Software License and Services Agreement

Last updated October 2022:

ATTENTION: Please read this Software License and Services Agreement (the “Agreement”) carefully which sets forth the legally binding terms of use of the Trancite software selected by Customer on the www.trancite.com website (the “Software”) and maintenance and support services by SmartSafety Software, Inc. (hereinafter referred to as “Trancite Logic Systems” or “Trancite”) including limitations on representations, warranties, remedies and liabilities.

THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE END USER, OR ON BEHALF OF THE ENTITY YOU REPRESENT AND ALL END USERS IN YOUR ORGANIZATION (COLLECTIVELY THE “CUSTOMER”, “YOU” OR “YOUR”) AND SMARTSAFETY SOFTWARE, INC. (“TRANCITE”). YOUR ACCEPTANCE IS ON BEHALF OF ANY CORPORATE ENTITY THAT EMPLOYS YOU OR WHICH YOU REPRESENT. IF YOU ARE AN EMPLOYEE, CONTRACTOR, OR OTHERWISE USING THE SOFTWARE AND/OR SERVICES ON BEHALF OF AN ORGANIZATION OR ANY OTHER THIRD PARTY, YOU REPRESENT AND WARRANT TO TRANCITE THAT:

YOU ARE THE AGE OF MAJORITY IN YOUR JURISDICTION;
YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY; AND
SUCH ENTITY SHALL BE IRREVOCABLY BOUND BY AND SHALL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT IN ANY WAY USE THE SOFTWARE AND UNINSTALL OR PERMANENTLY REMOVE ALL COPIES THE SOFTWARE. IF YOU OR ANY USERS ON YOUR BEHALF, USE THE SOFTWARE IN ANY WAY, YOU WILL BE CONSIDERED TO HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS.

Interpretation
1. Definitions. In this Agreement the following expressions shall have the meanings indicated below:
  “Confidential Information” shall mean the Software, and any information which is confidential in nature or that is treated by Trancite as being confidential which is disclosed by Trancite or obtained by Customer in connection with this Agreement, whether such information is in oral, written, graphic or electronic form, which: is (i) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (ii) known by the Customer to be considered confidential or proprietary, such as the Software, or (iii) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder; (ii) was previously known to the receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving party’s employees or independent contractors who have not had access to or use of the other party's Confidential Information which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction;
  
  “Documentation” means user guides, operating manuals, educational materials, product descriptions and specifications, technical manuals, supporting materials, and other information regarding the Software regardless of the media on which it is provided that have been provided by Trancite to Customer, as may be amended or supplemented from time to time and delivered to Customer by Trancite;
  
  “Effective Date” shall mean the date that Customer executes this Agreement or places an order to license the Software on Trancite’s online ordering system on the www.trancite.com website subject to the terms and conditions of this Agreement;
  
  “Enterprise License” shall have the meaning set out in Section 4(a)(ii);
  
  “Fees” means the License Fees, Maintenance and Support Fees, Subscription Fees, Professional Services Fees and any other applicable fees set out in Schedule “A” to this Agreement or as set out on Customer’s order placed on Trancite’s online ordering system on the www.trancite.com website
  
  “Intellectual Property Rights” shall mean any proprietary right, including but not limited to those provided under: (i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design patent or industrial design law; or (vi) any other statutory provision or common law principle that may provide a right in either (a) ideas, formulae, algorithms, concepts, inventions or know-how; or (b) the expression of such ideas, formulae, algorithms, concepts, inventions or know-how;
  
  “License Fees” means the license fees to be paid by Customer in respect of the rights to use the Software, as set out on the www.trancite.com website at time of purchase;
  
  “Maintenance and Support Fees” means the fees to be paid by Customer for Maintenance and Support Services as set out on the www.trancite.com website at time of purchase;
  
  “Maintenance and Support Services” means maintenance and support services to be provided by Trancite pursuant to the terms and conditions of Schedule “B”;
  
  “Maximum Devices” means the maximum number of devices on which the Customer is authorized to install and store a copy of the Software, each for use by a single User at a time, that is equal to the number of licensed devices paid for by Customer;
  
  “Maximum Users” means the maximum number of Users that are licensed to use the Software as specified in Schedule “A” or as purchased by Customer on Trancite’s online ordering system on the www.trancite.com website.
  
