Software Licensing and Maintenance Terms and Conditions

These Software Licensing and Maintenance Terms and Conditions (the “Agreement”) are made by and between Global Traffic Technologies, LLC, with offices at 7800 Third Street North, St. Paul, Minnesota 55128-5441 (“GTT”) and the undersigned customer (“Customer”), together “Parties” and separately a “Party” to this Agreement.
Whereas, GTT wishes to offer a limited perpetual license (“Software License”) and upkeep (“Maintenance Services”) to Customer pursuant to the terms of this Agreement;

Whereas, Customer wishes to receive such Software License and Maintenance Services;

Now therefore, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Software License.

1.1 License.
Subject to the terms and conditions of this Agreement, including its Exhibits to the extent applicable and the limitations contained therein, which are incorporated herein, GTT hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 10), revocable, perpetual license to use for its internal purposes and business operations only, the Software identified below (“Software”) in object code form only and any applicable Documentation (the “Licensed Use”).

1.2 Software Licensed.

  • Central Management Software (CMS) – If yes, number of intersections:
  • Preemption Software – If yes, number of vehicles:
  • Automated Schedule Management (ASM) – If yes, number of vehicles:
  • ASM Add-On to CMS – If yes, number of vehicles:
  • Other: _______________________________________________________________

1.3 Additional License Terms.
The terms of this Agreement shall apply to all follow-on versions, all updates, upgrades, error corrections and bug fixes to the Software provided by GTT. Except as set forth in this Agreement, GTT shall have no obligation to provide such follow-on versions, updates, upgrades, error corrections, or bug fixes. The Licensed Use shall include the right, subject to the license conditions and restrictions set forth in this Agreement, to make or install additional reasonable numbers of copies of the Software and Documentation for non-production archival or back-up purposes and non-production testing and security purposes, provided however, that any copy of the Software or Documentation made by Customer must bear the same respective copyright and other proprietary notices that appear on the copy of the Software or Documentation furnished to Customer by GTT. Except as set forth herein, GTT reserves all other rights in and to the Software and Documentation and no implied licenses are granted by GTT. “Documentation” as used herein means written information in GTT-supplied technical manuals and specifications pertaining to Software.

1.4 License Restrictions.
Customer shall not:
1.4.1 access or use any portion of the Software not expressly licensed to Customer;
1.4.2 disassemble, decompile or otherwise reverse engineer all or any portion of the Software;
1.4.3 use the Software or Documentation for any unlawful purposes;
1.4.4 export the Software or Documentation in violation of local, regional or national regulations;
1.4.5 except as permitted in this Agreement, sublicense, relicense, distribute, disclose, rent or lease the Software or Documentation, or any portion thereof, for third party use; or
1.4.6 use the Software or Documentation to develop any software application intended for resale which uses the Software in whole or in part.

1.5 EULA and Unauthorized Use.
Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and shall notify GTT promptly of any unauthorized use of which it becomes aware. The Software may also be accompanied by an End User License Agreement (“EULA”) that that is intended to provide further protection against unauthorized and uncontrolled use of the Software and may be presented as a click-through or otherwise and may be required to be accepted by end users of the Software. Customer and its Licensed Use and users are subject to this Agreement and the EULA, if any, is not intended to alter or abridge the terms of this Agreement. To the extent the terms of this Agreement are inconsistent with the terms of any such EULA, the terms of this Agreement shall control.

1.6 Federal Government End Users.
This Section applies to all acquisitions of this Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The government hereby agrees that the Software qualifies as “commercial” computer software within the meaning of the acquisition regulations applicable to this procurement. The terms and conditions of this Agreement shall apply to the government’s use and disclosure of this Software, and shall supersede any conflicting contractual terms and conditions. If this Agreement or the license granted hereunder fails to meet the government’s needs or is inconsistent in any respect with federal law, the government agrees to return the Software, unused, to GTT.

1.7 Customer Responsibility.
Customer is solely responsible for all actions taken by Customer, its employees, agents, and others accessing or using the Software. Customer is solely responsible for all necessary software, hardware, Internet connection and network, and all other equipment and services necessary to access and use the Software.

 

2. Maintenance Services: Access to Support Call Center and Updates.

2.1 General
Subject to the terms and conditions in this Agreement, GTT hereby agrees to provide Customer with the Maintenance Services set forth in this Section 2 (the “Maintenance Services”).

