TrueLite Trace, Inc.

Doing Business As FleetUp

675 North 1^st Street

Suite 500

San Jose, CA 95112

This Services Agreement (“Agreement”) governs the provision of Equipment, Software and Services (each as defined below) by TrueLite Trace, Inc., a Delaware corporation, to the customer (“Customer”) specified in the FleetUp Service Quotation (the “Order”).

1.              Definitions. The following definitions shall be used throughout this Agreement:

1.1           “Consumables” means those components used in conjunction with Equipment such as antennae, external cabling, screens, batteries, casings, coverings and other non-electrical components.

1.2           “Effective Date” refers to the 1st billing date. The 1st billing date is 5 days after shipping.

1.3           “Equipment” means the tracking and communications equipment and Consumables required to be installed in Vehicles to provision the Services, as specified in the Order.

1.4           “GPS” means Global Positioning System.

1.5           “Intellectual Property Rights” or “IPR” means all current and future rights in patents, copyrights, trade secrets, trademarks, mask works, design rights, database rights and any other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing that may exist anywhere in the world, including without limitation, in the case of each of the foregoing, whether unregistered, registered or comprising an application for registration.

1.6           “Order” means the FleetUp Service Order detailing the provision of Equipment and the Services to Customer. The Order is incorporated herein as APPENDIX A

1.7           “RMA” means Return Merchandise Authorization.

1.8           “Service Area” means the geographic regions specified in the Order. If no Service Area is specified in an Order, the default Service Area shall be the Continental United States.

1.9           “Services” means TrueLite Trace’s proprietary Vehicle management and messaging service described in TrueLite Trace’s documentation. The Services (and any data made available to Customer) shall be used exclusively by Customer for Customer’s internal business purposes, and Customer may not resell or otherwise offer to third parties, the Services or the data. The Services are provided in the Service Area specified in an Order.

1.10        “Software” means any and all software provided by TrueLite Trace and/or TrueLite Trace’s supplier(s) and/or accessible by Customer, including the FleetUp web and mobile application, Equipment software, and Updates thereto.

1.11        “Total Purchase Price” means, with respect to Equipment, the total price payable by Customer if Equipment is designated “Customer Owned.”

1.12        “Updates” means updates, bug fixes, patches, and enhancements to the Software.

1.13        “Vehicle” means a vehicle or other asset owned or controlled by Customer and designated in an Order for installation of Equipment.

1.14        “Bankruptcy Event” means a party becomes insolvent or makes an assignment for the benefit of creditors or ceases to do business or institutes or has instituted against it any proceedings for bankruptcy, reorganization, insolvency, or liquidation or other proceedings under any bankruptcy or other law for the relief of debtors and does not terminate such proceedings or such proceedings are not withdrawn or dismissed within thirty (30) days.

2.              Equipment.

2.1           Equipment will remain the exclusive property of TrueLite Trace. Upon termination of this Agreement, Customer will return all TrueLite Trace-owned Equipment to TrueLite Trace or, upon written notice to Customer, TrueLite Trace may abandon in whole or in part, all TrueLite Trace-owned Equipment and other materials associated with Equipment, without obligation to remove any Equipment from Vehicles, and the removal or abandonment of such materials shall not be held to constitute a waiver of the right of TrueLite Trace to collect any charges that have been accrued or may be accrued hereunder.

2.2           Customer: (a) will not (i) assign, transfer, pledge, encumber, lease or relinquish possession or control of Equipment; (ii) make or cause to be made any alteration, attachment or repair to Equipment other than by TrueLite Trace; or (iii) remove Equipment from Vehicles without the written consent of TrueLite Trace; and (iv) will bear all risk of damage to, or loss or theft of, Equipment while it is in Customer’s possession or control.

2.3           Customer hereby acknowledges that any Intellectual Property Rights relating to Equipment shall at all times remain TrueLite Trace’s or its suppliers’ sole and exclusive property and that despite ownership of Equipment, Customer will not, during or after the Term, use Equipment other than exclusively in conjunction with the Services.

