Last Updated December 5, 2022
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF LOCANCE (INCLUDING LOCATIONSMART) SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "COMPANY", "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.1 "Active Client" means a Client that controls, operates or offers an Active Client Application to its Authorized Users or to other Clients.
1.2 "Active Client Application" means the application controlled, operated and offered by Active Client, which accesses the Service via the Customer Platform as set forth in the applicable Order Form.
1.3 "Active Client Platform" means the servers, databases, operating systems, network domains and networking facilities used to operate the Active Client Application, including all subdomains, websites, mirror sites, proxy servers, or successor sites or servers to such website and subdomains, as identified in the applicable Order Form.
1.4 "Affiliate" means with respect to a person, any person controlling, controlled by or under common control with such person.
1.5 "Agreement" means the Master Services Agreement that includes these Standard Terms and Conditions, the Provider Terms and Conditions and the Maintenance and Support Terms and Conditions together with the Order Form that references the Master Services Agreement.
1.6 "API" means the application programming interface to the Locance Platform and related documentation that describes the protocol, privacy management, message types, value added services, connectivity options, authentication and authorization procedures, rules, requirements, restrictions and policies for accessing the Locance Platform via a commercially-available electronic communications interface.
1.7 "Authorized User" means the individual or entity that is permitted by Customer or its Client in accordance with this Agreement to use the Active Client Application, Customer Application, Direct Client Application or Locance Application.
1.8 "Client" means the Customer's customer (including through multiple tiers) that makes available the Customer Application or a client application that uses the Service for use by its Authorized Users.
1.9 "Confidential Information" means (i) with regards to Locance, the Locance Platform, the API, the Documentation, Locance's Information and Locance's Intellectual Property Rights related to, connected with or arising out of the Locance Platform, API, or Service and any Content or other information provided by Service Providers, and (ii) with regard to Customer, Customer's Information, usage metrics related to Customer Applications, and Authorized Users' use of the Customer Application, and any non-public information regarding the business of the Customer, in whole and in part, and (iii) with regard to either party, any other information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as confidential or proprietary.
1.10 "Content" means any map data, street addresses, points of interest data, geographic coordinates, device information, End User information, location, network, and device details or other content that is offered as part of the Service in accordance with the Order Form.
1.11 "Customer" shall mean the person executing this Agreement as set forth on the applicable Order Form(s).
1.12 "Customer Application" means the application, controlled, operated and offered by the Customer to its Authorized Users or Clients, which uses the Service as set forth in the applicable Order Form.
1.13 "Customer Assets" means collectively the Customer Application, Customer Confidential Information and documentation prepared by Customer in connection with any of the foregoing.
1.14 "Customer Platform" means the servers, databases, operating systems, network domains and networking facilities used to operate the Customer Application, including all subdomains, websites, mirror sites, proxy servers, or successor sites or servers to such website and subdomains, as identified in the applicable Order Form.
1.15 "Direct Client" means a Client that controls, operates and offers a Direct Client Application to its Authorized Users or to other Clients and is granted a sub-license from Customer for use of the Locance Assets in accordance with Section 4.2 herein.
1.16 "Direct Client Application" means the application controlled, operated and offered by a Direct Client, which connects directly to the Locance Platform via the API as set forth in the applicable Order Form.
1.17 "Direct Client Platform" means the servers, databases, operating systems, network domains and networking facilities used to operate the Direct Client Application, including all subdomains, websites, mirror sites, proxy servers, or successor sites or servers to such website and subdomains, as identified in the applicable Order Form.
1.18 "Documentation" means all Locance on-line help files, written instruction manuals, sample code or written correspondence from Locance and Service Providers, including emails, regarding the API, Locance Platform and/or Service.
1.19 "End User" means the mobile phone or device user or subscriber whose location or other information is accessed by the Active Client Application, Customer Application, Direct Client Application or Locance Application in accordance with this Agreement.
1.20 "Information" means any technical, or business information in written, graphical, oral, or other tangible or intangible forms, including but not limited to, specifications, drawings, tools, samples, reports, compilations, records, data, computer programs, models, and trade secrets.
1.21 "Intellectual Property Rights" means any patent rights, copyrights, trade secrets, trade names, service marks, moral rights, know-how and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force.
1.22 "Locance Application" means Locance's application that makes use of the Service, as described in the applicable Order Form, offered by Locance for use by Customer, Clients or Authorized Users.
