Software Licensing Agreement

WHEREAS, Park Assist has developed the Perpetual Software and the Subscription Software and has agreed to license the Perpetual Software to the Customer and to make the Subscription Software available to the Customer with respect of the Site on the terms and subject to the conditions set out in this Agreement.

WHEREAS, the Customer has agreed to the terms and conditions set out in this Agreement governing the Customer’s use of the Perpetual Software and the Subscription Software with respect of the Site.

1. SCOPE AND DEFINITIONSUnless otherwise defined in this Section 1, the capitalized terms used in this Agreement shall be defined in the context in which they are used. 
   
   1. “Administrator”
      Means an Authorized User designated by the Customer who is authorized to (a) create Authorized User accounts; and (b) otherwise administer the Customer’s use of the Subscription Service.
   2. “Authorized Users”
      Are any individual employee, agent or contractor of Customer that pursuant to a Sales Order may exercise the rights under this Agreement on behalf of the Customer and for whom access to the Subscription Software has been purchased hereunder.
   3. “Confidential Information”
      Means all confidential data or information in any form disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) by any means that is designated as confidential. As a non-exhaustive list of examples, Confidential Information includes Data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product and device prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, manufacturing processes, source code of proprietary software, the content of unpublished patent applications, customer lists, vendor lists, internal cost data, the terms of contracts with employees and third parties. Information may be Confidential Information regardless of the medium or manner by which it is disclosed, including disclosures orally or via printed or handwritten document, email or other electronic messaging, fax or telephone.
   4. “Customer Data”
      Means any electronic data, information or material provided or submitted by the Customer in the course of using a Service. For the avoidance of doubt, Customer Data does not include data and information related to Customer’s use of the Subscription Software that is used by Park Assist in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Software, or any other information reflecting the access or use of the Subscription Software by or on behalf of Customer or any Authorized User.
   5. “Customer Infrastructure”
      Means any information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or hosted through the use of third-party services, on which Software is installed or will be installed.
   6. “Delivery Date”
      Means the date the Perpetual Software was delivered or is to be delivered to the Customer pursuant to an applicable Sales Order.
   7. “Documentation”
      Means the standard manuals, tutorials, reference materials and similar materials, whether in print or electronic format, ordinarily provided by Park Assist to customers that describe the functionality of the Subscription Software and the Perpetual Software.
   8. “EULA”
      Means the applicable End User License Agreement that is entered into between Customer’s Authorized Users and Park Assist with respect to Customer’s license and use of the Installed Products, SaaS-Delivered Products and Subscription Software.
   9. “Hosted Environment”
      Means the facility and computer and other systems in which Park Assist holds its data and runs its programs to provide the Subscription Software to Customer.
   10. “Installed Products” 
       Means the Perpetual Software and all other hardware and firmware purchased or to be purchased by Customer and installed at the Site by Park Assist, its subsidiary entities or agents of any of them.
   11. “Intellectual Property Rights”
       Are the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, public perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
   12. “License”
       Has the meaning given such term in Section 3.
   13. “Personal Information”
       Shall mean any information or data that alone or together with any other information relates to an identified or identifiable natural person or data considered to be personal data as defined under applicable law, including Personally Identifiable Information as defined under applicable law.
   14. “Perpetual Software”
       Means the software described in a Sales Order, being Park Assist proprietary software application that is or shall be installed on the Customer Infrastructure.
   15. “Purpose”
       Means the core functionality of the Perpetual Software and/or the Subscription Software as set out in the Sales Order.
   16. “SaaS-Delivered Products”
       Means the Subscription Software and any software or support provided via a SaaS delivery model as identified in a Sales Order.
   17. “Sales Order”
       Means an order issued by Park Assist for the Perpetual Software and/or one or more Subscription Software that shall be in writing and agreed between the Parties, which shall then be deemed to become part of this Agreement.
   18. “Service Level Agreement”
       Means the Service Level Agreement relating to Subscription Software, as updated by Park Assist from time to time, located at inx.parkassist.com.
