Software License and Services Agreement


Last Updated: September 20, 2024


This Software License and Services Agreement (this “SLSA” and this SLSA together with each Sales Order, this “Agreement”) is made and entered into as of the date it is accepted by Licensee (the “Effective Date”), by and between Peak Transit LLC, a Florida company with notice address of 600 E Colonial Dr. Ste 100, Orlando FL 32803 (“Licensor”) and the other party identified on the Sales Order (“Licensee”). Licensor and Licensee may be referred to individually as a “Party”, or together as the “Parties”.


BY ACCEPTING THIS SLSA, SUCH AS BY ACCEPTING OR EXECUTING A SALES ORDER THAT REFERENCES THIS SLSA, LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS SLSA. IF YOU ARE ENTERING INTO THIS SLSA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AS “LICENSEE” HEREUNDER TO THIS SLSA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS SLSA, YOU MUST NOT ACCEPT THIS SLSA.



1.          DEFINITIONS. The following capitalized terms have their meaning set out below.


“Confidential Information” means information relating to or disclosed in the course of, or in connection with this Agreement, which is, or should be reasonably understood to be, confidential or proprietary to a Party, including, but not limited to, information concerning such Party’s business, products, services, content, finances, subscribers, software, source code, object code, tools, protocols, algorithms, product designs and plans, customer lists, trade secrets, the data of Licensor, and other marketing and technical information, the existence of any business discussions, negotiations or agreements between the Parties, the terms of any Sales Order between the Parties, and any other unpublished information.



“Contractor” means a non-employee individual or business hired by Licensee to perform on Licensee’s behalf certain functions permitted hereunder.



“Documentation” means Licensor’s instructional and user manuals and any other materials provided electronically or in written form by Licensor for aid in the use and operation of the Licensed Software, together with any documentation contained in an application programming interface or software development kit provided by Licensor.



“Hardware” means all devices, antennas, cabling, wiring and other physical electronic components provided and/or installed by on behalf of Licensor on Licensee’s vehicle fleet, or otherwise delivered to the vehicle fleet and Licensee, necessary to the appropriate functioning, delivery and maintenance of the Solution. Hardware does not include any physical devices, kiosks, or mobile units that are owned or separately purchased by or on behalf of Licensee or any of its customers.


"Initial Order Term” means the twelve (12) month period commencing on the date of the Parties’ acceptance of a Sales Order, unless a different period of time is expressly set out therein.


“Intellectual Property Rights” means all rights, anywhere in the world, in, to, or arising from patents, inventions, trademarks, service marks, copyrights, works of authorship, moral rights, trade secrets, database rights, rights in designs, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration, together with all or any goodwill relating to the same.



“Invoice Date” means the date Licensor sends Licensee an invoice for products or services.



“Licensed Software” means the machine-readable object code version of the software that Licensor or its authorized representative makes available to the Licensee (including but not limited to Mobile Modules and any software contained in a application programming interface or software development kit), as further identified in the Sales Order, all error corrections, updates, customizations, or upgrades supplied by Licensor (regardless of whether it has an obligation to do so), to Licensee pursuant to the terms of this Agreement and all copies of the foregoing. 



“Mobile Module” means the portion of Licensed Software that is installed on a mobile unit, such as a tablet or smartphone.



“Order Term” means, collectively, the Initial Order Term and each Renewal Order Term.



“Sales Order” means any ordering document signed by the Parties, an invoice for which Licensee has made a payment towards in full or in part, or purchase order accepted by Licensor, in each foregoing case that describes the Licensed Software, fees, and if applicable, additional Services to be provided. 



“Service” means the services the Licensor will provide to Licensee during the Term as outlined in any Sales Order.



“Solution” means the Licensed Software, Hardware, Documentation and Portals.



“Term” shall have the meaning set forth in Section 14.1.



2.          SOFTWARE LICENSE.


2.1 License Grant. Subject to the terms and conditions hereof, Licensor grants to Licensee during the Order Term a non-exclusive, revocable, non-transferable (except as provided in Section 16.3), license to install, execute, and use the Licensed Software installed (a) by or on behalf of Licensor in the Hardware or (b) by Licensee or passengers or users of Licensee’s transportation services in either of their respective physical devices, kiosks or mobile units that are, in each of the foregoing cases, approved by Licensor for use with the Licensed Software, and with respect to both (a) and (b), solely for use in connection with Licensee’s provision of transportation services to its customers in the ordinary course of business and consistent with Licensee’s past practices. 


