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Last updated: April 18, 2018
1.1 Services to be Provided. Company offers a smartphone mobile safety application (“App”) and comprehensive cloud-based, password-protected services website (“Dashboard”), each as described in Description of Services (collectively, the “Services”). Company shall provide the Services to Customer during the Initial Term and any Renewal Term(s) (collectively, the “Term”).
1.2 License to be Provided. During the Term, Company hereby provides Customer with a non-transferable, royalty-free, non-exclusive license to set up and use the Services in the manner contemplated herein. Customer’s license hereunder allows unlimited users to access and use the App.
1.3 Limitation of Rights. Customer recognizes that Customer’s rights in and to the Services are exclusively as set forth herein and do not comprise any rights of ownership in any of the Services. Customer agrees that Company owns all right, title and interest in and to the Services, the intellectual property rights relating thereto, and any modifications or improvements thereof. Customer shall not (i) use the Services other than as contemplated herein; or (ii) attempt to disassemble, reverse engineer, decompile or create derivative works from (or authorize the disassembly, reverse engineering, decompilation or creation of derivative works from) any of the Services. Customer shall not sell, sublicense, issue, copy or rent the Services.
1.4 Customer Data. Customer agrees that except to the extent required by law, by court order or in connection with the provision of the Services to Customer hereunder, Company may only use data collected, extracted or received through Customer’s use of the Services (“Customer Data”) in an anonymized and aggregated manner (without specifically identifying Customer, Customer’s users or Customer’s geographic locale) for the sole purposes of reporting App or Dashboard metrics, training and education about the Services, and improving the Services. Within ten (10) business days following Customer’s written request made not more than four (4) times per year, Company shall provide Customer, in CSV file format, a full or incremental backup copy of such Customer Data in its possession as the Parties shall mutually agree. If applicable, Company agrees that it will negotiate in good faith and enter into any further data processing, data transfer or related agreement, including the standard contractual clauses for transfers of data outside the EU/EEA issued by the European Commission, as may be required to ensure that the collection, storage, transfer, use, retention and other processing of Customer Data is in compliance with applicable laws, rules and regulations.
1.5 Authorized Users. “Authorized Users” shall mean the employees, contractors and/or consultants under Customer’s control responsible for monitoring and administering the Dashboard who are authorized by Customer to access the Dashboard using a user identifier and password provided to Customer by Company. With respect to the App, “Authorized Users” shall also include all of Customer’s employees. Customer shall (i) not permit any person or entity, other than designated Authorized Users, to access the Dashboard, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Dashboard, and (iii) provide Company prompt written notice of any such unauthorized access or use. Customer shall instruct Authorized Users of the Dashboard to comply with all applicable terms of this Agreement.
1.6 Delivery. Company shall submit to Customer a detailed implementation plan and timeline for Customer’s review and approval. Upon Customer’s approval, Company shall implement the Services in accordance with the agreed-upon plan and timeline.
2.1 Fees; Payment Terms. Customer shall pay the Annual Fees due to Company hereunder in accordance with the payment schedule set forth on the Cover Page.
2.2 Taxes. The Annual Fee is exclusive of all taxes and Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, for the use of the Services other than taxes based on the income of Company.
As used herein, “Confidential Information” means any and all information or data, regardless of whether it is in tangible form, disclosed or otherwise made available in connection with this Agreement by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), that the Disclosing Party has either marked as confidential or proprietary, has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the Receiving Party, or that would reasonably be expected to be confidential under the circumstances; provided, however, that in any event Company’s Confidential Information shall include (a) all information relating to the Services, including, without limitation, Company’s approach to source-code and design development and (b) the terms of this Agreement, including pricing information. Customer’s Confidential Information shall include Customer Data and all data collected on Customer’s Authorized Users (including, without limitation, any GPS data), whether submitted by Customer, the Authorized Users, or obtained from an Authorized User’s device via the App. Notwithstanding anything to the contrary set forth herein, information and data will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party, directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party, directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each Party shall use reasonable measures to protect the confidentiality of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information. Without restricting or otherwise limiting the exercise by a Party of the rights and license expressly granted to it under this Agreement, Confidential Information may only be disclosed to (1) such employees and agents of the Parties as may have a need to know such information in the course of their duties; (2) legal or financial advisors of the Parties on a need-to-know basis; and (3) to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort by the Disclosing Party to seek a protective order and/or obtain confidential treatment. Company may disclose the terms of this Agreement to existing and potential investors, lenders and acquirers and the legal or financial advisors of the foregoing, provided that such disclosure be made under a non-disclosure agreement entered into by the relevant parties.