  “Open Source License” means terms that, as a condition of use, copying, modification or redistribution of software, require that such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL;
  
  “Professional Services” means the installation, implementation, training, and other professional services to be provided by Trancite to Customer as described in a Statement of Work;
  
  “Professional Services Fees” means the fees set out in a SOW for the Professional Services;
  
  “Required Hardware” shall have the meaning set out in Section 6(b);
  
  “Required Programs” shall have the meaning set out in Section 6(a);
  
  “Per Device License(s)” shall have the meaning set out in Section 4(a)(i);
  
  “Perpetual Use Software” means the Trancite software product(s) that are licensed by Trancite on a perpetual use basis as specified on the www.trancite.com website at time of purchase, on a quote issued by Trancite, or other order confirmation documentation provided by Trancite, and includes any Updates or Upgrades to the Perpetual Use Software that have been provided to Customer as part of the Maintenance and Support Services. Third Party Software is not included in the definition of Perpetual Use Software except where this Agreement explicitly states otherwise;
  
  “Software” means the Perpetual Use Software and/or Subscription Based Software, as applicable. ;
  
  “Statement of Work” or “SOW” means a written statement of work that references this Agreement and sets out a description of Professional Services to be provided by Trancite to Customer, the applicable Professional Services Fees and is signed by authorized representatives of each of the parties;
  
  “Subscription Based Software” means the Trancite software product(s) that are licensed by Trancite on a subscription basis as specified on the www.trancite.com website at time of purchase, on a quote issued by Trancite, or other order confirmation documentation provided by Trancite, and includes any Updates or Upgrades to the Subscription Based Software that have been provided to Customer as part of the Maintenance and Support Services. Third Party Software is not included in the definition of Subscription Based Software except where this Agreement explicitly states otherwise;
  
  “Subscription Fees” means the then current annual fees to be paid by Customer in respect of the license rights to use the Software together with the Maintenance and Support Services for the Software, as set out on the www.trancite.com website at the time of execution or renewal of this Agreement;
  
  “Third Party Software” means third party software products licensed to Customer by the applicable third party licensors. Future Releases of the Software may require alternate third-party software to be upgraded or licensed by Customer, which will be subject to a third party license agreement between Customer and the relevant third-party software licensor;
  
  “Updates” means any published changes, additions or corrections to the applicable Software that primarily include a minor modification or enhancement to the applicable Software related to a bug fix, minor additional functionality that Trancite or its reseller makes generally available to its customers as part of its Maintenance and Support Services;
  
  “Upgrades” means a major overhaul of the applicable Software which is a complete new published version of the applicable Software that modifies, revises or alters the Software and adds features, functionality or enhancements to such applicable Software, that Trancite or its reseller makes generally available to its customers subject to the payment of additional fees; and
  
  “User” means any employee of Customer or any of Customer’s agents and independent contractors that have been authorized by Customer in accordance with the terms of Section 4(a) of this Agreement to have access to the Software by way of any type of interface (for example, graphical user interface or browser user interface) and are bound by obligations of confidentiality at least as protective of Trancite’s Confidential Information as the terms of Section 9.
2. Schedules
  The Schedules described below and attached to this Agreement shall be deemed to be integral parts of this Agreement.
  
  Schedule "A" Software
  Schedule “B”Maintenance and Support Services
  
  In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control unless otherwise expressly stated in the provision giving rise to the conflict or inconsistency.
Term. The term of this Agreement shall be as follows:
1. in the event that the Customer only licenses the right to use Perpetual Use Software, this Agreement will commence on the Effective Date and shall continue until terminated by either party in accordance with Section 13 (the “Term); and
2. in the event that the Customer licenses any Subscription Based Software, unless terminated earlier in accordance with Section 13 this Agreement will commence on the Effective Date and shall continue for a period of one year (the “Initial Term”). Thereafter, subject to the payment of the Subscription Fees prior to the end of the then current term, this Agreement shall automatically renew for successive one year periods each (each a “Renewal Term”). The Initial Term and any Renewal Term shall be collectively be referred to as the “Term”.
Fees
In consideration of receiving the license rights granted in this Agreement to use the Subscription Based Software, the Maintenance and Support Services, and the Professional Services, Customer agrees to pay to Licensor the Subscription Fees in advance, and shall pay any Professional Services Fees in accordance with the payment terms set out in the applicable SOW. In consideration of receiving the license rights granted in this Agreement to use the Perpetual Use Software, Customer agrees to pay to Trancite the License Fees in advance, and shall pay any Professional Services Fees for implementation listed in the applicable SOW . To receive Maintenance and Support for Perpetual Use Software, Customer agrees to pay to Trancite the Maintenance and Support Fees in accordance with the payment terms set out in the applicable SOW. All Fees are non-refundable. Applicable Maintenance and Support Fees and Subscription Fees may increase on an annual basis at Trancite’s discretion. The Fees and any other fees set out in this Agreement are exclusive of taxes. Customer agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on Trancite’s net income). Customer shall reimburse Trancite for all travel and out of pocket expenses incurred in connection with any Customer request for onsite services.