2.2 Portal Access. Licensor may during an Order Term make available various web sites and portals that interoperate with the Licensed Software (collectively, “Portals”). Subject to the terms and conditions hereof, during the Order Term, Licensor grants to Licensee a non-exclusive, personal, non-transferable, non-sublicensable, and revocable license to access and use the Portals for the purpose of remotely monitoring Licensee’s vehicles that have been equipped with hardware containing the Licensed Software to the extent authorized by this Agreement. When applicable, Licensor will provide Licensee with a default username and password to access the Portals. Licensee is solely responsible for controlling the use of username(s) and password(s). Licensee will not permit access by any third parties or assign or transfer access to any Portal without Licensor’s prior review and written consent. Licensor will not be liable for any loss or damage arising from an unauthorized use of any username or password issued by Licensor.


2.3 License Restrictions; Licensee Rights and Obligations.


Licensee shall not:

  1. Use the Solution other than in accordance with the Documentation and all applicable laws, rules and regulations,
  2. allow the Licensed Software to be copied, decompiled, modified, reverse engineered, or used to create derivative works,
  3. allow the Licensed Software to be combined with or become incorporated in any other computer programs, absent Licensor’s written consent,
  4. distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Licensed Software (except as expressly permitted hereunder), 
  5. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Licensed Software,
  6. install and use a Mobile Module except on a mobile unit approved by Licensor, or
  7. attempt to disassemble, modify, adapt, access, download, copy, translate, add new features, or interfere with the Licensed Software without the express written consent of Licensor.


2.4 Access; Records. Licensor will provide Licensee with such log-in credentials to the Mobile Module as are reasonably necessary for operational security and for its permitted use hereunder, subject to the prior written consent of Licensor, not to be unreasonably withheld. Licensee shall supervise and control, and maintain accurate and complete records regarding the use and location of the Mobile Module and Documentation, and the access to the Licensed Software.


2.5 Limited Use by Contractors. Licensee may allow its Contractors to exercise the rights granted hereunder on behalf of Licensee and solely for Licensee’s benefit, provided that (a) Licensee ensures that such Contractors use the Solution only in accordance with the terms of this Agreement and (b) Contractors are subject to confidentiality obligations substantially similar to Licensee’s obligations herein and for which Licensor is an express third party beneficiary. Licensee shall be fully responsible for actions or inactions of its Contractors.


2.6 Map Interface. Licensor is entitled to display any point of interest, e.g., local attraction, on the mobile interface, kiosk or website. Licensor is entitled to complete control of the interface to ensure an optimal user experience.



3.          DELIVERY; ACCESS; AVAILABILITY.


3.1 Initial Delivery. Licensor shall (a) deliver the number of copies of Licensed Software and Documentation, all as may be identified on a Sales Order, in accordance with the timeframe set out in the Sales Order, or if silent, within a commercially reasonable timeframe subject to Licensee’s compliance with its obligations and provision of requested information and access, and/or (b) provide access to the corresponding Portal if any. 


3.2 Additional Purchases. At any time, Licensee may request to purchase, which Licensor may accept or reject in its sole option and discretion, additional licenses to one or more components of the Solution by entering into a new Sales Order with Licensor. 


3.3 Maintenance Windows. Licensor shall exercise commercially reasonable efforts to conduct scheduled maintenance outside the hours of 8am EST to 5pm EST, Monday through Friday, except on nationally recognized holidays.


3.4 Solution Availability. Licensor will use commercially reasonable efforts to make the Solution available to Licensee in Covered Areas free from interruption or break for at least 98% of all hours per month, except for planned maintenance actions, system back-up and recovery, and causes beyond Licensor’s control (“Solution Availability”). “Covered Areas” means those geographical areas within the commercially available coverage of the wireless network. The Solution warranty consists of the ability of Licensor’s servers (“Servers”) to receive inquiries from Licensee and to transmit information from the Servers to their destination. Availability for the Solution is subject to the limitations set forth in the Agreement and is based on reasonable use consistent with past practice in Covered Areas, and does not include interruptions as a result of Internet Unavailability, Wireless Network Interruption Factors, Independent Customer Activity, use of obsolete devices, or force majeure events. Licensee acknowledges that certain features and/or functionality for cellular-based aspects of the Solution may not perform in accordance with product specifications where coverage is provided by the wireless network provider’s roaming partner carriers.


3.4.1. “Internet Unavailability” means Licensee’s inability to access, or Licensor’s inability to provide, the Solution through the Internet due to causes outside of Licensor’s direct control, including, but not limited to: (i) failure or unavailability of Internet access; (ii) unauthorized use, theft or operator errors relating to Licensee’s telephone, cable or Internet service provider; (iii) bugs, errors, configuration problems or incompatibility of equipment or services relating to Licensee’s computer or network; or (iv) failure of communications networks or data transmission facilities. 


