DETECT AUTO LICENSE AGREEMENT
BY CHECKING THE BOX AGREEING TO THESE DETECT AUTO TERMS OF SERVICE (THE “AGREEMENT”), SUBMITTING THE REGISTRATION REQUEST FORM OR USING THE SERVICES, YOU (ON BEHALF OF YOUR COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, THE “SUBSCRIBER”OR THE “CUSTOMER”) ACCEPT AND AGREE TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN SUBSCRIBER AND DETECT AUTO, INC, A DELAWARE CORPORATION WITH A BUSINESS ADDRESS LOCATED AT 1400 Van Buren St. NE, Ste. 199, Minneapolis, MN, 55413 (“DETECT AUTO”). SUBSCRIBER’S USE OF THE SERVICES (AS DEFINED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, SO SUBSCRIBER SHOULD TAKE THE TIME TO FULLY UNDERSTAND HOW THIS AGREEMENT GOVERN’S SUBSCRIBER’S RELATIONSHIP WITH DETECT. AUTO AND SUBSCRIBER’S USE OF THE SERVICES. SUBSCRIBER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”,“YOUR” AND “SUBSCRIBER” WILL REFER TO SUCH ENTITY. IF SUBSCRIBER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, SUBSCRIBER MUST NOT AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE EARLIER OF THE DATE THAT SUBSCRIBER AGREES TO THIS AGREEMENT OR THAT SUBSCRIBER ACCESSES THE SERVICES.
1.1 DetectAuto Technology. Detect Auto licenses its software products on asubscription basis. Detect Auto’s software is made available as a hostedsolution. Customer’s rights to use Detect Auto software apply only to the DetectAuto software licensed under an Order (defined below).
1.2 OrderProcess. Orders for Detect Auto software and services may be made throughwritten Orders placed directly with Detect Auto or by accepting the onlineterms and associated fees described at https://www.detectauto.com. An order becomes part of this Agreement uponacceptance by Detect Auto. The terms of Customer’s form of purchase order orsimilar documents shall not apply to the relationship of Parties. In the eventof any conflict between the terms of any Order and the terms of this Agreement,the terms of this Agreement shall govern.
1.3 Delivery. The Detect Auto Solution, access shall beprovided through a password-protected web interface or via an accessible database. Delivery occurs when such link or access ismade available to Customer.
1.4 Integrationwith Non-Detect Auto Solution. The Detect Auto Solution may containfeatures designed to interoperate with Non-Detect Auto Solutions. Detect Autocannot guarantee the continued availability of such Non-Detect Auto Solutions,and may cease providing such functionality without entitling Customer to anyrefund, credit, or other compensation, if for example and without limitation,the provider of a Non-Detect Auto Solution ceases to make the Non-Detect AutoSolution available for interoperation with the corresponding Detect AutoSolution features in a manner acceptable to Detect Auto. Customer acknowledgesthat Customer is solely responsible for the origination, payment andmaintenance of any third-party applications it intends to use in connectionwith the Detect Auto Solution. Additionally, Detect Auto disclaims allresponsibility for any acts or omissions of any Non-Detect Auto Solutions. AnyNon-Detect Auto Solutions are governed by their own term and conditions towhich Customer may agree. Customer engages such third-parties at its own risk.If Customer integrates a Non-Detect Auto Solution with its instance of theDetect Auto Solution then Customer agrees to indemnify, defend, and holdharmless Detect Auto, its shareholders, directors, employees, agents andassigns from any claims arising from or connected with the such integration,unless such claims arise out of Detect Auto’s gross negligence or willfulmisconduct.
