permissible, pass-through to the Customer all available warranties and provide all available (including extended) applicable original equipment manufacturer and additional warranties that SUPPLIER has used in the integration of products or obtained for the Customer to provide the products or Services identified by SUPPLIER in its proposal(s) to the Customer.
6 LIMITATION OF LIABILITY
6.1 EQUIPMENT AND SOFTWARE
THE CUSTOMER AGREES THAT SUPPLIER SUPPLIED SYSTEMS EQUIPMENT AND SOFTWARE DO NOT CAUSE OR PREVENT AND CANNOT ELIMINATE OCCURRENCES OF THE EVENTS THEY ARE INTENDED TO DETECT OR AVERT. SUPPLIER MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE SYSTEM OR EQUIPMENT SUPPLIED WILL DETECT OR AVERT SUCH EVENTS OR THE CONSEQUENCES THEREFROM. ACCORDINGLY, SUPPLIER DOES NOT UNDERTAKE ANY RISK THAT CUSTOMER’S PERSON OR PROPERTY, OR THE PERSON OR PROPERTY OF OTHERS, MAY BE SUBJECT TO INJURY OR LOSS IF SUCH AN EVENT OCCURS. THE RESPONSIBILITY FOR SUCH RISK REMAINS SOLELY WITH THE CUSTOMER. INSURANCE, IF ANY, COVERING SUCH RISK SHALL BE OBTAINED BY CUSTOMER. SUPPLIER SHALL HAVE NO LIABILITY FOR LOSS, DAMAGE OR INJURY DUE DIRECTLY OR INDIRECTLY TO EVENTS, OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEM OR SERVICES ARE INTENDED TO DETECT OR AVERT. CUSTOMER SHALL LOOK EXCLUSIVELY TO ITS INSURER AND NOT TO SUPPLIER TO PAY THE CUSTOMER IN THE EVENT OF ANY SUCH LOSS, DAMAGE OR INJURY. THE CUSTOMER RELEASES AND WAIVES FOR ITSELF AND ITS INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER FROM SUPPLIER ARISING AS A RESULT OF PAYING ANY CLAIM FOR LOSS, DAMAGE OR INJURY OF THE CUSTOMER OR ANOTHER PERSON.
IF NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, THE SUPPLIER IS DETERMINED TO BE LIABLE FOR LOSS, DAMAGE OR INJURY UNDER ANY LEGAL THEORY DUE TO A FAILURE OF SYSTEM OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10% OF TOTAL VALUE OF THE COMPENSATION PAID TO SUPPLIER DURING THE PRECEDING TWELVE (12) MONTHS OR $1,000, WHICHEVER IS GREATER, AS THE AGREED-UPON LIQUIDATED DAMAGES AND NOT AS A PENALTY, AS THE CUSTOMER’S SOLE REMEDY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY AND WILL NOT LIMIT THE CUSTOMER’S AND THE CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE AGREEMENT BETWEEN SUPPLIER AND THE CUSTOMER. IF THE PAYMENT IS PREPAID TO SUPPLIER FOR THE ENTIRE TERM THE LIMITATION OF LIABILITY WILL BE PRORATED TO DETERMINE A “PER-MONTH” VALUE AND THE LIMITATION WILL BE TWELVE TIMES THAT MONTHLY VALUE.
THE PROVISIONS OF THIS AGREEMENT SHALL APPLY NO MATTER HOW THE LOSS, DAMAGE OR INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO SUPPLIER’S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER ALLEGED FAULT ON THE PART OF SUPPLIER, ITS AGENTS OR EMPLOYEES. IF ANY OTHER PERSON, INCLUDING THE CUSTOMER’S SUBROGATING INSURER, MAKES ANY CLAIM OR FILES ANY LAWSUIT AGAINST SUPPLIER IN ANY WAY RELATING TO THE SYSTEM OR EQUIPMENT THAT ARE THE SUBJECTS OF THIS AGREEMENT, THEN THE CUSTOMER SHALL INDEMNIFY AND HOLD SUPPLIER HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEYS’ FEES.