3.4.2. “Wireless Network Interruption Factors” means any wireless network outages or constraints that may occur due to the availability of the wireless network being temporarily refused, interrupted, curtailed or otherwise limited by factors including but not limited to atmospheric, environmental or topographical conditions, physical features such as buildings, tunnels or landmass features, satellite or transponder failure, coverage limitations, outages, gaps or other service interruptions attributable to the wireless network carrier or its network, including the wireless network carrier’s scheduled maintenance, capacity constraints, hostile network attacks by a third party that are directly attributable to the network’s vulnerabilities or wireless network provider facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or improved operation of the wireless network.


3.4.3. “Independent Customer Activity” means: (i) use of equipment by Licensee not provided or previously approved by Licensor; or (ii) negligent acts or omissions or willful misconduct by Licensor or its Contractors, Licensee’s employees, consultants or third party agents acting on behalf of Licensee.


3.5 Third Party Services. The Solution may contain features designed to interoperate with non-Licensor products or services (“Non-Licensor Services”). If Licensee integrates or directs Licensor to integrate the Solution with any Non-Licensor Services, Licensee acknowledges that such Non-Licensor Services might access or use Licensee’s Confidential Information and Licensee permits the Non-Licensor Services to access or use such Confidential Information. Licensee is solely responsible for the use of such Non-Licensor Services and any data loss or other losses it may suffer as a result of using any such Non-Licensor Services, and Licensee shall ensure that its use of any such integration or interoperability complies with the terms of use of those Non-Licensor Services. Licensor makes no warranty or guarantee with regards to any such interoperation, any Non-Licensor Services, or the continued availability of such features, and may cease providing such features for any reason without incurring fault or liability, for example and without limitation if, the provider of the Non-Licensor Services ceases to make the Non-Licensor Services available for interoperation with the Services. Any cessation of such features will not entitle Licensee to any refund of fees or other compensation.



4.          PROPRIETARY RIGHTS. 


4.1 General. As between Licensor and Licensee, Licensor retains all right, title and interest in and to the Solution, including, without limitation, all Intellectual Property Rights related thereto and all modifications thereof. No rights are granted to Licensee unless expressly set out in this Agreement and nothing in this Agreement assigns any rights, title or interest in any Licensor’s Intellectual Property Rights to Licensee. Licensee further agrees that violation of the License Restrictions in Section 2.2 or other breach of this Agreement, will cause the Licensor irreparable harm, and therefore the Licensee agrees that the Licensor will be entitled to extraordinary relief in court for temporary restraining orders, preliminary injunctions, and permanent injunctions.


4.2 Usage Data. Licensor shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Solution and related systems and technologies (including, without limitation, information that is or is concerning Licensee’s Confidential Information and data derived therefrom), and Licensor will be free (during and after the Term) to (i) use such information and data to improve and enhance the Solution and for other development, diagnostic and corrective purposes in connection with the Solution and other Licensor offerings, and (ii) disclose such data solely in a de-identified form in connection with its business.


4.3 Feedback. To the extent that Licensee or any of its Contractors provides any feedback, suggestions or recommendations with respect to the Solution (“Feedback”), Licensee hereby grants Licensor and its affiliated companies a nonexclusive, perpetual, transferable, sublicensable, royalty-free, irrevocable, and worldwide right and license to disclose, transmit, and otherwise use, on a non-confidential basis, the Feedback for Licensee’s business purposes without any duty of accounting or any other obligation or restriction.



5.          SERVICES.


5.1 Updates and Upgrades. During the Order Term, as long as Licensee is current on its payment obligations, Licensee is entitled to receive any maintenance updates to the Licensed Software that Licensor may release or provide to its other customers that improves or maintains the stability of the Licensed Software at no additional cost.


5.2 Equipment Maintenance and Assistance. In order to minimize downtime, Licensee shall provide basic, reasonable maintenance of the Hardware when instructed by Licensor. Such tasks may include, but are not limited to, checking and replacing fuses, securing loose connections and swapping defective components with replacement parts provided by Licensor.


5.3 Warranty Repairs. If a warranty is obtained through Licensor, Licensor’s technicians shall perform any warranty repairs determined by Licensor to be outside of Licensee’s capabilities or responsibilities within two (2) weeks of receiving the reported issue.


