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SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this “Agreement”) is entered into by and between Beeline Routes (“CLIENT”)
and the counterparty identified in the Quote (such counterparty, the “Licensee”). This Agreement includes and
incorporates by reference any quote or invoice provided herewith by CLIENT (such quote or invoice, the “Quote”),
and constitutes the sole and exclusive agreement between the parties with respect to the subject matter hereof.
Without limiting the forgoing, any additional or different terms provided in any purchase order or other document
issued by Licensee regarding the subject matter hereof (whether issued prior to or after the date of the Quote) will
not become part of this Agreement, are null and void, and will not be binding upon CLIENT. Licensee’s signature on
any Quote or the use by Licensee of any Licensed Software constitutes acceptance of this Agreement.
1. Definitions. In this Agreement: breach of this Agreement and otherwise not in
violation of the disclosing party’s rights.
“Local Software” means CLIENT’s software
known as Beeline Software, including any applicable 2. Limited Licenses.
updates thereto made available to Licensee
hereunder. 2.1 Local Software. CLIENT hereby
grants to Licensee, subject to the terms and on the
“SaaS Software” means CLIENT’s cloud-based conditions of this Agreement, including Section 2.3
software platform known as Beeline Routes, hereof, a limited, non-transferable, non-sublicensable
including any applicable updates thereto made and non-exclusive license, solely for the term of this
available to Licensee hereunder. Agreement, to: (i) install, execute, and use the Local
Software, in object code form only; and (ii) make a
“Licensed Software” means collectively the reasonable number of reproductions of the Local
Local Software and SaaS Software. Software solely to the extent necessary to exercise
Licensee’s rights pursuant to Section 2.1(i) hereof.
“Proprietary Information” means all End users and/or purchasers of Local Software may
information that is disclosed by a party to the other also be subject to additional terms and conditions of
party in connection with this Agreement that is (i) CLIENT’s applicable click-through end user license
conveyed in written, graphic, machine readable or agreement(s), incorporated herein by reference and
other tangible form and conspicuously marked made available to such end users and/or purchasers.
“confidential,” “proprietary” or in some other manner
to indicate its confidential nature; (ii) conveyed 2.2 SaaS Software. CLIENT hereby
orally, provided that such information is designated grants to Licensee, subject to the terms and on the
as “confidential” or “proprietary” at the time of such conditions of this Agreement, a limited,
oral disclosure or within thirty (30) days after the non-transferable, non-sublicensable, and
date of oral disclosure; (iii) the Licensed Software; non-exclusive right, solely for the term of this
(iv) a party’s business and customer information, Agreement, to access and use the SaaS Software
product plans and product and technology roadmaps, (solely as hosted and made available by CLIENT on
whether or not marked “proprietary” or a “cloud” basis). For clarity, no copy of the SaaS
“confidential”; and (v) any information, data or Software is or will be made available to Licensee or
know-how derived from the items in (i)-(iv). any third party pursuant to this Section 2.2. Users of
Notwithstanding the above, information shall not be the SaaS Software may also be subject to additional
deemed Proprietary Information if it: (a) is or terms and conditions of CLIENT’s applicable
becomes generally known to the public through no click-through end user license agreement(s),
unlawful act of the receiving party; (b) was known to incorporated herein by reference and made available
the receiving party at the time of disclosure, as to users of the SaaS Software.
evidenced by the receiving party’s written records,
and not subject to other restrictions on its disclosure; 2.3 Number of Licenses. Unless
(c) is disclosed with the prior written approval of the otherwise set forth in the Quote, Licensee
disclosing party; (d) was independently developed by acknowledges and agrees that the Local Software is
the receiving party without any use of, or reference licensed on a per vehicle basis, and that no right or
to, the Proprietary Information of the disclosing license of any kind is granted to Licensee to install,
party; or (e) becomes known to the receiving party execute, or otherwise use more instances of the Local
from a source other than the disclosing party without Software than have been expressly set forth in the
Quote.