2.2 Support.
Customer shall have access to GTT’s support call center and software updates as part of this Agreement. GTT operates a support call center that is dedicated to supporting all customers. To access GTT’s support call center, customers can dial 800-258-4610 within the United States, or for callers outside of the United States, 651-789-7333. GTT’s support call center will use commercially reasonable efforts to provide solutions to technical issues. A ticketing system is in place to track cases through to resolution, escalating within the organization if/where necessary to ensure calls are resolved as quickly as possible.

2.3 Updates.
From time to time, GTT may in its discretion provide its customers with software updates.

2.4 Subcontractors.
GTT may engage subcontractors to assist in meeting its obligations under this Agreement, provided that GTT remains ultimately responsible for its obligations under this Agreement.

2.5 Personal Use Only.
Maintenance Services rendered here-under may only be requested by the Customer and must be only for the benefit of Customer and its own internal purposes and business operations. Customer may not request or use the Maintenance Services as a service for any third party, unless agreed to in writing between the Parties.

3. Term and Termination.

3.1 Renewal, Termination for Convenience.
The initial term of the Agreement shall be for one year (the “Initial Term”), which begins when the Software has been shipped or otherwise been made available (“Delivery”) to the Customer (the “Effective Date”) and shall be extended automatically for one year periods (“Renewal Term(s)”) unless either Party provides notice to the other Party in writing at least thirty (30) days prior to the end of the then current Initial Term or Renewal Term, whichever is applicable, stating that termination for convenience is being exercised. Failure to pay any invoice does not act as valid termination of this Agreement. Singing of this Agreement, acceptance of Delivery without immediate return of the Software, Customer’s countersignature or payment pursuant to any GTT letter, invoice, and/or Customer purchase order, or installation, use, or continued use of the Software each individually constitute Customer’s acceptance of this Agreement.

3.2 Termination for Cause.
Either Party may terminate this Agreement upon mutual agreement or if the other Party is in breach of this Agreement and fails to cure such breach within thirty (30) days after the non-breaching Party provides notice of the breach. Either Party may also terminate this Agreement immediately upon notice if the other Party (a) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (b) is insolvent, unable to pay its debts as they become due, makes an assignment for the benefit of creditors or takes advantage of any law for the benefit of debtors, (c) ceases to conduct business for any reason on an ongoing basis leaving no successor in interest, or (d) in the reasonable view of the non-breaching Party, the breach is unable to be cured within thirty (30) days.

3.3 Survival.
Upon termination for any reason, all obligations of GTT to provide Maintenance Services under Section 2, invoices under Section 4 and all GTT warranties shall terminate, while all other Sections of this Agreement shall survive, except as set forth in this Section 3.3. Subject to the terms and conditions of this Agreement, the Software license granted under this Agreement is perpetual and shall survive any termination of this agreement for convenience under Section 3.1, but not in the event of a breach of the Agreement by Customer and termination of this Agreement under Section 3.2 or termination under Section 9.3.

4. Payment & Fees.

4.1 General consideration of GTT’s performance pertaining to this Agreement, Customer agrees to pay GTT the fees as invoiced by GTT. The fees for the applicable Software license(s) will be invoiced upon Delivery of the Software and due within thirty (30) days of the date of the invoice. The fees for the Initial Term and Renewal Terms of Maintenance Services will be calculated at fifteen-percent (15%) of the then current list price of the Software license(s) and will be invoiced upon Delivery and due within thirty (30) days of the date of the invoice. Unless otherwise terminated, GTT will invoice the Customer for each Renewal Term, prior to the beginning of each Renewal Term.

4.2 Increases.
GTT reserves the right to increase the fees, whether by increasing the then current list price for the Software license fees or otherwise, for the Maintenance Services from time to time by providing notice to Customer at least sixty (60) days prior to the next Renewal Term. If Customer declines to purchase Maintenance Services for any period of time and then wishes to either start or restart coverage at a later date, Customer will be required to pay GTT’s standard Maintenance Services rates for any time period for which Customer did not pay for Maintenance Services, starting from the Effective Date and ending as of the start or restart of Maintenance Services, in addition to the annual Maintenance Services fees associated with future Maintenance Services.

4.3 Taxes.
Customer is solely responsible for payment of any taxes, fees, or other charges of any nature whatsoever assessed against GTT or Customer by any federal, state, county, or local governmental authority upon or with respect to the Maintenance Services and Software licenses upon the ordering, purchase, sale, lease, ownership, delivery, possession, use, operation, or return or other disposition of the Maintenance Services or Software licenses or upon any rents, receipts, or earnings from the same (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes and similar taxes and duties) resulting from Customer’s use of or receipt of the Maintenance Services or Software licenses excluding, however, any taxes payable by GTT on its general income. Customer shall pay its taxes as they fall due and shall indemnify and hold harmless GTT from any and all claims and liability arising from Customer’s failure to report or pay such taxes. Customer shall reimburse GTT for all such taxes within ten (10) days of receipt of any GTT invoice therefor.