5.4 Hardware Integrations. If the project scope set forth in a Sales Order requires a hardware integration with hardware to be provided by Licensee in lieu of the Hardware, Licensee shall provide Licensor test units and official documentation of the hardware prior to the installation for internal integration testing. If the documentation provided to Licensor by the Licensee is outdated or incorrect, Licensee shall provide correct documentation to Licensor within a reasonable time. Licensor is entitled to alter project scope timelines if incorrect or outdated information is provided. If Licensor is providing Hardware, the Licensee shall have three (3) business days to dispute quantities received in a shipment from Licensor.


5.5 Support and Training. Licensor shall provide support, service and training in accordance with Licensor then standard practices, as outlined and available at www.peaktransit.com/support-services.


5.6 Custom Development. If Licensor agrees to perform any customized software development work for Licensee that the Parties intend for Licensee to own, Licensor will have sole ownership of such developments and Licensee will have no such ownership rights unless the Parties mutually execute a written addendum to this Agreement that fully satisfies the following conditions: (i) the scope and description of the mutually agreed work product is described, and (ii) the addendum includes an express statement that such work product is “intended to be a work made for hire for, and owned by, Licensee”. Notwithstanding the foregoing or any content of any such addendum, in no case whatsoever does Licensor assign or otherwise transfer to Licensee any right, title or interest in or to Solution or any other preexisting Intellectual Property Rights of Licensor.



6.          OBLIGATIONS OF LICENSEE.


6.1 General. Licensee shall (a) promptly provide Licensor and its authorized agents with such information and assistance as may be reasonably requested in order to carry out its obligations hereunder, (b) without charge, provide suitable office accommodation, materials, equipment and support services (including use of telephone and support services) reasonably requested in connection with performance of any services at Licensee’s premises ordered by Licensee under Section 5 or in a Sales Order, (c) procure all necessary rights from third Parties (including intellectual property licenses in relation to Licensee’s computer software) which are from time to time required in order for Licensor to provide services in an authorized and legal manner, and (d) with ten (10) days advance notice, permit Licensor and its authorized representatives to enter on to Licensee’s premises or inspect Licensee’s vehicle fleet in order to verify Licensee’s compliance with the terms of this Agreement. In connection with this review, Licensor may inspect records directly related to Licensee’s performance of this Agreement or use of Solution kept by or on behalf of the Licensee and make copies of the same.


6.2 Dependency on Customer Action. Licensee acknowledges that successful operation of the Solution is dependent on Licensee’s, any Contractors’ and its or their representative’s use of proper procedures and systems and input of correct data. Licensee shall have the sole responsibility for timely inputting and making available accurate, legal, and complete data (e.g. route information, stop locations, departure schedules) used in connection with the Solution. Licensee shall provide Licensor with the necessary information to appropriately integrate with the system and deliver all portions of the Agreement. Licensor is not responsible for reductions in Solution performance quality due to Licensee’s actions or inactions.


6.3 Internet Service Provider. In order to use any Portal or use other aspects of the Solution, Licensee will need to contract with an Internet Service Provider (“ISP”). Licensee will be solely responsible for Licensee’s choice of ISP and for any ISP related fees and expenses. Licensor will have no obligations, responsibility or liability for the ISP connection or any Internet communications link between Licensee’s facilities and Licensor’s server or the or third party server hosting the Portal.


6.4 Test Accounts. Licensee will provide Licensor access to a test account to allow for the implementation process to run more smoothly.


6.5 Communication Tools: Compliance. The Solution contains functionality that enables Licensee to send notifications to third parties, including but not limited to emails, SMS messages, in-app messages, and phone calls. Without limiting Licensee’s other obligations herein, Licensee will comply with the Telephone Consumer Protection Act (“TCPA”) and its implementing regulations, the CAN-SPAM Act and its implementing regulations, any applicable federal or state law requirements related to making, sending or receiving consumer or any other messaging via phone call, texting, email, chat or any other text messaging, the Telemarketing Sales Rule, the mobile carriers’ requirements, and all applicable laws related to caller ID. As between Licensor and Licensee, Licensee affirms it is solely responsible for complying with the forgoing laws, rules, and regulations, including maintaining an accurate and complete record of the status of a third party’s consent, revocations of consent, and any Do Not Call obligations, including without limitation the language consented to and the date of consent and revocation, if applicable, and all such records will be retrievable. Upon request by Licensor, Licensee will provide proof of any such third party’s consent status. In addition to Licensee’s obligations under Section 11.4, Licensee shall indemnify and hold the Licensor Indemnified Parties against any and all Damages, including but not limited to reasonable outside attorneys’ fees, that the Licensor Indemnified Parties may suffer or incur arising out of or in connection with any and all of Licensee’s actions or inactions that constitute a failure to comply with this Section. Section 9 does not apply to Licensee’s obligations under this Section or any breach thereof, which shall constitute a material breach of this Agreement.



