21 Jul 2021 Terms

NOTRAFFIC™ TERMS AND CONDITIONS

Version 1.1
Last Updated: March 7, 2021

THESE NOTRAFFIC TERMS AND CONDITIONS (“Agreement”) CONSTITUTE A BINDING AGREEMENT BETWEEN NOTRAFFIC U.S., INC. (“NoTraffic”) AND THE FOLLOWING CUSTOMER (“Customer”):

(A) If this Agreement is entered into pursuant to an Order Form (as defined below): the Customer is the entity executing the Order Form (a “Direct Customer”); or
(B) If this Agreement is not being entered into pursuant to an Order Form (for example, if Customer is purchasing the Service subscription and/or Systems from a third party contractor or integrator): the Customer is the entity accessing or using Service (an “Indirect Customer”).

If the Customer is an Indirect Customer, the following provisions of this Agreement shall not apply: (i) those provisions that relate solely to the Systems (such as Section ‎3 (Systems Delivery)); (ii) those provisions that relate to Order Forms; and (iii) Section ‎5 (Payment), except for Section ‎5.4 (Purchasing via Third Parties).

BY ENTERING INTO THE ORDER FORM, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, AS THE CASE MAY BE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY ALL THE PROVISIONS OF THIS AGREEMENT (THE DATE OF SUCH AGREEMENT BEING THE “Effective Date”):

Customer, through its designated representative entering into this Agreement, represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) when executed and delivered by Customer undersigned representative, this Agreement shall be binding and enforceable against Customer; and (iii) it shall comply with all Applicable Laws (defined below) in connection with the Agreement.

1. DEFINITIONS

“Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.

“Authorized Installations” means those installations of Systems at Intersections, as purchased under an Order Form.

“Authorized User” means an employee of Customer (or any other entity, as may be specified in an Order Form) that the Customer authorizes to access and use the Service.

“Content” means any text, data, information, files, images, graphics, sounds, music, videos, code, audio clips, links, and/or other similar materials.

“Customer Content” means any Content inputted or uploaded to the Service by Customer (including Authorized Users).

“Documentation” means whatever Service- or System-related user guides and similar documentation NoTraffic provides or makes available to Customer.

“Feature” means any module, tool, functionality, or feature of the Service.

“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to inventions, discoveries, works of authorship, software, know-how, technical data, databases, designs, mask works, technology, trademarks, and other intellectual property, in any form or media, and includes, but is not limited to, patents, copyrights and similar authorship rights, personal rights (such as moral rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.

“Intersections” means the road intersections for which the Service has been licensed, and at which the Systems are installed.

“Applicable Law” means any applicable federal, state, foreign, regional or local statute, regulation, ordinance, court order, or rule of any relevant jurisdiction.

“NoTraffic Content” means any Content (excluding Customer Content): (a) appearing or made available on or in the Service (such as reports); and/or (b) otherwise generated by the Service or Systems (such as raw road video footage).

“Order Form” means the order form signed by the parties, which incorporates this Agreement or to which this Agreement is attached as an annex.

“Service” means NoTraffic’s proprietary software-as-a-service traffic management platform, as provided by NoTraffic.

“NoTraffic Materials” means, as the case may be, the Service, the Systems, the NoTraffic Content, and/or the Documentation.

“Support Services” means the Service and System technical support and maintenance services provided under this Agreement, as specified in Schedule A attached below.

“Systems” means NoTraffic-supplied hardware units (and embedded software) for use in connection with the Service and for installation at Intersections.

2. SUBSCRIPTION RIGHTS AND RESTRICTIONS.

2.1. Account. In order to access or use the Service, Customer is required to register for an account by submitting the information requested in the applicable web interface (“Account”). A user account may need to be set up for each Authorized User (each, a “User Account”, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer shall be responsible and liable for its Authorized Users’ access to and use of the Service and their compliance with this Agreement. Customer may be required to set up any necessary access credentials, and the Service may also allow Customer to configure different permission levels among various Authorized Users. Customer represents and warrants that all information submitted during the registration process is, and will thereafter remain, complete, accurate and up-to-date. As between NoTraffic and Customer, Customer shall be responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify NoTraffic in writing of any unauthorized access to, or use of, an Account, or any other breach of security.

