Terms Of Service
Last Modified: October 1, 2024
This Service Agreement (this “Agreement”) is a binding contract between you (“Client,” “you,” or “your”) and Location Tech, Inc. (“LocTech,” “we,” or “us”). This Agreement governs your access to and use of the Services.
LOCTECH PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. THIS AGREEMENT TAKES EFFECT BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR CLIENT’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SERVICES THAT CLIENT DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LOCTECH’S SERVICES.
1. DEFINITIONS
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or Otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise of more than 50% of the voting securities of a Person.
“Authorized Users” means Client’s employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Services has been purchased Hereunder.
“Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Client Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Client or any Authorized User.
“Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that the LocTech provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Services or LocTech Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Services or LocTech Systems as intended by this Agreement. Harmful Code does not include any LocTech Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent Jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Client provides or for which Client provides access to LocTech, or information which LocTech creates or obtains on behalf of Client, in accordance with this Agreement that: (a) directly or indirectly identifies an individual; or (b) can be used to authenticate an individual. Client’s business contact information is not by itself Personal Information.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“LocTech Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by LocTech or its designee to disable Client’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of LocTech or its designee.
“LocTech Materials” means the Services, Specifications, Documentation, and LocTech Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by LocTech or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or LocTech Systems. For the avoidance of doubt, LocTech Materials include Resultant Data and any information, data, or other content derived from LocTech’s monitoring of Client’s access to or use of the Services, but do not include Client Data.
“LocTech Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of LocTech or any subcontractor.
“LocTech Systems” means the information technology infrastructure used by or on behalf of LocTech in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by LocTech or through the use of third-party services.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Client and LocTech or an authorized reseller of LocTech, or any of their Affiliates, including any addenda and supplements thereto.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Client’s use of the Services that is used by LocTech in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Services” means mean the services you have selected to receive from LocTech.
“Specifications” means the specifications for the Services as may be provided to Client from time to time.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, hardware, equipment, or components of or relating to the Services that are not proprietary to LocTech.
2. SERVICES
2.1. Access and Use. Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, LocTech hereby grants Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.4 ) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal business purposes and solely with compatible hardware.
2.2. Documentation License. LocTech hereby grants to Client a non-exclusive, non- sublicensable, non-transferable (except in compliance with Section 13.4 ) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
2.3. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) LocTech has and will retain sole control over the operation, provision, maintenance, and management of the LocTech Materials; and (b) Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the LocTech Materials by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or LocTech; (ii) results obtained from any use of the Services or LocTech Materials; and (iii) conclusions, decisions, or actions based on such use.
2.4. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, LocTech Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the LocTech Materials, and the Third-Party Materials are and will remain with LocTech and the respective rights holders in the Third-Party Materials.
2.5. Changes. LocTech reserves the right, in its sole discretion, to make any changes to the Services and LocTech Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of LocTech’s services to its customers; (ii) the competitive strength of or market for LocTech’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.6. Suspension or Termination of Services. LocTech may, directly or indirectly, and by use of a LocTech Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or LocTech Materials, without incurring any resulting obligation or liability, if: (a) LocTech receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires LocTech to do so; or (b) LocTech believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of LocTech’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. USE RESTRICTIONS
Client shall not, and shall not permit any other Person to, access or use the Services or LocTech Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Services or LocTech Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or LocTech Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or LocTech Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or LocTech Materials or access or use the Services or LocTech Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Services or LocTech Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, LocTech Systems, or LocTech’s provision of services to any
third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, end user license agreements, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or LocTech Materials, including any copy thereof; (h) access or use the Services or LocTech Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other LocTech customer), or that violates any applicable Law; (i) access or use the Services or LocTech Materials for purposes of competitive analysis of the Services or LocTech Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the LocTech’s detriment or commercial disadvantage; or (j) otherwise access or use the Services or LocTech Materials beyond the scope of the authorization granted under this Section 3.
4. CLIENT OBLIGATIONS
4.1. Client Systems and Cooperation. Client shall at all times during maintain, and operate in good repair all Client Systems necessary for use of the Services and
provide all cooperation and assistance as LocTech may reasonably request to enable LocTech to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Additional Services and Products. Client agrees to independently acquire and pay for any services, hardware and software not included as part of, but necessary for the use of, the Services, including all communications, computers, and devices.
4.3. Effect of Client Failure or Delay. LocTech is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
4.4. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 3 (“Prohibited Activity”), Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the Prohibited Activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and LocTech Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify LocTech of any Prohibited Activity.