2.4           If a Vehicle is repossessed or control of the Vehicle is otherwise transferred to a third party (whether voluntarily or otherwise), and Equipment remains in the Vehicle, Customer’s obligations under this Agreement shall continue for the remainder of the Term, including Customer’s obligation to pay the replacement price of the affected Equipment. Notwithstanding the foregoing, in the event a Vehicle is repossessed or transferred, (i) Customer will expend best efforts to retain or reclaim the affected Equipment; (ii) TrueLite Trace will immediately cease the Services to the affected vehicle with no further obligation to provide the Services in connection with such Vehicle to Customer; and (iii) TrueLite Trace will not be liable to refund any payments made by Customer in connection with such Vehicle.

2.5           Other than as specifically set forth in this Agreement, Equipment may only be removed from a Vehicle upon receipt of written notification to TrueLite Trace. Customer may not sublicense, assign, rent, lease or otherwise transfer Equipment to a third party.

2.6           Installed Equipment draws low amounts of electrical current when a Vehicle is not being operated. The Vehicle’s battery may be adversely affected when not in regular operation. TrueLite Trace is not liable for any consequences of Vehicle battery drain associated with use of Equipment.

3.              Location and Data Services.

3.1           The Services are not intended, and should never be relied on, for emergency services or loss prevention.

3.2           The base cost of communications associated with the use of the Services is included in the fees specified in the Order, unless specified as an additional cost therein. Notwithstanding the foregoing, TrueLite Trace may, without charge to Customer, communicate with Equipment used by Customer to improve the Services, generally.

4.              Software.

4.1           Software provided with Equipment or accessed in connection with the Services is proprietary to TrueLite Trace and/or TrueLite Trace’s supplier(s) and is licensed to Customer on a limited non-exclusive, non-transferable basis. Customer may not: (a) derive or attempt to derive the source code or structure of the Software by reverse engineering, disassembly, decompilation, or any other means; (b) disclose the Software or source code to any third parties; (c) duplicate, reproduce or copy all or any part of the Software; or (d) use the Software on equipment other than with Equipment with which it was furnished.

4.2           All right, title and interest in and to the Software and all copies and duplicates thereof, and all Intellectual Property Rights therein remain with TrueLite Trace and/or TrueLite Trace’s supplier(s). The Software is licensed, not sold or transferred, to Customer for use only under the terms of this Agreement, and only to the extent necessary to receive the benefits of the Services. TrueLite Trace and its supplier(s) reserve all rights not expressly granted to Customer herein.

4.3           Customer may not sublicense, assign, rent, lease or otherwise transfer or market the Software.

4.4           Unless otherwise specified by TrueLite Trace, only the most current version of the mobile application Software will be supported by TrueLite Trace. Customer will be advised of mobile application Software Updates from time to time as they become available generally to TrueLite Trace’s customers.

4.5           The Software utilizes map databases owned by third party licensors to TrueLite Trace. Customer’s use of map databases is subject to terms provided by such third party licensors.

5.              Third Party Service Providers.

5.1           Customer acknowledges that communication services used in the provision of the Services are provided by third party providers. Customer further acknowledges that the Services, such as GPS, may be temporarily or permanently interrupted or limited due to technical and environmental conditions beyond the reasonable control of TrueLite Trace. Therefore, TrueLite Trace cannot guarantee that the Services will be functional at all times, and shall not be liable for such interruptions of the Services or the inability to use the Services within the Coverage Area. Any deviations from coverage representations made in an Order shall not constitute a default by TrueLite Trace.

5.2 TrueLite Trace may temporarily suspend or permanently terminate all or any portion of the Services in the event that TrueLite Trace’s agreement with essential third party providers (such as GPS providers) is terminated, or in the event Customer violates such third party supplier’s policies then in effect. TrueLite Trace will use reasonable efforts to provide notice to Customer in the event an essential third party provider intends to discontinue or suspend its provision of services to TrueLite Trace. TrueLite Trace will not bill for suspended or terminated services during the period of suspension.