1.5 CustomerResponsibilities.
(A) Customer will (a) be responsible for DesignatedUsers’ compliance with this Agreement, Documentation and Orders, (b) beresponsible for the accuracy, quality and legality of Customer Data, the meansby which Customer acquired Customer Data, Customer’s use of Customer Data withthe Detect Auto Solution, and the interoperation of any Non-Detect AutoSolution with which Customer uses the Detect Auto Solution, (c) usecommercially reasonable efforts to prevent unauthorized access to or use of theDetect Auto Solution, and notify Detect Auto promptly of any such unauthorizedaccess or use, (d) use Detect Auto Solution only in accordance with thisAgreement, Documentation, Orders and applicable laws and governmentregulations, and (e) comply with terms of service of any Non-Detect Auto Solutionswith which Customer uses the Detect Auto Solution. Any use of the Detect AutoSolution in breach of the foregoing by Customer or Designated Users that in DetectAuto’s judgment threatens the security, integrity or availability of DetectAuto’s services, may result in Detect Auto’s immediate suspension of Customer’saccess to the Detect Auto Solution, however Detect Auto will use commerciallyreasonable efforts under the circumstances to provide Customer with notice andan opportunity to remedy such violation or threat prior to any such suspension.
“DetectAuto Solution” means the object code versions of the Detect Autosoftware identified on an Order and includes related Server Software, ClientSoftware, Updates, and Documentation, but does not include Open Source Software,which is provided pursuant to Section 3.6.
“Affiliate” means an entity, whichdirectly or indirectly controls, is controlled by or is under common controlwith a Party to this Agreement.
“Client Software” meansthe object code versions of the desktop client software for the licensed DetectAuto Solution.
“Customer Data” means electronic data and information submitted by orfor Customer to the Detect Auto Solution, excluding Non-Detect Auto applications.
“De-IdentifiedData” meansany data, including data derived from Confidential Information, that anonymizedsuch that Customer and its personnel may not be identified as being related tosuch data.
“DesignatedUser” means the number of users with unique login credentials for whomCustomer has purchased rights to use the Detect Auto Solution, as set forth onthe applicable Order. Designated Users mayconsist of: (i) employees and independent contractors of Customer and itsAffiliates, and (ii) individual representatives of vendors and/or serviceproviders of Customer and its Affiliates.
“Documentation”means Detect Auto’s standard written materials and specifications for the DetectAuto Solution licensed by Customer.
“EffectiveDate” means for Orders submitted to Detect Auto, the date that DetectAuto accepts the Order.
“HostedServices”means the remote access and use of a hosted version of the Detect Auto Solutionas hosted by Detect Auto.
“LicenseTerm” means the subscription period for use of the Detect AutoSolution, as identified on the applicable Order. Each renewal is a separate License Term.
“Maintenance Support Services”means the support services provided by Detect Auto as described in Section 4.
“Release” means any new version ofthe Detect Auto Solution that Detect Auto may from time to time introduce andmarket generally as a distinct licensed product and which Detect Auto may makeavailable to Customer at an additional cost under a separate Order.
“ServerSoftware” means the object code server software version of the DetectAuto Solution, as identified on the applicable Order.
“Update” means additions, upgrades,or modifications to the Detect Auto Solution. Updates do not include Releases.
3. License Terms.
3.1 License Grant. Subject to the terms and conditions of thisAgreement, Detect Auto hereby grants to Customer during the License Term, anon-exclusive, non-transferable and non-sublicenseable license to: (a) access, installand use the Client Software on supported environments for up to the number ofDesignated Users; and (b) use, access, and for Detect Auto Solutions not hostedby Detect Auto, copy the Server Software on supported environments for up tothe number of copies identified on the Order for Customer’s internal businesspurposes.
3.2 Hosting. Detect Auto shall, at its own expense,provide for the hosting of the Services, provided that nothing herein shall beconstrued to require Detect Auto to provide for, or bear any responsibilitywith respect to any telecommunications or computer network hardware required bySubscriber, any Authorized User or any other user to provide access from theInternet to the Services.
3.3 License Restrictions. The Detect Auto Solution may not be modified, disclosed, reverse-engineered, disassembled, or decompiledexcept and to the extent allowed by applicable law. Customer shall nottransfer, sell, license, sublicense, outsource, rent or lease the Detect AutoSolution or use it for service bureau or other third-party use. All rights notexpressly granted hereunder are reserved. Customer is solely responsible andliable for the use of and access to the Detect Auto Solution by DesignatedUsers and for all files and data transmitted, shared, or stored using the DetectAuto Solution. Customer acknowledges and agrees that the licenses grantedherein are neither contingent upon the delivery of any future functionality orfeatures nor dependent upon any oral or written public comments made by DetectAuto with respect to future functionality or features.