1.23 "Locance Assets" means collectively the Locance Platform, Service, Locance Applications, Locance's Confidential Information, API, Content and the Documentation.
1.24 "Locance Platform" means Locance's proprietary platform that enables the Service.
1.25 "Order Form" has the meaning ascribed to it in this Agreement.
1.26 "Pass-Through Client" means a Client that uses, or allows its Authorized Users to use, the Customer Application.
1.27 "Service Provider" means any entity that provides the underlying services or Content made available by Locance through use of the Service offered to Customer subject to the Provider Terms and Conditions.
2.1 Engagement. Locance agrees to offer the Locance Assets for use by Customer, and Customer agrees to use the Locance Assets, in accordance with the applicable Order Form.
2.2 Hosting. Locance shall host and maintain the Locance Platform accessible to Customer via the API.
2.3 Custom Services. Upon Customer's request, Locance and Customer may agree to work together to integrate the Locance Platform with the Customer Platform(s), implement the Customer Application or customize the Service. If agreed, such engagement shall be evidenced by the execution of a separate Statement of Work to be attached to the Order Form.
2.4 Project Management. Locance and Customer shall each designate an employee who shall be assigned the primary responsibility for communicating with and providing necessary assistance to the other party during the term of this Agreement.
3.1 Access to Customer Application. Customer shall provide Locance with reasonable and timely access to Customer's Applications and Platform as shall be reasonably necessary for the performance of Locance's obligations under the Agreement.
3.2 Customer Deliverables. Customer shall timely provide the Customer Deliverables set forth in the applicable Order Form or the applicable Statement of Work that will be used to install and operate the Customer Application.
3.3 Customer's Clients. The obligations set forth in Sections 3.1 and 3.2 above shall apply to any Active Clients or Direct Clients, as applicable. It shall be Customer's responsibility to have such Clients comply with these obligations.
4.1 Grant. Subject to the terms and conditions of this Agreement, Locance hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable (except as set forth in Section 4.2 below), non-transferable limited license to (i) use the API solely to the extent necessary to integrate the Locance Platform with Customer Platform or Active Client Platform in order to offer and provide Customer Application, or enable Active Client to offer and provide Active Client Application, to the Authorized Users; (ii) use the Documentation in connection with aforesaid use of the API; (iii) use the Intellectual Property Rights related to the Locance Assets including rights to use those patents listed in Exhibit A, for the use of the Locance Assets under this Agreement; and (iv) distribute the Content only as part of the Customer Application and Active Client Application to the Clients and/or the Authorized Users.
4.2 Sublicensing Right. Customer may sublicense the rights set forth in (i), (ii) and (iii) of Section 4.1 to its Direct Clients solely to be used in connection with operation and offering of Direct Client Applications to the Authorized Users subject to the terms and conditions of the Agreement. Customer shall be responsible for the acts and omissions of Direct Clients and for enforcing the provisions of the Agreement with respect to Direct Clients.
4.3 Restrictions. Customer's right to use the Locance Assets is limited solely to Customer or its Direct Clients. Customer agrees that, except as expressly permitted under this Agreement, it will not itself, or through any parent, subsidiary, affiliate, agent or other third party, entity or other business structure (i) use, sell, lease, license or sublicense any or all of the Locance Assets, (ii) decompile, disassemble, re-program, reverse engineer or otherwise attempt to derive or modify the Locance Assets in whole or in part, (iii) write or develop any derivative software or any other software program based upon the Locance Assets, (iv) provide, copy, transmit, disclose, divulge, or make available to, or permit use of the Locance Assets by any third party or entity or machine without Locance's prior written consent, (v) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices of Locance or its licensors, (vi) circumvent or disable any security or other technological features or measures used by Locance, or (vii) use any device, software or routine that interferes with the proper working of the Locance Platform, Service or API, or otherwise attempt to interfere with the proper working of the Service.