Representations and Warranties. Company represents and warrants to Customer that Company shall provide the Services (i) in a professional and workmanlike manner, (ii) in accordance with the specifications set forth on Description of Services (as the same may be amended from time to time) and with all of the functionality described in such Appendix, and (iii) to the best of its knowledge, in compliance with all applicable laws, rules and regulations. Company further represents and warrants that (i) the Services are free of material defects, (ii) at the time of delivery, the Services shall be free of any and all time locks, viruses, trojans, worms, spyware, adware, other malware and malicious code, copy protect mechanisms, back doors, or any disclosed or undisclosed features designed to (x) disable the Services or render them incapable of operation, or (y) permit access to any Customer networks, systems, programs or Confidential Information; (iii) there is no pending or, to the best of its knowledge, threatened litigation against Company that could adversely affect its ability to perform its obligations hereunder or Customer’s use of the Services; and (iv) the Services do not and shall not infringe any patent, copyright, trade secret or other proprietary rights of any third party. Subject to the notice and cure period set forth in Section 8.2 below, in the event that Customer terminates this Agreement as a result of a breach of this Section 4.1, Customer shall be entitled to a refund from Company of the fees paid for any unused portion of the Term.
Customer represents that it is authorized to provide to Company Customer Data and data collected regarding Customer’s Authorized Users for the purposes of Company providing Services to Customer. Customer further represents that, in connection with the deployment of the App to Customer’s employees and Customer’s use of Customer Data obtained or accessed through the Services, Customer has provided appropriate notice to Customer’s employees and obtained any requisite consent, including for disclosures to service providers and transfers of data to the United States. Customer also represents that it shall use the Services and any and all Customer Data obtained or accessed through the Services in compliance with all applicable laws, rules, and regulations.
4.3 Each Party represents and warrants to the other Party hereto (i) that such Party has the right to enter into this Agreement and to perform its obligations hereunder, and (ii) that the person executing this Agreement on behalf of such Party is duly authorized to do so.
4.4 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. iN addition, Company makes no warranty that the SERVICES will be provided in an uninterrupted or error-free fashion at all times.
5.1 Company shall indemnify, defend and hold harmless Customer, its officers and employees from all claims, demands or suits at law or in equity brought by a third party arising from Company’s intentional or negligent acts or breach of its obligations under this Agreement. Company’s duty to indemnify shall not apply to loss or liability to the extent caused by the intentional or negligent acts of Customer, its officers and/or employees.
5.2 Customer shall indemnify, defend and hold harmless Company, its officers and employees from all claims, demands or suits at law or in equity brought by a third party arising from Customer’s intentional or negligent acts or breach of its obligations under this Agreement. Customer’s duty to indemnify shall not apply to loss or liability to the extent caused by the intentional or negligent acts of Company, its officers and/or employees.
5.3 If the comparative negligence of the Parties and their respective officers and/or employees is a cause of such damage or injury, the liability, loss, cost, or expense shall be shared between the Parties in proportion to their relative degree of negligence and the right of indemnity shall apply to such proportion.
5.4 In the event of a claim against Customer resulting from the infringement or misappropriation of a third party United States copyright, patent, trademark or trade secret by reason of the use of the Services by Customer as permitted hereunder, Company shall, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Company for such defense and any costs or expenses incurred by Customer in connection with such claim, provided that (i) Customer shall promptly notify Company of such claim (provided that any failure by Customer to so notify Company shall not release Company of its indemnification obligations unless such failure actually prejudices Company’s defense of such claim), (ii) Company shall have the sole and exclusive authority to defend and/or settle any such claim (provided that Company shall not settle any claim that requires Customer to admit liability or pay any money unless such settlement is approved in writing by Customer), and (iii) Customer reasonably cooperates with Company in connection therewith at Company’s expense. If the use of the Services by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing so long as the Services have at least equivalent functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement and refund to Customer the fees paid for any unused portion of the Term. Company shall have no liability or obligation under this Section 5.4 with respect to any claim to the extent such claim is caused by (x) compliance with designs, data, instructions or specifications provided by Customer, (y) modification of the Services by any party other than Company without Company’s express written consent, or (z) the combination, operation or use of the Services with Customer’s other applications, portions of applications, products, data or services where the Services would not have otherwise been infringing.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT SUCH PARTY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA OR (C) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES). EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY SET FORTH IN SECTION 5.4 OF THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.1 During the Term, Company shall maintain in force, at its sole expense, the following insurance coverage:
7.2 Liability Insurance for bodily injury and property damage with a limit of not less than $4,000,000 each occurrence and in the aggregate inclusive of defense costs. Said coverage shall include contractual liability coverage for any indemnity provided by Company to Customer pursuant to this Agreement.