7.          FEES AND PAYMENT.


7.1 Fees. Licensee agrees to pay Licensor the fees specified in each Sales Order in accordance with the payment schedules set forth in such Sales Order. The subscription fee portion of the total fees shall be paid in annual installments in advance and, unless otherwise agreed in a Sales Order, shall be due within thirty (30) days of the effective date of the applicable Sales Order and each annual anniversary thereof if renewed. To the extent Licensee purchases data or cellular connectivity services from Licensor as part of the Solution, Licensee shall pay for any and all fees, charges or other amounts associated with all usage of such services occurring by or through the Solution.


7.2 Payment. Licensee shall pay Licensor’s invoices in U.S. dollars to Licensor’s address set forth on the invoice, or as otherwise instructed by Licensor in writing. Licensee shall advise Licensor of the reasons for disputing the invoice in question within ten (10) business days from the Invoice Date. If Licensor has not received such notification within such a time frame, the invoice in question will be deemed acceptable by the Licensee. Licensor reserves the right to charge a penalty on any overdue and undisputed charges. 


7.3 Taxes. Licensee shall be responsible for any and all sales, use, excise, value-added or similar taxes that may be due under this Agreement and Licensor will use commercially reasonable efforts to identify any applicable taxes on its invoice to Licensee. Licensee will pay applicable taxes on the invoice or, in lieu of the payment of any such taxes; Licensee may provide Licensor with a certificate acceptable to the taxing authorities exempting Licensee from payment of these taxes. Notwithstanding the foregoing, in no event shall Licensee be obligated to pay any tax paid or owed on income or net worth of Licensor or paid for Licensor’s doing business in any particular locality or jurisdiction. For absolute clarity, it is the Licensee’s responsibility to deliver any tax exemption certificates prior to the Effective Date.


7.4 Additional Services. If the Licensee wishes to add to the number of its’ fleet and/or add additional products/services, a new Sales Order will be issued and billing will change for the remainder of the current Term, and will carry on to any additional renewed terms.


7.5 Variation. All prices and fees described in a Sales Order will remain firm for a period of twelve (12) months from the effective date of such Sales Order. Licensor may increase the prices and fees in such Sales Order annually provided that any additional increases over 5% will be preceded by sixty (60) days written notice or discussion with Licensee. To the extent Licensee purchases data or cellular connectivity services as part of the Solution, Licensor may pass through to Licensee any fee increases or regulatory charges imposed by the underlying wireless carrier for such services without regard to any timing, amount, or other limitation in this Agreement or a Sales Order. 



8.          WARRANTIES.


8.1 Performance Warranty. Licensor warrants that (a) the Licensed Software, as delivered and installed by or on behalf of Licensor, will operate substantially in accordance with the Documentation and (b) it will pass through to Licensee any warranties against defects in Hardware that Licensor is authorized to pass through from the applicable third party supplier or manufacturer. The warranty set forth in this Section 8.1 (the “Performance Warranty”) shall survive for a period of three hundred sixty five days (365) days following the effective date of the applicable Order Term, unless, with respect to such Hardware, a shorter period is provided by the applicable supplier or manufacturer (in any case, the “Warranty Period”). In the event of a breach of a Performance Warranty reported to Licensor in writing during the Warranty Period, Licensee’s sole remedy for such breach shall be to have Licensor use commercially reasonable efforts to promptly correct, replace or provide a work around for such error or failure in the Licensed Software or a replacement item of defective Hardware, in either case at no charge to Licensee, or in Licensor’s discretion, provide an equitable refund to Licensee. The Performance Warranty and remedies apply only to (y) the most recent version of the Licensed Software and (z) Hardware delivered and installed by Licensor, and in either case shall not apply to any breach, fault or error that has been caused by Licensee’s failure to use the Solution in accordance with the Documentation requirements or comply with Section 5.2 or if there is any misuse, accident, neglect, corruption, or abuse of, or modification to, the Solution by Licensee or any use of the Solution with any software or equipment not approved in advance in writing by Licensor.


8.2 Mutual Warranties. Each Party represents and warrants to the other Party: (a) such Party’s execution or acceptance, delivery and performance of this Agreement have been authorized by all necessary corporate action, do not violate in any material respect the terms of any law, regulation, or court order to which it is subject, and (b) such Party has secured and shall maintain all material permits, licenses, permissions, regulatory approvals and registrations to perform its obligations hereunder, and additionally, in the case of Licensee, with respect to the operation of its vehicle fleet and transportation services generally. 