2.2. Order Form. The Order Form is hereby incorporated into this Agreement by reference. If the Order Form specifies a different NoTraffic entity as the signatory party, then this Agreement shall be deemed to be entered into with such other NoTraffic entity.

2.3. Subscription. Subject to the terms and conditions of this Agreement, and in connection with any corresponding Order Form (if any), NoTraffic grants Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license and right, during the Term (defined below), to access and use the Service, as well as access and view the NoTraffic Content, solely for Customer’s internal end-use and in connection with Authorized Installations (collectively, the “Subscription”).

The Subscription shall be subject to whatever other volume, location, timing, Feature, or similar scope limitations may be specified in the Order Form (or in the case of an Indirect Customer, in its order with the third party contractor or integrator).

2.4. Restrictions. As a condition to the Subscription, Customer shall not (and shall not permit or encourage others to ), in whole or in part: (a) copy, “frame” or “mirror” the NoTraffic Materials; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the NoTraffic Materials to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the NoTraffic Materials; (d) modify, alter, adapt, arrange, or translate the NoTraffic Materials; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the NoTraffic Materials; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the NoTraffic Materials; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the NoTraffic Materials; (h) make a derivative work of the NoTraffic Materials, or use them to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the NoTraffic Materials; (j) employ any hardware, software, device, or technique to pool connections, devices or users that directly access or use the NoTraffic Materials (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the NoTraffic Materials by Customer; or (l) take any action that imposes or may impose (as determined in NoTraffic’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the NoTraffic Materials, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

2.5. Reservation of Rights. Any rights not expressly granted herein are hereby reserved by NoTraffic and its licensors and suppliers, and, except for the Subscription, Customer is granted no other right or license to the NoTraffic Materials, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. NoTraffic shall be entitled, from time to time and without notice, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Service. NoTraffic remains the sole and exclusive owner of all right, title and interest, including but not limited to Intellectual Property Rights, in all jurisdictions worldwide, in and to the NoTraffic Materials.

2.6. Hosting and Availability. The Service (as well as all Customer Content) will be hosted by a third party hosting services provider selected by NoTraffic (“Hosting Provider”), and accordingly the availability of the Service shall be in accordance with the Hosting Provider’s then-current uptime commitments. NoTraffic shall endeavor to promptly notify Customer in writing if NoTraffic engages a new Hosting Provider under this Agreement. In the event NoTraffic decides to host the Service internally on NoTraffic’s own servers under this Agreement, then, at the written request of Customer, the parties agree to negotiate in good faith an addendum to this Agreement to address Service uptime availability.

3. SYSTEMS DELIVERY

NoTraffic shall make commercially reasonable efforts to meet any delivery date(s) stated in the Order Form; however, Customer acknowledges that delivery is dependent on third parties outside NoTraffic’s control. Furthermore, and unless expressly stated otherwise in the Order Form, delivery time is not of the essence. Unless specified otherwise in the Order Form, delivery of the Systems shall be prepaid, and will be made Ex Works (Incoterms 2010) at NoTraffic’s designated facility (at which time risk of loss of, or damage to, the Systems shall pass to Customer). NoTraffic shall cooperate with Customer (or its designated freight carrier) to facilitate shipping.

4. SUPPORT AND PROFESSIONAL SERVICES

4.1. Support Services. Subject to Customer remaining current on all payments under the Order Form, NoTraffic (and/or its Affiliates) shall provide Customer the Support Services. NoTraffic may subcontract Support Services (in whole or in part) to a third party service provider, and NoTraffic shall remain primarily responsible for such contractor’s performance of the Support Services.