4.4 Late Fees.
In addition to all other remedies available to GTT under this Agreement or at law or equity, GTT may suspend the Maintenance Services in the event payment is not received on-time. All fees are represented in U.S. or Canadian currency, as applicable. Customer shall pay interest on all late payments at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse GTT for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

4.5 No Offset.
Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to GTT or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by GTT or its affiliates, whether relating to GTT’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates and GTT or any of its affiliates, or otherwise.

5. Confidentiality.

5.1 Confidential Information.
As used in this Agreement, “Confidential Information” includes all confidential information of a Party (“Disclosing Party”) obtained by or disclosed to the other Party (“Receiving Party”) pursuant to this Agreement or in connection with the Maintenance Services provided under this Agreement, including, but not limited to trade secrets, secret processes, software source code, know-how, business plans, inventions, improvements, data, formula or confidential information, whether owned by the Disclosing Party as of the Effective Date or later developed or acquired and that by its nature would reasonably be considered as confidential.

5.2 Exclusions.
Confidential Information shall not include information which: (a) is or becomes public knowledge through no fault of the Receiving Party; (b) was in the Receiving Party’s possession before receipt from the Disclosing Party; (c) is rightfully received by the Receiving Party from a third party without any duty of confidentiality; (d) is disclosed to a third party by the Disclosing Party without a duty of confidentiality on the third party; (e) is independently developed by the Receiving Party; or (f) is disclosed with the prior written approval of the Disclosing Party. Confidential Information of a Disclosing Party may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after the Receiving Party has given the Disclosing Party written notice of such court order or other legal process promptly, if allowed by law, and the opportunity for the Disclosing Party to seek a protective order or confidential treatment of such Confidential Information.

5.3 Ownership and Control.
Except as otherwise specified herein, in the Agreement, the Disclosing Party shall retain all right, title, in interest in the Confidential Information it discloses, including without limitation all Intellectual Property (as defined in this Agreement) rights in such Confidential Information. The Parties agree, both during the term of the Agreement and after its termination, to hold Confidential Information of the Disclosing Party in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Receiving Party uses to protect its own Confidential Information of a like nature, but in no event with less than reasonable care. The Parties agree not to make Confidential Information of the other Party available in any form to any third party except as required for the purpose of implementing this Agreement. Each Party agrees to restrict disclosure of the Confidential Information to those who have a “need to know” and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of the Agreement. Each Party agrees that its breach of any provision of this Confidentiality Section may cause irreparable damage to the other Party and that the other Party shall be entitled to seek equitable remedies, in addition to other remedies hereunder or at law, in the event of such breach.

5.4 Return of Materials.
Upon termination of the Agreement or upon the Disclosing Party’s request, the Parties will (i) return to the other Party that Party’s Confidential Information or (ii) to the extent commercially practicable, destroy and certify the same (at the other Party’s election) all of that other Party’s Confidential Information. GTT shall have no liability for any inability to perform under this Agreement if due to the failure of Customer to disclose helpful Confidential Information or Customer’s request to return or destroy such information prior to the termination of any Maintenance Services.

5.5 Agreement Confidentiality.

Neither Party shall disclose any information about the terms of this Agreement without the other Party’s prior written consent, except that GTT will have the right to announce Customer as a customer only after the Agreement has been executed (“Announcement Rights”). GTT may further request an endorsement and/or quote from Customer, but Customer is under no obligation to provide an endorsement or quote. If Customer agrees to provide a quote, GTT will only publish the quote upon prior written approval by Customer. Customer may terminate GTT’s Announcement Rights at any time by providing written notice GTT.

6. Intellectual Property.

6.1 Definition.
“Intellectual Property” shall mean all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights, and all registrations, applications for registration and renewals of such copyrights; (c) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential information and all rights therein; (d) patents (including all reissues, divisional, provisional, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); and (e) software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation.

6.2 Ownership.
GTT is the sole owner (except to the extent owned by third-party licensors) of all right, title and interest in and to the Software and Documentation, and each component thereof, all modifications, bug fixes, enhancements, or upgrades thereto, and all Intellectual Property with respect thereto. Customer hereby assigns to GTT all right, title, and interest including all Intellectual Property in and to all suggestions or feedback provided by Customer regarding the Software or Documentation.

7. Software Performance Limited Warranty.

7.1 GTT represents and warrants that the Software will substantially conform in all material respects to and perform substantially in accordance with the Documentation and this Agreement for a period of one (1) year from the Effective Date, provided that: (i) Customer gives GTT written notice of any claimed breach of this warranty while this warranty is in effect; (ii) any such breach is not, in GTT’s reasonable opinion, a result of any modification of or damage to the Software or its operating environment by any party other than GTT or a party acting under GTT’s control or direction; and (iii) Customer is in compliance with this Agreement. For any breach of the foregoing warranty, Customer’s sole and exclusive remedy shall be as follows: (a) GTT will endeavor to repair or replace the non-conforming Software within thirty (30) days, or such longer period as the parties may mutually agree, such that the Software conforms to the foregoing warranty; or (b) if GTT is unable to repair or replace the non-conforming Software within such period such that the Software conforms to the foregoing warranty, either party may terminate this Agreement (and all licenses granted hereunder), Customer shall return the non-conforming Software and GTT shall refund the license fee paid hereunder less depreciation calculated on a five-year straight-line basis. GTT’s warranty (including without limitation any extended warranty) applies solely to the Software and Documentation as it existed at the time of installation and warranties covering any follow-on versions, all updates, or upgrades are subject to a further written agreement by the Parties.

7.2 Viruses and Disabling Codes.
GTT represents and warrants that to the best of GTT’s knowledge, the Software shall not contain viruses, worms, or spyware (collectively, “Malicious Code”); provided, however, that, notwithstanding the foregoing, Customer acknowledges and agrees that GTT reserves the right to remotely prevent access to and/or use of the Software in the event that (i) GTT becomes aware, from Customer or otherwise, of unauthorized access or use of the Software by any third party, or (ii) this Agreement is terminated. Notwithstanding any provision of this Agreement to the contrary, in no event shall GTT be in breach of the warranty set forth in this Section 3 if, at the time any Malicious Code was introduced into the Software, GTT employed commercially-reasonable measures, consistent with the standards of GTT’s industry, to detect such Malicious Code in order to prevent its introduction into the Software.

7.3 Mutual Representations and Warranties.
Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation, (ii) it has the right and full power and authority to enter into this Agreement; and (iii) this Agreement is a valid and binding obligation of such party, enforceable against it in accordance with its terms.

8. Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY, NOR GTT’S VENDOR(S) AS TO CUSTOMER, SHALL HAVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RELATING IN ANY WAY TO THIS AGREEMENT, EVEN IF THE PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), CONTRACT OR STATUTE, EXCEPT IN THE EVENT CUSTOMER BREACHES ANY TERM OR CONDITION RELATED TO GTT’S INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION. Customer acknowledges that GTT has set its prices and entered into this AGREEMENT in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. IN NO EVENT SHALL GTT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY INDEMNIFICATION OBLIGATION, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GTT UNDER THE AGREEMENT IN THE TWELVE MONTHS PRECEDING THE ACTS OR OMISSIONS THAT GAVE RISE TO THE CLAIM. IN ADDITION, BECAUSE GTT’S SOFTWARE AND Maintenance SERVICES ARE USED BY TRAINED PROFESSIONALS UNDER OFTEN EXTREME EMERGENCY CONDITIONS, GTT SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY, WRONGFUL DEATH, OR PROPERTY DAMAGES CAUSED BY OR ARISING FROM ANY ALLEGED DEFECT, NON-CONFORMANCE, OR FAILURE OF ITS SOFTWARE OR Maintenance SERVICES TO FUNCTION, OPERATE, OR PERFORM, WHETHER ASSERTED IN WARRANTY, CONTRACT, TORT OR OTHER THEORY OF LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES.

9. Indemnification.

9.1 General Customer Indemnification.
Customer shall indemnify, defend and hold harmless GTT and its officers, directors, shareholders, employees, agents, representatives, subsidiaries, parents, affiliates, vendors, resellers, independent contractors, successors and permitted assigns (collectively, “GTT Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, and attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement, and the attorneys’ fees and cost of pursuing any insurance providers, incurred by GTT Indemnified Parties or awarded against GTT Indemnified Parties relating to, arising out of, or resulting from: (1) any claim of a third party arising out of or occurring in connection with Customer’s gross negligence, willful misconduct, violation of any applicable law or regulation, or breach of this Agreement; or (2) the ownership, licensing, selection, possession, leasing, renting, operation, control, use, maintenance, delivery, return, or other disposition of the Software or Maintenance Services that results in any personal injury, wrongful death, or property damage resulting in relation to the use of the Software or Maintenance Services.