3.4 Ownership. All right, title, and interest, includingwithout limitation all intellectual property rights, in and to the Detect AutoSolution, including any and all modifications, enhancements, derivative works,Updates and Releases, are the sole and exclusive property of Detect Auto andits licensors. Customer shall not remove, and shall reproduce on any permittedcopies, all proprietary, copyright, trademark and trade secret noticescontained in or placed upon the Detect Auto Solution. Customer will takereasonable precautions (including the precautions used for Customer's ownconfidential information) to prevent the unauthorized use or disclosure of the DetectAuto Solution, the Documentation, or the results of any performance orbenchmark tests of the Detect Auto Solution. Customer will not allow the Software or any performance or benchmarktest results to be made available to any third party unless Detect Autoapproves that disclosure.
3.5 Use of Customer Data. Customerhereby grants to Detect Auto, its Affiliates, and its third party providers thenon-exclusive, non-transferrable, worldwide right to use, copy, transmit anddisplay during the term of this Agreement (a) any Customer Data or othermaterials, provided by Customer or its Users in the course of using the DetectAuto Solution solely to the extent necessary to provide the Detect AutoSolution to Customer, subject to the Confidentiality provisions below, and (b)any trademarks that Customer provides Detect Auto for the purpose of includingthem in Customer’s user interface of the Detect Auto Solution. Customer agreesto make available Detect Auto the Customer Data required by Detect Auto toprovide the Detect Auto Solution, as ordered by Customer and described in theDocumentation.
3.6 Feedback. Customer may from time to time provide suggestions,comments for enhancements or functionality or other feedback to Detect Autowith respect to the Detect Auto Solution or other of Detect Auto’s products andservices (“Feedback”). Detect Auto will have full discretion todetermine whether or not to proceed with the development of the requestedenhancements, new features or functionality. Customer hereby grants to DetectAuto a royalty-free, fully paid up, worldwide, transferable, sublicensable(through multiple tiers), irrevocable, perpetual license to (a) copy,distribute, transmit, display, perform, and create derivative works of theFeedback in whole or in part; and (b) use the Feedback and/or any subjectmatter thereof, in whole or in part, including without limitation, the right todevelop, manufacture, have manufactured, market, promote, sell, have sold,offer for sale, have offered for sale, import, have imported, rent, provideand/or lease products or services which practice or embody, or are configuredfor use in practicing, the Feedback and/or any subject matter of the Feedbackin whole or in part.
3.7 Open Source Software. Customeragrees that any software or materials which may be made available by DetectAuto, or otherwise obtained or used by Customer, subject to an open sourcelicense or other open source terms (“Open Source Software”) shall be andshall remain subject to the terms and conditions of the original providers andare not part of the Detect Auto Solution. Open Source Software terms are madeavailable either with the Detect Auto Solution or through the administrationinterface of the applicable Detect Auto Solution. The Detect Auto Solution shall not includeany Open Source Software licensed under any “viral” or “copyleft” license.
4. Maintenance Support Services. DetectAuto provides Maintenance Support Services for the License Term at noadditional charge under the terms set forth in the Order. As part of Maintenance Support Services, DetectAuto will make available to Customer all Updates to the supported Detect Auto Solutionthat Detect Auto makes generally available to its other customers. As needed, Customershall provide Detect Auto access to the Detect Auto Solution to install suchUpdates if required by Detect Auto. Customeragrees to deploy any critical Updates, as identified by Detect Auto, withinfive (5) days following receipt. Detect Auto will not be liable to Customer fordamages,liabilities, fines, costs, and/or expenses, including costs of litigation andreasonable attorneys’ fees, which Customer may incur, based upon or arising outof Customer’s failure to implement any critical Updates.