8.3 General Disclaimer. EXCEPT AS SET FORTH IN SECTIONS 8.1 to 8.2, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND SECURE, ERROR-FREE OR UNINTERRUPTED OPERATION. 


8.4 Damaged or Lost Equipment. Licensee shall be solely responsible for, and shall promptly pay within five (5) business days of Licensor’s demand, the full replacement cost of any Hardware that is lost, stolen, misplaced, damaged, destroyed, or otherwise made unavailable to Licensor while in the possession of Licensee. Hardware will be deemed lost if not returned within thirty (30) days of the expiration or termination of the applicable Sales Order under which it was provided.


9.          Limitation of Liability. 


9.1 Damage Waiver. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST THE OTHER BY ANY THIRD PARTY, UNLESS SUCH CLAIMS ARISE OUT OF THE INDEMNITY OBLIGATIONS UNDER SECTIONS 11.1 AND 11.4 OR ARE DUE TO A BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10. LICENSOR’S LIABILITY TO LICENSEE UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSOR PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF ANY CLAIM. A “CLAIM” IS WHEN ANY OCCURRENCE GIVING RISE TO LICENSOR LIABILITY HEREUNDER IS KNOWN TO LICENSEE OR SHOULD BE KNOWN.


9.2 Motor Vehicle Use. Licensee acknowledges and agrees that (i) it is solely responsible for providing and ensuring the proper training of its drivers, owners or operators in the operation of the motor vehicle or motor vehicles in conjunction with the use or operation of Solution, (ii) Licensor shall not be liable to Licensee for any claim or action including costs arising out of the use or misuse of any motor vehicle operated by or on behalf of Licensee in conjunction with or separate from the use of the Solution, including any personal injury or property damage claim or action, and Licensee shall defend, indemnify and hold Licensor harmless from any such claim or action, the cost of enforcing this section and any other related damages or losses, and (iii) Licensee shall include this paragraph, or the substance thereof, in any third party agreements pursuant to which the Solution is provided to a third party.


10.          CONFIDENTIALITY.


10.1 Confidentiality Obligations. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. Each Party agrees that, during and following the term of this Agreement, it shall hold in strict confidence the other Party’s Confidential Information and will take reasonable steps, such steps at least substantially equivalent to the steps it takes to protect its own proprietary information, to (a) prevent use of the other Party’s Confidential Information for any purpose other than to carry out its rights and obligations hereunder, and (b) prevent the disclosure of the other Party’s Confidential Information, other than to its affiliates, employees or Contractors who must have access to such Confidential Information for such Party to exercise its rights and perform its obligations hereunder and who each agree to be bound by agreements with a duty of confidentiality no less protective of confidential information than provided herein. Licensee shall grant access to the password-protected portions of the Solution and any on-vehicle Hardware to their employees, and not to any third party, without Licensor’s approval. 


10.2 Exclusions. The Parties’ obligations set forth in Section 10.1 shall not apply with respect to any portion of the Confidential Information that: (a) was in the public domain at the time it was disclosed to or observed by the receiving Party; (b) entered the public domain through no fault of the receiving Party; (c) is rightfully received by the receiving Party from a third party without a duty of confidentiality; (d) is independently developed (after the Effective Date with respect to the Licensee and its affiliates and without reference or use of any information related to the prior ownership of the Licensed Software by affiliates of Licensee prior to the Effective Date), by the receiving Party without reference to or incorporation of the other Party’s Confidential Information; (e) is disclosed in accordance with the state Public Information Act, except that the receiving Party will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed and will provide the disclosing Party notice of such possible disclosure prior to disclosure in order to allow an opportunity for the disclosing Party to contest such disclosure; or (f) is disclosed with the other Party’s prior written approval.


10.3 Return of Confidential Information. Each Party agrees to return to the other Party or, at the request and instruction of the disclosing Party, destroy, and certify that it has destroyed, all material embodying Confidential Information (in any form or medium and including, without limitation, all summaries, copies and excerpts of Confidential Information) at any such time as the disclosing Party may so request.



11.          INDEMNIFICATION.


11.1 Indemnification by Licensor. Licensor shall defend and hold harmless Licensee, and its officers, directors, employees and agents, from and against any and all claims made or threatened by any third party and indemnify them against all losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in investigation or defense (“Damages”) that are agreed to in settlement by Licensor or awarded by a court of competent jurisdiction in favor of the third party binging the claim, to the extent such claim and Damages arise out of an allegation that the Licensee’s authorized use of the Solution in accordance with this Agreement, infringes, misappropriates, or otherwise violates such third party’s United States Intellectual Property Rights. Licensor’s indemnity obligation shall not extend to claims based on an unauthorized modification, combination or use of the Solution by Licensee or its customers.


