GPS Vehicle Tracking | Software License Agreement

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DO NOT BREAK THE SEALS ON ANY PRODUCT IF YOU DO NOT AGREE WITH THE TERMS SET OUT BELOW. PRODUCTS WITH SEALS BROKEN MAY NOT BE RETURNED EXCEPT AS SET OUT IN PARAGRAPH 3 BELOW.

ADVANCED TRACKING TECHNOLOGIES, INC. SOFTWARE LICENSE AGREEMENT

1. GRANTS & ATTI®’S RIGHTS

Advanced Tracking Technologies, Inc. (ATTI®) owns or has the right to license the Software. ATTI® hereby grants to Customer, and Customer accepts, a nonexclusive, nontransferable and revocable license to use the Software in accordance with the terms and conditions of this Software License Agreement. In addition to any other rights held by ATTI®, ATTI® shall have the following rights: 1) Customer acknowledges and agrees that the Software is protected under United States law; including but not limited to patent, trademark, copyright and trade secret laws 2) Customer acknowledges and agrees that the Software is proprietary to ATTI®, and that all right, title and interest in and to the Software, including associated intellectual property rights, are and shall remain with ATTI® subject to the rights granted Customer under the terms of this Agreement.

2. USE AND USE RESTRICTIONS

This Agreement conveys Customer a revocable use of the Software, as provided herein. Customer shall: 1) comply with all applicable laws, rules, regulations and orders and 2) use the Software in compliance with applicable operating instructions provided by ATTI®. ATTI® will not be liable for any violation committed by Customer concerning the laws, rules, regulations, and orders applicable to this Agreement, the Software, and the industry.

Customer shall not: 1) assign, sublicense, transfer, pledge, hypothecate, or otherwise dispose of the Software or any interest therein; or 2) sublet or let the Software or permit it to be used by anyone other than Customer or Customer’s employees. ATTI® may sell, assign, or grant a security interest or participation in this Agreement and the Software in whole or in part without notice to Customer; and ATTI®’s assignee or secured party may then assign such interest without notice to Customer. Customer agrees that any such assignment shall not materially change Customer’s duties or obligations under this Agreement.

THE SOFTWARE MAY ONLY BE USED ON A SINGLE COMPUTER OR PDA. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted. Customer shall use its best efforts to ensure that the Software is not copied by Customer employees or any third party. Customer shall not electronically transmit software from one computer to another over a network or other medium. THE SOFTWARE IS PROTECTED TO PREVENT DISASSEMBLY, DECOMPILATION, REVERSE ASSEMBLY, REVERSE ENGINEERING, REVERSE COMPILATION OR TRANSLATION OF THE SOFTWARE. Customer shall not disassemble, decompile, reverse assemble, reverse compile, or otherwise translate the Software in whole or in part, nor allow any other person to do so and Customer is not or will not develop a similar or competing product for commercial or internal use based upon any information contained in the Software. Customer shall not modify, network, distribute, or create derivative works based upon the Software in whole or in part, nor allow any other person to do so. Customer shall not copy any written materials accompanying the Software, nor allow any other person to do so. No right, license, or interest to any trademarks of ATTI® is granted hereunder, and Customer agrees that no such right, license, or interest shall be asserted by Customer with respect to such trademarks. Customer agrees that trademarks of ATTI® shall not be used in any advertisement, brochure or other material circulated or displayed by Customer, and provided further, ATTI® reserves the right to terminate this agreement at any time if Customer uses or allows the use of any trademark of ATTI®.

3. LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY

ATTI® warrants that the diskettes and/or CD provided will be free from defects in materials and workmanship under normal use and service for a period of 90 days from the execution date. This limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Replacement Software will be warranted for the remainder of the original warranty period. ATTI®’s sole responsibility and Customer’s exclusive remedy in the event of any material nonconformity, ATTI® may, at its option, make a reasonable effort to repair or replace the diskettes and/or CD so it is conforming. Any claim based on the foregoing warranty must be submitted in writing to ATTI® within 30 days of the first occurrence of the claim. Such warranty shall not apply to a diskettes and/or CD that have been damaged, abused, modified or altered by anyone other than ATTI®.No oral or written information or advice given by ATTI® or ATTI®’s representative shall create a warranty or in any way increase the scope of this warranty.

EXCEPT AS SET FORTH IN THIS AGREEMENT, ATTI® MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE SOFTWARE, THE DESIGN OR CONDITION OF THE SOFTWARE, ANY OUTPUT BASED ON THE USE OF THE SOFTWARE, OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT. ATTI® SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 3 HEREIN, THE SOFTWARE IN FACT OR BY OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM THIS AGREEMENT, ANY OTHER DOCUMENTS REFERENCED HEREIN, OR ANY OTHER MATERIALS, PRESENTATIONS OR OTHER DOCUMENTS OR COMMUNICATIONS IS LICENSED “AS IS” AND ATTI® DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ATTI® DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY CUSTOMER. ATTI® DOES NOT WARRANT THE INTEGRITY OR ACCURACY OF ANY DATA ENTERED INTO THE SOFTWARE. CUSTOMER ASSUMES ALL RISK OF DATA CORRUPTION DUE TO FAILURE OF THE SOFTWARE OR ANY PART THEREOF. FURTHERMORE, ATTI® DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE MAY NOT APPLY TO YOU.

Section 3 sets forth Customer’s exclusive remedy for any material nonconformity. If ATTI® becomes liable to Customer under this Agreement for any other reason, the total liability of ATTI® (including its subcontractors and suppliers) for all claims, whether in contract, tort (including negligence, willful misconduct and product liability), or otherwise, arising out of, connected with, or resulting from the manufacture, delivery, repair, replacement, maintenance, training, or use of any item of Software shall not exceed $75.00.