If any Fees are not paid when due, then at Trancite’s discretion, (a) such Fees may accrue late interest at the rate of 1.5% (18% per annum) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such fee was due until the date paid.
License Grant

(a) Subscription Based Software License. Subject to the terms and conditions of this Agreement including without limitation the payment of the Subscription Fees and other applicable Fees, Trancite hereby grants to Customer a personal, non exclusive, non-transferable, limited license (without any right to sublicense) during the Term:

(i) To install the Subscription Based Software solely on the Maximum Devices and to allow up to the Maximum Users to use the Subscription Based Software on such Maximum Devices solely for Customer’s internal business purposes ( “Per Device License”); or

(ii) If paid for by the Customer and specified as an Enterprise License on the invoice issued by Trancite, to install the Subscription Based Software on a server or service such that the Subscription Based Software is capable of being executed by more than one client simultaneously from the single install, and authorize use by up to the Maximum Users solely for Customer’s internal business purposes (an “Enterprise License”); and

(iii) to make one (1) archival backup copy of the Subscription Based Software and to copy the Documentation; provided that Customer must reproduce any copyright or other notice marked on any part of the Subscription Based Software and Documentation on all authorized copies and must not alter or remove any such copyright or other notice.

(b) Perpetual Use Software License. Subject to the terms and conditions of this Agreement including without limitation the payment of the License Fees and other applicabe Fees, Trancite hereby grants to Customer a personal, non exclusive, non-transferable, limited, perpetual (subject to Section 13) license (without any right to sublicense):

(iv) To install the Perpetual Use Software solely on the Maximum Devices and to allow up to the Maximum Users to use the Perpetual Use Software on such Maximum Devices solely for Customer’s internal business purposes ( “Per Device License”); or

(v) If paid for by the Customer and specified as an Enterprise License on the invoice issued by Trancite, to install the Perpetual Use Software on a server or service such that the Perpetual Use Software is capable of being executed by more than one client simultaneously from the single install, and authorize use by up to the Maximum Users solely for Customer’s internal business purposes (an “Enterprise License”); and

(vi) to make one (1) archival backup copy of the Perpetual Use Software and to copy the Documentation; provided that Customer must reproduce any copyright or other notice marked on any part of the Perpetual Use Software and Documentation on all authorized copies and must not alter or remove any such copyright or other notice.

(c) Independent Contractors. Access to and use of the Software by independent contractors of Customer shall be considered authorized use under this Section so long as: (A) any such independent contractors are not a competitor of Trancite, are bound by terms and conditions at least as protective of Trancite’s rights in and to the Software, as the terms and conditions of this Agreement; and (B) such independent contractors have been approved by Trancite in advance of the independent contractors’ access to the Software. Customer shall be responsible for (i) all of the actions of and (ii) any misuse of the Software by any independent contractor.

(b) Use of the Software on any system that (i) does not meet the Required Programs and Required Hardware requirements set out in Section 6 and/or (ii) exceeds the Maximum Devices in the case of a Per Device Use License voids all warranties with respect to the Software and relieves Trancite of any obligation to provide Maintenance and Support Services.

(c) The license rights granted in this Section 4 do not include the right to use any Third Party Software.

(d) Restrictions. Without limiting the generality of Section 4, and in addition to the other restrictions listed therein, Customer shall not, and will not allow, direct or authorize (directly or indirectly) any third party to: (i) disassemble, de-compile, reverse engineer, defeat license encryption mechanisms, or translate any part of the Software, or otherwise attempt to derive, reconstruct or discover the source code of the Software except and only to the extent that applicable law expressly permits, despite this limitation; (ii) modify, translate, or create derivate works of the Software or Documentation or merge all or any part of the Software with another program; (iii) give away, rent, lease, lend, sell, sublicense, distribute, transfer, assign, or use the Software for timesharing or bureau use or to publish or host the Software for use by any third party (except as expressly permitted by Section 4(a)(ii) of this Agreement provided that, in no event shall the Software be placed on a server or service that provides unrestricted public access to the Software via a public network such as the Internet); (iv) take any actions that would cause the Software to become subject to any Open Source License or quasi-open source license agreement; and (v) use the Software in any manner for purposes of (A) developing, using or providing a competing software product or service; (B) copying any ideas, features, functionality or graphics of the Software; or (C) knowingly allow access to any competitor of Trancite.
Ownership
(a) The Software, Documentation and related materials are and shall remain the sole and exclusive property of Trancite, its licensors and/or its affiliates and Customer acknowledges and agrees that all Intellectual Property Rights therein are and shall remain with Trancite, its affiliates and/or its licensors. Any rights not expressly granted herein are reserved by Trancite. Customer may not obscure, remove or otherwise alter any copyright, trademark or other proprietary notices from the Software, the Documentation, Third Party Software and related material supplied by Trancite. Customer shall report to Trancite any infringement or misappropriation of Trancite Intellectual Property Rights or other rights in the Software, the Mobile Apps or the Documentation of which Customer becomes aware.