5. Payment; Automated Reporting.
5.1 Payment. Customer shall pay the fees specified in the Orderin advance of the commencement of Services, unless otherwise noted in the Order,based on the pricing described in Exhibit A, Fees, of this Agreement, which maybe updated by Detect Auto from time to time in its sole discretion. Orders arefirm commitments of Customer and are not cancelable by Customer. For Orders, (i) Customer shall pay invoicesin U.S. dollars within thirty (30)days of the invoice date and without offset or deduction, and (ii) allpayment terms are subject to approval of Customer’s creditworthiness, whichapproval may be withdrawn at any time; and (iii) payments are non-refundableexcept as otherwise explicitly stated in this Agreement and Detect Auto mayapply a late charge on overdue invoices at a rate of one and one-half (1.5%)per month or the maximum allowed by law, whichever is less. Detect Autoreserves the right to suspend or terminate Customer’s access to the Detect AutoSolution for any invoices remaining unpaid at least forty-five (45) days afterthe date of the invoice.
5.2 Taxes. With the exception of applicable UnitedStates sales taxes, which shall be computed and set forth as a separate lineitem in an applicable invoice, all fees are exclusive of any other value-addedtax, sales tax, customs duties, or similar taxes or imposts, includingwithholding taxes, and shall be made by Customer without deductiontherefore. Customer shall pay all suchtaxes or duties, except taxes based on Detect Auto’s net income, and reimburse DetectAuto if either is required to pay any such taxes or duties.
5.3 Automated Reporting. Reporting data does not includethe content of any emails or attachments, file names or any personallyidentifiable information. Thetransmitted information contains aggregate non-personal usage information foreach day the Detect Auto Solution is in use, including but not limited to: (i)the number and type of senders, (ii) account usage information, and (iii) thetype of Detect Auto Solution features used and related data. Customer will not in any way attempt to configurethe Detect Auto Solution or create systems that prevent the transmission ordelivery of such usage data. Detect Auto uses such data only for Order andAgreement compliance and Detect Auto’s own internal business purposes and suchdata shall be considered Detect Auto’s Confidential Information Detect Autoonly discloses such data (a) in an aggregated form with data from othercustomers in which neither Customer’s identity nor that of Designated Users arerevealed, or (b) as required by applicable law. To the extent that such datademonstrates that Customer has exceeded the terms of the Order, either in thenumber of Designated Users or services accessed, then Detect Auto may issueCustomer an invoice upon the Agreement anniversary date for the additional useof the Detect Auto Solution at Detect Auto’s then current rates.
6. Confidentiality.
6.1 Confidential Information. EachParty agrees not to use the Confidential Information of the other Party for anypurpose other than strictly for the purpose ofperforming its obligations or exercising its rights under this Agreement.Additionally, except as authorized below, each Party agrees to maintain inconfidence and not disclose any Confidential Information acquired directly orindirectly from the other Party. “Confidential Information” meansunencrypted information and materials regarding matters that include, but are notlimited to, those of a technical, financial, commercial, business, or otherproprietary nature. The results of anyperformance, penetration, and/or benchmark tests of the Detect Auto Solutionshall be the Confidential Information of Detect Auto. Confidential Information does not include anyinformation which (a) is or becomes publicly known other than through a breachof this Agreement by the receiving Party; (b) is already known to the receiving Party at the time of disclosure asevidenced by the receiving Party’s written documentation, provided that it wasnot previously obtained directly or indirectly by the receiving Party from thedisclosing Party; (c) is lawfully received by the receiving Party from a thirdparty having no obligation of confidentiality with respect thereto; (d) isproven by receiving Party to have been independently developed by employees ofthe receiving Party who have not had direct or indirect access to, or directlyor indirectly received any, Confidential Information under this Agreement; or(e) is authorized in writing by the disclosing Party to be released from theconfidentiality obligations herein. Detect Auto may share Customer ConfidentialInformation with its parent and subsidiary companies (“Affiliates”), but shallremain liable for any act or omission of such Affiliates in violation of thisAgreement. Each Party agrees that in the event of such Party’s actual orthreatened violation of the provisions of this Section, the other Party willnot have an adequate monetary remedy and shall be entitled to seek appropriatedimmediate injunctive relief without any requirement to post bond, in additionto any other available remedies.