4.2. Professional Services. Subject to any payment applicable therefor specified in the Order Form, NoTraffic (and/or its Affiliates) shall provide Customer with any Professional Services specified in the Order Form (“Initial Professional Services”). Any additional Professional Services (“Additional Professional Services”) shall be subject to mutual agreement of the parties and shall be set out in sequential Statements of Work that reference this Agreement and are executed by both parties (each, an “SOW”). Additional Professional Services shall be charged in accordance with the corresponding SOWs. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and an SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise. As part of any Professional Services, Customer shall cooperate with, and provide and obtain all access, approvals, consents and licenses needed by, NoTraffic to perform the Professional Services. In respect of any Professional Services provided at any non-NoTraffic location, then unless otherwise specified in the SOW, Customer will reimburse NoTraffic for its reasonable travel, lodging and meal expenses incurred in connection therewith. Subject to Customer’s prior approval (not to be unreasonably withheld, conditioned or delayed), NoTraffic may subcontract Professional Services (in whole or in part) to a third party contractor, and NoTraffic shall remain primarily responsible for such contractor’s performance of the Professional Services.

5. PAYMENT.

5.1. Fees. Customer agrees to pay all fees and other charges stated in the Order Form (“Fees”), and in accordance with such Order Form’s payment terms. Customer authorizes NoTraffic (either directly or through third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from NoTraffic’s payment provider or Customer’s designated banking account, and to make any inquiries NoTraffic deems necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment (including for the purpose of receiving updated payment details from Customer’s payment, credit card or banking account provider – such as, updated expiry date or card number as may be provided to NoTraffic by Customer’s credit card company).

5.2. General. Unless expressly stated otherwise in an Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by Applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon NoTraffic’s net income. In the event that Customer is required by any Applicable Law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to NoTraffic shall be increased by the amount necessary so that NoTraffic receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.

5.3. Customer PO. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, then Customer must promptly provide such purchase order (or number) to NoTraffic. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement this Agreement (or the corresponding Order Form), shall be void and of no effect.

5.4. Purchasing via Third Party. If Customer is purchasing the Subscription and/or the System through a third party contractor or integrator, then: (a) instead of paying NoTraffic, Customer will pay the applicable amounts to the third party, as agreed between Customer and the third party, and NoTraffic may suspend or terminate Customer’s Subscription if NoTraffic does not receive the corresponding payment from the third party; (b) Customer’s Subscription and related order details will be as stated in the Order Form placed with NoTraffic by the third party on Customer’s behalf, and the third party is responsible for the accuracy of any such Order Form as communicated to NoTraffic; (c) if Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless NoTraffic specifies otherwise, NoTraffic will refund any applicable fees to the third party, and the third party alone will be responsible for refunding the appropriate amounts to Customer; and (d) the third party is not authorized to modify any of these terms and conditions, or make any promises or commitments on NoTraffic’s behalf, and NoTraffic is not bound by any obligations to Customer other than as set forth in this Agreement.

6. CUSTOMER CONTENT.
As between Customer and NoTraffic, Customer is solely responsible and liable for all Customer Content. Customer hereby represents and warrants that: (a) its Customer Content, as well as any Customer use of other NoTraffic Content (such as raw road video footage), does not, and will not, violate any third party rights or any Applicable Law (including privacy and data protection laws); (b) it has obtained, and will maintain, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Customer Content.

7. IP OWNERSHIP.
As between Customer and NoTraffic, NoTraffic is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) all NoTraffic Materials; (b) any non-Customer-identifying information, data, reporting, analyses, and/or intelligence relating to the operation or support of, and/or Customer’s use of or interaction with, any NoTraffic Materials (such as metadata, aggregated data, analytics, security findings or discoveries, etc.); and (c) any and all improvements, derivative works, modifications or customizations of or to any NoTraffic Materials, regardless of inventorship or authorship. Except as otherwise agreed in writing by the Parties, Customer grants NoTraffic a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license without any restrictions to use, reproduce, modify, perform, display, distribute, and otherwise disclose any and all suggestions, feedback, modifications, solutions or anonymized data that Customer provides to NoTraffic in regard to the NoTraffic Materials, and Customer waives any rights in the NoTraffic Materials in response thereto.