THE PROVISIONS OF THIS AGREEMENT SHALL APPLY TO AND BENEFIT SUPPLIER AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, AFFILIATES, AND PARENTS (BOTH DIRECT AND INDIRECT). IF THIS AGREEMENT PROVIDES FOR A DIRECT CONNECTION TO A MUNICIPAL POLICE OR FIRE DEPARTMENT OR OTHER ORGANIZATION, THEN THAT DEPARTMENT OR OTHER ORGANIZATION MAY ALSO INVOKE THE PROVISIONS OF THIS SECTION AGAINST ANY CLAIMS DUE TO ANY FAILURE OF SUCH DEPARTMENT OR ORGANIZATION.
6.2 TIME LIMITATIONS ON ACTIONS
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SUPPLIER OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENTS (BOTH DIRECT AND INDIRECT) MORE THAN ONE YEAR AFTER THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE OCCURRED, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF SUCH PERIOD IS GREATER THAN ONE YEAR.
6.3 LIMITATION OF LIABILITY
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER AND THE CUSTOMER’S AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE ALLEGED LIABILITY AROSE. IF THE PAYMENT IS PREPAID TO SUPPLIER FOR THE ENTIRE TERM THE LIMITATION OF LIABILITY WILL BE PRORATED TO DETERMINE A “PER-MONTH” VALUE AND THE LIMITATION WILL BE TWELVE TIMES THAT MONTHLY VALUE.
6.4 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
6.5 NO LIABILITY FOR CUSTOMER MISUSE OF SERVICES AND/OR CONTENT, OR FOR TRANSMISSION FAILURES
THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR THE CUSTOMER’S USE OF THE EQUIPMENT AND SYSTEMS AND SUPPLIER SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE CUSTOMER’S USE OR MISUSE OF THE EQUIPMENT AND SYSTEMS. FURTHER, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT SUPPLIER SHALL HAVE NO LIABILITY WHATSOEVER FOR THE FAILURE OF THE SYSTEM TO TRANSMIT DATA REGARDLESS OF (i) THE CAUSE OF SUCH TRANSMISSION FAILURE; (ii) WHETHER SUPPLIER KNEW OR SHOULD HAVE KNOWN OF SUCH FAILURE; OR (iii) WHETHER THE CUSTOMER HAS PAID SUPPLIER FOR ANY SUCH TRANSMISSION SERVICES.
7.1 INDEMNIFICATION BY SUPPLIER
SUPPLIER will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party caused or alleged to have been caused by any action or inaction of SUPPLIER, including whether SUPPLIER’S Services or Content infringes or misappropriates a third party’s intellectual property rights, and will indemnify the Customer from any damages, attorney fees and costs incurred as a result of a violation of this Section, and for any amounts paid by the Customer under a settlement approved by SUPPLIER in writing, or for amounts paid by the Customer under a settlement approved by SUPPLIER in writing of, a Claim Against the Customer, provided the Customer promptly notifies SUPPLIER of any claim, cooperates with SUPPLIER to defend the claim and allows SUPPLIER to control the defense of the claim.
If SUPPLIER receives information about an infringement or misappropriation claim related to a Service, SUPPLIER may, in SUPPLIER’S sole discretion and, at no cost to the Customer:
(i)modify the Service so that it is no longer claimed to infringe or misappropriate, without breaching SUPPLIER’S warranties,
(ii)obtain a license for the Customer’s continued use of that Service in accordance with this Agreement, or
(iii)terminate the Customer’s License(s) for that Service upon thirty (30) days’ written notice and refund the Customer any prepaid fees covering the remainder of the term of the terminated License(s).
The above defense and indemnification obligations do not apply to the extent a Claim Against the Customer arises from Content, or the Customer’s use of the Services in violation of this Agreement, the Documentation or the proposals provided by SUPPLIER.