(c) In order to assist Trancite with the protection of its proprietary information and Confidential Information and to enable Trancite to ensure that the Customer is complying with its obligations, during the Term and for a period of two (2) years thereafter, Customer shall permit Harris, upon reasonable notice, to visit during normal business hours any premises at which the Software is used or installed and shall provide Trancite with access to its Software. Such audit shall be at Trancite’s expense, however, in the event that the audit reveals that Customer is in violation of the usage terms of this Agreement, Customer shall reimburse Trancite for such expenses and promptly pay any additional License Fees and Maintenance and Support Fees not properly licensed or paid, such fees will be invoiced at Trancite’s then current rate.
Required Programs and Hardware
(a) Customer acknowledges that the use of the Software shall require that Customer obtain and install additional required minimum third-party software programs as set out in the Documentation and modified from time to time by Trancite (the “Required Programs”). Customer agrees that the purchase of the Required Programs shall be at Customer’s sole cost and that the cost thereof is not included in the fees herein, including for any future updates about which Customer is provided with commercially reasonable advance notice.

(b) Customer acknowledges that the use of the Software requires that Customer have, at a minimum, hardware necessary to run Trancite programs as set out in the Documentation and modified from time to time by Trancite (the “Required Hardware”).
Third Party Software
(a) In the event that Trancite shall distribute to Customer any Third Party Software, Customer shall pay to Trancite in full in advance the license fees listed in on the Trancite website at www.trancite.com for the Third Party Software. Such license fees are exclusive of taxes. Customer agrees to pay all foreign, federal, state, provincial, county or local income taxes, value added taxes, use, personal, property sales and any other taxes, tariff, duty or similar charges that may be levied by a taxing authority (excluding taxes on Trancite’s net income). It is acknowledged by the parties that in the event that any Third Party Software is provided by Trancite to Customer pursuant to this Agreement, such Third Party Software shall be distributed to Customer by Trancite subject to the terms and conditions of the applicable license agreement for such Third Party Software to be entered into directly between Customer and the owner/licensor of such Third Party Software. Trancite makes no warranties, express or implied, with respect to the Third Party Software, including, without limitation, their merchantability or fitness for a particular purpose and Trancite accepts no liability of any kind whatsoever with respect to the Third Party Software. Any warranty Customer has with respect to the Third Party Software shall be solely provided by the Third Party Software licensor except where this Agreement may expressly state otherwise. Customer shall be responsible for the installation of any Third Party Software unless otherwise agreed by Trancite in writing.
Professional Services: Maintenance and Support Services
(a) Professional Services will be provided to Customer as set forth in a SOW. Customer agrees to provide the resources and perform the responsibilities assigned to it, in a timely manner, pursuant to the SOW and any applicable milestone dates, any failure by Customer to do so shall not relieve Customer of any payment obligation.

(b) In consideration of the payment of the Subscription Fees in the case of Subscription Based Software licensed by Customer, and the Maintenance and Support Fees in the case of Perpetual Use Software licensed by Customer, Maintenance and Support Services will be provided by Trancite for the applicable Software as set forth in Schedule “B”.
Confidential Information Customer agrees:
(i) to keep confidential any and all Confidential Information with respect to Trancite which it has received or may in the future receive in connection with this Agreement and to take all reasonable steps, which shall be no less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of Trancite from unauthorized use, disclosure, copying or publication;

(ii) not to use the Confidential Information of Trancite other than in the course of exercising its rights or performing its obligations under this Agreement;

(iii) not to disclose or release such Confidential Information except to the extent required by applicable law or during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that Customer shall first give reasonable notice to Trancite prior to such disclosure so that it may obtain a protective order or equivalent and provided that the Customer shall comply with any such protective order or equivalent;

(iv) not to disclose or release such Confidential Information to any third person without the prior written consent of Trancite, except for authorized employees or agents of Customer who have a need to know such information for the purpose of performance under this Agreement and exercising its rights under this Agreement, and who are bound by confidentiality obligations at least as protective of Trancite’s Confidential Information as this Agreement; and

(v) to take such actions as may be reasonably necessary to enforce its agreements with its employees and agents, including commencing legal proceedings.
Warranty
(a) Limited Warranty. Trancite warrants to Customer that for a period of ninety (90) days from the Effective Date, the Software will perform substantially in accordance with the Documentation when properly used and in the manner specifically contemplated by the Documentation, the terms of this Agreement and where Customer has installed the Required Programs and on the Required Hardware. In the event the Software does not substantially conform to the Documentation, Customer promptly notifies Trancite of the nature of the failure and such additional information regarding the failure as Trancite may reasonably request and the error can be reproduced by Trancite, Trancite shall make commercially reasonable efforts to provide a suitable workaround, repair or replace the non-conforming Software. If Trancite determines that Trancite is unable to repair the Software as required by this Section 10(a), Trancite may refund to Customer the Fees paid in respect of such Software and the license granted to Customer for such Software shall terminate. The foregoing shall be Customer’s sole and exclusive remedy for breach of the exclusive warranty in this Section 10(a).
(b) Exclusions to Trancite Warranty. Trancite shall not be liable for any breach of the foregoing warranties which results from causes beyond the reasonable control of Trancite, including but not limited to:

(i) Where the installation, integration, modification or enhancement of the Software has not been carried out by Trancite or its authorized agent, or where Customer has taken any action which is expressly prohibited by the Documentation or this Agreement;

(ii) Any combination of the Software with any software, equipment or services not supplied, recommended or authorized by or on behalf of Trancite other than the Required Programs and Required Hardware;

(iii) Use of the Software on any system that (i) does not meet any of the Required Programs and Required Hardware requirements set out in Section 6 or (ii) exceeds the Maximum Devices in the case of a Per Device License.