9.2 General GTT Indemnification.
GTT shall indemnify, defend and hold harmless Customer and its officers, directors, employees, agents, representatives, subsidiaries, parents, affiliates, vendors, resellers, independent contractors, successors and permitted assigns (collectively, “Customer Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Customer Indemnified Parties or awarded against Customer Indemnified Parties relating to, arising out of, or resulting from any claim of a third party arising out of or occurring in connection with GTT’s gross negligence, willful misconduct, violation of any applicable law or regulation, or breach of this Agreement.

9.3 GTT IP Infringement Indemnification.
GTT agrees to indemnify, hold harmless and defend Customer and its directors, officers, employees and agents from and against all losses, liabilities, damages, claims and expenses, including reasonable attorneys’ fees and court costs, arising out of or relating to any claim by any third party unaffiliated with the Customer alleging that: (i) Customer’s use of the Software or Maintenance Services in accordance with this Agreement infringes or violates the patent, copyright, trade secret, proprietary, or other Intellectual Property right of any such third party. Should Customer’s use of the Software or Maintenance Services in accordance with the terms and conditions of this Agreement become, or in GTT’s opinion be likely to become, the subject of such a claim described in the immediately foregoing clause, then, Customer will permit GTT, at GTT’s option and expense, either to: (1) procure for Customer the right to continue its use in accordance with the terms and conditions of this Agreement of the Software and Maintenance Services, (2) replace or modify the Software and Maintenance Services so that Customer’s use of the Software and Maintenance Services in accordance with the terms and conditions of this Agreement no longer infringes or violates the Intellectual Property rights of any third party, provided such replaced or modified Software and Maintenance Services provides at least substantially equivalent functionality and comparable performance characteristics in all material respects; or (3) terminate this Agreement (and all licenses granted hereunder), or any Addenda or portion thereof (including without limitation the license of specific software or lease of certain products), and Customer shall return the non-conforming Software and Maintenance Services, and GTT shall refund the purchase price of such materially impacted Software and Maintenance Services. The cost of all return shipping to GTT is the sole responsibility of Customer. Notwithstanding any provision herein to the contrary, GTT shall have no obligation or liability to Customer to the extent any such third party claim of infringement or other violation of any Intellectual Property right of any such third party is caused by the unlicensed use of the Software or Maintenance Services by Customer, Customer’s failure to operate the Software or Maintenance Services solely as a part of a system comprised entirely of GTT or GTT authorized hardware and software, use of the Software or Maintenance Services with software or hardware other than as intended and described in the SaaS Documentation or the Goods Software Documentation, or any modification of the Software or Maintenance Services by Customer or for Customer by any party other than GTT or a party acting under GTT’s control or direction.

9.4 Customer IP Indemnification.
Customer agrees to indemnify, hold harmless and defend GTT and its directors, officers, employees and agents from and against all losses, liabilities, damages, claims and expenses, including reasonable attorneys’ fees and court costs, arising out of or relating to any claim by any third party unaffiliated with GTT relating to, arising out of, or concerning any infringement or misappropriation of the Intellectual Property rights of a third party to the extent any such third party claim of infringement or other violation of any Intellectual Property right of any such third party is not indemnified by GTT pursuant to Section 9.3 of this Agreement.

9.5 Indemnification Procedure.
The Party seeking indemnification (the “Indemnified Party”) shall notify the party from which the Indemnified Party is seeking indemnification (the “Indemnifying Party”) promptly after the Indemnified Party receives notice of a claim for which indemnification is sought under this Agreement, provided, however, that no failure to so notify the Indemnifying Party shall relieve the Indemnifying Party of its obligations under this Agreement except to the extent that it can demonstrate damages directly attributable to such failure. The Indemnifying Party shall have authority to defend or settle the claim; provided however that the Indemnified Party, at its sole discretion and expense, shall have the right to participate in the defense and/or settlement of the claim and provided further, that the Indemnifying Party shall not settle any such claim imposing any liability or other obligation on the Indemnified Party without the Indemnified Party’s prior written consent.

10. Successors and Assigns.
Neither Party shall assign this Agreement nor any of the obligations under this Agreement to any other party without prior written consent of the other Party, which consent will not be unreasonably withheld, except that either Party may assign this Agreement in connection with a reorganization, merger, acquisition, or sale of substantially all its assets. This Agreement will be binding on and inure to the benefit of each Party’s legal successors and permitted assigns.

11. Governing Law and Forum.
This Agreement will be construed and interpreted in all respects in accordance with the laws of the State of Minnesota without regard to its conflicts of laws provisions. The forum for any dispute arising under this Agreement shall be exclusive in the federal and state courts located in Hennepin County or Ramsey County, Minnesota. Each Party submits to the jurisdiction of such courts and expressly waives any objection as to personal jurisdiction or forum non-convenes.

12. Entire Agreement.
This Agreement, including any documents attached hereto and incorporated by reference, supersedes any and all other prior Agreements, understandings, negotiations, or communications, either oral or in writing, between the Parties or their representatives and constitutes the entire understanding of the Parties with respect to its subject matter. No form, invoice, bill of lading, shipping document, order, purchase order, receipt or other document provided by the Customer shall operate to supersede, modify or amend any provisions of this Agreement, even if GTT has initialed, signed or otherwise acknowledged such document regardless of the timing of the execution or presentment in relation to the execution of this Agreement, unless the document expressly states that it modifies or amends this Agreement and is signed by authorized representatives of both Parties. This Agreement may not be modified, altered, or waived, in whole or in part, except in a writing signed by the duly authorized representatives of the Parties hereto.

13. Severability.
Should any provision of this Agreement be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, that court shall amend such provision if possible to be valid and enforceable while maintaining the intent of the Parties as shown by the original wording of that provision or if the provision cannot be so amended, it will be severed and the Parties specifically intend that the remaining provisions will continue as valid, legal and enforceable to the maximum extent provided by law.

14. Notices.
Written notices as required under this Agreement shall be deemed to have been given or made on the next business day when sent by the use of overnight courier, or on the fifth business day after deposit, postage prepaid in the U.S. mail for certified or registered mail to the addresses of the Parties set forth at the beginning of this Agreement, Attention: LEGAL. The address for notice may be changed at any time by giving prior written notice as above provided.

15. Effect of Waiver.
The failure of either Party to insist on strict compliance with any of the terms, covenants or conditions of this Agreement by the other Party will not be deemed a waiver of that term, covenant or condition; nor will any waiver or relinquishment of that right or power be for all or any other times.

16. Equitable Remedies.
Unless expressly stated otherwise, the remedies in this Agreement shall not be exclusive of any other remedy either Party may have against the other Party at any time, and shall not limit either Party’s ability to seek other remedies available under law or in equity. Unless expressly stated otherwise, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. The Parties acknowledge and agree that the obligations contained under Sections 1 and 5 are of a special and extraordinary nature, that the non-breaching Party’s remedy at law for any breach of those sections would be inadequate and that the non-breaching Party would suffer irreparable injury as a consequence of the violation thereof. By reason thereof, each Party consents and agrees that, if it should in any way violate Sections 1 or 5, the other Party shall, in addition to other remedies as may be available to the Party at law or in equity, or as provided for this Agreement, be entitled to an injunction, restraining order, or other equitable relief, without the necessity of positing a bond restraining the violator from committing or continuing any such violation.

17. Audit Rights.
Customer shall, throughout the term of this Agreement and for one year after its termination, keep true and accurate accounts and records in sufficient detail to enable an audit of the manner and extent of the use, sublicensing, transfer, or other disposition of the licensed Software, its derivatives, or any product or service based upon or incorporating or using all or portions of the Software, GTT’s Intellectual Property related to the Software, or GTT’s Confidential Information, to confirm Customer’s compliance with the terms and conditions of this Agreement. At the reasonable request of GTT, but no more than once per year unless there is a reasonable suspicion of a breach of this agreement, Customer shall allow GTT to inspect and audit such information and Customer facilities as is necessary to ensure Customer’s compliance with the terms and conditions of this Agreement. Customer shall ensure that GTT also has the right to inspect the facilities and records of its sub licensees. Customer shall reasonably cooperate with any such inspection and audit and supply such information, data and records as may be reasonably requested by GTT or its appointed auditor, and shall make available during any such inspection and audit one or more of its managers or senior officials with the appropriate level of expertise and authority to answer any inquiries by GTT. Unless set forth to the contrary herein or otherwise agreed to in writing by the parties, each Party will bear their own costs and expenses incurred in connection with preparing for, conducting or complying with the audit.