4.5. Use of Services. Client will remain responsible for the manner in which it uses Services, including the manner in which it interprets and acts upon any information provided through the Services. Client shall be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Client Data and Personal Information under its control or in its possession.
4.6. Compliance with Laws. Client agrees to comply with all applicable laws in connection with Client’s and its Authorized Users’ use of the Services, including, but
not limited to, data privacy and protection Laws, including Laws pertaining to the use and collection of Client Data and any Personal Information.
4.7. Data. The Services do not replace the need for Client to maintain regular data backups or redundant data archives. Client acknowledges and agrees that LocTech may delete any Client Data when (a) any storage period that applies to Client’s account expires,(b) this Agreement is terminated or expires, or (b) Client delivers a written request pursuant to Section 13.2 and such deletion is not prohibited by any Law.
LOCTECH HAS NOOBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CLIENT DATA.
4.8. Third-Party Applications, Products, and Services. Client acknowledges and agrees that access to certain parts of the Services may be dependent on such third-party services used in connection with the Services. Such third-parties may have their own terms and conditions to which Client must agree to before using such services. Client agrees to comply with such third-party terms and conditions it agrees to.
5. SECURITY
5.1. Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information,
instructions, and materials provided by or on behalf of Client or any Authorized User in connection with the Services; (c) Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and LocTech Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5.2. Access and Security. Client shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for Processing by the Services. Client is responsible for keeping its passwords and Access Credentials associated with the Services confidential. Client shall not sell or transfer them to any other person or entity. Client shall promptly notify us about any unauthorized access to your passwords or Access Credentials.
6. FEES AND PAYMENT
Client shall pay all fees specified in the Order Form (“Fees”) in accordance with the terms set forth in such Order Form, without deduction or set off. If Client fails to make any payment when due, then, in addition to all other remedies that may be available: (a) LocTech may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Client shall reimburse LocTech for all reasonable costs incurred by LocTech in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for five (5) days following written notice thereof, LocTech may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other Person by reason of such suspension. LocTech may increase its fee schedule at any time. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on LocTech’s income.
7. CONFIDENTIALITY
7.1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2 , “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, client lists, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, all LocTech Materials are the Confidential Information of LocTech, and the financial terms of this Agreement are the Confidential Information of LocTech.
7.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential information.
7.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 7.4 , not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3 ; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7 ; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7 .
7.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3 ; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4 , the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. LocTech Materials. All right, title, and interest in and to the LocTech Materials, including all Intellectual Property Rights therein, are and will remain with LocTech
and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Client has no right, license, or authorization with respect to any of the LocTech Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3. All other rights in and to the LocTech Materials are expressly reserved by LocTech. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to LocTech an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Client Data. As between Client and LocTech, Client is and will remain the sole and exclusive owner of all right, title, and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3 . To the extent that Client collects the Personal Information of any person for use in, or submits Personal Information to, the Services, that (a) Client has notified the individual(s) whose Personal Information is collected or held of the anticipated use of such Personal Information by LocTech; (b) Client collects and/or uses Personal Information, and transfers it to LocTech, only in compliance with applicable Laws, including all applicable data protection Laws; and (c) if LocTech receives or processes any Personal Information on Client’s behalf in connection with the Services, Client remains the data controller in respect of such Personal Information and LocTech shall be a data processor in respect of such Personal Information.
8.3. Consent to Use Client Data. Client hereby irrevocably grants all such rights and permissions in or relating to Client Data as are necessary or useful to LocTech, its subcontractors, and the LocTech Personnel to enforce this Agreement and exercise LocTech’s, its subcontractors’, and the LocTech Personnel’s rights and perform LocTech’s, its subcontractors’, and the LocTech Personnel’s obligations hereunder. Without limiting the foregoing, Client hereby grants to LocTech and its successors, licensees, and assigns an unlimited, irrevocable, fully paid and royalty-free, perpetual, worldwide right and license to host, use, distribute, store, delete, modify, run, copy, publicly perform or display, translate, create derivative works, and otherwise exploit any photographs, videos, or other images included in the Client Data for any lawful purpose and in any media formats in any media channels without any additional compensation to Client. For the avoidance of doubt, such permitted and licensed uses include, without limitation, any lawful marketing, promotional, advertising, offer, sale and trade activity, and through any manner, medium or format, electronic or otherwise.