Customer acknowledges that the raw road video footage will be stored on the System for three (3) days, following which it will be automatically erased from the System. Any additional memory storage will be subject to payment by Customer of additional charges.

8. CONFIDENTIALITY.
Each party and/or its Affiliates (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other party and/or its Affiliates (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Applicable Law (e.g., subpoena), the Recipient will, if lawfully permitted to do so, notify the Discloser within a reasonable time prior to disclosure and to allow the Discloser a reasonable opportunity to seek appropriate protective measures or other remedies prior to disclosure. If Discloser does not seek or obtain such protective measures or other remedies, the Recipient may disclose only the portion of Discloser’s Confidential Information required by Applicable Law and exercise reasonable efforts to obtain confidential treatment of that information. Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).

Notwithstanding anything in this Agreement to the contrary, Customer shall not disclose any of the Order Form’s pricing or payment terms to any third party, without NoTraffic’s prior express written consent.

9. AUDIT.
Customer shall maintain in the ordinary course of business appropriate records in connection with this Agreement throughout the Term of this Agreement and for at least two (2) years thereafter. Customer agrees that NoTraffic may audit (both on-premise and remotely) such records to determine Customer’s compliance with this Agreement and its payment obligations. Any such audit shall be at NoTraffic’s expense, require reasonable written notice, and be performed during Customer’s normal business hours. If an audit reveals underpayments of fees due pursuant to this Agreement, then Customer shall immediately pay NoTraffic such underpayments, as well as reimburse NoTraffic for the expense incurred by NoTraffic in performing the audit.

10. DISCLAIMERS

THE NOTRAFFIC MATERIALS AND ALL OTHER ITEMS PROVIDED BY NOTRAFFIC ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY NOTRAFFIC AND ITS SUPPLIERS AND LICENSORS.

NOTRAFFIC DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION, AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS, COST OR EXPENSE WHATSOEVER (INCLUDING WITHOUT LIMITATION DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE) REGARDING:
(A) THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, ACCURACY, OR QUALITY OF ANY NOTRAFFIC MATERIALS OR OTHER CONTENT, OR THAT THE USE THEREOF WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE;
(B) THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF CONTENT VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS;
(C) CONTENT RECEIVED FROM OR SHARED WITH ANY THIRD PARTY SOFTWARE APPLICATIONS OR APIs, OR TRANSMISSION OF CONTENT VIA OTHER COMMUNICATION METHODS (SUCH AS V2X); AND/OR
(D) THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.

11. LIMITATION OF LIABILITY

11.1. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION ‎8 (CONFIDENTIALITY), A BREACH OF THE SUBSCRIPTION (SUCH AS A BREACH OF THE RESTRICTIONS IN SECTION ‎2.4), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:

(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.

11.2. THE COMBINED AGGREGATE LIABILITY OF NOTRAFFIC AND ALL NOTRAFFIC AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.

11.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.

12. INDEMNIFICATION.
In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s use of the Service in accordance with this Agreement infringes such third party’s copyright or patent (an “Infringement Claim”), NoTraffic shall:
(a) defend Customer against the Infringement Claim; and
(b) indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim.
As a condition to such defense and indemnification, Customer agrees: (A) to provide NoTraffic with prompt written notice of the Infringement Claim; (B) to cede to NoTraffic full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide NoTraffic with all information and assistance reasonably requested by NoTraffic; and (D) not to admit any liability under (or otherwise compromise) the Infringement Claim. Any participation by Customer in the defense of the Infringement Claim shall be at Customer’s own cost and expense.

NoTraffic will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Service not made by NoTraffic; (ii) the combination of the Service with any third party product or service; and/or (iii) any Customer instructions or specifications.

Should the Service (in whole or in part) become, or in NoTraffic’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits NoTraffic, at NoTraffic’s option and expense, to either: (x) obtain for Customer the right to continue using the Service (or part thereof); or (y) replace or modify the Service (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in NoTraffic’s opinion, commercially feasible, NoTraffic may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees (that are attributable to the Subscription) hereunder based on the remaining period of the Term.