2.4 Open Source Software. Licensee basis to any third party; (v) reverse engineer,
acknowledges that the Licensed Software may decompile, decode, or disassemble the Licensed
include open source software, details and licenses of Software; or (vi) otherwise attempt to derive the
which may be included in a “readme” or like file source code for the Licensed Software or attempt to
provided to Licensee in connection with the Licensed gain access to any underlying code used to implement
Software. If and solely to the extent a software or deploy the Licensed Software. For clarity,
component included with or in the Licensed Software Licensee receives no right or license to any source
is licensed under an open source software license that code to the Licensed Software hereunder.
is incompatible with the terms and conditions of this
Agreement, the terms and conditions of such open 4. Ownership.
source software license will take priority over this
Agreement solely with respect to such 4.1 Licensed Software. Subject to the
incompatibility and solely with respect to Licensee’s licenses expressly granted to Licensee hereunder, all
use of such software component. For clarity, nothing right, title and interest in and to the Licensed
in this Section 2.4 will (i) broaden CLIENT’s Software and any intellectual property rights therein
representations or warranties or indemnification are and shall be owned solely and exclusively by
obligations to Licensee; (ii) waive, limit, or disclaim CLIENT.
any limitations of liability of CLIENT set forth in this
Agreement; or (iii) amend the scope of any license 4.2 Usage Data. CLIENT may monitor
granted to Licensee with respect to any proprietary the usage of the Licensed Software and may collect
portions of the Licensed Software. and/or generate data and information relating to
Licensee’s and any end user’s use of the Licensed
2.5 Updates; Support. So long as Software (“Usage Data”). All Usage Data will be
Licensee has not breached this Agreement CLIENT owned by CLIENT and may be used for any lawful
agrees, solely during the term of this Agreement, to: purpose. CLIENT may provide notices, alerts, or
(i) make available to Licensee during the term of this other messages to Licensee or end users based on the
Agreement those updates to the Licensed Software Usage Data.
that CLIENT makes generally commercially
available to its other licensees, and (ii) use 4.3 Feedback. To the extent Licensee,
commercially reasonable efforts to respond to its employees, or any end users of the Licensed
Licensee requests for support with respect to the Software provide CLIENT with any suggestions,
Licensed Software, provided that, for clarity, ideas, enhancement requests, recommendations or
CLIENT has no obligation under this Agreement to feedback regarding the Licensed Software, or
provide any service or support to Licensee’s CLIENT otherwise conceives of or creates any ideas,
customers or any end users or to provide any support enhancements, improvements, or modifications to the
outside of CLIENT’s regular business hours. Licensed Software (collectively, “Feedback and
Improvements”), CLIENT will be free to use,
3. Restrictions. disclose, commercialize, license, and exploit such
Feedback and Improvements without any restriction.
3.1 Licensed Software. Licensee Feedback and Improvements may also be used to
acknowledges that the Licensed Software contains improve the Licensed Software for other customers
valuable trade secrets of CLIENT and its licensors of CLIENT.
and suppliers and constitutes the Proprietary
Information of CLIENT. Accordingly, and except as 5. Proprietary Information.
may be permitted under Section 2.4, Licensee agrees
that it may not: (i) modify, adapt, alter, translate, or 5.1 Nondisclosure or Use. Each party
create derivative works of the Licensed Software; (ii) agrees that it shall not disclose any Proprietary
create Internet “links” to the SaaS Software or Information of the other party to anyone without the
“mirror” any data, information, content, or other written consent of the other party, except that each
material of CLIENT that is provided to it through the party may: (i) use the Proprietary Information of the
use of the SaaS Software; (iii) build a product or other party to, but only to, carry out the activities
service using similar ideas, features, functions, or permitted hereunder; and (ii) disclose the Proprietary
graphics of the Licensed Software; (iv) except as Information of the disclosing party to the receiving
expressly provided in Section 2, sublicense, resell, party’s employees, contractors, consultants, and
rent, lease, transfer or assign Licensed Software or its agents who have a need to know such Proprietary
use, or offer the Licensed Software on a time share Information in order to exercise the rights and fulfill
the obligations of the receiving party and who are is lower, calculated from the due date until the date
bound by a written confidentiality agreement with paid. CLIENT may further suspend any or all access
confidentiality provisions no less stringent than those to the SaaS Software until all amounts due and late
contained in this Agreement. The standard of care to fees are paid in full.