Notwithstanding the foregoing, DetectAuto may use aggregated De-Identified Data for general research and developmentpurposes, improving its existing products and services, marketing purposes, andany other business purposes. Detect Auto agrees that it shall not attempt tore-identify any aggregated De-Identified Data unless such re-identificationcomplies with the terms of this Agreement. Detect Auto further agrees that itshall not transfer De-Identified Data to any other party unless that partyagrees not to attempt re-identification; provided, however, that Detect Automay transfer De-Identified Data to its successor pursuant to a merger,consolidation or sale of substantially all of its assets pursuant to Section 12of this Agreement.
6.2 CustomerProtected Data. Customeracknowledges that Detect Auto does not need or require access to any files orattachments stored or transmitted with the Detect Auto Solution or anypersonally identifiable information about any Customer personnel, other than asdescribed in Section 6.4, or customers (collectively, “Protected Data”). If Customer discovers that any Protected Datehas been uploaded to the Detect Auto Solution, Customer agrees to remove suchProtected Data immediately and to notify Detect Auto promptly so that suchProtected Data may be permanently deleted, to the extent that it is accessibleat all by Detect Auto.
6.3 InformationSecurity. For avoidance of doubt, solong as Detect Auto implements commercially reasonable information securitypolicies and processes, Detect Auto will be deemed to satisfy its obligationsto maintain the confidentiality and security of such information pursuant tothis Agreement.
6.4 Noticeand Consent Regarding Transfer of Data. Use of the Detect Auto Solutionrequires that when a Customer’s End Users contact Detect Auto for customerservice issues, the personal data of the Customer’s End Users (including butnot limited to End User’s email addresses, first and last names, geographiclocation, and phone number) be processed in the United States of America by DetectAuto, Inc, where customer support teams, computing systems and infrastructurenecessary for Customer’s exercise of its rights hereunder are located.
7. Limited Warranties and Disclaimer.
7.1 Virus Protection Warranty. Detect Auto warrants to Customer that, to thebest of Detect Auto’s knowledge as of the date of delivery, the Detect AutoSolution will be free from any viruses, spyware, trojans, or disabling or maliciouscode, provided that Server Software includes disablingmechanisms that prevent access to the Server Software following expiration ofthe License Term.
7.2 Customer Warranty. Customerrepresents and warrants to Detect Auto that it: (i) has the right to discloseand share all data that it uploads to the Detect Auto Solution; (ii) complieswith all applicable laws and regulations with respect to the conduct of itsoperations and management of the data shared with Detect Auto; (iii) usesindustry standard methods, practices, and procedures to protect consumer dataprocured as a result of its use of the Detect Auto Solution; and (iv) confirmsthat all content uploaded to the Detect Auto Solution is accurate and factual.Customer agrees to indemnify, defend and hold harmless Detect Auto and itsAffiliates, directors, employees, shareholders, agents, and assigns against anyclaims arising out of or in connection with its breach of this Section 7.2 orany other terms of this Agreement.
7.3 Disclaimer. THE EXPRESS LIMITED WARRANTIES IN THISSECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED,CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIESOF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DETECT AUTO DOES NOT WARRANT THAT THE USE OFTHE DETECT AUTO SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALLNONMATERIAL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. DETECT AUTOMAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PRODUCTS OR ANY HOSTEDSERVICES PROVIDERS, AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OROMISSION OF ANY CHANNEL PARTNER OR HOSTED SERVICES PROVIDERS. NO HOSTED SERVICES PROVIDER SHALL HAVE ANYAUTHORITY TO BIND DETECT AUTO TO ANY TERMS OR CONDITIONS OTHER THAN THOSEEXPRESSLY SET FORTH HEREIN.
8. Limitation of Liability. IN NO EVENT SHALL DETECT AUTO, BE LIABLE FOR ANY INDIRECT, INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATAOR USE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE ORPERFORMANCE OF THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN ANACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OROTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSOR DAMAGES. DETECT AUTO’S AGGREGATE LIABILITY FOR DAMAGES SHALL IN NO EVENTEXCEED THE TOTAL FEES RECEIVED FROM THE LICENSES GRANTED TO CUSTOMER UNDER THISAGREEMENT IN THE PREVIOUS TWELVE MONTHS FOR THE APPLICABLE DETECT AUTO SOLUTION. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREETHAT THE PRICES AND TERMS OF THIS AGREEMENT WERE MADE IN RELIANCE UPON THELIMITATION OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN DETECTAUTO AND CUSTOMER.