4.4 Service Use. Customer agrees to follow, and will ensure that each Client follows, the recommendations and best practices provided by Locance for the proper use of the Service and to review any deviations from such recommendations or best practices with Locance before commercial use of the Service. Before any Customer Application, Active Client Application or Direct Client Application is offered for use by Clients and/or Authorized Users, Customer shall notify Locance and allow, and, if applicable, ensure that each Client offering its own application allows, Locance to test the application upon request. Such testing may be conducted by Locance to assess that the Customer Application, Active Client Application or Direct Client Application, as applicable, conforms to the APIs, and associated requirements, and meets all applicable terms and conditions set forth in this Agreement, as may be amended by Locance or Service Providers from time to time. Customer shall notify Locance of any material changes to the Customer Application, Active Client Application or Direct Client Application related to the use of the Service to allow Locance to review and retest such changed application before its release to its Clients and/or Authorized Users. All such testing will be done on a timely basis. Customer further acknowledges and agrees that the verification process is merely an internal assessment by Locance for its own satisfaction that the Customer Application, Active Client Application and Direct Client Application conform to the the terms of this Agreement. However, Customer remains responsible to and shall, at all times, comply, and ensure that any Active Client or Direct Client complies, with this Agreement. Customer further acknowledges and consents, and shall ensure that its Clients acknowledge and consent, that Locance may share the results of such testing with relevant Service Providers including, without limitation, test data, test logs, work papers, documentation, assumptions and findings.
4.5 End User Content. Customer acknowledges that Content about or related to End Users may be provided as part of the Service. Customer, and the Clients, shall be responsible for complying with all conditions and restrictions under this Agreement and any applicable laws with respect to the use of such Content. Without limiting the foregoing, Customer and/or the Clients, as applicable, shall be responsible for obtaining any required consent from End Users before obtaining any such Content using the Locance Platform. Customer further acknowledges and covenants that any Content of End Users obtained using the Locance Platform shall be used solely for the limited purpose for which the End User expressly consented. In no event shall Customer or its Clients directly or indirectly deliver or otherwise share any Content obtained using the Locance Platform, Service or API with competitors of Locance or any other third parties not authorized under this Agreement.
5.1 Locance's Ownership. Except as otherwise set forth in this Agreement, as between Locance and Customer, Locance shall at all times be and remain the sole and exclusive owner of all Intellectual Property Rights related to the Locance Assets including licenses to use those patents listed in Exhibit A. This Agreement does not transfer any right, title, or interest in the Locance Assets to Customer, Clients or Authorized Users. Except as expressly allowed under this Agreement, Customer may not use, distribute or reproduce the Locance Assets in any manner whatsoever.
5.2 Customer's Ownership. Subject to Section 5.1, as between Locance and Customer, Customer will at all times be and remain the sole and exclusive owner of Customer Application(s). This Agreement does not transfer any right, title, or interest in the Customer Assets to Locance. Except as expressly allowed under this Agreement, Locance may not use, distribute or reproduce the Customer Assets in any manner whatsoever.
Each party represents and warrants to the other party that: (i) it is duly organized and authorized to enter into and to perform all obligations under this Agreement, and is not a party to any agreement with a third party that would restrict its ability to perform such obligations; (ii) it is and will be able to fully perform its obligations under this Agreement; (iii) it will comply in all material respects with all applicable federal, state and local laws, statutes, ordinances, rules and regulations within the United States; and (iv) it holds all permits, licenses and similar authority necessary for performing its obligations under this Agreement.
7.1 Authorized User Agreement. Any Authorized User of the Customer Application, Active Client Application or Direct Client Application must enter into an agreement with Customer or Client, as applicable, (the "Authorized User Agreement") that is no less protective of Locance's rights as are set forth in this Agreement and complies with the terms and conditions of this Agreement. Without limiting the foregoing, the Authorized User Agreement should contain the same restrictions, with respect to the use of the Locance Assets and information of End Users, as contained in this Agreement. Customer and its Clients shall not (i) make any representation or agree to terms contrary to any term or condition set forth in this Agreement, or (ii) grant to Clients or Authorized Users any rights or warranties with respect to the Locance Assets which are more expansive than what is contained in this Agreement. In addition, for any Customer Application or Client Application that utilizes Content of End Users, each Authorized User Agreement shall impose an express obligation on either Customer, Client or Authorized User to use, share or store Content of any End User only in accordance with the End User's consent obtained by Customer, Client or Authorized User. Customer shall promptly notify Locance of any violation of the terms and conditions of the Authorized User Agreement by any Authorized User and shall use commercially reasonable efforts to abate any such breach and enforce Locance's rights thereunder.