6.              Term and Termination.

6.1           This Agreement is effective on the Effective Date and will remain in full force and effect for an initial term specified on the Order. This Agreement shall auto-renew for the initial term length unless either party gives written notice of its intent not to renew at least thirty (30) days prior to expiration of any existing term (“Term”).

6.2           In addition to any other rights provided in this Agreement, either party may immediately terminate this Agreement if (A) the other party fails to cure any material breach of its obligations or of any term or condition applicable to such party, within fifteen (15) days after receipt of written notice or (B) a party experiences a Bankruptcy Event.

6.3           Upon termination of this Agreement for any reason Customer shall immediately cease use of the Services and follow TrueLite Trace’s instructions in respect of Equipment. In the event the Services are temporarily suspended due to a breach by Customer, TrueLite Trace may charge Customer a re-activation fee equal to one (1) month of Service fees then payable by Customer.

 

6.4           Those rights and obligations under this Agreement set forth in Sections 1, 2.1, 2.2, 2.3, 4.1, 4.2, 4.3, 4.5, 8.6, 9.1, 9.2, 10, 11, 12, payments obligations accrued prior to termination, and those others which by their nature should survive, will remain in effect after termination or expiration of this Agreement.

7.              Payment and Taxes.

7.1           For the Services provided under this Agreement, Customer agrees to pay, in advance, the total Initial Charges specified in the Order, plus applicable federal, state, and local taxes.

7.2           Billing Policy

FleetUp will issue the first invoice 5 days after the units have been shipped to the customer, this is referred to as the Effective Date. All units must be shipped to the customer within 30 days of the contract signing. If a customer fails to provide the required vehicle information within that 30-day period, FleetUp reserves the right to start billing for the services immediately. If a deployment schedule has been agreed to and outlined in the contract, the first invoice will be issued 5 days after the first deployment. Subsequent monthly invoices will include units shipped the previous month, prorated, according to the agreed upon deployment schedule. Due to the lead time and capital required to secure inventory, the Customer may not change the deployment schedule after a contract is signed, however, FleetUp may allow up to a 30-day hold on a deployment as a courtesy determined on a case by case basis. Any questions regarding FleetUp’s Billing Policy can be referred to billing@fleetup.com.

7.3           Interest shall accrue on any delinquent amounts owed by Customer to TrueLite Trace at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less.

7.4           If Customer terminates this Agreement during its initial Term, termination will be effective at the end of the subsequent monthly billing period following receipt of Customer’s termination notice. Additionally, if Customer terminates this Agreement during its initial Term, or if TrueLite Trace terminates this Agreement during its Initial Term for a reason set forth in Section 6.2, Customer agrees to pay, in addition to any outstanding fees and charges for the Services rendered prior to termination, the full remaining charge(s) of fees payable for the unexpired. This amount is a contract termination charge and is not a penalty. TrueLite Trace shall have the right to increase the Services fees after the initial Term.

8.              Customer Representations and Warranties.

8.1           Customer warrants that it: (a) has requested Equipment specified in an Order for its own use and not for the benefit of any third party, (b) owns or controls Vehicles in which Equipment is being installed or has been expressly authorized by the owner of Vehicles to engage TrueLite Trace to carry out the installation of Equipment; and (c) will comply with all laws, codes and regulations pertaining to the use of Equipment, Software and the Services.

8.2           Customer further warrants that it will advise any employee or other authorized user of Vehicles that: (i) Vehicles may be tracked, and (ii) Customer and its employees will be able to view current and historical data relating to Vehicles equipped with Equipment.

8.3           Customer shall at all times remain responsible for observing all relevant laws and regulations in addition to codes of safe driving and TrueLite Trace will not in any event be liable for any fine, penalty, or punishment imposed.

8.4           Customer acknowledges that for quality control, security reasons and training, telephone calls between TrueLite Trace and Customer and/or its employees may be recorded.