THE SOLE RESPONSIBILITY FOR COMPLIANCE WITH COMMERCIAL AND INDUSTRY STANDARDS, FEDERAL, STATE, AND LOCAL LAWS REGARDING THE USE AND MAINTENANCE OF THIS SOFTWARE LIES WITH CUSTOMER. IN NO EVENT SHALL ATTI®, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER FOR ANY CLAIM RESULTING FROM CUSTOMER’S FAILURE TO COMPLY WITH APPLICABLE INDUSTRY STANDARDS, FEDERAL, STATE, AND LOCAL LAWS REGARDING THE USE AND MAINTENANCE OF THIS SOFTWARE. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL ATTI®, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE, ANY OF THE COMPONENTS THEREOF, OR RELATED DOCUMENTATION, HOWEVER CAUSED, EVEN IF ATTI® OR ATTI®’s REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ATTI®’s TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION [WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE] EXCEED $500.00. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

4. TERM AND TERMINATION

All obligations of Customer shall survive the expiration or termination of this Agreement to the extent required for their full observance and performance. Within twenty-four (24) hours of termination of this Agreement, Customer shall return the Software to ATTI® at the address set forth below or destroy the Software at Customer’s expense. ATTI®, within its discretion and by written notice to Customer, shall at any time have the option to terminate this Agreement and take immediate possession of the Software.

5. CUSTOMER DEFAULT AND ATTI®’s REMEDIES

Each of the following events shall constitute a “Customer Default” under this Agreement if Customer: (a) Fails to perform or observe any other requirement, obligation, or any representation in this Agreement; (b) Fails to provide any document in connection with this Agreement which is inaccurate in any material respect, and such failure or inaccuracy continues un-remedied for ten (10) days after notice thereof; and/or (c) Shall or shall attempt, voluntarily or involuntarily, to abandon, remove, sell, encumber, or sublet the Software of any component thereof.

No remedy of ATTI® is exclusive, but each shall be in addition to any other remedy available to ATTI® at law or in equity. Upon Customer Default and at any time thereafter, ATTI® may, in its sole discretion, take any one or more of the following actions: (a) Demand the return of the Software or any component thereof; (b) Retain fees or other amounts prepaid by Customer, not as a penalty, but as liquidated damages; and/or (c) Exercise any other right or remedy available to ATTI® under applicable law or proceed by court action to enforce the terms of the Agreement or to recover damages and/or expenses resulting from the breach of this Agreement.

Notwithstanding anything to the contrary contained herein, the license rights granted hereunder and all use of the Software shall terminate upon any termination or expiration of this Agreement. Customer shall be liable and shall pay to ATTI® all ATTI® attorney fees and other costs incurred by ATTI® in exercising any of ATTI®’s remedies, including any repairs or replacements of any Software component. If ATTI® brings any action against Customer regarding this Agreement, ATTI® shall be entitled to recover, in addition to any other relief granted, reasonable attorney's fees and expenses of litigation.

6. MISCELLANEOUS

If Customer receives a claim that any item of Software, when used in accordance with ATTI®’s instructions, infringes a United States patent, copyright, or other intellectual property interest, Customer shall notify ATTI® immediately in writing and give ATTI® all necessary information and assistance and the exclusive authority to evaluate, defend, and settle such claim. Any notice to a party shall be deemed sufficiently given only when provided in writing by certified or registered mail to P. O. Box 168, Sugar Land, Texas 77487. No express or implied waiver by ATTI® of any Customer Default shall constitute a waiver of any other Default by Customer or a waiver of any of ATTI®’ rights and no delay by ATTI® in enforcing any right or requirement shall be a waiver of such right or requirement. A failure by ATTI® to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of ATTI® under this Agreement. A failure by Customer to notify ATTI® in writing of any default hereunder or any nonconformity with industry standards within thirty (30) days of its occurrence shall constitute a waiver thereof by Customer.

The division of this Agreement into Sections and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereto,” “hereunder,” and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or contents is inconsistent therewith, references herein to Sections are to Sections of this Agreement. In this Agreement, the singular number, shall include the plural and vice versa; the masculine gender shall include the feminine and neutral genders and vice versa; and persons shall include individuals, partnerships, associations, trusts, unincorporated organizations, corporations, and governmental entities.

The provisions in this Agreement shall be severable and if one or more provisions should be declared invalid, the remaining provisions shall remain in full force and effect and should the parties agree to enter into such other agreement as will validly afford, the protections intended by the provisions of this Agreement. This Agreement shall be governed by and construed under the laws of the State of Texas. Any dispute arising under this Agreement shall be resolved in the Texas state courts within the county of Fort Bend, and Customer expressly consents to jurisdiction therein. This Agreement shall obligate and benefit the parties, and their permitted receivers, trustees, assignors, and other representatives.

THE SOFTWARE INCLUDES INFORMATION AND DATA AS WELL AS SOFTWARE AND DATA LICENSED BY THIRD PARTEIS TO ATTI®. THIS LICENSE AGREEMENT MAY BE ENFORCED BY ATTI® OR THIRD PARTIES THAT HAVE PROVIDED INFORMATION, MAPPING DATA OR SUPPORTING SOFTWARE PURSUANT TO LICENSES THAT PROVIDE FOR THE SAME PROTECTION, RIGHTS AND PROVISIONS SET OUT ABOVE. A LIST OF THOSE THIRD PARTIES IS INCLUDED IN THE SOFTWARE INSTALLATION PROGRAM. SUCH THIRD PARTIES ARE THIRD PARTY BENEFICIARIES TO THIS LICENSE AGREEMENT.

THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN CUSTOMER AND ATTI®, AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. NO AMENDMENT OR MODIFICATION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY THE PRESIDENT OR VICE-PRESIDENT OF ATTI®.

Rev:06/2006