11.2 Notification of 3rd Party Claims. Licensor will promptly notify Licensee of any threat, warning, claim or action against Licensor or suppliers, that could have an adverse impact on Licensee’s use of the Solution.


11.3 Remedies. If Licensor informs Licensee or otherwise determines that it must discontinue use of the Solution because of an existing or anticipated claim, or adjudication, that the Solution infringes, misappropriates or otherwise violates any intellectual property right of a third party, Licensor, at its own expense and in its reasonable discretion, shall either: (a) secure for Licensee the right to continue using the Solution during the applicable Order Term; (b) replace or modify the Solution to make it non- infringing; or if Licensor determines (a) or (b) to be commercially unreasonable, then (c) refund to Licensee any unamortized portions of the fees paid by Licensee, based on a straight line amortization over the Order Term.


11.4 Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Licensor, and their officers, directors, employees, and agents (“Licensor Indemnified Parties”) from and against any and all claims made or threatened by any third party and all Damages, to the extent such Damages arise out of or relate to (a) Licensee’s breach of the obligations assumed under this Agreement, (b) information or data provided by or on behalf of Licensee, or (c) an infringement or related claim resulting from an unauthorized modification, combination or use of the Solution made by Licensee or any party for which it is responsible.


11.5 Defense and Settlement. A Party seeking indemnity (“Indemnified Party”) shall provide the other Party (“Indemnifying Party”) written notice of any such claim made against it for which it is entitled to indemnity hereunder as promptly as is practicable. Each party shall cooperate reasonably with the other party and in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that Indemnifying Party shall control the defense, negotiations and settlement or compromise thereof and shall keep the Indemnified Party informed of the proceedings and review and consider input from the Indemnified Party; provided, that Indemnified Party shall be given the right to consent to the terms of any settlement or compromise with respect to such matter, and such approval shall not be unreasonably withheld, conditioned or delayed by Indemnified Party.



12.          EXPORT CONTROL. The Parties agree that Licensee shall not, and shall not permit, use of the Licensed Software and Documentation outside of the United States and Canada. To the extent Licensee seeks to use Licensed Software and Documentation outside of the United States and Canada, Licensee shall be solely responsible for full compliance with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the same.



13.          NOTICES. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in English in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the party to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. Licensor’s address for receipt of notices is provided in the introductory paragraph on the first page. Licensee’s address for receipt of notice is the address stated in the Sales Order. Either Party may update its address for receipt of notice by giving written notice to the other Party pursuant to this Section 13.



14.          TERM AND TERMINATION.


14.1 Term. This SLSA will commence on the Effective Date and continue for one-hundred and eighty (180) days following the termination or expiration of the last Sales Order. Each Sales Order will set out its own Initial Order Term. Thereafter, unless the applicable Sales Order expressly sets forth renewal provisions to the contrary, the Initial Order Term of each Sales Order will automatically renew for additional successive periods of twelve (12) months each (each, a “Renewal Term”), unless either party notifies the other party in writing of its intent not to renew such Sales Order at least sixty (60) days prior to the next Renewal Term.  


14.2 Termination by Licensor. Licensor may terminate this Agreement, or any part thereof, upon the occurrence of any of the following events: (a) if Licensee fails to pay Licensor any fees when due, or fails to pay any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of Licensee’s receipt of Licensor’s written notice thereof; or (b) if Licensee breaches any material obligation of Licensee under this Agreement and such breach is not cured within thirty (30) days of Licensee’s receipt of written notice thereof from Licensor. In any instance where Licensor has a right to terminate this Agreement, Licensor may also, without limiting any other right or remedy, elect to suspend its performance and/or discontinue the Solution or Services until such time as Licensor determines that Licensee is in full compliance with this Agreement.


14.3 Termination by Licensee. Licensee may terminate this Agreement in the event Licensor breaches any material obligation of Licensor under this Agreement and such breach is not cured within thirty (30) days of Licensor’s receipt of written notice thereof from Licensee or Licensor becomes insolvent, or is adjudicated as bankrupt, or voluntarily seeks protection under any bankruptcy or insolvency law.