8.5           Customer acknowledges and agrees that: (a) TrueLite Trace may transmit, record, store, provide and receive unencrypted data in the course of performing the Services hereunder (“Transmission(s)“), and (b) TrueLite Trace cannot (and does not) warrant, assure or guarantee the integrity, accuracy, confidentiality or security of any Transmission of or from any unauthorized or unexpected use, disclosure, corruption, interception or otherwise (collectively, “Security Risk(s)“). Customer hereby assumes and releases and discharges TrueLite Trace of and from all Security Risks and any and all damages and liability therefor.

8.6           TrueLite Trace reserves the right to use, store, analyze and disclose anonymized statistical data, including but not limited to location, time, speed and other data obtained from Vehicles utilizing the Service (collectively “Vehicle Data”). TrueLite Trace may use Vehicle Data for any business purpose including, but not limited to, improving the Service, analyzing and reporting on trends, data aggregation with other TrueLite Trace services or third-party data or services. Customer retains a limited, non-exclusive, royalty-free – during the subscription period for the Services, right to use, copy, report, or transform the Vehicle Data for its own internal use or as required for reporting to an authorized, required agency.

9.              Limited Warranties and Disclaimer.

9.1           Equipment Warranty.

A.             Any Equipment installed under this Agreement that proves to be defective in material or workmanship during the term of this Agreement will be repaired or replaced at TrueLite Trace’s option with a new or functionally operative part.

B.             The warranties set forth in Section 10.1.A do not apply to the “Conditions Not Covered by Warranty” listed below (the “Conditions“). If Customer requests warranty service and upon inspection by TrueLite Trace’s representative it is determined that a Condition (or combination thereof) has led to the inoperability or apparent inoperability of Equipment, TrueLite Trace will provide a written report to Customer describing the cause of the problem, the Condition, and charges applicable to repair or replace Equipment. Repair charges shall be at TrueLite Trace’s then-applicable rates for labor and material. If a replacement is required, Customer shall, at its option, purchase replacement Equipment; provided however, that if Customer does not purchase a replacement unit or agree to repair Equipment, as the case may be, Customer shall not be relieved from its obligation pay the balance, if any, of the Total Purchase Price of the affected Equipment.

C.             Conditions Not Covered by Warranty: (i) damage or extra service time resulting from accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of War, adjustments, repairs or maintenance not done by TrueLite Trace; (ii) issues due to interruption of power to Equipment; (iii) battery failure; (iv) use of Equipment not contemplated by TrueLite Trace, or that are not in the ordinary course of Customer’s business, or has not been approved in writing by TrueLite Trace; (vi) accidents, misuse, abuse, neglect, damage and tampering with the Software or Equipment; (vii) improper installation, maintenance, or repair by Customer of Equipment or the Software; (viii) damage caused by water, weather or exposure to the elements; (ix) use of Equipment on a trial basis; and (x) with accessories or devices not approved or provided by TrueLite Trace. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to TrueLite Trace within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by TrueLite Trace.

D.             Warranty coverage does not extend to Consumables, and Consumables replacements shall be provided to Customer at TrueLite Trace’s then applicable list prices.

E.             Upon request for valid warranty service, TrueLite Trace will issue an RMA to Customer, which must be noted in the outer and inner packaging of returned Equipment. Customer shall return Equipment to the shipping address indicated in an RMA, freight prepaid. Returns made without an RMA or valid RMA shall be rejected. Equipment returned pursuant to an RMA must be properly packaged to prevent damage and shipped to the address provided by TrueLite Trace. For Equipment covered by a valid warranty, (i) TrueLite Trace will return repaired or replacement Equipment to Customer, freight prepaid, and (ii) credit Customer for actual shipping costs associated with the shipment of Equipment to TrueLite Trace.

F.              THE FOREGOING EQUIPMENT WARRANTY IS IN LIEU OF ALL OTHER EQUIPMENT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT. CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSSES OR DAMAGES RESULTING FROM THE USE OF EQUIPMENT, INCLUDING TRUELITE TRACE’S NEGLIGENCE, SHALL BE REPAIR OR REPLACEMENT AS SPECIFIED ABOVE. WHERE PROHIBITED BY LAW, ANY SUCH WARRANTY IS LIMITED TO THE MINIMUM WARRANTY AND PERIOD PROVIDED BY LAW. NO EMPLOYEE OR AGENT OF TRUELITE TRACE HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO CUSTOMER, WRITTEN OR ORAL.