8.4. Client Feedback. Client may, in its sole discretion, provide feedback, enhancement requests, recommendations, or other suggestions (“Feedback”) to LocTech relating to the Services or LocTech’s business. LocTech shall be entitled to use such Feedback for any purpose without notice, restriction, or any obligations for compensation to Client. LocTech shall not be required to consider or implement any Feedback.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1. Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to LocTech that Client owns or otherwise has and will have
the necessary rights and consents in and relating to the Client Data so that, as received by LocTech and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
9.2. Disclaimer of Warranties. ALL SERVICES AND LOCTECH MATERIALS ARE PROVIDED “AS IS.” LOCTECH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LOCTECH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR LOCTECH MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY HARDWARE, SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9.3. Communication Networks. LocTech is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10. INDEMNIFICATION
10.1. Client Indemnification. Client shall indemnify, defend, and hold harmless LocTech and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “LocTech Indemnitee”) from and against any and all Losses incurred by such LocTech Indemnitee resulting from any Action by a third party (other than an Affiliate of a LocTech Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Client Data, including any Processing of Client Data by or on behalf of LocTech in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including LocTech’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by LocTech; (c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
10.2. Mitigation. If any of the Services or LocTech Materials are, or in LocTech’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Services or LocTech Materials is enjoined or threatened to be enjoined, LocTech may, at its option and sole cost and expense: (a) obtain the right for Client to continue to use the Services and LocTech Materials materially as contemplated by this Agreement; (b) modify or replace the Services and LocTech Materials, in whole or in part, to seek to make the Services and LocTech Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and LocTech Materials, as applicable, under this Agreement; or (c) by written notice to Client, terminate this Agreement with respect to all or part of the Services and LocTech Materials, and require Client to immediately cease any use of the Services and LocTech Materials or any specified part or feature thereof.
10.3. Sole Remedy. THIS SECTION 10 SETS FORTH CLIENT’S SOLE REMEDIES AND LOCTECH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND LOCTECH MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATIONS OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LOCTECH ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE-HALF OF THE TOTAL ANNUAL FEE PAID TO LOCTECH UNDER THIS AGREEMENT IN PERIOD DURING WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL LOCTECH OR ANY OF ITS LICENSORS, SERVICE LOCTECHS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. TERM AND TERMINATION
12.1. Term. Unless otherwise provided in the applicable Order Form or Documentation, the Services are purchased as subscriptions for the term stated in the applicable Order From, or if no term is stated, then the initial term of this Agreement commences as of the Effective Date and continues for one (1) year, unless earlier terminated pursuant to this Agreement and will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or if written notice is provided at least thirty (30) days prior to the expiration of the then-current services period. Upon any timely notice of non-renewal, Client shall continue to have access to the Services until the end of the then-current term, and any fees will continue to be due and payable until the end of the then-current term. Client acknowledges that no refunds will be given for any portion of the Services.
12.2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement, LocTech may terminate this Agreement, effective on written notice if Client: (a) fails to pay any amount when due hereunder; (b) breaches any of its obligations under Section 3, Section 5.1 , or Section 7 ; (c) breaches this Agreement; or (d) (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. LocTech may terminate this Agreement without cause by providing Client with prior written notice.
12.3. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all
rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Client shall immediately cease all use of any Services or LocTech Materials; (c) LocTech may disable all Client and Authorized User access to the LocTech Materials. No expiration or termination of this Agreement will affect Client’s obligation to pay all amounts due hereunder, or entitle Client to any refund.
12.4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should
survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 7 , Section 8.3, Section 8.4 Section 9.2 , Section 10 , Section 11 , Section 12.3 , this Section 12.4 , and Section 13 .
13. MISCELLANEOUS
13.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.2. Notices. Any notices to the LocTech must be sent to its corporate headquarters at the address available at our Website and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, Client hereby consents to receiving electronic communications from the LocTech. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Client agrees that any notices, agreements, disclosures, or other communications that the LocTech sends to Client electronically will satisfy any legal communication requirements, including that such communications be in writing.
13.3. Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy located at www. locationtech.com/privacy-policy (“Privacy Policy”), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
13.4. Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without LocTech’s prior written consent. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.4 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
13.5. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.6. Modification; Waiver. Client acknowledges and agrees that the LocTech has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Client will be notified of modifications through notifications or posts on our Website. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.8. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
13.9. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
13.10. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.11. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Client, Section 3, Section 4.4 , Section 5.1 , or Section 8 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.