This Section (Indemnification) represents NoTraffic’s sole and exclusive obligation and liability, and Customer’s sole and exclusive remedy, for Infringement Claims.

13. TERM AND TERMINATION

13.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the following term (the “Term”):

(a) If Customer is a Direct Customer: for the Subscription term stated in the applicable Order Form; or
(b) If Customer is an Indirect Customer: for the Subscription term stated in the Customer’s applicable order with the third party contractor or integrator from whom Customer purchased the Subscription.

The initial Subscription term (“Initial Term”) shall automatically renew for successive periods of equal length (each, a “Renewal Term”), unless either party notifies the other party of its intent not to renew the Subscription not less than thirty (30) days prior to the expiration of the then-current term (in which case this Agreement will terminate upon such expiration). The Fees for each Renewal Term will automatically increase by the same percentage amount as the applicable consumer price index. Moreover, NoTraffic may, with written notice at least sixty (60) days prior to the expiration of the then-current term, increase the Fees payable for the upcoming Renewal Term. For Indirect Customers, payments for a Renewal Term will be made either to NoTraffic or the applicable third party contractor or integrator, as decided in writing between the parties.

13.2. Termination for Breach. Each party may terminate this Agreement immediately upon written notice to the other party if the other party commits a material breach under this Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days).

13.3. Termination for Bankruptcy. Each party may terminate this Agreement upon written notice to the other party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other party or its property, which appointment is not dismissed within sixty (60) days; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party is liquidating, dissolving or ceasing normal business operations.

14. CONSEQUENCES OF TERMINATION; SURVIVAL

Upon termination of this Agreement: (a) the Subscription will automatically terminate and be deemed revoked, and Customer must immediately cease all access to and use of the Service, and permanently uninstall all copies of the Service; and (b) Customer shall promptly pay any unpaid amounts that are outstanding as of termination. Sections ‎7 (IP Ownership) through ‎‎‎‎16 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

15. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.

Any claim, dispute or controversy under, or otherwise in connection with, this Agreement (a “Dispute”) shall be subject to the exclusive jurisdiction and venue of the courts located in New Castle County, Delaware, USA. Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, NoTraffic reserves the right to seek equitable relief in any court worldwide of competent jurisdiction. Furthermore, the parties hereby irrevocably and unconditionally waive the right to litigate such Disputes in court before a jury. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against NoTraffic shall only be enforceable against NoTraffic, and not any other entity or NoTraffic’s officers, directors, representatives, or agents. Customer acknowledges and agrees that it may bring claims against NoTraffic only in its individual capacity and not as a plaintiff or class member in any purported class or representative action.

16. MISCELLANEOUS

16.1. Entire Agreement. This Agreement represents the entire agreement between NoTraffic and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and NoTraffic with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the NoTraffic website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form (if any) on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any Applicable Law requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.

16.2. Modifications to Agreement. NoTraffic may, from time to time and in its sole discretion, modify the terms and conditions of this Agreement, with notice to Customer in accordance with Section ‎‎‎16.10 (Notices). Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of Customer’s Subscription and will automatically apply as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Applicable Laws, or as necessary for new Features) NoTraffic may specify that such modifications become effective during Customer’s then-current Term. If the effective date of a modification is specified to be during Customer’s then-current Term (and there is more than 3 months remaining on the then-current Term), and the modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way), and Customer objects to the modification, then, as Customer’s sole and exclusive remedy, and NoTraffic’s sole and exclusive obligation and liability, Customer may terminate this Agreement and the affected Order Form (if any) upon written notice to NoTraffic, and (if applicable) receive a pro-rated refund of any unutilized Fees (that are attributable to the Subscription) paid under such Order Form based on the remaining period of the then-current Term; provided, however, that in order to exercise this right, Customer must provide NoTraffic with written notice of its objection and termination within thirty (30) days of NoTraffic’s notice of the modification.

