THIS SUBSCRIPTION AGREEMENT (“Agreement”), dated as of ______________(the “Effective Date”), is hereby entered into by and between RideConnect, LLC (“Provider”), a Texas limited liability company with offices at250 Fillmore Street 3rdFL. Denver, Colorado 80206 and ______________________ (“Customer”), a(n) ______________________ with offices at ______________________ (individually a “Party” or collectively, the “Parties”). Provider is in the business of providing (i) access to its hosted software applications for providing ridesharing services, and (ii) implementation services for such applications. The parties desire that the Customer shall obtain access to such applications on a subscription basis under the terms and conditions of this Agreement.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:
As used in this Agreement, and in any Exhibits and Order Forms, the capitalized terms shall have the meanings indicated below:
“Application” means the modules, platform, user interfaces, on-line help, and associated Documentation of Provider, to which Customer may have access, as specified in the Order Form(s) (attached as Exhibit A), atRideConnect.comor such other URL as Provider may specify from time to time.
“Affiliate(s)” means any corporation or other entity controlled by, controlling, or under common control with any Party, and “Control” means the direct or indirect beneficial ownership of a majority interest in the voting stock, or other ownership interests, of such corporation or entity, or the power to elect at least a majority of the directors or trustees of such corporation or entity, or majority control of such corporation or entity, or such other relationship, which in fact constitutes actual control.
“Customer Data” means any data, information, content, or material, which Customer or its Affiliates enter into, load onto, or use in connection with the Application, and all results from processing the same in the course of using the Application.
“Documentation” means the user and technical information, provided to Customer by Provider, regarding the access and use of the Application by means of an on-line help system describing the operation of the Application under normal circumstances.
“Hosted” means the execution of the Application on a Server as directed by Provider, without any installation of software source code or object code, on a computer owned or operated by Customer.
“Initial Term” means the first period of time this Agreement is in effect, beginning on the Effective Date and continuing for the period of time set out in Exhibit A, “Order Form(s)”, and for which the applicable Subscription Fee has been paid.
“Intellectual Property Rights” means any (i) copyrights and copyrightable works, whether registered or unregistered; (ii) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (iii) patents, patent applications, patent disclosures, mask works and inventions (whether patentable or not); (iv) trade secrets, know-how, data privacy rights, database rights, know-how, and rights in designs; and (v) all other forms of intellectual property or proprietary rights, and derivative works thereof, in each case in every jurisdiction worldwide.
“Order Form(s)” means the form(s) attached as Exhibit A, which are incorporated into and made a part of this Agreement, and which describe the Subscription, features of the Application, including modules, capacity metrics, and other items contracted for, applicable fees and charges, and the billing period.
“Renewal Term” means each successive twelve-month period of time following the Initial Term, during which the Agreement shall remain in effect, provided, that the applicable Subscription Fee is paid in advance, and the Agreement is not otherwise terminated.
“Professional Services Agreement” means any separate agreement entered into by Provider and Customer for professional services in connection with the Application or Subscription, which may include planning, installation, configuration, data migration, integration, enhancement, training, but excluding any Standard Support Services, which are provided with the Subscription.
“Standard Support Services” means those services set forth in Exhibit B, “Standard Support Services and Service Level Agreement,” which are included within the Subscription Fee. “Subscription” means the particular use and access rights to the Application granted by Provider to Customer and related responsibilities, as described in this Agreement. “Subscription Fee” means, in U.S. Dollars, the fee to access and use particular features of the Application, andto receive the Standard Support Services, during the corresponding Subscription Period.
“Subscription Period” means the period during which Customer may access and use certain Application features for which Customer has paidSubscription Fees in accordance with the applicable Order Form and this Agreement.
“Term” means the period of time this Agreement is in effect, including the Initial Term and any Renewal Term(s).
“Update” means any patch, bug fix, correction, update, upgrade, enhancement, minor release, or other modification by Provider to anApplication, that is generally small in scope, made generally available by Provider to all its paid-subscription customers.
“User(s)” means Customer’s employees and Affiliates who are authorized by Customer to use the Application in accordance with this Agreement and have been supplied user identifications or passwords by Customer in accordance with this Agreement.