7.3 End User Agreement. Any agreement between Customer or Client and End Users for the use of the Customer Application or Client Application (the "End User Agreement") must be no less protective of Locance's rights than as are set forth in this Agreement. Without limiting the foregoing, the End User Agreement should contain the same restrictions, with respect to the use of the Locance Assets, as contained in this Agreement and must comply with the Provider Terms and Conditions. Customer shall not, and shall assure that Client does not, (i) make any representation or agree to terms contrary to any term or condition set forth in this Agreement, or (ii) grant to End Users any rights or warranties with respect to the Locance Assets which are more expansive than those expressly set forth herein. Customer shall promptly notify, and assure that Client promptly notifies, Locance of any violation of the terms and conditions of the End User Agreement by any End User and shall use commercially reasonable efforts to abate any such breach and enforce Locance's rights thereunder.
8.1 Fees. Locance shall invoice Customer for the fees set forth in the applicable Order Form. Fees are subject to change upon completion of or after the Initial Term. Locance will provide Customer written notice at least sixty (60) days prior to any changes to Fees as applicable.
8.2 Payment. Customer shall pay all invoiced amounts within thirty (30) days after the date of invoice. All payments of invoiced amounts must be paid in full in United States dollars to Locance at the address shown on the Order Form or at such other address as Locance notifies Customer in writing. In case any such payment is not paid in full when due, in addition to immediate deactivation of the Service to the non-paying Service Order or any other remedy otherwise available to Locance, Locance may impose interest or overdue charges and payments at the rate of one and a half percent (1.5%) per month (or, if less, the maximum amount permitted by law), or both, until Customer is current on all payments.
8.3 Taxes. All taxes, duties, fees and other governmental charges of any kind (including sales, services and use taxes, but excluding taxes based on the net income of Locance) which are imposed by or under the authority of any government or any political subdivision thereof on the fees under this Agreement shall be borne by Customer and shall not be considered a part of, a deduction from or an offset against any fees payable to Locance.
8.4 Expenses. Except as delineated in the applicable Order Form, each party will be solely responsible for its own expenses, and those of its staff, including, but not limited to, staff salaries and all expenses incurred in the installation, marketing, promotion, distribution and support of, as applicable, the Service, the Locance Application, the Customer Application, the Active Client Application or the Direct Client Application.
8.5 New Features. Locance may, at its sole discretion, upgrade the Service or Locance Application to add new functionality ("New Features"). Customer shall be allowed to use the New Features on such terms and conditions and payment of additional fees as may be mutually determined by Locance and Customer. However, Customer may continue to use the Service or Locance Application without the New Features for such time as Locance generally makes the Service available, not less than twelve (12) months, to its customers without incorporating the New Features. Locance will use reasonable efforts to provide advance notice of such New Features and/or updates and to identify New Features and/or updates that may require modifications to Customer or Client Applications. For those types of updates (such a major version release – e.g. v1.0 to v2.0) that Locance reasonably believes will necessitate significant modification of applications using the Service, Locance will maintain the immediately previous version (one version back) of the Service for no less than twelve (12) consecutive months starting from the date of release of the new version. Customer understands that Customer's and/or Client's failure to upgrade Applications to the latest version during this time may result in an interruption or termination of Customer's and/or Client's access to the Service.
9.1 The parties acknowledge and agree that each party will be provided Confidential Information of the other party. Each party agrees to treat the other party's Confidential Information in the same manner as it treats its own Confidential Information, to take reasonable security precautions to safeguard the other party's Confidential Information from theft or from access by unauthorized persons, to not use the other party's Confidential Information in any way detrimental to such party, and to not, directly or indirectly, disclose or divulge the other party's Confidential Information to any third party without the prior written consent of the other party.
9.2 The receiving party shall have no obligation with respect to Confidential Information of the other party that: (i) is or becomes publicly known through no wrongful act, fault or negligence of the receiving party; (ii) was disclosed to the receiving party by a third party who was free of obligations of confidentiality to the party providing the information; (iii) is approved for release by prior written authorization of the other party; or (iv) is publicly disclosed pursuant to a subpoena, court order, requirement or request of a governmental agency, or where such disclosure is required by operation of law.
9.3 The parties acknowledge that this Agreement contains confidential information that may be considered proprietary by one or both of the parties, and agree to limit distribution of this Agreement to those employees of Locance and Customer with a need to know the contents of this Agreement. In no event may this Agreement be reproduced or copies shown to any third parties without the prior written consent of the other party, except as may be necessary by reason of legal, accounting, tax or regulatory requirements, in which event Locance and Customer agree to exercise reasonable diligence in limiting such disclosure to the minimum necessary under the particular circumstances. The parties further agree that where this Agreement or their respective contents have to be disclosed to any regulatory or statutory body, then the parties shall use their commercially reasonable efforts to seek undertakings from such regulatory or statutory body to prevent the disclosure of this Agreement or their respective contents into the public domain.