be exercised by the receiving party to meet the
obligations in this Section 5 shall be the standard 7. Disclaimer. By its nature, the Licensed
exercised by the receiving party with respect to its Software may contain errors, bugs, and other
own confidential or proprietary information of a problems that could cause system failure. In addition,
similar nature, but in no event less than reasonable the Licensed Software may not have any
care. documentation, and any documentation in existence
may be inaccurate or incomplete. EXCEPT AS SET
5.2 Permitted Disclosures. The FORTH HEREIN, CLIENT PROVIDES THE
receiving party may disclose Proprietary Information LICENSED SOFTWARE AND ANY RELATED
pursuant to a valid order issued by a court or DOCUMENTATION TO LICENSEE ON AN
government agency, provided that the receiving party “AS-IS” BASIS WITHOUT WARRANTY OF ANY
provides, without delay, to the disclosing party KIND, AND CLIENT MAKES NO WARRANTY
written notice of such disclosure requirement, and REGARDING THE LICENSED SOFTWARE, ANY
cooperates with the disclosing party if the disclosing RELATED DOCUMENTATION, OR THE USE OR
party seeks to limit or oppose such disclosure. OPERATION OF THE LICENSED SOFTWARE,
AND SPECIFICALLY DISCLAIMS ALL OTHER
5.3 Ownership and Return of WARRANTIES, WHETHER EXPRESS, IMPLIED
Proprietary Information. All Proprietary Information OR OTHERWISE, INCLUDING WITHOUT
of a disclosing party shall remain the sole property of LIMITATION, ANY IMPLIED WARRANTIES OF
such disclosing party. Upon the termination of this MERCHANTABILITY, FITNESS FOR A
Agreement, or at any time upon written request of the PARTICULAR PURPOSE, AVAILABILITY, AND
disclosing party, the receiving party shall return the NON-INFRINGEMENT. LICENSEE MAKES NO
disclosing party’s Proprietary Information and not WARRANTY REGARDING ANY FEEDBACK
keep any copies thereof. PROVIDED HEREUNDER AND SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES,
6. Payment Terms. WHETHER EXPRESS, IMPLIED OR
OTHERWISE.
6.1 Software License Fees. Licensee
will pay CLIENT the license fees set forth in the 8. Indemnification; Consequential Damages
Quote (the “License Fees”) at the time and in the Waiver; Limitation of Liability.
manner set forth in the Quote. Licensee will have no
right to setoff any amounts due under this Agreement 8.1 Indemnification by CLIENT.
and all payments are non-refundable. All payments CLIENT will indemnify, defend, and hold harmless
are further subject to any additional terms and Licensee and its officers, directors, employees, and
conditions set forth in the Quote. All License Fees are contractors (“Licensee Indemnified Entities”) from
the Proprietary Information of CLIENT. and against any and all liabilities, losses, damages,
costs, and other expenses (including reasonable
6.2 Taxes. All License Fees exclude attorneys’ fees) to the extent resulting from any claim
any sales, use, excise, import, export, value added, or suit asserted by a third party against a Licensee
universal service charge, withholding or other similar Indemnified Entity that the Licensed Software, as and
taxes or governmental charges, including any related in the form provided by CLIENT, infringes such third
penalties and interests however designated, other than party’s intellectual property rights; provided,
taxes based on the net income of CLIENT however, that CLIENT shall have no obligations
(collectively “Taxes”), and Licensee agrees to pay under this Section 8.1 if and to the extent any such
any Taxes imposed under this Agreement. claim or suit, or any resulting liabilities, losses,
damages, costs, or other expenses, are based on: (i)
6.3 Late Payments. In the event CLIENT’s compliance with any explicit instructions
Licensee fails to make any payments when due under or specifications provided by Licensee; (ii) the
this Agreement, Licensee may be charged a late fee modification of the Licensed Software by anyone
on any amount that is not paid when due at a rate of other than CLIENT; (iii) the combination of the
one and one-half percent (1.5%) per month or the Licensed Software with any product, software, or
maximum rate allowed by applicable law, whichever service not provided by CLIENT; (iv) a Licensee
Indemnified Entity’s continued use of the Licensed OBLIGATIONS SET FORTH IN SECTION 5 AND
Software after CLIENT has provided the Licensee SECTION 8, IN NO EVENT WILL EITHER
Indemnified Entity with a new version or update to PARTY BE LIABLE TO THE OTHER PARTY OR
such Licensed Software that no longer infringes; (v) a ANY THIRD PARTY FOR THE COST OF
Licensee Indemnified Entity’s misuse of the Licensed PROCUREMENT OF SUBSTITUTE GOODS,
Software (including any use outside of the express LOSS OF USE, LOSS OF DATA, INTERRUPTION
scope of the licenses granted hereunder); (vi) OF BUSINESS OR ANY INCIDENTAL, SPECIAL,
software applications of Licensee (each of (i)-(vi) INDIRECT, EXEMPLARY, CONSEQUENTIAL OR
hereof, an “Excluded Claim”); or (vii) any open PUNITIVE DAMAGES OF ANY KIND ARISING
source software used or incorporated into the OUT OF OR RELATING TO THIS AGREEMENT,
Licensed Software. CLIENT’s obligations under this HOWEVER INCURRED, WHETHER SUCH
Section 8.1 are conditioned on: (a) Licensee promptly LIABILITY IS ASSERTED ON THE BASIS OF
notifying CLIENT in writing of the applicable; (b) CONTRACT, TORT (INCLUDING NEGLIGENCE
CLIENT being granted sole control of the defense OR STRICT LIABILITY), OR OTHERWISE,
and/or settlement thereof; and (c) the Licensee EVEN IF SUCH PARTY IS ADVISED OF THE
Indemnified Entity furnishing to CLIENT, on request, POSSIBILITY OF SUCH DAMAGES IN
all relevant information available to such Licensee ADVANCE BY THE OTHER PARTY.
Indemnified Entity and reasonable cooperation for
such defense. The obligations provided in this 8.4 Limitation of Liability.
Section 8.1 shall be the sole obligation of CLIENT NOTWITHSTANDING ANYTHING IN THIS
and the exclusive remedy of the Licensee AGREEMENT TO THE CONTRARY, IN NO
Indemnified Entities with respect to any infringement EVENT SHALL THE TOTAL, CUMULATIVE
claims based on the Licensed Software. If CLIENT LIABILITY OF CLIENT ARISING OUT OF OR
believes that a Licensee Indemnified Entity is, or may RELATING TO THIS AGREEMENT IN ANY
become, prohibited from continued use of any CONTRACT YEAR EXCEED THE LICENSE
Licensed Software by reason of an actual or FEES ACTUALLY PAID TO CLIENT DURING
anticipated infringement claim or suit then, at THE IMMEDIATELY PRIOR CONTRACT YEAR.
CLIENT’s option, CLIENT will use its reasonable
efforts to: (1) obtain for such Licensee Indemnified 9. Term and Termination.
Entity the right to continue to use the Licensed
Software as permitted hereunder; or (2) replace or 9.1 Term. The term of this Agreement
modify the Licensed Software so that it is no longer shall commence on the date of the initial delivery or
subject to such claim or suit. If the options described provision of the Licensed Software to Licensee and
in clauses (1) and (2) above are not reasonably shall continue for the term set forth in the Quote (and
available to CLIENT then CLIENT has the right not may be extended by written mutual agreement),
to provide any portion of the Licensed Software that unless earlier terminated as set forth below.
is the subject matter of the claim or suit and the
Licensee Indemnified Entity’s license to such 9.2 Termination. This Agreement may
Licensed Software will immediately terminate. be terminated by either party immediately upon
written notice to the other party if the other Party
8.2 Indemnification by Licensee. materially breaches this Agreement which breach
Licensee will indemnify, defend, and hold harmless remains uncured within thirty (30) days after written
CLIENT and its officers, directors, employees, and notice of such breach is given by the aggrieved party
contractors from and against any and all liabilities, to the breaching party. Upon the expiration or
losses, damages, costs, and other expenses (including termination of this Agreement for any reason: (i) the
reasonable attorneys’ fees) resulting from any claim licenses granted pursuant to Section 2 shall
or suit arising out of or related to (i) Licensee’s simultaneously terminate; (ii) Licensee and all end
breach of this Agreement; (ii) any use (except to the users and customers thereof shall immediately cease
extent CLIENT is obligated to indemnify Licensee as all use of the Licensed Software; (iii) each party shall
provided in Section 8.1), or misuse of the Licensed return the Proprietary Information of the other party
Software by any Licensee Indemnified Entity or any (and not keep any copies of the other party’s
of their end users of the Licensed Software; or (iii) Proprietary Information) in accordance with Section
any Excluded Claim. 5.3; and (iv) Sections 1, 3, 4, 5.3, 6, 7, 8, 9.2, and 10
(other than Section 10.10) shall survive the expiration
8.3 Consequential Damages Waiver. or termination of this Agreement. Notwithstanding
EXCEPT WITH RESPECT TO THE the foregoing, the termination or expiration of this
Agreement will not relieve either party of any personal delivery. If sent by facsimile machine, then
liability or obligation that accrued prior to such notices will be deemed delivered and effective upon
termination or expiration. In addition, if this the date of confirmation of receipt by answer-back
Agreement is terminated by CLIENT due to from the recipient. If delivered by a nation-wide
Licensee’s uncured material breach then Licensee courier service, then notices will be deemed delivered
will immediately pay to CLIENT any and all amounts and effective on the date of receipt.
that would have been owed or otherwise payable to
CLIENT during the term of the Agreement had it not 10.5 Captions and Headings. All
been terminated early. captions and headings are for reference only and shall
not be considered in interpreting or construing this
10. General. Agreement.
10.1 Relationship. The parties are each 10.6 Assignment; Subcontracting. This
independent contractors, and neither party shall be, Agreement may not be assigned or delegated by
nor represent itself to be, the franchiser, joint Licensee without the prior written approval of
venturer, franchisee, partner, broker, employee, CLIENT. CLIENT may freely assign this Agreement.
servant, agent, or legal representative, of the other Subject to the foregoing, this Agreement shall be
party for any purpose whatsoever. Neither party is binding upon and inure to the benefit of the parties
granted any right or authority to assume or create any hereto and their respective permitted successors and
obligation or responsibility, express or implied, on assigns. CLIENT may subcontract any or all of its
behalf of or in the name of the other party, or bind the obligations under this Agreement without Licensee’s
other party in any manner whatsoever. consent, provided that CLIENT will remain
responsible for such subcontractor’s performance
10.2 Amendment; Waiver. This hereunder.
Agreement may not be modified, amended or
supplemented, except by a signed writing of all 10.7 Injunctive Relief. The parties
parties hereto. No failure to exercise, and no delay in acknowledge that any breach of any of the provisions
exercising, any right, power or privilege under this of this Agreement may cause irreparable harm and
Agreement shall operate as a waiver, nor shall any significant injury to CLIENT, the extent of which
single exercise, any single failure to exercise, or a may be extremely difficult to ascertain. Accordingly,
partial exercise of a right, power or privilege Licensee agrees that CLIENT will have, in addition
hereunder preclude the exercise of any other right, to any other rights or remedies it may have available
power or privilege. No waiver of any right, power or at law or in equity, the right to seek injunctive relief,
privilege hereunder shall be valid unless made in without posting bond, to enjoin any breach or
writing and signed by the waiving party. violation of such provisions.
10.3 Severability. If any provision of 10.8 Governing Law. This Agreement
this Agreement or the application of such provision to shall be governed by and construed in accordance
any person or circumstance shall be held by a court of with the laws of the state of California, without
competent jurisdiction to be invalid, unenforceable or reference to conflicts of law principles. The
void, the remainder of this Agreement or the application of the United Nations Convention on the
application of such provisions as applied to other International Sale of Goods is specifically
persons, places and circumstances shall remain in full disclaimed. Any dispute or controversy arising from
force and effect. or relating to this Agreement must be arbitrated in
Santa Clara County, California before a single
10.4 Notice. Any notice required or arbitrator who is jointly selected and mutually
permitted to be given by either party under this approved by the parties or, if the parties are unable to
Agreement shall be in writing, and shall be or fail to agree on the selection of the arbitrator
personally delivered, sent by a facsimile within fifteen (15) days of the demand for arbitration
transmission, sent by certified or registered mail, or being served, who is appointed by Judicial
sent by a nation-wide courier service, to the other Arbitration and Mediation Services (JAMS) in
party at its address set forth in this Agreement, or accordance with its rules. The arbitrator shall serve as
such new address as may from time to time be a neutral, independent and impartial arbitrator. The
supplied by the parties hereto in accordance with this arbitration will be administered by JAMS pursuant to
Section 10.4. If personally delivered, notices will be its Comprehensive Arbitration Rules and Procedures
deemed delivered and effective on the date of (and in accordance with the expedited procedures in
those rules), or, if applicable, in accordance with the indirectly) of CLIENT. Such causes may include, but
JAMS International Arbitration Rules. The results of are not restricted to: Acts of God or of the public
the arbitration procedure will be considered the enemy; acts of government (including specifically but
Proprietary Information of both parties. Any not exclusively any orders, rules, or regulations
arbitration decision rendered will be final and issued by any official or agency of any such
binding, and judgment thereon may be entered in any government) in either its sovereign or contractual
court of competent jurisdiction. Notwithstanding the capacity; riots; fires; earthquake; floods; epidemics;
above, neither party will be required to arbitrate a quarantine restrictions; embargoes; strikes; labor
dispute relating to the misuse or misappropriation or difficulties; delays or interruptions in performance by
any Proprietary Information or the infringement of suppliers or subcontractors; unusually severe
intellectual property rights, which dispute shall be weather; shortages in labor, fuel, materials and
brought in the federal and state courts in Santa Clara supplies; internet connectivity problems; hacking of
County, California, and each party hereby consents to any facilities, resources, or infrastructure (whether of
the jurisdiction and venue of such courts for such CLIENT or any third party service provider thereof);
disputes. The parties agree that any and all process or any combination thereof.
directly to any of them in any such litigation may be
served outside the State of California with the same 10.10 Marketing, Demo, and
force and effect as if the service had been made Co-marketing. CLIENT may use Licensee’s name,
within the State of California and that service of logo, and trademarks, in printed, audio, and digital
process may be effected in accordance with Section formats and on CLIENT’s websites, for the purpose
10.4 hereof. of advertising and marketing the Licensed Software,
provided that no quotes or other attributions will be
10.9 Force Majeure. CLIENT shall not made to Licensee without Licensee’s prior written
be in default by reason of any failure in performance consent. Licensee and CLIENT may publicly refer to
of its obligations if such failure arises out of causes the other party as a licensor and a customer,
beyond the control (whether caused directly or respectively.