   19. “Site”
       Shall have the meaning given such term in a Sales Order.
   20. “Software Catalogue”
       Means the Park Assist Software Catalogue which is made available on inx.parkassist.com and outlines all of the Perpetual Software and the Subscription Software and the fees associated with each of them, which Park Assist may change from time to time.
   21. “Subscription Fee”
       Shall have the meaning given such term in a Sales Order, and shall be subject to the provisions of Section 9 herein.
   22. “Subscription Software”
       Means the services described in a Sales Order, operated and maintained by Park Assist, and made accessible via a web site or IP address designated by Park Assist from time to time, or ancillary online or offline software products provided to the Customer (and its Authorized Users) in respect of the Site.
   23. “Subscription Term” 
       Has the meaning given such term in Section 14.1.
   24.  “Update”
       Means any change to the Perpetual Software including improvements, bug fixes and patches that Park Assist generally makes available to all licensees of the Perpetual Software. This is typically referred to as a minor point release.
   25.  “Upgrade”
       Means amendments or variations to the Perpetual Software provided by Park Assist from time to time to all licensees. This is typically referred to as a major point release.
2. EULA AND SALES ORDERSTo implement the Customer’s license and use of the Installed Products, SaaS-Delivered Products and Subscription Software, the Customer hereby approves, and its Authorized Users shall execute, an applicable EULA. During the term of this Agreement, the Parties may enter into Sales Orders allowing Customer to procure the rights to license the Perpetual Software and/or access to and use of the Subscription Software. This Agreement may accommodate multiple Sales Orders, and each Sales Order shall be incorporated into and become a part of this Agreement once agreed by Park Assist and Customer. In the event of any conflict between the provisions of this Agreement and the terms of any Sales Order(s), the conflict shall be resolved in the following order of priority of interpretation: (a) the Sales Order(s); and (b) this Agreement.
3. PERPETUAL SOFTWARE LICENSE GRANT
   1. License Grant
      Subject to the terms and conditions of this Agreement, and any applicable EULA and Customer’s and its Authorized Users’ compliance therewith, and in consideration for the payment of the license fee described in any Sales Order(s) under this Agreement, Park Assist hereby grants to Customer a perpetual, limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to: (a) install, use and execute the Perpetual Software (i) for Customer’s internal purposes only, (ii) on the maximum number of instances set forth in the applicable Sales Order, and (iii) on the Customer Infrastructure located at the Site; and (b) use and make a reasonable number of copies of the Documentation related to the Perpetual Software for internal use (collectively, the “License”).
   2. License is Limited to Available Version as of Delivery Date, Revised as to Future Versions; Purpose. 
      Customer expressly acknowledges and agrees that Park Assist shall be deemed to have fulfilled its obligations for delivery of Perpetual Software under this Agreement by delivering to Customer the version of the Perpetual Software that is the current version as of the Delivery Date. Furthermore, Customer acknowledges and agrees that Park Assist makes no representation or warranty about the Perpetual Software beyond that it will meet the Purpose. The Customer further acknowledges and agrees that the license granted herein does not entitle Customer to the delivery of any future functionality or features, except as otherwise expressly agreed between the Parties in writing. Park Assist will make all Updates, Upgrades and bug fixes to the Perpetual Software available for the Customer to install while the Customer has at least one active subscription in respect of a Subscription Software. 
   3. Direct Use
      The Perpetual Software and/or Support Services that may be provided by Park Assist pursuant to this Agreement and/or any Sales Order shall be solely for Customer’s internal business purposes and not for the benefit of any third party. Customer shall not use or access the Base Software on an application service provider (“ASP”) basis or as a software-as-a-service offering or allow any third party to do the same.
   4. Backup
      he Customer may install one additional instance of the Base Software in a disaster recovery or testing environment, and such instance is not counted for the purposes of calculating whether the Customer has reached the maximum number of instances applicable to the Perpetual Software referred to in Section 3.1.
   5. Customer Infrastructure
      The Perpetual Software is licensed for use on the Customer Infrastructure only.
   6. Additional Instances.
      If the Customer wishes to install additional instances of Perpetual Software in live production, the Customer may do so provided that the Customer obtains prior written consent from Park Assist.
4. SUBSCRIPTION SOFTWARE
   1. Access Rights
      Pursuant to the terms of an applicable Sales Order, Customer may subscribe to and receive access to the Subscription Software. The Subscription Software shall be delivered pursuant to the terms of a Sales Order requiring Customer to pay any required upfront Subscription Fee(s) prior Park Assist providing the Subscription Software to Customer via Park Assist’s web site and/or other secure, Hosted Environment. Customer understands that this Section 4 grants certain rights of access only, and that nothing in this Section 4 may be interpreted to require delivery of any software to Customer or installation of any software on any Customer Infrastructure or any other computers or systems.
   2. Procedures and Technical Protocols
      Park Assist will specify to Customer in writing procedures according to which Customer and its Authorized Users may establish and obtain access to and use the features and functions of the Subscription Software, including, without limitation, provision of any access codes, passwords, technical specifications, penetration testing, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to enable Customer’s Authorized Users to obtain access to the Subscription Software via the Internet.
   3. Service Level Agreement
      During the term of this Agreement, Park Assist will ensure that it complies with the terms of the Service Level Agreement in respect of the Subscription Software.
5. SUBSCRIPTION SOFTWARE
   1. 
      User represents that he/she has been duly authorized by Customer to access and use the Software, Services and Documentation hereunder.
   2. DISCLAIMER. 
      THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PERFORMED OR PROVIDED BY PARK ASSIST ARE PERFORMED AND PROVIDED “AS IS,” AND PARK ASSIST DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. PARK ASSIST DOES NOT WARRANT THAT THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL SERVICES PERFORMED BY PARK ASSIST WILL MEET CUSTOMER’S OR USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL SERVICES PERFORMED BY PARK ASSIST WILL OPERATE IN CUSTOMER’S, USER’S OR ANY COMPUTER ENVIRONMENT, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
6. INDEMNIFICATION.
   1. User’s Indemnity Obligations.
      User agrees to indemnify, defend and hold harmless Park Assist from and against any and all losses, liabilities, costs, expenses (including reasonable attorneys’ fees) or damages resulting from any claim by any third party based upon or arising from (a) User’s gross negligence or willful misconduct; (b) User’s infringement, misappropriation or violation of any third-party proprietary right, including copyright, patent, trade secret, right of publicity, right of privacy, and trademark rights, or other violation of rights arising from the use of the Software or Services by User.
7. DISCLAIMER OF LIABILITY.
   1. 
      IN NO EVENT WILL PARK ASSIST OR ANY OF ITS SERVICE PROVIDERS ENGAGED IN CONNECTION WITH THE SOFTWARE OR SERVICES CONTEMPLATED FOR USE HEREIN BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR SERVICE. YOU ARE PROVIDED THE SOFTWARE, SERVICES AND DOCUMENTATION PURSUANT TO THE DEFINITIVE AGREEMENT BETWEEN PARK ASSIST AND CUSTOMER, SOLELY FOR THE BENEFIT OF CUSTOMER AND AT CUSTOMER’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THE DEFINITIVE AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY  PARK ASSIST OR ANY OF ITS SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE, SERVICES OR DOCUMENTATION SHALL BE SOLELY TO CUSOMER PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.
8. TERM AND TERMINATION.
   1. Term of Agreement.
      This Agreement shall become effective when the User indicates its agreement to the terms and conditions hereof and, except as specified herein, will remain in effect for the shorter of a) the length of the term (or any renewal term) of the Definitive Agreement, or b) the length of time that User is a duly authorized User designated by the Customer. Park Assist reserves the right to terminate this Agreement if User breaches any term or condition of this Agreement.
   2. Consequences of termination.
      Effective immediately upon expiration or termination of this Agreement, all access rights and licenses granted under this Agreement will become void, and User shall have no continuing rights to use any Confidential Information.