“Versions” [term used in SLA Exhibit] means a major release of the Application configuration identified by a number to the left of the decimal point (e.g. 5.0, 6.0), and which generally involves the introduction of significant feature additions, broad upgrades to the user interface, or architectural improvements to the technology platform, and may involve the introduction of new modules that Provider, in its sole discretion, decides to make available.
2. DESCRIPTION OF APPLICATION AND SERVICES
A. Subscribing to the Application. Provider shall provide to Customer access and use of the Hosted Application described in the Order Form(s) attached to this Agreement as Exhibit A, for the Subscription Period specified therein, in consideration of payment of the applicable Subscription Fees, according to the terms and conditions of such Order Form and this Agreement.
B. Additional Order Forms. Additional Order Forms may be entered into by the Parties to subscribe to additional or different features of the Application. Unless designated as replacing a specific outstanding Order Form, a new Order Form will be considered in addition to currently outstanding Order Forms. Additional Order Forms shall be executed manually by the Parties or submitted electronically through the Provider’s online ordering system.
C. Accessing User Accounts. User IDs shall be required to access and use the Application. Customer will access and use the Application only through the User IDs and only in accordance with the Subscription terms and other restrictions in this Agreement. Customer shall be responsible for issuing User IDs to such employees and Affiliates as it determines in its sole discretion, in accordance with this Agreement.
D. Standard Support Services. Provider shall provide the Standard Support Services as set forth in Exhibit B, “Standard Support Services and Service Level Agreement,” attached hereto, and for which payment shall be included in the Subscription Fee, unless otherwise specified in the Order Form.
E. Hosting and Subcontractors. Customer acknowledges and agrees that Provider may in its sole discretion engage, or has engaged, third-parties (“Subcontractors”) to perform Hosting of the Application or other Support Services under this Agreement.
3. SUBSCRIPTION RIGHTS AND RESTRICTIONS
A. Subscription Grant. For each Application feature referenced on an Order Form, and for which the applicable Subscription Fee is paid when due, Provider hereby grants to Customer a nonexclusive, non-transferrable, worldwide, limited Subscription to do the following: (i) access the Hosted Application through the User IDs; (ii) load Customer Data into the Application; (iii) use the Application for Customer’s own internal business purposes; and (iv) operate the features of the Application during the Subscription Period according to the Documentation, all subject to the terms and conditions of the Order Forms and this Agreement. All rights not expressly granted to Customer herein are reserved to Provider and its licensors.
B. Type of Subscription. The Subscription grant above is without limit as to number of Users accessing the Application, unless otherwise specified on the applicable Order Form.
C. Subscription Restrictions. Customer shall not access, or allow access to, the Application if Customer is in direct competition with Provider, except with Provider’s prior written consent. In addition, Customer may not access the Application for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Application in any way; (ii) modify or make derivative works of the Application; (iii) create Internet “links” to the Application on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Application in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of the Application; or (c) copy any ideas, features, functions or graphics of the Application.
In using the Application, Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (v) attempt to gain unauthorized access to the Application or its related systems or networks; (vi) input any data or information into the Application that is: credit card or debit card information, personal banking, financial account information, social security numbers, HIPAA-protected data, or personal confidential information concerning individuals.
Customer shall not permit Users to share User IDs with each other or with third parties. Customer acknowledges that: (i) Provider shall rely on the validity of any User ID, instruction or information that meets the Application’s automated criteria or which is believed by Provider to be genuine; (ii) Provider may assume a person entering a User ID and password is, in fact, that User; and (iii) Provider may assume the latest email addresses and registration information for Users on file with Provider are accurate and current.
4. CUSTOMER RESPONSIBILITIES
A. User IDs. Customer shall select its Users in its sole discretion, and shall issue to each individual User a User ID to access the Application subject to the limitations and obligations herein, and provided, that Customer shall be responsible for all activity occurring under Customer’s User accounts. Customer shall: (i) notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Provider immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Customer Data that is known or suspected by Customer or Users; and (iii) not impersonate another Provider customer or provide false identity information to gain access to or use the Application. Customer shall be responsible for its Users’ compliance with the terms of this Agreement and shall ensure that Users shall be obligated in writing to protect User IDs and the Application at least to the extent as provided in this Agreement.
B. Data Preparation and Configuration. Customer will ensure that: (i) it maintains Customer Data are in proper format as specified by the Documentation or the Statement of Work in a Professional Services Agreement; (ii) its Personnel are familiar with the use and operation of the Application; and (iii) it does not introduce other software, data, or equipment having an adverse impact on the Application. Following any initial implementation assistance by Provider, Customer shall load the Customer Data and configure the Application, any Updates, and its internal processes, as needed, to operate the Application and any Updates in Customer’s computing environment. Customer, not Provider, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use of all Customer Data, and Provider shall not be responsible or liable for any deletion, correction, destruction, damage, loss,or failure to store any Customer Data that is caused by Customer or User or the use or misuse of User IDs by a third party.
5. RESERVATION OF RIGHTS AND PROVIDER OWNERHSIP
This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Application, or to the Intellectual Property Rights therein owned by Provider. Provider’s name, Provider’s logo, and the product names associated with the Application are trademarks of Provider or third parties, and no right or license is granted to use them. Provider (and its licensors) shall exclusively own all right, title, and interest in and to the Application, copies, modifications, and derivative works thereof. Provider shall own any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Application, including all related Intellectual Property Rights thereto, specifically excluding Customer Data.
6. CUSTOMER DATA OWNERSHIP
Customer (and its licensors) shall exclusively own all right, title, and interest in and to Customer Data and Intellectual Property Rights thereto.
7. FEES AND PAYMENT
A. Subscription Fees and Payment. Customer shall pay the Subscription Fees, in advance, for the rights to access and use the Application during the applicable Subscription Period, as set forth in the Order Form(s), attached hereto as Exhibit A. Subscription Fees shall be invoiced annually before the corresponding Subscription Period, which dates may be specified in the Order Form. Invoices shall be due and payable within thirty (30) days of the invoice date, and in no event later than one day before the start of the applicable Subscription Period. Any future Order Forms shall be at Provider’s then-published rates or as otherwise agreed by the Parties in the Order Form. All payment obligations for Subscription Fees are non-cancelable and all amounts paid are nonrefundable.
B. Data Storage and Backup Fees. The Subscription Fees include the amounts of online data storage and weekly data backups as set forth in the Order Form. If the amount of disk storage required exceeds these limits, Customer will be charged the then-current storage fees at the time the Subscription Fee is due. Provider shall use reasonable efforts to notify Customer when its usage approaches ninety percent (90%) of the allotted storage space; however, any failure by Provider to so notify Customer shall not affect Customer’s responsibility for such additional storage charges. Any additional data storage shall be at Provider’s then applicable rates or as otherwise agreed in an Order Form.
C. Professional Services Fees. Provider shall invoice Customer monthly in arrears for Professional Services performed pursuant to any Professional Services Agreement at the rates set forth therein.
D. Late Payment, Suspension. Customer may not withhold or “setoff” any amounts due hereunder. In addition to any other legal remedies, Provider reserves the right to suspend or terminate Customer’s access to the Application until all amounts due are paid in full after giving Customer advance written notice and an opportunity to cure as specified herein in the Section relating to Termination. Any late payment shall be subject to any costs of collection, including reasonable attorneys’ fees, and shall bear interest at the rate of one percent (1%) per month, or the highest rate permitted by law, until paid.
E. Taxes. Prices quoted do not include, and Customer shall pay, any and all applicable taxes, including without limitation, sales, use, gross receipts, value-added, GST, personal property, or other tax (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on the net income or profits of Provider.
F. Pricing Terms. All prices are stated and payable in U.S. Dollars. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
G. Renewal. Provider will automatically issue an invoice to Customer each year at the end of a Term or as otherwise mutually agreed upon, unless either Party has given notice of non-renewal as set forth in the Section 18, “Term.” The Renewal Term Subscription Fee will be computed as set forth in Exhibit C, “Renewal Term Subscription Fee Calculation,” which shall be effective upon renewal and thereafter.