9.4 In addition, each party shall give notice to the other party of any demands to disclose or provide Confidential Information received from any third party under lawful process prior to disclosing or furnishing Confidential Information, and shall cooperate in seeking reasonable protective arrangements requested by the other party. Either party may disclose or provide Confidential Information of the other party requested by a government agency having jurisdiction over the party; provided that the party uses its commercially reasonable efforts to obtain protective arrangements satisfactory to the party owning the Confidential Information. The party owning the Confidential Information may not unreasonably withhold approval of protective arrangements.
9.5 The receiving party shall notify the disclosing party immediately upon becoming aware of any actual or suspected breach of the security of disclosing party's Confidential Information. A breach of security refers to any known or suspected breach or default in the confidentiality, integrity, accuracy, security or privacy of disclosing party's Confidential Information.
9.6 If a party uses or discloses or attempts to use or disclose any of the Confidential Information in contravention of this Agreement, then in addition to other available remedies, the party who owns the Confidential Information shall have the right to injunctive relief enjoining any such use, disclosure or attempt to use or disclose, it being acknowledged that legal remedies are inadequate.
10.1 Each party shall indemnify, defend and hold harmless the other party, its affiliates, and their respective directors, officers, employees, agents and contractors, from and against any and all claims, damages, causes of action, lawsuits, liabilities, losses, awards, fines, judgments, penalties, costs and expenses, including without limitation reasonable attorneys' fees and court costs, asserted, suffered or filed by a third party against the indemnified party to the extent arising from: (a) the indemnifying party's breach or other violation of the terms, conditions, covenants, obligations, representations, warranties or agreements contained in this Agreement; or (b) the willful or negligent acts or omissions of the indemnifying party or its directors, officers, employees, agents or contractors.
10.2 Locance will indemnify, hold harmless and defend Customer against any claim, suit or proceeding and any damages or liability therefrom or settlement thereof (including related reasonable fees, costs and expenses, including, without limitation, attorneys' fees) to the extent based on a claim that Locance Assets, when used as expressly authorized hereunder, infringe, misappropriate or otherwise conflict with any third party United States Intellectual Property Rights. Notwithstanding the foregoing, Locance will have no liability to Customer under this Section 10.2 to the extent that an alleged intellectual property infringement, misappropriation, interference or conflict results from: (a) the combination of the Locance Assets, or any of part thereof, with any equipment, software or services not provided by Locance, or by Customer or a third party, pursuant to the request of Locance, where such Locance Asset(s) would not itself infringe absent such combination; (b) use of the Locance Assets, or any part thereof, in an application, environment or purpose not known to Locance, reasonably anticipated by Locance, or foreseeable with reference to this Agreement; or (c) modifications of the Locance Assets made by anyone other than Locance (other than modifications made at Locance's direction, with Locance's consent, reasonably anticipated by Locance, or foreseeable with reference to this Agreement or other related specifications or documentation). Without limiting the foregoing, if the Locance Assets, or any of part thereof, become, or in Locance's opinion is likely to become, the subject of any claim, suit or proceeding for infringement of any United States Intellectual Property Rights of any third party, or in the event of any adjudication that the Service or any of its components infringes on any United Stated Intellectual Property Rights of any third party, Locance may in its sole discretion and expense and as Customer's sole and exclusive remedy for such infringement: (i) secure for Customer, Customer's clients and Authorized Users, as applicable, the right to continue using such infringing Locance Asset(s); (ii) replace or modify the infringing Locance Asset(s) to make it non-infringing; or (iii) if neither of the foregoing is feasible, Locance may terminate this Agreement, in whole or in part, and continue to defend the infringement allegations.
10.3 Except for infringement claims covered by Section 10.2, Customer shall defend, indemnify and hold Locance, its officers, directors, agents, consultants, customers and employees (collectively, "Locance Indemnitees") harmless from and against all claims, suits, demands, actions, proceedings, awards, judgments, settlements, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) to the extent they result from any action brought against Locance Indemnitees that is based on a claim that a Customer Application, or any part thereof, infringes or otherwise violates any third party Intellectual Property Rights.