9. Term and Termination.
9.1 Term. This Agreement commences onthe Effective Date and shall continue for the License Term on the applicable Order,unless terminated earlier as provided in this Agreement. Unless otherwiseexpressly set forth on the Order the License Term will be renewed automaticallyfor additional periods unless the Customer provides Detect Auto with writtennotice of its intention to not renew at least thirty (30) days prior to the endof the then-current License Term (each a “Renewal Term”). Detect Auto may increase the License feesdescribed in the Order to its then current rates for each such Renewal Term. Theinitial License Term together with any Renewal Terms will be considered the“Term” of the Agreement.
9.2 Termination. Either Party mayterminate this Agreement or any license granted under this Agreement if: (i) theother Party breaches any material provision of this Agreement for any reason,which breach has not been cured within thirty (30) days of written notice; or (ii)the other Party becomes subject of a voluntary or involuntary petition inbankruptcy, or any proceeding relating to insolvency, receivership, liquidationor assignment for the benefit of creditors, which is not dismissed within sixty(60) days after commencement.
9.3 Consequences of Termination. Upontermination or expiration of this Agreement, for any reason, all rights grantedunder this Agreement shall terminate, and Customer will promptly return to DetectAuto or, at Detect Auto’s request, destroy, the applicable Detect Auto Solutionand provide Detect Auto with written certification by an officer of Customercertifying compliance with the foregoing. Customer’s obligations to pay taxesand any amounts past due along with the following provisions shall survive anyexpiration or termination of this Agreement: Sections 3.3, 3.4, 3.5, 6, 7, 8, 9.3,10.
10. Miscellaneous.
10.1 Notice. Notices under thisAgreement shall in writing and delivered via electronic mail, facsimile (withconfirmation of receipt), in person, by overnight courier, or by prepaidcertified or registered mail, return receipt requested, to a Party at itsaddresses set forth on the Order, as amended by notice pursuant to this Section,with a copy of any notice under the terms of this Agreement (except forinvoices and other routine correspondence) forwarded to: Kaleo Legal, 4456Corporation Lane, Suite 135, Virginia Beach, VA 23465. Such copy shall not constitute effectivenotice. Notice by mail shall be deemedreceived five (5) days after deposit in the U.S. mails, with other noticedeemed effective upon receipt.
10.2 Assignment. Neither Party may assign this Agreementwithout the prior written consent of the other Party, provided that eitherParty may transfer or assign thisAgreement without such consent, whether by operation of law or otherwise,pursuant to a merger, corporate reorganization, acquisition or the sale of allor substantially all of the assets to which this Agreement relates. DetectAuto may delegate its obligations to Detect Auto Affiliates or to theirrespective subcontractors, provided that Detect Auto shall remain liable forproper performance of this Agreement. Any other purported assignment by Customer shall be null and void. This Agreement shall bind the Parties andtheir permitted successors and assigns.
10.3 Modification, Waiver, and Remedies. No modification, alteration, amendment oraddition shall be effective unless made in writing, dated and signed by a dulyauthorized representative of each Party. No waiver of any breach hereof shallbe held to be a waiver of any other or subsequent breach. Each Party’s rights and remedies are inaddition to any other rights and remedies provided by law or in equity. Nochoice of any remedy shall constitute an election of remedies.
10.4 Publicity. Customer hereby consents to DetectAuto's inclusion of Customer's name in a customer listing, provided thatCustomer is not the sole Customer listed.
10.5 Force Majeure. Neither Party shall be liable to the other fordelays or failures in performance resulting from causes beyond the reasonablecontrol of that Party, including, but not limited to, acts of God, labordisputes or disturbances, material shortages or rationing, riots, acts of war,governmental regulations, communication or utility failures, orcasualties. The foregoing shallnot apply to Customer’s payment and the mutual confidentiality obligations ofthe Parties.