(iv) User error, or other use of the Software in a manner for which it was not intended or other than as permitted in this Agreement
;
(v) Customer’s failure to install a new Update which has been released to remedy an error or bug, and which Trancite has stated to Customer is a required Update necessary for security purposes or for legislative compliance purposes or other reasons as Trancite may determine is important in its sole discretion;

(vi) Trancite personnel are not given full, free and safe access to the facility where the Software is installed during attempts to remedy an error;

(vii) Customer’s failure to upgrade hardware to meet the demands of any upgraded Software or improvements in Software functionality; which Trancite has stated to Customer is required;

(viii) Customer’s computer(s), network or other hardware malfunctioned and the malfunction caused the defect, or any other event of force majeure as set out in Section 15(h); or

(ix) any failure of the Software due to external causes such as, but not limited to, power failures or electrical surges.

(c) Customer Warranty. Customer represents and warrants to Trancite that it shall comply with all applicable laws in connection with its use of the Software and in its performance under this Agreement including but not limited to those laws regarding restrictions on exports and economic sanctions including end-user, end use and destination restrictions by Canadian, U.S. and other governments related to Trancite and its service providers products, services and technologies, and the U.S. Export Administration Regulations, and the International Traffic in Arms Regulations).

(d) Disclaimer.

TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET OUT IN SECTION 8(A) THE SOFTWARE IS LICENSED, AND ALL DOCUMENTATION AND OTHER MATERIALS AND SERVICES ARE PROVIDED TO CUSTOMER, “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HEREWITH.

TRANCITE, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE, THE DOCUMENTATION, THE PROFFESIONAL SERVICES, THE MAINTENANCE AND SUPPORT SERVICES, AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
Intellectual Property Indemnity
(a) In the event that there is a third party claim against Customer alleging that Customer’s use of the Software in accordance with this Agreement constitutes an infringement of a valid United States patent, copyright, trade-mark or trade secret, Trancite shall, at its expense, defend Customer and pay any amounts finally awarded against Customer by a court of competent jurisdiction or agreed to in a settlement approved by Trancite in advance, provided that: (i) Customer gives Trancite prompt written notice of any such claim and full opportunity to defend the same; (ii) Customer has not made any admissions or entered into settlement negotiations either prior to or after providing notice to Trancite of the applicable claim except with Trancite’s prior written consent, (iii) Trancite has sole control of the defense of any claim or proceeding and all negotiations for its compromise or settlement; and (iv) Customer assists and provides information to Trancite throughout the action or proceeding.

(b) Trancite’s liability for any claims under this Section 11 shall be reduced to the extent such claim arises from: (i) alterations or modifications to the Software by Customer or a third party in any manner whatsoever except with the prior written consent of Trancite; (ii) combination, integration or use of the Software with software, hardware or other materials other than the Required Hardware and Required Software where such claim would not have arisen but for such combination, integration or use; (iii) use of the Software other than in compliance with this Agreement; (v) compliance with the Customer’s written instructions or specifications; or (vi) use of the Software after notice from Trancite that it should cease due to possible infringement.

(c) In the event that Customer’s use of the Software is finally held to be infringing or Trancite deems that it may be held to be infringing, Customer agrees that Trancite shall have the right, in Trancite’ sole discretion to: (1) procure for Customer the right to continue use of the Software; or (2) modify or replace the Software so that it becomes non-infringing.

(d) The foregoing states Trancite's entire liability, and Customer’s exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade-mark, trade secret or other intellectual property and property interest rights relating to the Software, or any part thereof or use thereof. The indemnity provisions of this Section 11 shall not apply to any Third Party Software.
Limitation of Liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRANCITE, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, FOR LOST REVENUE OR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR COST OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY, EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH LOSS OR DAMAGE OR SUCH LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

TRANCITE, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE, AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES SUPPLIED BY TRANCITE IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT THAT IS EQUAL TO: IN THE CASE OF SUBSCRIPTION BASED SOFTWARE, THE SUBSCRIPTION FEES PAID TO TRANCITE BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM; AND IN THE CASE OF PERPETUAL USE SOFTWARE, THE LICENSE FEES PAID TO TRANCITE BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.
Termination. This Agreement may be terminated as follows:

(a) By Customer for any reason effective upon written notice to Trancite given within thirty (30) days of the Effective Date.