10.4 As a condition to any indemnification under this Section 10, the indemnified party must (a) notify the indemnifying party promptly in writing of any such claim or proceeding, and (b) give the indemnifying party full and complete authority, information and assistance to defend such claim or proceeding at the expense of the indemnifying party, including sole control of the selection of counsel and the defense of any such claim or proceeding and all negotiations for its compromise or settlement. Notwithstanding the foregoing, the indemnified party's failure to give the indemnifying party prompt written notice of any such claim or proceeding will only relieve the indemnifying party of its obligation to indemnify the indemnified party to the extent the indemnifying party is prejudiced by such failure.
11.1 EACH PARTY'S LIABILITY FOR ANY CLAIM OR CAUSE OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, THAT ARISES UNDER OR IS RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE OTHER PARTY'S DIRECT OUT-OF-POCKET DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO CIRCUMSTANCES SHALL EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO LOCANCE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
11.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, LOSS OF BUSINESS, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR FOR THE CLAIMS OR DEMANDS MADE BY ANY THIRD PARTIES, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 11.1 AND 11.2 ABOVE SHALL NOT APPLY TO A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9, A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 ABOVE, CUSTOMER'S FAILURE TO PAY PAST DUE INVOICES OR CUSTOMER'S BREACH OF SECTIONS 4.3 or 4.5 ABOVE.
Locance commits to Customer that Locance will use commercially reasonable efforts to deliver the Service in accordance with the service level commitments regarding availability and responsiveness as set forth in the applicable Order Form ("Service Level Commitments"). Because the Service involves conveying information collected by Locance from other sources, Locance cannot and will not, for the fee charged for the Service, be an insurer or guarantor of the accuracy or reliability of the Service or the Content. THE WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY LOCANCE HAS GIVEN CUSTOMER WITH RESPECT TO THE SERVICE. LOCANCE MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, ANY LOCANCE ASSETS, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY LOCANCE HEREUNDER, AND LOCANCE HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT OF LOCANCE'S BREACH OF THE SERVICE LEVEL COMMITMENTS, CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WILL BE TO TERMINATE THE AGREEMENT AS SET FORTH IN SECTION 13.1.
13.2 Effect of Termination. Customer agrees that in case of expiration or termination of this Agreement under this Section 13, all rights of Customer to use, market, promote or distribute Service will cease as of the date of such expiration or termination. Customer acknowledges and agrees that any and all payment obligations arising under this Agreement due and payable for the Term of this Agreement, or as of the date of any such earlier expiration or termination under this Section 13, shall survive said expiration or termination.
13.3 Survival. The provisions under Sections 1, 5, 6, 8.2, 9, 10, 11, 12, 13.2, 13.3, 14, 15, 16, 19, 20, 21, 23, 24, 25, 27 and 28 shall survive any expiration or termination of this Agreement.
Neither party shall be held liable for any delay or failure in performance of its obligations under this Agreement (including Locance's Service Level Commitments) from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, government agencies, delay or failure to receive government approvals, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, acts or omissions of transportation carriers, or delays associated with visa, immigration and/or custom problems, unavailability of or interruption or delay in telecommunications or third party services (including wireless services), virus attacks or hackers, failure of third party software (a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the party whose performance is affected shall give written notice to the other party of such Force Majeure Event and the extent of the effect on the first party's performance, and the parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such Force Majeure Event, including, without limitation, implementing disaster recovery procedures. The parties agree that the party whose performance is affected shall use commercially reasonable efforts to minimize the delay caused by the Force Majeure Events and recommence the affected performance. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose performance has not been so affected may, by giving written notice, terminate this Agreement.
All notices, demands, and other communications given or delivered under this Agreement shall be in writing and shall be deemed to have been given, (a) when received if given in person, (b) on the date of electronic confirmation of receipt if sent by e-mail, facsimile or other wire transmission, (c) three days after being deposited in the U.S. mail, certified or registered mail, postage prepaid, or (d) one day after being deposited with a reputable overnight courier. Notices, demands, and communications to the parties shall, unless another address is specified in writing, be sent to the address, e-mail address or facsimile number indicated on the Order Form. The address to which such notices, demands, requests, or other communications are to be given by either party may be changed by written notice given by such party to the other pursuant to this Section 15.
It is the parties' intention that Customer and Locance shall be independent contractors under this Agreement. This Agreement will not be construed as a partnership or joint venture between the parties, and neither will be liable for any obligations incurred by the other party, including but not limited to any contract or agreement of employment. Each party acknowledges that its personnel are not eligible for workers' compensation or unemployment insurance benefits of the other party by reason of such party's engagement under this Agreement. Furthermore, except upon the prior written consent of the other party, neither party will have any authority to bind or commit the other party in any manner. Neither party will represent to any person that it is an agent, officer or employee of the other party or, except as provided in the preceding sentence, that it is otherwise authorized to bind the other party to any transaction.
This Agreement may not be assigned by either party hereto without the prior written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to any corporate successor through a change of control, through a merger or reorganization in which such party is not the surviving entity, or through the purchase of all, or substantially all, the assets of such party's business to which this Agreement pertains. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
Locance may use subcontractors or independent contractors to provide the Service, or any part thereof; provided, however, that Locance shall supervise and be responsible for any work performed by such subcontractor or independent contractor. Any subcontractor and independent contractor will have a written agreement with Locance that contains terms consistent with intellectual property ownership and confidentiality provisions of this Agreement.
This Agreement is governed by and construed in accordance with the laws of California, without regard to principles of conflict of laws.
20.1 In the event that a claim, controversy or dispute between the parties arises out of, in connection with, or with respect to the terms and conditions of the Agreement, or any subject matter governed by the Agreement, including any question regarding its existence, validity or termination, either party may request binding arbitration of the issue in accordance with the following procedures:
20.2 Unless Locance is bringing an action for Customer's failure to make timely and complete payments to Locance, Locance will continue to provide Services under this Agreement, and Customer will continue to make payments to Locance in accordance with this Agreement, during the dispute resolution procedures describe in this Section 20.
During the term of this Agreement and for a period of twelve (12) months after termination, neither party will directly or indirectly employ, or solicit to employ, or cause to be solicited for the purpose of employment, employees or contractors of the other party, including its affiliates or subsidiaries, who have been directly involved in the activities covered by this Agreement, unless the other party has given its prior written consent.
22.1 Neither party shall issue any press release or other publicity materials, or make any presentation with respect to the existence of this Agreement or the terms and conditions hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld. This restriction shall not apply to disclosures required by law or regulation. The parties further agree to announce their relationship in a mutually agreeable press release at a mutually agreeable date following the Execution Date.
22.2 Locance may use Customer's name, but not its trademarks, tradenames, service marks, and logos, in its client list in the same manner in which it uses the names of its other clients. Locance may not publicly use Customer's name in any other way without Customer's prior written consent.
The Agreement contains the sole and entire agreement and understanding of the parties with respect to the entire subject matter hereof, and supersede any and all prior oral or written agreements, discussions, negotiations, commitments, understandings, marketing brochures, and sales correspondence and relating thereto. The Agreement may not be modified or amended except in writing and signed by the parties hereto. No waiver of any provisions of the Agreement and no consent to any default under the Agreement shall be effective unless the same shall be in writing and signed by or on behalf of the party against whom such waiver or consent is claimed. No course of dealing or failure of any party to strictly enforce any term, right or condition of the Agreement shall be construed as a waiver of such term, right or condition. Waiver by either party of any default by the other party shall not be deemed a waiver of any other default.
If any one or more of the provisions contained herein shall for any reason be held to be unenforceable in any respect under law, such unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such unenforceable provision or provisions had never been contained herein, provided that the removal of such offending term or provision does not materially alter the burdens or benefits of either of the parties under this Agreement.
The provisions of this Agreement are for the benefit of the parties and not for any other person. Should any third party institute proceedings, this Agreement shall not provide any such person with any remedy, claim, liability, reimbursement, cause of action, or other right.
This Agreement may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same document.
The headings and numbering of sections in this Agreement are for convenience only and shall not be construed to define or limit any of the terms or affect the scope, meaning or interpretation of this Agreement or the particular section to which they relate. This Agreement and the provisions contained herein shall not be construed or interpreted for or against any party because that party drafted or caused its legal representative to draft any of its provisions.
Unless otherwise provided for under this Agreement, all rights of termination or cancellation, or other remedies set forth in this Agreement, are cumulative and are not intended to be exclusive of other remedies to which the injured party may be entitled by law or equity in case of any breach or threatened breach by the other party of any provision in this Agreement. Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing any provision of this Agreement.