16.3. NoTraffic Affiliates. At NoTraffic’s sole discretion, any NoTraffic obligation hereunder may be performed (in whole or in part), and any NoTraffic right or remedy may be exercised (in whole or in part), by a NoTraffic Affiliate. Without limiting the generality of the foregoing, NoTraffic may assign its right to invoice and receive payments under this Agreement to an NoTraffic Affiliate.

16.4. Assignment. NoTraffic may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without NoTraffic’s express prior written consent. Any prohibited assignment shall be null and void.

16.5. Third Party Software. The Service may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (“Third Party Software” and “Third Party Software Terms and Notices”, respectively). NoTraffic will comply with any valid written request submitted by Customer to NoTraffic for exercising any rights Customer may have under such Third Party Software Terms and Notices. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by NoTraffic in this Agreement concerning the Service (if any), are made by NoTraffic and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software.

16.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

16.7. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.

16.8. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by NoTraffic, the writing must be duly signed by an authorized representative of NoTraffic), and shall be valid only in the specific instance in which given.

16.9. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties. Neither party has any authority to enter into agreements of any kind on behalf of the other party, and neither party will create or attempt to create any obligation, express or implied, on behalf of the other party.

16.10. Notices. Customer agree that NoTraffic may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Applicable Law, Customer agrees to send all notices to NoTraffic, to [EMAIL].

16.11. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as NoTraffic Affiliates), there shall be no third-party beneficiaries of or under this Agreement.

16.12. U.S. Government Rights. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Service shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.

16.13. Export Compliance. Customer represents and warrants (on behalf of itself and its Authorized Users, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless NoTraffic and all NoTraffic Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon NoTraffic or an NoTraffic Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all export and re-export control laws applicable to Customer and/or NoTraffic, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.

16.14. Force Majeure. Neither party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by NoTraffic’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities (including without limitation lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party.

16.15. Third Party Charges. Customer’s use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Customer shall be solely responsible and liable for those charges.

16.16. Expense. Except as may be expressly stated otherwise in this Agreement, each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, and performance of this Agreement.

16.17. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of NoTraffic’s or its Affiliates’ employees, partners, representatives, or agents, in connection with this Agreement.

16.18. Technical Advice. NoTraffic shall have no obligation or liability for any technical advice furnished to Customer, including without limitation technical advice with respect to the use of the Service or System, all such technical advice being given and accepted at Customer’s risk.

 

SCHEDULE A

Support Services

1. Updates and New Versions

NoTraffic may, from time to time during the Term, make available Updates and New Versions. For the avoidance of doubt, Updates and New Versions expressly excludes new Features (which may be subject to additional charge). NoTraffic will make such Updates and New Versions available to Customer to the extent generally made available by NoTraffic to its other supported customers.

“New Versions” means new releases and new versions of the Service, as typically represented by the number to the left of the decimal point (e.g. Version X.0).

“Updates” means modifications, revisions, or enhancements (such as a bug fix or patch) to the Service (excluding New Versions), as typically represented by the number to the right of the decimal point (e.g. Version 1.X).

2. Support Requests

Support Requests (defined below) to NoTraffic for the Service and/or the Systems may be submitted via:

(i) Phone: [PHONE]
(ii) Email: [SUPPORT EMAIL]
(iii) Web: [URL]
As used herein, “business hours” means: XXXXXX

3. Technical Support (Service)

NoTraffic will use commercially reasonable efforts to respond to and address failures of the Service to function in the manner intended by NoTraffic (“Problems”) which are reported by Customer (each, a “Support Request”), in accordance with the service levels and terms set forth below in this Schedule.

In order to be addressed by NoTraffic, Problems must be verifiable and reproducible. Furthermore, in order for NoTraffic to address a Support Request, Customer must provide NoTraffic with all information, documentation, assistance and access as NoTraffic might reasonably require, including, without limitation:
– setup information,
– application knowledge,
– listing of any output,
– detailed steps required to enable NoTraffic to replicate the Problem,
– exact wording of Problem messages, and
– any other data that NoTraffic may reasonably request in order to reproduce operating conditions similar to those present when the Problem occurred.