For purposes of this Section, a Party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”
A. Confidential Information. “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include the terms and conditions and pricing information of this Agreement, and the Provider’s Application (including, without limitation, Documentation, source code, translations, compilations, implementation methodologies, partial copies, and derivative works). Confidential Information does not include that which was: (i) as of the Effective Date of this Agreement, generally known to the public without breach of this Agreement; (ii) is or became generally known to the public after the date of this Agreement other than as a result of the act or omission of Recipient or Recipient’s Affiliates; (iii) was already in the possession of the Recipient without any obligation of confidence; (iv) released by Disclosing Party with its written consent to third parties without restriction on use and disclosure; (v) lawfully received by Recipient from a third party without an obligation of confidence; or (vi) independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information; or (vii) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Recipient provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the applicable information.
B. Non-Disclosure. For a period of three years from the date of receipt of Confidential Information, the Recipient shall do the following:
(i) use at least the same degree of care that it uses with respect to its own confidential information, but in no event less than a reasonable degree of care to avoid disclosure, publication or dissemination of the other Party’s Confidential Information; (ii) disclose Confidential Information only to its personnel who have a need to know; (iii) disclose Confidential Information only to third parties who have entered into an appropriate confidential disclosure agreement with the Recipient, prior to any disclosure of Confidential Information, and to whom such disclosure has been previously authorized in writing by the Disclosing Party; and (iv) promptly report any loss of any Confidential Information to the Disclosing Party. C. Notices. Recipient shall not: (i) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend, or (ii) decompile, disassemble or reverse engineer the Confidential Information (and any information derived in violation of such covenant shall automatically be deemed Confidential Information owned exclusively by the Disclosing Party).
D. Return of Confidential Information. Upon the written request of the Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession or control and cease all furtheruse thereof.
E. Injunctive Relief. Recipient acknowledges that violation of the provisions of this Confidentiality Section would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
F. PII. For the purposes of this Agreement, “Personally Identifiable Information” or “PII” means information which can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information, which is linked or linkable to a specific individual. In the event that Provider has access to PII (withthe exception of business contact information and e-mail addresses of the Customer), such access will likely be incidental. The intended purpose of the Application is not to accept or use PII. Customer shall retain control of its PII at all times. To the extent Provider has incidental access to Customer PII, Provider agrees to use or disclose PII only: (i) in furtherance of or in connection with performing the services pursuant to this Agreement and the relevant Statement of Work; (ii) pursuant to a lawfulsubpoena, service of process, or otherwise required or permitted by law; (iii) as directed or instructed by Customer; or (iv) with prior informed consent of the individual about whom the PII pertains.
G. Survival. The provisions of this Section 8 shall survive termination of this Agreement.
9. DATA PROTECTION AND INFORMATION SECURITY
Provider shall maintain and enforce reasonable technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of the Customer Data that are at least equal to industry standards for applications similar to the Application, in accordance with “Provider’s Data Protection and Information Security Policy Summaries,” available atRideConnect.com. However, because the success of this process depends on equipment, software, and services over which Provider has limited control, Customer agrees that Provider has no responsibility or liability for the deletion or failure to store any Customer Data or communications maintained or transmitted by the Application. Customer shall be responsible for backing up its own Customer Data. Customer has set no limit on the number of transmissions Customer may send or receive through the Application or the amount of storage space used, except as provided in the Order Form, and Customer’s volume of transmissions may affect its Subscription Fees.
10. REPRESENTATIONS AND WARRANTIES OF PROVIDER
A. Provider represents and warrants that:
(i) for a period of one hundred eighty days (180) from the date the Application, or a new Version, is made available to Customer, the Application, or new Version, shall be free from material defects in materials and workmanship and perform substantially in accordance with the Documentation under normal useand circumstances; and (ii) Standard Support Services shall be performed in a professional and workmanlike manner, and for a period of one hundred eighty (180) days from the date of performance, shall be free from material defects.
Provider shall, prior to making a new feature of the Application available, (a) scan it with commercially available anti-virus software and shall use reasonable efforts to remove viruses capable of being detected with such software, (b) not intentionally include in the Application any viruses, worms, trap doors, Trojan horses or other malicious code.