10.6 Export. Customer acknowledges that the Detect AutoSolution is subject to United States and local country laws governing import,export, distribution and use. Customer is responsible for compliance byCustomer and the Designated Users with United States and local country laws andregulations and shall not export, use or transmit the Detect Auto Solution (i)in violation of any export control laws of the United States or any othercountry, (ii) to any country requiring as a condition of import the disclosureof source code, or (iii) to anyone on the United States Treasury Department’slist of Specially Designated Nationals or the U.S. Commerce Department’s Tableof Deny Orders.
10.7 Government Licensing. If the Detect Auto Solution is accessed orused by any agency or other part of the U.S. Government, the U.S. Governmentacknowledges that (i) the DetectAuto Solution and accompanying materials constitute “commercial computersoftware” and “commercial computer software documentation” under paragraphs252.227.7014 and 252.227.7202 of the DoD Supplement to the Federal AcquisitionRegulations (“DFARS”) or any successor regulations, and the Governmentis acquiring only the usage rights specifically granted in this Agreement; (ii) the Detect Auto Solutionconstitutes “restricted computer software” under paragraph 52.227-19 of theFederal Acquisition Regulations (“FAR”) or any successor regulations andthe government’s usage rights are defined in this Agreement and the FAR.
10.8 Governing Law. This Agreement shall be governed by the lawsof the United States and the Commonwealthof Virginia, without referenceto conflict of laws principles. Anydispute between the Parties regarding this Agreement will be subject to theexclusive venue of the state and federal courts in the Commonwealthof Virginia. Each Party hereby consentto the exclusive jurisdiction and venue of such courts. Each Party hereby waives its right to a trial by jury for any disputesbetween the Parties arising from this Agreement. The Parties agree that the UniformComputer Information Transactions Act and the United Nations Convention on theInternational Sale of Goods will not apply to this Agreement. Any dispute by one Party to this Agreementagainst the other, which dispute arises from this Agreement, must be brought inaccordance with this Section within one (1) year after the cause of actionarises.
10.9 Arbitration. Except for collection actionsfor payment of fees and for the right of either party to apply to a court of competentjurisdiction for a temporary restraining order, a preliminary injunction orother equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arisingout of or relating to this agreementor to its breach shall be settled by arbitration by a panel of three(3) arbitrators in accordance with the American Arbitration Rules, pursuant toarbitration to be held in Virginia Beach,Virginia. Judgment upon the award rendered by the arbitrators may be entered inany court of competent jurisdiction. The prevailing party shall be entitled toreceive from the other party its attorney’s fees and costs incurred inconnection with any action, proceeding or arbitration hereunder.
10.10 Severability. If any provision of this Agreement is finallydetermined to be contrary to, prohibited by, or invalid under applicable lawsor regulations, this Agreement will be modified so as to give effect to theintent of the Parties to the maximum possible extent. The remaining provisions of this Agreementshall remain in full force and effect.
10.11 Entire Agreement; Construction. This Agreement constitutes the complete andexclusive agreement between the Parties and supersedes any and all priorcommunications, representations and understandings, whether written or oral. Thereare no third-party beneficiaries of Customer. Section headings are forconvenience only and shall not affect interpretation of the relevant section.This Agreement is in the English language only, which language shall becontrolling in all respects, and all versions hereof in any other languageshall not be binding on the Parties hereto. All communications and notices tobe made or given pursuant to this Agreement shall be in the English language. ThisAgreement may be executed in counterparts, each of which shall be considered anoriginal, but all of which together shall constitute the same instrument. Each Party expressly agrees to the use andacceptance of signatures by digital or other electronic means. Execution anddelivery of this Agreement may be evidenced by facsimile or PDF (PortableDocument Format) and shall hold the same force and effect as an originalsignature for purposes of binding the Parties.
EXHIBIT A
FEES
Pursuant to the terms of the Agreement, Detect Auto will provide the Detect AutoSolution based on the Camera Types listed below.
Camera Pricing Tiers: