Fleetworthy – EULA

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End User License Agreement

This End User License Agreement (“Agreement” or “EULA”) governs your use of the Fleetworthy Comply software, (including all related documentation, manuals, and instructions, the “Software”).  This Agreement is a binding agreement between Fleetworthy Solutions, Inc. (“Company”) and you. The Company only offers this Agreement to a business entity (“Customer”) that has entered into an Order Form for Services, including associated Supplements (as defined in the Order Form) and General Terms and Conditions for such services (collectively the “Service Agreement”) with the Company. You represent and agree that (i) you are entering into this agreement on behalf of the Customer you are employed or affiliated with, (ii) you have full legal capacity and authority to bind such Customer to this Agreement, and (iii) the terms “Authorized User”, “you” or “your,” as used herein shall, unless the context otherwise reasonably requires, refer to both (A) such Customer, and (B) the individual or individuals accessing or using the Software as authorized by such Customer. 

IF YOU DO NOT MEET THE REQUIREMENTS ABOVE, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SOFTWARE. 

ACCESS IS GRANTED TO YOU BASED ON YOUR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT AND THE SERVICE AGREEMENT BETWEEN YOU AND THE COMPANY. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU. 

THE COMPANY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY USING THE SOFTWARE YOU ARE AGREEING FOR YOURSELF AND THE CUSTOMER LICENSING THE SOFTWARE AND COMPANY MATERIALS (DEFINED BELOW) THAT (A) YOU AND THE CUSTOMER ACCEPT AND WILL BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (B) YOU REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT USE THE SOFTWARE.

  1. Definitions.

Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

Authorized User” means (1) any Person to whom, pursuant to this Agreement, the Company has granted a right to access and use the Software, including any employee, contractor, partner, or agent of the Customer, or (2) any entity (and its employees) to which, pursuant to this Agreement and through the acceptance of this Agreement by an authorized representative, the Company has granted such right. All Authorized Users are bound by the terms of this Agreement. 

Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from the Authorized User by or through the Software.

Customer Systems” means the Authorized User’s or the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems, and networks, whether operated directly by the Authorized User or through the use of third party services.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Person” means an individual, including employees, agents, and contractors, as well as a corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.

Process” means to take any action or perform any operation or set of operations that the Software is capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

Company Systems” means the information technology infrastructure used by or on behalf of the Company in performing the services related to the Software, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third party services.

Company Materials” means the Software and related Specifications, Documentation and Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by the Company or any Subcontractor in connection with the Software or otherwise comprise or relate to the Software or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data and any information, data or other content derived from the Company’s monitoring of the Authorized User’s access to or use of the Software, but does not include Customer Data.

Resultant Data” means information, data, and other content that is derived by or through the Software from Processing Customer Data that has all Personnel Information removed from the data and is sufficiently different from such Customer Data that such Customer cannot be identified from the inspection, analysis or further Processing of such information, data or content.

  1. License Grant and Scope.

Subject to the terms of this Agreement, the Company grants you a limited, non-exclusive, and non-transferable, and non-sublicensable license during the Term to use, solely by the Authorized User or an Authorized User, the Software, only as set forth in this Section and subject to all conditions and limitations set forth elsewhere in this Agreement and the Services Agreement. This license grants you the right, exercisable solely by you, to access and use the Content and Services (as defined in Section 7) made available in or otherwise accessible through the Software, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 7

You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. The Company reserves and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

  1. License/Use Restrictions. You shall not: 
  1. Copy the Software; 
  2. Translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software; 
  3. Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; 
  4. Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software, including any copy thereof; 
  5. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; 
  6. Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software;
  7. Use the Software in violation of any law, regulation or rule; 
  8. Use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Company’s commercial disadvantage;
  9. Bypass or breach any security device or protection used by the Software or access or use the Software other than through the use of your own then valid Access Credentials;
  10. Input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
  11. Access or use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law;
  1. Responsibility for Use of the Software. You are responsible and liable for all uses of the Software through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Software by any other Person to whom you may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
  2. Collection and Use of Information. You acknowledge that when you use the Software, the Company may use automatic means to collect information about your use of the Software. You also may be required to provide certain information about yourself, including Personal Information, as a condition to using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. All information the Company collects through or in connection with this Software is subject to the Privacy and Security Policy of the Company found at www.fleetworthy.com/privacy-policy/ (“Privacy Policy”). You agree that the Company may use such information for any purpose related to any use of the Software by you, including but not limited to improving the performance of the Software or developing updates. By using and providing information to or through the Software, you consent to all actions taken by the Company with regard to your information in compliance with the Privacy Policy. 
  3. Third Party Materials. The Software may display, include or make available third party content (including data, content, materials, and information in any form or medium, software, and other products services and/or materials including specifications, or products) or provide links to third party websites or services, including through third party advertising, relating to the Software that are not proprietary to the Company (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions. 
  4. Content and Services. The Software may provide you with access to the Company’s website located at www.fleetworthy.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Software may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by this Agreement and the Privacy Policy (collectively, “Terms of Use”). Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Software’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement. 
    1. Services/Service Levels. Subject to and conditioned on Authorized User’s compliance with the terms and conditions of this Agreement, during the Term, the Company shall use commercially reasonable efforts to provide to the Authorized User the services provided by the Software and this Agreement (collectively, the “Services”) pursuant to the service level agreement found at https://www.fleetworthy.com/fleetworthy-sla/ (“Service Level Agreement”). 
    2. Service and System Control/Updates. Except as otherwise expressly provided in this Agreement, as between the parties:
      1. The Company has and will retain sole control over the operation, provision, maintenance, and management of the Services, including the: (i) the Company Systems; (ii) selection, deployment, modification, and replacement of the Software; and (iii) performance of support services and Service maintenance, updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features, or modify or delete in their entirety certain features and functionality.
    3. Changes. The Company reserves the right, in its sole discretion, to make any changes to the Software that it deems necessary or useful to: 
      1. Maintain or enhance (i) the quality or delivery of the Company’s services to you, (ii) the competitive strength of or market for the Company’s services, or (iii) the Services’ cost efficiency or performance; or 
      2. to comply with applicable law. 
    4. Subcontractors. The Company may from time to time in its discretion engage third parties (each, a “Subcontractor”) to perform Services. 
    5. Suspension or Termination of Services. The Company may, directly or indirectly, suspend, terminate or otherwise deny the Authorized User’s or any other Person’s access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: 
      1. The Service Agreement between you and the Company has expired or been terminated; 
      2. the Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires the Company to do so; or 
      3. the Company believes, in its sole discretion, that: (i) You have failed to comply with any term of this Agreement or the Service Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Company Materials; (ii) You have been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) This Agreement expires or is terminated. This Section 7.5 does not limit any of the Company’s other rights or remedies, whether at law, in equity or under this Agreement.
  5. Access and Authorized User Restrictions
    1. Access by and Authentication of Authorized Users. The Software can only be accessed and used by an Authorized User authenticated by the Company.  If Customer desires to provide access to a user it will contact the Company with the users name and email address and the Company will authenticate the user by providing the user a unique login name.  The Customer will be responsible for any Authorized Users that it requests authentication credentials for.  As part of the authentication process the Authorized User will be presented this EULA and will agree to its terms and conditions by confirming that their use of the Software constitutes acceptance of the EULA.
    2. Restrictions. The Authorized User shall not, and shall not permit any other Person to, access or use the Software except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party license agreement. 
  6. Authorized User Obligations.
    1. Authorized User Systems and Cooperation. The Authorized User shall at all times during the Term: 
      1. Set up, maintain, and operate in good repair and in accordance with the Company Materials all Systems on or through which the Software is accessed or used; and 
      2. Provide all cooperation and assistance as the Company may reasonably request to enable the Company to exercise its rights and perform its obligations under and in connection with this Agreement.
    2. Protection from Unauthorized Use. In the event of any unauthorized use of the Software by an Authorized User, the Company may terminate such Authorized User’s access to the Software pursuant to Section 7.5
    3. Maintaining Confidentiality of Access Passwords. Where access to the Software is to be controlled by use of passwords, Authorized Users shall not divulge their passwords to any third party.
    4. Effect of Authorized User Failure or Delay. The Company is not responsible or liable for any delay or failure of performance caused in whole or in part by the Authorized User’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, an “Authorized User Failure”). 
  7. Security.
    1. Company Systems and Security Obligations. The Company will employ security measures in accordance with the Company’s Data Security Policy as amended from time to time.
    2. Data Breach Procedures. The Company maintains a data breach plan in accordance with the criteria set forth in the Company’s Data Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
    3. Authorized User Control and Responsibility. You have and will retain sole responsibility for: (a) the security and use of your Access Credentials; and (b) all access to and use of the Software directly or indirectly by or through the Authorized User Systems and Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
    4. Access and Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: 
      1. Securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and 
      2. Control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
  8. Intellectual Property Rights.
    1. Software. All right, title and interest in and to the Software, including all Intellectual Property Rights therein, are and will remain with the Company and the respective rights holders in the Third Party Materials. Other than the rights granted in this Agreement, the Authorized User has no right, license or authorization with respect to any of the Software (including Third Party Materials), or the applicable third party license, in each case subject to Section 8.  All other rights in and to the Software (including Third Party Materials) are expressly reserved by the Company and the respective third party licensors. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to the Company an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
    2. Customer Data. As between you and the Company, the Authorized User is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 11.3
    3. Consent to Use Customer Data. The Authorized User hereby irrevocably grants all such rights and permissions in or relating to Customer Data: 
      1. To the Company, its Subcontractors and Company Personnel as are necessary or useful to perform the Services; and 
      2. To the Company as are necessary or useful to enforce this Agreement and exercise and perform its rights hereunder.
  9. Confidentiality.
    1. Protection of Personal Information. As a condition to being provided with any disclosure of or access to Personal Information, the Company shall: 
      1. Except as may be permitted by and subject to its compliance with Section 12.2, not disclose or permit access to Personal Information other than to its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, “Representatives”) and third party licensors who: (i) need to know such Personal Information for purposes of the Company’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Personal Information and the Company’s obligations under this Section 12.1; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Personal Information as the terms set forth in this Section 12.1;
      2. Safeguard the Personal Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
      3. Ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 12.
    2. Compelled Disclosures. The Company shall be free to disclose any Personal Information or Customer Data to another party if required by any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent. 
  10. Term and Termination. The term of Agreement commences when you generate Access Credentials for accessing the Software and will continue in effect until terminated by you or the Company as set forth in Section 7.5. Upon termination, (i) all rights granted to you under this Agreement will also terminate, and (ii) you must cease all use of the Software. 
    1. Effect of Termination. Upon termination of this Agreement, except as expressly otherwise provided in this Agreement:
      1. All rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
      2. You shall immediately cease all use of the Software;
      3. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Company may retain Customer Data in its then current state and solely to the extent and for so long as required by applicable law; (ii) the Company may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 13.1c will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
      4. The Company may disable all Authorized User access to the Software;
      5. If you request in writing at least 30 days prior to the effective date of expiration or termination, subject to Section 13.1c, the Company shall, within 60 days following such expiration or termination, deliver to you the then most recent version of Customer Data maintained by the Company, provided that the Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for the Company’s services in transferring such Customer Data.
    2. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 8, Section 12, Section 13.1, this Section 13.2, Section 14, Section 15, Section 16 and Section 17-22.
  11. Representations and Warranties.
    1. Authorized User Representations, Warranties and Covenants. You represent, warrant, and covenant to the Company that you own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data so that, as received by the Company and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
    2. DISCLAIMER OF WARRANTIES. IN ADDITION TO THE DISCLAIMER OF WARRANTIES SET FORTH IN THE SERVICE AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET THE AUTHORIZED USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
  12. Indemnification.  In addition to the indemnification obligations set forth in the Service Agreement, the following provisions will apply:
    1. Customer Indemnification. Customer shall indemnify, defend and hold harmless and advance defense costs (if requested by the indemnified parties)  the Company and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Company Indemnitee”) to the fullest extent provided by law for any losses, claims, damages, awards, judgments, costs, penalties or injuries incurred by any third party, including reasonable attorneys’ fees, which arise from, out of, or relate to:
      1. Customer Data;
      2. Any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of the Authorized User, including the Company’s compliance with any specifications or directions provided by or on behalf of the Authorized User to the extent prepared without any contribution by the Company; 
      3. Allegation of facts that, if true, would constitute the Authorized User’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
      4. Negligence or more culpable act or omission (including recklessness or willful misconduct) by the Authorized User or any third party on behalf of the Authorized User in connection with this Agreement. 
    2. Company Indemnification.  Company shall indemnify, defend and hold harmless Customer from and against any and all losses, claims, damages, awards, judgments, costs, or penalties (“Losses”) incurred by Customer its officers, directors, employees, agents, successors and assigns (“Customer Indemnitee”) arising out of or relating to any claim, suit, action or proceeding (each, an “Action“) by a third party (other than an affiliate of Customer) to the extent that such Losses arise from any allegation in such Action that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: 
      1. access to or use of the Software or Company Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Company, or allowed for in any Software documentation provided by the Company;
      2. modification of the Software or Company Materials other than: (i) by or on behalf of Company; or (ii) with Company’s written approval in accordance with Company’s written specification;
      3. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Company; or
      4. act, omission or other matter described in Section 15.1(a), Section 15.1(b), Section 15.1(c) or Section 15.1(d), whether or not the same results in any Action against or Losses by any Company Indemnitee.

The defense and indemnification obligations under this Section 15.2 are expressly limited in the amount of monetary liability that Company will provide and/or incur for both its defense and indemnification obligations (in aggregate) by the amount set forth in the  Cap on Monetary Liability provision in Section 5.3 of the General Terms and Conditions of the Services Agreement. 

  1. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 15.1 or Section 15.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor may assume, at its sole option, control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. If the Indemnitor decides not to take control of the defense it will provide prompt written notice to the Indemnitee.  If Indemnitee assumes control of the defense after the Indemnitor provides written notice that it will not control the defense, the Indemnitor will reimburse the Indemnitee promptly and periodically for the reasonable costs properly incurred in defending against the indemnified claim (including reasonable attorneys’ fees and expenses); and remain responsible to Indemnitee for any Losses indemnified.  The Indemnitee’s failure to perform any obligations under this Section 15 will not relieve the Indemnitor of its obligations under this Section 15 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. If the Indemnitor controls the defense, the Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
  2. Mitigation. If any part or all of the Software is, or in the Company’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if the Authorized User’s use of the Software is enjoined or threatened to be enjoined, the Company may, at its option and sole cost and expense: 
    1. Obtain the right for the Authorized User to continue to use the Software as contemplated by this Agreement; 
    2. Modify or replace the Software, in whole or in part, to seek to make the Software (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute the Software, as applicable, under this Agreement; or 
    3. By written notice to the Authorized User, terminate this Agreement and require Customer to immediately cease any use of the Software or any specified part or feature thereof.
  1. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. THE EXCLUSION OF DAMAGES PROVISION IN SECTION 5 OF THE GENERAL TERMS AND CONDITIONS OF THE SERVICE AGREEMENT SHALL APPLY TO THIS AGREEMENT. 
  2. Force Majeure. The Force Majeure provisions in the Service Agreement shall apply to this Agreement. 
  3. Entire Agreement. This Agreement, together with the Service Agreement, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in this Agreement, the General Terms and Conditions, and the Order Form and its Supplements, the following order of precedence governs: (a) first, the Order Form, (b) second, the General Terms and Conditions; (c)  third, this Agreement  (EULA), (d) fourth the Supplements of the Order Form, and (e) fifth, any other documents incorporated herein by reference.
  4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement, and signed by an authorized representative of each party.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  5. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  6. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the city of Madison and County of Dane, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. 

No Third Party Beneficiaries. Unless otherwise stated in this Agreement, this Agreement is for the benefit of the Parties and their successors and are not intended to confer any rights or benefits to any third party, including any employee or Customer of either Party.