9.2           Software and Services Warranty. THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS”. CUSTOMER RECEIVES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT, OR THAT THE SOFTWARE AND THE SERVICES WILL BE BUG/ERROR FREE, THAT ITS USE WILL BE UNINTERRUPTED, OR THAT IT IS FREE OF VULNERABILITY TO INTRUSION OR ATTACK. WHERE PROHIBITED BY LAW, ANY SUCH WARRANTY IS LIMITED TO THE MINIMUM WARRANTY AND PERIOD PROVIDED BY LAW. NO EMPLOYEE OR AGENT OF TRUELITE TRACE HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO CUSTOMER, WRITTEN OR ORAL.

10.           Limitation of Liabilities.

 

10.1        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING OUT OF SECTION 11.ii: (a) IN NO EVENT SHALL CUSTOMER OR TRUELITE TRACE (OR TRUELITE TRACE’S SUPPLIERS), AND THEIR RESPECTIVE AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENTS (BOTH DIRECT AND INDIRECT) BE LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUE, LOST PROFIT, LOST OR DAMAGED DATA, OR BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, IN CONNECTION WITH THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER OR TRUELITE TRACE ARISING OUT OF OR RELATED TO THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE FEES PAID TO TRUELITE TRACE FROM CUSTOMER (OR AUTHORIZED RESELLER, AS APPLICABLE) FOR THE RELEVANT EQUIPMENT OR SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE SUCH LIABILITY. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, ANY INTENTIONAL BREACH OF SECTION 11 (CONFIDENTIALITY) OR BREACH BY CUSTOMER OF ITS PAYMENT OBLIGATIONS TO TRUELITE TRACE (OR AUTHORIZED RESELLER, AS APPLICABLE). NO SUIT OR ACTION SHALL BE BROUGHT AGAINST TRUELITE TRACE OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENTS (BOTH DIRECT AND INDIRECT) MORE THAN ONE (1) 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 (1) YEAR.

10.2        Customer agrees to indemnify, defend and hold TrueLite Trace and its licensors harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense or claim of any fees (including reasonable attorney’s fees) arising out of or in connection with any use or possession by Customer of the data produced by the Services and/or the unauthorized or improper use of the Services or the failure to use the same properly or as directed by TrueLite Trace from time to time.

11.           Confidentiality. “Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement, where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature or circumstances of disclosure, be reasonably considered to be confidential and/or proprietary.  The parties agree that, without limiting the foregoing, all Software (and any performance data, benchmark results, security assessments and all other technical information relating to any Software), documentation, and derivatives of the foregoing, and TrueLite Trace’s pricing information shall be deemed the Confidential Information of TrueLite Trace, and the other terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential information of both parties.  Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction as to disclosure prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (d) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information as evidenced by contemporaneous written records.  Except as otherwise expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the Software) or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to those employees, contractors and other agents of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee, contractor or other agent shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee, contractor or other agent with the terms of this Agreement.  Notwithstanding the provisions of this Section, the Receiving Party may disclose: (I) the Disclosing Party’s Confidential Information as required by any court or other governmental body or as otherwise required by law or regulation to be disclosed, provided, however, that the Receiving Party shall provide written notice to the Disclosing Party promptly to enable the Disclosing Party to seek a protective Order or otherwise prevent disclosure of such Confidential Information; (II) the terms and conditions of this Agreement to advisors (including financial advisors, attorneys and accountants) and investors on a need-to-know basis under conditions that reasonably ensure the confidentiality thereof; (III) the terms and conditions of this Agreement in confidence, in connection with a proposed or actual merger, acquisition of stock or assets, or the like; or (IV) the terms and conditions of this Agreement as advisable or required in connection with any government or regulatory filings, including filings with the United States Security and Exchange Commission.  In no event, however, shall Customer disclose TrueLite Trace Confidential Information to any TrueLite Trace competitor. The obligations of the parties under this Section will survive the expiration or termination of this Agreement.