7.2 INDEMNIFICATION BY THE CUSTOMER
The Customer will defend SUPPLIER against any claim, demand, suit or proceeding made or brought against SUPPLIER by a third party caused or alleged to have been caused by any action or inaction of the Customer, including whether the Customer’s Data infringes or misappropriates a third party’s intellectual property rights, or otherwise arising from the Customer’s use of the Services or Content in violation of the Agreement. The Customer will indemnify and defend SUPPLIER from any damages, attorney fees and costs incurred as a result of a breach of this Section, and for any amounts paid by SUPPLIER under a settlement approved by the Customer in writing of, a Claim Against SUPPLIER.
7.3 PROCESS FOR INDEMNIFICATION
Either Party’s obligation to indemnify the other Party is conditioned upon:
(i)The Party seeking indemnity gives the other Party timely written notice of the Claim;
(ii)The Party seeking indemnity gives the other Party sole control of the defense and settlement of the Claim provided the Indemnifying Party may not settle any Claim Against the other Party unless it unconditionally releases the Indemnified Party of all liability; and
(iii)at the expense of the Party seeking indemnity, provides the indemnifying Party with all reasonable assistance.
7.4 EXCLUSIVE REMEDIES CHOICE OF LAW AND VENUE
Each Party’s sole remedies shall be the remedies described in these Terms and Conditions. Unless otherwise stated, the laws to the State of Florida shall apply to all Agreements, without regard to any choice of laws provisions and venue shall be in Palm beach County, Florida for all purposes.
8 SUPPLIER’S DATA PORTABILITY AND DELETION
Upon request by the Customer made within THIRTY (30) days after the effective date of termination or expiration of this Agreement, SUPPLIER will make the Customer Data available to the Customer for export or download, and thereafter may be deleted or destroyed by SUPPLIER, unless otherwise legally prohibited.
9 SURVIVING PROVISIONS
The Key Terms and Conditions will survive any termination or expiration of this Agreement.
10 EXPORT CONTROL
10.1 EXPORT CONTROL RESTRICTIONS
The Services, Content, other technology SUPPLIER makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. The Customer shall not permit Users to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation.
10.2 UNITED STATES GOVERNMENT RIGHTS
SUPPLIER 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 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
11.1 NOTIFICATION OF CHANGES OR PRICE INCREASES
The SUPPLIER reserves the right to make annual modifications to the pricing and technical terms stated in the Agreement between the SUPPLIER and the Customer, based upon a change in the pricing of the services and equipment of the SUPPLIER, for inflation generally, and for changes in the technical specifications of the equipment ansd services of the Supplier. The SUPPLIER will make changes to the pricing annually, increasing either at the rate of 3% per annum, or the rate of inflation published for the year preceding (using a generally acceptable Cost of living Index), whichever is greater. The SUPPLIER may increase more frequently than annually the prices to the Customer more frequently if the price of components of the equipment and services to the SUPPLIER increases by more than three percent (3%) in a thirty (30) day period.
If the SUPPLIER advises the Customer that it will initiate a price increase, other than the annual price increase, or announces a material change in the technical specifications of the equipment and services provided to the Customer, or if the SUPPLIER makes a material change to the Terms And Conditions shown on the SUPPLIER’s website and incorporated herein by reference, the following process will apply:
- The SUPPLIER announces the change in pricing, technical specifications, ot Terms and Conditions, which will be effective thirty (30) days from the date of announcement (the “Change Notice Period”).
- If the Customer agrees does not object to the changes, the changes will become final at the end of the Change Notice Period.
- If the Customer objects to the changes, it must do so in writing within the Change Notice Period.
- If the Customer objects, the SUPPLIER may rescind the changes, at it option, may seek to revise the changes to overcome the Customer’s objections, or may advise the Customer that the changes will become final at the end of the Change Notice Period.
- If the changes become final over the objections of the Customer, the Customer will have a limited operiod (thirty days) from the end of the Change Notice Period to notify the Supplier that it will terminate the underlying Agreement between the Parties.