(b) By either party upon material breach of this Agreement by the other party that has not been cured within thirty (30) days’ of written notice, or such longer period as may be specified in the notice.

(c) If Customer has failed to pay any of the Fees when due, then Trancite shall have the right to terminate this Agreement effective immediately upon written notice to that effect.

(d) Notwithstanding any other provision of this Agreement, if the Customer breaches (i) any term of Section 4, Section 7, or any other Intellectual Property Right of Trancite; or (ii) its confidentiality obligations under Section 9, then Trancite shall have the right to terminate this Agreement effective immediately upon written notice to Customer to that effect.

(e) Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favourably to the subject party within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform hereunder.
Effects of Termination
(a) Upon termination of this Agreement by Harris for any reason, all license rights granted to Customer under Section 4shall cease and Customer must destroy all copies of the Software not otherwise removed by Trancite and shall return or destroy all copies of any Confidential Information of Trancite and certify same to Trancite;

(b) Upon termination of this Agreement by Customer: (i) all license rights granted to Customer under Section 4(a) with respect to Subscription Based Software and related Documentation shall cease and Customer must destroy all copies of the Subscription Based Software not otherwise removed by Trancite and shall return or destroy all copies of any Confidential Information of Trancite and certify same to Trancite; and (ii) all license rights granted to Customer under Section 4(b) with respect to the Perpetual Use Software and related Documentation shall continue subject to (and conditional upon) Customer’s continued compliance with all of the obligations of Customer under this Agreement.

(c) In addition to the foregoing, upon termination of this Agreement by either party: (i) all warranties related to the Software shall automatically terminate upon termination of this Agreement; and(ii) all outstanding Fees owed by Customer to Trancite associated with such termination shall be immediately due and payable; (iii) all Maintenance and Support obligations shall automatically terminate.
General
a. Entire Agreement. This Agreement supersedes all prior representations, arrangements, negotiations, understandings and agreements between the parties, both written and oral, relating to the subject matter hereof and shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. The terms of this Agreement may not be changed except by an amendment signed by the authorized representative of each party.

b. Equitable Relief. Customer acknowledges and agrees that it would be difficult to compute the monetary loss to Trancite arising from a breach or threatened breach of this Agreement and that, accordingly, Trancite will be entitled to specific performance, injunctive or other equitable relief in addition to, or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Customer.

c. Governing Law. This Agreement shall be governed by the laws of the State of New York and the federal laws of the United States applicable therein. This Agreement excludes that body of law applicable to choice of law, the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods (UNCCISG), and any legislation implementing such Convention, if otherwise applicable. Trancite and Customer hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Trancite in connection with this Agreement.

d. Waiver. No waiver, modification, extension, addendum or any other change of any provision of this Agreement shall be valid unless in writing and signed by the party against whom enforcement is sought. The waiver by either party of a breach or a default of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to enforce any provision of this Agreement be construed as a waiver of any right, power or privilege by such party.

e. Allocation of Risk. Customer acknowledges that the limited warranties, disclaimers and limitations of liability contained in this Agreement are fundamental elements of the basis of bargain between Customer and Trancite and set forth an allocation of risk reflected in the fees and payments due hereunder.

f. Survival. The following sections and articles shall survive the termination or expiration of this Agreement: Sections 1, 3, 4(b), 4(c), 4(d), 5, 6, 7, 9, 10(b), 10(c), 10 (d), 12, 14, 15, and any other provisions which are required to ensure that the parties fully exercise their rights and obligations hereunder; unless and until waived expressly in writing by the party to whom they are the benefit.

g. Mediation. Except where this Agreement explicitly states that this Section does not apply, the parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non-binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. Such mediator shall be knowledgeable in software system agreements. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys’ fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party’s right to seek injunctive relief at any time.

h. Force Majeure. No default, delay or failure to perform on the part of Trancite shall be considered a breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances beyond its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier or other disasters or events.

i. Notice. Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed,

in the case of Trancite, to:

SmartSafety Software, Inc.
77 E. Idaho Ave, Suite 200
Meridian, ID 83642

Fax No.: 208-322-6031
Attention: Joe Cucchiari

With a copy to:

N. HARRIS COMPUTER CORP.
1 Antares Drive, Suite 400
Ottawa, Ontario K2E 8C4
Attention: General Counsel
Telephone: 613-226-5511, Ext. 2149

And in the case of Customer, to: the address provided to Trancite as part of the online ordering process on the www.trancite.com website.

j. Assignment. Customer may not assign any of its rights or duties under this Agreement without the prior written consent of Trancite.

The Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns.

k. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and which shall together constitute one Agreement.

l. U.S. Government Restricted Rights. The Software and the Mobile App(s) (i) were developed exclusively at private expense; (ii) are a trade secret of Licensor or its licensors for the purposes of the Freedom of Information Act; (iii) are “commercial computer software” subject to limited utilization (Restricted Rights); and (iv) including all copies of the Software and Mobile Apps, in all respects is and shall remain proprietary to Trancite or its licensors. Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for software developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and/or 252.227.7014 or any successor clause, and (ii) for all government agencies, the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 or any successor clause. The U.S. Government shall refrain from changing or removing any insignia or lettering from the Software and the Mobile Apps or from producing copies of the Software, Mobile Apps and manuals (except one copy of the Software for backup purposes). Use of the Software and Mobile Apps shall be limited to the facility for which it was acquired. All other U.S. Government personnel using the Software and Mobile Apps are hereby on notice that use of the Software and Mobile Apps are subject to restrictions that are the same as, or similar to, those specified above. The manufacturer/owner is SmartSafety Software Inc.

IMPORTANT NOTICE: THIS IS ACCESS TO A SOFTWARE SERVICE NOT A SALE. THIS SOFTWARE LICENSE AND SERVICES AGREEMENT IS A LEGAL CONTRACT BETWEEN SMARTSAFETY SOFTWARE, INC., YOU AND THE ORGANIZATION YOU REPRESENT. BY CLICKING THE “I ACCEPT” BUTTON CUSTOMER SHALL BE DEEMED BY TRANCITE TO HAVE IRREVOCABLY AGREED TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER AND ITS USERS WILL NOT BE ABLE TO INSTALL OR USE THE SOFTWARE. INSTALLATION OR USE OF THE SOFTWARE BY CUSTOMER OR ANY OF ITS USERS SHALL BE DEEMED BY TRANCITE TO BE CUSTOMER’S IRREVOCABLE CONSENT TO BE BOUND BY AND COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE AN EMPLOYEE, CONTRACTOR, OR OTHERWISE INSTALLING OR USING THE SOFTWARE ON BEHALF OF AN ORGANIZATION OR ANY OTHER THIRD PARTY, YOU REPRESENT AND WARRANT TO TRANCITE THAT:

A. YOU ARE THE AGE OF MAJORITY IN YOUR JURISDICTION;

B. YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS SOFTWARE SERVICE AGREEMENT TO ACCESS THE SERVICE ON BEHALF OF SUCH ENTITY; AND

C. SUCH ENTITY SHALL BE IRREVOCABLY BOUND BY AND SHALL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Button: “I accept”

Button: “I reject”

SCHEDULE "A"

Trancite Other Fees: n/a

SCHEDULE “B” - MAINTENANCE AND SUPPORT SERVICES

1. SCOPE OF MAINTENANCE AND SUPPORT SERVICES

1.1 This Schedule “B” – Maintenance and Support Services describes the policies and procedures under which Trancite provides support and maintenance services for its Software. Maintenance and Support Services may be withheld by Trancite in the event Customer fails to make payment of Fees within thirty (30) days of the due date.

1.2 MAINTENANCE TERM. Trancite will provide Maintenance and Support Services to Customer in accordance with the terms of this Schedule “B” for each year that Customer pays to Trancite in advance its then current Subscription Fees, or its then current Maintenance and Support Fees for any Perpetual Use Software..

1.3 MAINTENANCE AND SUPPORT SERVICES.

1.3.1 SOFTWARE MAINTENANCE. Trancite will use commercially reasonable efforts to correct any reproducible Errors that Customer reports to Trancite in the most current Version and the Version immediately preceding the most current Version of the Software. In this Agreement, “Version” shall mean the most current commercially available form of the Software. “Error” is defined as a material failure of the Software to conform to the Specifications as then in effect for the Software. Trancite shall not be obligated to perform Maintenance and Support Services for any defects resulting from (i) Customer’s modification of the Software or use thereof in combination with software not provided by Trancite; (ii) improper or unauthorized use of the Software; (iii) use of the Software with a hardware or software configuration that does not comply with Trancite’s configuration standards for that Version of the Software; or, (iv) external causes including, but not limited to, power failures or electric surges; provided however that, if Trancite chooses to perform Maintenance and Support Services for defects resulting from the items listed above, such Maintenance and Support Services shall be billed to Customer at Trancite’s then-current time and materials rate.

1.3.2 VERSIONS. Trancite may from time to time issue new Versions and documentation if any, of the Software as part of this maintenance agreement. Such Version to include bug fixes, service packs, improvements and/or modifications to the Software, which are marketed as standard features or functionality of the Software and not marketed as new products, options or additional modules. Customer shall promptly install such Versions as they become available to Customer. Trancite shall support the current Version and the immediately prior Version of the Software. Trancite shall provide Customer with a minimum of six (6) months prior notification of the retirement of any versions which are older than the current or immediately prior Versions of the Software. Trancite shall make available telephone and remote assistance to Customer during the installation of a new Version during Trancite’s normal business hours. After hours remote assistance shall be charged at Trancite’s then current published after hour support rates. Customer’s request for on-site assistance for the installation of a new Version shall be chargeable at Trancite’s then current time and materials rate.