12.           General.

A.             Language. If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.  All services to be provided hereunder by TrueLite Trace to Customer (if any) shall be conducted and provided in the English language.

B.             In-Licensed Materials. The Software may contain or may interoperate with software services or other technology that is not owned by TrueLite Trace but has been licensed to TrueLite Trace (“In-Licensed Materials”).  The In-Licensed Materials may be subject to additional terms and conditions made available to Customer. Such terms and conditions are incorporated by reference herein.

C.             Import/Export. Export Control. Customer shall not export or re-export, directly or indirectly, any: (a) product or service provided under this Agreement; (b) technical data; (c) Software; (d) information; or (e) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions, including the Export Administration Act and Regulations, and shall incorporate in all export shipping documents the applicable destination control statements. Customer shall, at its own expense, defend, indemnify and save harmless TrueLite Trace from and against all third-party claims, liability, loss or damage (including reasonable attorneys’ fees and other defense costs), assessed against or suffered by TrueLite Trace as a result of an allegation or claim of noncompliance by Customer with this paragraph. The obligations contained in this paragraph shall survive the termination or expiration of the Agreement.

D.             U.S. Government End User Purchasers. All Software, including all components thereof, and documentation provided therewith qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software with only those rights set forth in this Agreement. Use of the Software constitutes agreement by the Government that all Software is “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.

E.             Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; Customer and TrueLite Trace hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.  The party prevailing in any dispute under this Agreement shall be entitled to its reasonable costs and legal fees.

F.             Force Majeure. Any delay or failure in the performance by TrueLite Trace hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure.  “Force Majeure” shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of TrueLite Trace, including but not limited to acts of God (including but not limited to fire, flood, earthquake, storm, hurricane or other natural disaster), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition or embargo, rebellion, revolution, insurrection, military or usurped power, civil war, acts or threats of terrorism, riots, strikes or labor disputes (excluding by TrueLite Trace employees).

G.            Publicity. TrueLite Trace may publicly disclose (orally and in writing) that Customer is a customer of TrueLite Trace, including in a list of TrueLite Trace customers and other promotional materials.

H.            Entire Agreement; Modifications. This Agreement constitute the entire agreement between the parties with respect to the provision of Equipment, Software, and the Services, other software (as applicable), products (as applicable), and services (as applicable) as described herein.  This Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed, conflicting or additional terms of any purchase Quotation, Quotationing document, acknowledgement or confirmation or other document issued by Customer before or after execution of this Agreement, even if accepted in writing by both parties.  Any such document is hereby deemed rejected and extraneous to this Agreement and TrueLite Trace’s performance of this Agreement shall not be deemed acceptance of the terms of any such documents or an amendment to (or agreement to amend) this Agreement.  This Agreement may be modified by a “click wrap” or “click accept” agreement that TrueLite Trace incorporates into or as a condition of accessing the Software and the Services.  Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing hand signed by both parties where “in writing” does not include an e-mail message and “hand signed” does not include an electronic signature.

I.               Severability and Waiver. Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction or by an arbitration panel (as applicable), that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

J.              Assignment. This Agreement may not be assigned or transferred, in whole or in part, without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

K.            Notice.  Any notice required or permitted to be given in accordance with this Agreement shall be in writing.  Notices to TrueLite Trace shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: TrueLite Trace, Inc., 675 North 1^st Street, Suite 500, San Jose, CA 95112, Attention: Legal Notices. For contractual purposes, Customer consents to receive communications from TrueLite Trace electronically. Notices sent to Customer shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: the electronic address Customer has provided to TrueLite Trace for invoicing purposes or the Customer address listed in the Order.  All notices will be deemed given:  (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless TrueLite Trace is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery).  Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.

L.             Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting TrueLite Trace’s or its suppliers’ intellectual property rights in Software or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.

M.            Independent Contractors. The parties are independent contractors, and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

N.             Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document.  Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.

 

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Updated: June 28, 2018