B. The warranties above shall be contingent upon the existence of all the following conditions: (i) the Application is implemented and operated by Customer in accordance with the Documentation; (ii) Customer notifies Provider of any warranty defect as promptly as reasonably possible after becoming aware of such defect, but in no event more than ten (10) calendar days after becoming aware of such defect; (iii) Customer has properly used all Updates made available with respect to the Application, and any updates recommended by Provider with respect to any third-party software products that affect the performance of the Application; (iv) Customer has properly maintained all associated equipment and software and provided the environmental conditions in accordance with applicable written specifications provided by the applicable manufacturer of such equipment and software; (v) Customer has not introduced other equipment or software that causes an adverse impact on the Application; (vi) Customer has paid all amounts due hereunder and is not in default of any provision of this Agreement; (vii) any legacy software with respect to which the Application is to operate contains clearly defined interfaces and correct integration code, and (viii) Customer has made no changes (nor permitted any changes to be made other than by or with the express approval of Provider) to the Application, except as may be permitted herein.
C. The Parties acknowledge that the provisions of this Section 10 have been negotiated by them and reflect a fair allocation of risk. Customer’s exclusive remedies, and Provider’s sole liability, with respect to any breach of this Section 10 will be, at Provider’s option, for Provider to (i) promptly correct the applicable material defects that affect performance of and access to the Application (provided that, Customer notifies Provider in writing of such defect within the applicable warranty period); or (ii) provide a replacement application or service that is substantially similar in form and function reasonable acceptable to Customer; or (iii) if neither of the foregoing are reasonably practicable, accept termination of Customer’s access and use of the Application and refund to Customer a pro-rata portion of unused, pre-paid Subscription Fees.
D. Provider agrees to cooperate with Customer, at Customer’s sole expense, with respect to any investigation, inquiry or audit by any regulatory authority that supervises, oversees or regulates Customer during the Term of this Agreement and for such time thereafter as may be required by applicable law.
11. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
A. Customer represents and warrants that:
(i) Customer owns Customer Data or has all necessary rights to use and input Customer Data into the Application; (ii) Customer Data shall not infringe upon any third-party Intellectual Property Rights or violate any rights against defamation or rights of privacy; (iii) Customer has not falsely identified itself nor provided any false information to gain access to the Application and that Customer’s billing information is correct.
B. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Application is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer expressly consents to the transfer of such information outside of the European Union to the United States and to such other countries as may be contemplated by the features and activities of the Application under this Agreement. 12. WARRANTY DISCLAIMERS A. No Extraneous Terms. Without limitation, no representation or warranty is made orally or through any course of performance, course of dealing, or usage of trade, or through any advertising, brochures, catalogs, websites, promotional materials, quotations, proposals, documentation, packaging, or other descriptive literature or communications, and that no such matter will be used to modify, interpret, supplement, add to, or alter in any way the terms and conditions of this Agreement. B. WARRANTY DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE APPLICATION, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS” AND PROVIDER EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, AND WHETHER RELATING TO COMPATABILITY, SECURITY, AND/OR FREEDOM FROM VIRUSES, OR ANY OTHER WARRANTY, AND SPECIFICALLY, PROVIDER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, RELATED TO, OR CONNECTED WITH THISAGREEMENT IN ANY WAY (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS), UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR BREACH OF STATUTORY DUTY), EVEN IF CUSTOMER OR PROVIDER IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S APPLICATIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 12 HAVE BEEN NEGOTIATED AND REPRESENT A FAIR ALLOCATION OF RISK. 13. INDEMNIFICATION BY PROVIDER Provider shall defend Customer against any third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) finally adjudicated by a court of competent jurisdiction and arising out of a claim alleging that the Application directly infringes a valid registered U.S. patent issued as of the Effective Date, provided, that Customer does the following: (a) promptly gives written notice of the claim to Provider;(b) gives Provider sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim without prior review and agreement by Customer); (c) provides to Provider all available information and reasonable assistance; and (d) has not compromised or settled such claim. 14. INDEMNIFICATION BY CUSTOMER Customer shall defend Provider against any third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) finally adjudicated by a court of competent jurisdiction and arising out of a claim alleging: (i) that use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) infringement of third-party rights arising from the combination of the Application with any of Customer products, service, hardware or business process(s), provided that Provider does the following: (a) promptly gives written notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim without prior review and agreement by Provider); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such claim. 15. LIMITATION OF LIABILITY AT NO TIME SHALL THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM. PROVIDER SHALL HAVE NO LIABILITY FOR DELAYS, FAILURES OR LOSSES ATTRIBUTABLE OR RELATED, IN ANY WAY, TO ANY THIRD-PARTYAPPLICATION OR SERVICES. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES PROVIDED. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE APPLICATION SUBSCRIPTION AND SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT. 16. EXPORT CONTROL Provider provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer agrees to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required for Customer Data. The Application may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. Provider and its licensors make no representation that the Application is appropriate or available for use in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to U.S., Swiss, or European Union (including European Union Member States) law is prohibited. None of the Customer Data, nor any information acquired through the use of the Application, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes. 17. FORCE MAJEURE Provider shall not be in default of this Agreementif prevented from performing any obligation for any reason beyond its reasonable control including, without limitation, governmental laws and regulations, terrorists acts, acts of God or the public, calamities, floods, and storms, act of public authority,injunction, war, embargo, strike, lock out, failure or delay of supplier or carrier, failure of public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond its reasonable control. To the extent failure or delay in performance is caused by such a cause, Provider shall be excused from performance under this Agreement for so long as such circumstance continues to prevent performance. 18. TERM A. Term. The Term of this Agreement shall begin on the Effective Date and comprise the Initial Term and all Renewal Terms and shall continue in full force and effect until all outstanding Subscription Periods under valid Order Forms expire or are terminated in accordance with this Agreement. Expiration or termination of one Order Form shall not affect any other Order Form, unless the Agreement as a whole is terminated under Section 19 (“Termination”). B. Initial Term. The Initial Term of this Agreement shall begin on the Effective Date and continue for either a period of one year, or until the end of the Subscription Period set forth in Exhibit A, Order Form(s), whichever is longer. C. Renewal Term(s). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-year terms, subject to payment of the Renewal Term Subscription Fee, calculated as set forth in Exhibit C, “Renewal Term Subscription Fee Calculation.” D. Non-Renewal. The Initial Term shall be non-cancellable. Either Party may give notice of non-renewal of this Agreement, effective only upon the expiration of the Initial Term or then-current Renewal Term, by notifying the other Party in writing at least sixty (60) days prior to the beginning of the next Renewal Term. 19. TERMINATION A. Termination for Cause. Either Party may, in addition to other relief, suspend or terminate an Order Form or this Agreement if the other Party breaches any material provision hereof and fails within thirty (30) days after receipt of notice of default to correct such default, or to commence corrective action reasonably acceptable to the aggrieved Party, and proceed with due diligence to completion. In addition, either Party shall be in material default hereof if it commences voluntary or involuntary winding up, or makes an assignment of substantially all its assets for the benefit of its creditors, or a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within one hundred twenty (120) days. Any breach of Customer’s payment obligations or unauthorized use of the Application will be deemed a material breach of this Agreement. B. Results of Termination for Cause. Provider, in its sole discretion, may terminate Customer’s use of the Application if Customer commits a material breach and such breach has not been cured within 30 days’ notice of such breach. C. Termination Without Cause. Customer may terminate this Agreement in the event that it is required to cease its use of the Application by laws or regulations, which become effective after the Effective Date, and which are applicable to Customer. Other than the foregoing, in no event shall there be termination for convenience during the Initial Term or a Renewal Term of this Agreement or a refund or cancellation of any Initial Term or Renewal Term Subscription Fees. The Subscription Fees have been negotiated by the Parties and reflect special pricing and allocation of resources by Provider. D. Return of Customer Data. In the event this Agreement is terminated, Provider will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests in writing at the time of termination. Customer agrees and acknowledges that Provider has no obligation to retain the Customer Data, and may delete such Customer Data, after such thirty-day period after termination, if Customer does not request a file of Customer Data. In the event of termination due to Customer’s breach, Provider may apply a reasonable time and materials fee to make available toCustomer the file of Customer Data. 20. NOTICES All notices from one Party to the other under this Agreement will be in writing and will be deemed given when (i) delivered personally with receipt signature; (ii) sent via certified mail with return receiptrequested; (iii) sent via telex, telecopier or fax, all with confirmation of receipt; or (iv) sent by commercially recognized air courier service with receipt signature required, to the following address: if to PROVIDER: RideConnect, LLC Santosh Krishnan,CEO 250 Fillmore Street Denver, Colorado 80206 With a copy to: Williams LLP ATTENTION: T. Edward Williams, Esq. 7 World Trade Center 250 Greenwich Street 46thFL. New York, New York10007
if to CUSTOMER: [NAME & ADDRESS] ATTENTION: ____________________________________________ and ATTENTION: ____________________________________________ 21. INTEGRATION This Agreement and its attached Exhibits constitute a complete and exclusive final written expression of the terms of agreement betweenthe Parties regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter. The following Exhibits are attached to this Agreement, shall be governed by the termsand conditions of this Agreement and are made a part hereof: Exhibit A—Order Form(s) Exhibit B—Standard Support Services and Service Level Agreement Exhibit C—Renewal Term Subscription Fee Calculation In the event of any conflict between this Agreement and an Order Form, the Order Form shall control, except this Agreement shall govern all issues relating to Intellectual Property Rights, warranty, indemnity, and liability issues. 22. AMENDMENT There will be no modification to this Agreement unless it is in writing signed by duly authorized representatives of each Party. Any representations, promises, warranties or statements made by either Party that differ in any way from the terms of this Agreement will not be binding on either Party and will be void unless made in writing and signed by a duly authorized representative of each Party. Other than an Order Form or a valid amendment in writing signed by the Parties, no document or pre-printed form shall be used to modify, interpret, supplement, add to, or alterin any way the terms and conditions of this Agreement. Any restrictive endorsement on any check or any instrument of payment to a Party that purports to alter this Agreement or any of the Parties’ rights will be deemed void and of no force or effect. 23. ASSIGNMENT OR CHANGE IN CONTROL This Agreement may not be assigned by either Party without the prior written approval of the other Party, but may be assigned without consent in the event of a merger or reorganization in which the surviving entity owns or controls more than 50% of the acquired Party and agrees in writing to assume the obligations under this Agreement. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results, or would result, in a direct competitor of Provider directly or indirectly owning or controlling 50% or more of Customer shall entitle Provider to terminate this Agreement for cause immediately upon written notice. 24. INDEPENDENT CONTRACTOR STATUS Each Party isan independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, workers' compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people. 25. SECURITY, NO CONFLICTS Each Party agrees to inform the other of any information made available to the other Party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. EachParty represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest and shall promptly notify the other Party if any such conflict arises during the Term. 26. INSURANCE Each Party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage for statutory workers' compensation, comprehensive general liability for bodily injury and tangible property damage, and shall provide Certificates of Insurance to the other Party, upon reasonable request, evidencing such coverage and amounts. 27. GOVERNING LAW The construction and performance of this Agreement shall be governed by the substantive laws of the United Stated and the laws of theState of Colorado, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim by one Party against the other Party must be brought within three years after it arose, or be barred. 28. SEVERABILITY If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. 29. NO AGENCY The Parties acknowledge and agree that each is an independent contractor and nothing herein constitutes a joint venture, partnership, employment, or agency between Customer and Provider as a result of this Agreement or use of the Application. Neither Partyshall have the right to bind the other Party or cause it to incur liability. 30. WAIVER The failure of either Party to enforce any right or provision in this Agreementshall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing. 31. NON-SOLICITATION Each Party agrees that, during the Term of this Agreement and for a period of one year thereafter, it will not, except with the other Party’s prior written approval, solicit the employment of any employee, consultant or subcontractor of such other Party that directly participated in the activities set forth in this Agreement. The foregoing shall specifically not apply to general solicitations of employment issued by either Party to which an employee of the other may voluntarily respond. 32. CUSTOMER LIST Customer consents to the use of Customer’s name and the Customer’s logo, exactly in the form as provided by Customer to Provider, in Provider's customer list on its website and in its marketing materials, during the Term of this Agreement. 33. SURVIVABILITY The following Sections shall survive termination of this Agreement: 1, 5, 6, 7(E), 8, 12, 15, 16, 19(D), 20, 24, 25,27, 29, and 31. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. PROVIDER
STANDARD SUPPORT SERVICES AND SERVICE LEVEL AGREEMENT
RENEWAL TERM SUBSCRIPTION FEE CALCULATION