1.3.3 ENVIRONMENTS. Trancite shall support the Software in the production environment and test environment only.

1.3.4 TELEPHONE AND WEB-BASED SUPPORT. Trancite will provide telephone and electronic technical support for the Software, during Trancite’s regular business hours Monday to Friday from 7:00 a.m. to 4:00 p.m. Mountain Time excluding holidays, to Customer’s designated and trained personnel. In addition, Trancite will provide emergency support to any authorized user of the Software for the purpose of error recovery and to assist in determining the cause of any malfunction. Notwithstanding the foregoing, Customer shall ensure that all authorized users seek assistance from Customer’s designated support representatives prior to contacting Trancite. Customer shall internally resolve all routine questions about the Software (e.g., questions regarding user passwords; logging on; network problems) prior to contacting Trancite. If Trancite reasonably determines that Customer’s users are repeatedly failing to observe this protocol, Trancite reserves the right, after providing Customer with written Notice of such determination and providing Customer with a reasonable opportunity to rectify Customer’s failure to follow protocol, to charge Customer for such calls at Trancite’s then-current rates. Where applicable, Customer’s shall be given access to the Trancite user website at www.trancite.com (or as otherwise updated) for help desk access, technical information, frequently asked questions, and application requests.

1.3.5 SYSTEM MONITORING. Trancite may periodically perform remote diagnostic and audit services to monitor the performance of the Software, to maintain diagnostic files, to monitor use of the Software and to control levels of automatic diagnostic reporting.

1.4 RESPONSE AND RESOLUTION TIME FRAMES. Customer shall report all incidences of Errors (in this Agreement referred to as “Incident Reports”) to Trancite in a timely manner using the electronic or telephone support procedures described in Section 1.3.4 above. Customer acknowledges that Trancite ability to resolve is dependent upon the availability of Customers staff to support the resolution process as well as in providing remote access to Customer’s systems. Trancite will endeavor to respond to all requests within 1 hour during Trancite regular business hours (defined as Monday to Friday excluding statutory holidays from 7:00 am to 4:00 p.m. Mountain Time). Trancite’s goal is to resolve Errors or provide a suggested workaround within 24-96 hours. If Trancite’s Support staff are unable to do so, the issue will be escalated to Trancite’s development team and Trancite will notify Customer as soon as a fix is available in an Update or a workaround is available. Please note that any suggestions for enhancements to the Software or other Trancite products and services that you submit will become the property of Trancite. Trancite may use this information for any Trancite business purposes, without restriction, including for product support and development.

2. EXCLUDED SERVICES. Maintenance and Support Services shall not include the following:

2.1 HARDWARE MAINTENANCE. Trancite shall not be responsible for maintaining and purchasing any hardware used in conjunction with the Software.

2.2 THIRD-PARTY SOFTWARE SUPPORT. Trancite shall not be required to provide support for any software, including without limitation any Customer written applications, pre-release programs, non-current versions of the Software, third party software or software provided by hardware manufacturers.

2.3 TRAINING. Trancite shall not be required to provide any training as a part of Maintenance and Support Services.

2.4 ROUTINE PROCEDURES. Trancite shall not be required to perform any routine operational procedures such as database backups of Customer’s network server, the generation of reports, the servicing of printers or the resetting of hardware.

2.5 NETWORK MANAGEMENT SERVICES. Trancite shall not be required to perform network operating system installation, maintenance, management, or any related troubleshooting.

3. ON-SITE SERVICES. On-site services are not included as part of Maintenance and Support Services unless it is determined by Trancite, in its sole discretion, that on-site services are required to resolve an Error.

If Customer requests on-site services, Trancite will evaluate and respond to Customers request within ten (10) business days. If Trancite agrees to perform the requested on-site services, Customer shall pay for such services at Trancite’s then-current time and material rates plus out of pocket expenses.

4. ACCESS

4.1 REMOTE ACCESS. Maintenance and Support Services are contingent upon Trancite’s ability to obtain remote access to the Software. Trancite utilizes Zoho-Assist® to obtain remote access. Trancite will provide Zoho-Assist® and Customer agrees to use Zoho-Assist® to provide remote access for Trancite to the Software. Customer’s failure to provide remote access shall immediately relieve Trancite of any responsibility to provide Maintenance and Support Services, other than telephone support, until access is available. Customer shall continuously provide access.

4.2 PHYSICAL ACCESS. Customer shall provide access rights to Trancite including full rights to all Software, resources and adequate rights to access the server running the Software. Subject to Customer’s standard and reasonable security procedures, Customer shall provide Trancite and its agents physical access to all equipment and software associated with the Software throughout each purchased term of Maintenance and Support Services.

5. TEST ENVIRONMENT. Customer acknowledges and agrees that if Customer requests to migrate the version of the Software running in its test environment to Customer’s production environment, such migration may result in the temporary unavailability of the Software in Customer’s production environment.