14.4 Termination; Effect of Termination. In the event of any termination of this Agreement: (a) all licenses granted in connection with this Agreement terminate and Licensee shall cease all further use of the Solution, or any portion thereof, in all forms and on all media, hardware, and computer memory, and Licensee shall immediately: (i) surrender and deliver the Solution and all copies thereof to Licensor; or (ii) at the option of the Licensor, destroy all copies of the Solution, including backup and archival copies, and provide satisfactory evidence of such destruction in the form of an affidavit certifying that Licensee has complied with the terms of this Section 14.4, delivered to Licensor within one (1) month following termination; (b) Licensee shall pay all outstanding fees and amounts owed to licensor as of the date of termination; (c) Licensor may cease performance of Licensor’s obligations under this Agreement, without liability to Licensee; (d) where such termination is the result of a breach or threatened breach of this Agreement by Licensee, Licensor may apply for and obtain injunctive relief against the breach or threatened breach; and (e) Licensee shall promptly return to Licensor all of Licensor’s Confidential Information. Licensor and the Licensee shall cooperate in good faith to coordinate the timely removal of all equipment in the vehicles (or any other Licensor products otherwise in Licensee’s possession). Licensee shall grant Licensor reasonable access to all equipment within thirty (30) days after termination unless otherwise expressly agreed in writing.



15.          SURVIVAL. Sections 1, 2.2, 2.6, 4, 8.3, 9, 10, 11, 13, 14, 15 and 16 shall survive expiration or termination of this Agreement for any reason.



16.          GENERAL.


16.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements and communications, whether oral or written, between the Parties relating to the subject matter hereof, and all past courses of dealing or industry custom. Licensor reserves the right to amend or modify this SLSA in its discretion from time to time. For example, Licensor may amend or modify this SLSA due to (a) changes to the law or regulatory requirements (b) security or safety reasons, (c) circumstances beyond Licensor’s reasonable control, (d) changes Licensor makes in the usual course of developing the Service or the Solution, and (e) to adapt to new technologies. All changes will be effective as soon as Licensor posts them to its website.


16.2 Independent Contractors. In performing this Agreement, the Parties are independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between the Parties. Except as expressly set forth in this Agreement, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.


16.3 Assignment. Neither Party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably delayed, conditioned, or withheld, except (i) Licensor shall have the right to assign this Agreement to a successor who acquires, directly or indirectly, substantially all of Licensor’s business or who acquires substantially all of the assets or equity of Licensor and (ii) Licensee shall have the right to assign this Agreement to an affiliate under common control with Licensee in connection with a bona fide internal restructuring. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Licensor may subcontract the performance of any or all of its obligations under this Agreement, provided it remains directly liable to Licensee.


16.4 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing in this Agreement, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement other than as expressly set forth herein.


16.5 Severability/Waiver. If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either Party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.


16.6 Dispute Resolution. In the event any controversy or claim arises in connection with any provision of this Agreement, or in connection with the rights or obligations of the Parties to this Agreement, the Parties shall try to settle their differences amicably between themselves by referring the disputed matter to the appropriate executives at the Director level or higher for discussion and resolution. Either Party may initiate such informal dispute resolution by sending written notice of the dispute to the other Party, and as soon as possible but no later than fifteen (15) days after such notice such representatives of the Parties shall meet for attempted resolution by good faith negotiations. If such representatives are unable to resolve such dispute within thirty (30) days of initiating such negotiations, either Party may seek the remedies available to such Party under law. 


16.7 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to its conflicts of law principles or to the United Nations Convention on Contracts for the International Sale of Goods. For purposes of all claims brought under this Agreement, each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Orange County, Florida. Notwithstanding anything to the contrary set forth in this Agreement, the Parties agree that any threatened or actual violation of Sections 2, 4 or 10, will cause irreparable harm and injury to the Licensor and Licensor shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to injunction enjoining and restraining Licensee from doing or continuing to do any such act and any other violations or threatened violations of this Agreement, and Licensor may bring any such action or claim in any jurisdiction or venue.


16.8 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of circumstances beyond the reasonable control of such Party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs (whether or not by that Party), strikes and other industrial disputes (in each case, whether or not relating to that Party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions.


16.9 Headings; Interpretation. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of the Agreement. The expression “person” means any individual, entity, partnership, association, governmental body or the like. The words “include”, “includes”, “including” and “included” will be construed without limitation. This Agreement shall be construed fairly according to its terms, without regard to the identity of the drafter of any provision in the Agreement.


16.10 Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which when taken together shall constitute one agreement. Facsimile signatures shall be deemed original signatures.


16.11 Publicity. Licensee’s name and/or logo may be used to denote them as a customer on Licensor’s websites in order to direct end-users to the public-facing aspects of the Solution. If Licensee does not want Licensor to put Licensor’s name and/or logo on the Licensor website, Licensee must notify Licensor in writing. Licensor may publicize its relationship with Licensee for marketing and promotion purposes, which may include issuing a press release indicating the relationship or mentioning such relationship on the Licensor website (in each case by disclosing Licensee’s name, general information and/or a link to Licensee’s website).