Each Problem for which a Support Request is received by NoTraffic, shall be classified by NoTraffic and assigned a level of severity (“Severity Level”), in accordance with the following criteria:

Severity Level Criteria Response
Time
(measured after NoTraffic receipt of Support Request) Status Update
(measured after NoTraffic receipt of Support Request)
Severity
1
Critical A complete failure or inability to access or use the Service for an extended period of time (more than 30 consecutive minutes) during business
hours 1 hour 4 hours
Severity
2
Major A complete failure or inability to access or use the Service for a brief period of time (fewer than 30 consecutive
minutes) during business hours, or the failure of one or more key Features of
the Service for an extended period of time (more than 30 consecutive minutes) during business hours 4 hours 8 hours
Severity
3

Minor A partial, temporary or intermittent failure of one or more Features of the
Service lasting for fewer than 30 consecutive minutes during business
hours 8 hours 24 hours
Severity
4
Low A Problem that is cosmetic in nature
(e.g., UI) or that can be readily circumvented through use of alternate functionality in
the Service. 24 hours 3 Business Days

Upon classification of each Problem for which NoTraffic received a Support Request, a customer support representative of NoTraffic shall use commercially reasonable efforts to: (a) contact Customer within the “Response Time” period set forth in the table above, and (b) follow up and provide an update on the status of the measures being taken (such as workarounds, bug fixes, Updates, etc.) to address the Problem within the “Status Update” time frame set forth in the table above.

The technical support described above will only be provided with respect to the then-current version/release of the Service, and shall exclude Problems resulting from:

(a) any modifications of the Service by Customer that have not been approved by NoTraffic in advance and in writing;
(b) Customer’s failure to implement in a reasonably timely manner any Update or New Version made available by NoTraffic;
(c) Customer’s written instructions to NoTraffic, or installation or set up adjustments made solely by Customer;
(d) Customer’s use of the Service in violation of the Agreement or of any Applicable Laws;
(e) any fault in any Customer (or third party) equipment or programs used in conjunction with the Service; and/or
(f) Customer’s negligence or willful misconduct.

4. Technical Support (Systems)

In the event of any System defects attributable to NoTraffic (each, a “Defective System”), Customer shall issue a Support Request to NoTraffic. NoTraffic shall (at its sole option, and at no additional charge) repair the Defective System (or part thereof) or replace the Defective System (or part thereof) with new or refurbished Systems (or parts), and NoTraffic shall use commercially reasonable efforts to do so within five (5) business days. The foregoing represents Customer’s sole and exclusive remedy, and NoTraffic’s sole and exclusive obligation and liability, for any Defective System.

The technical support described above excludes, and NoTraffic shall have no responsibility or liability hereunder to support, service or respond to, any and all of the following: (a) Systems that have been altered, reconfigured or modified by Customer or any third party other than NoTraffic’s authorized customer support personnel; (b) Systems not installed by NoTraffic’s authorized customer support personnel; (c) failure by Customer to promptly implement a firmware update required by NoTraffic; or (d) defects or other damage caused by negligence, abuse, neglect, or use other than as specified in the Documentation, or by natural disasters or other factors beyond the reasonable control of NoTraffic. Any services provided by NoTraffic in connection with the foregoing shall be charged at NoTraffic’s then-current rates. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, under no circumstances shall NoTraffic be liable for any loss or theft of any System following delivery to Customer.

5. General Customer Responsibilities
Furthermore:
(a) Customer agrees to receive from NoTraffic communications via e-mail, telephone, and other reasonable formats;
(b) Customer’s technical support contact shall cooperate with NoTraffic at all times during the provision of Support Services under this Schedule; and
(c) Customer shall report to NoTraffic all material problems with the Service and Systems, and shall implement any reasonable corrective procedures provided by NoTraffic reasonably promptly after receipt.