7.3 Professional Liability Insurance (including coverage for E&O, cyber liability and privacy) with a combined single limit of not less than $5,000,000 each claim, incident or occurrence and in the aggregate inclusive of defense costs (other than privacy breach notification costs which must have an aggregate limit of not less than $1,000,000). Said coverage shall include contractual liability coverage for any indemnity provided by Company to Customer pursuant to this Agreement.
7.4 There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) provided pursuant to this Section 7 without thirty (30) days written notice from Company or its insurer(s) to Customer.
8.1 Term. Unless earlier terminated as described below, the term of this Agreement shall commence on the Effective Date and continue for the Initial Term set forth on the End User Acknowledgement. Either Party may elect not to renew this Agreement by providing written notice to the other Party sixty (60) days prior to the start of the applicable Renewal Date.
8.2 Termination for Cause. Either Party may terminate this Agreement, without liability, obligation or penalty of any kind, upon written notice, in the event that the other Party commits any material breach of this Agreement and fails to cure such breach within thirty (30) days thereafter (or such longer period, not to exceed sixty (60) days, if such Party is diligently pursuing a cure). In addition, Company shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Customer in the event that Customer’s employee count increases materially during the Term due to merger and/or acquisition activity, and, after good faith efforts, Company and Customer cannot agree upon revised pricing for the Services.
8.3 Obligations on Termination. Upon termination or expiration of this Agreement, all rights granted hereunder and all obligations of Company to provide the Services shall immediately terminate and each of the Parties shall promptly return or destroy any Confidential Information of the other Party in its possession or control. Any destruction of a Disclosing Party’s Confidential Information shall be, upon request by the Disclosing Party, certified in writing by an officer of the Receiving Party. Upon any termination or expiration of this Agreement (whether for cause, without cause, or for any other reason), Company agrees to provide in CSV file format, within ten (10) business days following Customer’s written request, a full and complete copy of such Customer Data then in Company’s possession as the Parties shall mutually agree. Termination of this Agreement for any reason (other than as set forth in Section 4.1 above) shall not relieve Customer from paying all fees accruing prior to termination and shall not result in any refund to Customer of any fees previously paid. Sections 1.4, 2.2, 5, 6, 8.3 and 9 shall survive the termination or expiration of this Agreement for any reason whatsoever.
9.1 Force Majeure. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood or other natural disaster, act of God, labor controversy, civil disturbance, terrorism or war (whether or not officially declared), any change in or the adoption of any law, regulation, judgment or decree, or power, utility or internet failures not caused by Customer or Company (as applicable) (each a “Force Majeure Event”); provided that financial inability in and of itself shall not be a Force Majeure Event.
9.2 No Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party hereto (which consent shall not be unreasonably withheld, conditioned or delayed), except that either Party may assign this Agreement, without the prior written consent of the other Party hereto, to a corporation or other business entity succeeding to all or substantially all of the assets and business of the assigning Party by merger or purchase. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
9.3 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.4 Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. For all purposes under this Agreement, Company shall be and act as an independent contractor of Customer.
9.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
9.6 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia without regard to its conflicts of law rules. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the Courts of the Commonwealth of Virginia, County of Arlington and of the United States of America with jurisdiction over Arlington County, Virginia for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in Arlington County, Virginia Courts and agrees not to plead or claim in any Virginia Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable Parties to such litigation that are not subject to the jurisdiction of the Virginia Courts.
9.7 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Cover Page or such other addresses designated pursuant to this Section 9.7.
9.8 ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES, SUPERSEDES AND REPLACES ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS OR AGREEMENTS, WRITTEN OR ORAL, REGARDING THE SUBJECT MATTER CONTAINED HEREIN, AND PREVAILS OVER ANY CONFLICTING TERMS OR CONDITIONS SET FORTH ON OR REFERENCED IN ANY OF CUSTOMER’S PURCHASE ORDERS OR OTHER PRINTED FORMS RELATING HERETO EVEN IF THE DATE OF ANY SUCH DOCUMENT IS SUBSEQUENT TO THE EFFECTIVE DATE HEREOF.
9.9 Publicity. Company shall be entitled to identify Customer as a customer of Company. In connection therewith, Company shall have the right to (i) issue a press release announcing this Agreement (but not the terms and conditions set forth herein), and (ii) use Customer’s name and/or logo for publicity and advertising purposes. In each instance where Customer’s logo is to be used, Company will provide Customer with advance written notice thereof. If Customer does not reasonably object to such use within five (5) business days of receipt thereof, such use shall be deemed approved.
9.10 Counterparts. This Agreement may be executed in one or more counterparts, by facsimile or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.