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Standard Terms and Conditions of Getac Software License Agreement

 

This Standard Terms and Conditions of Getac Software License Agreement are set for all the transactions of Getac Software. Getac Technology Corporation, a Taiwanese corporation with its principal place of business at 5F, Building A, No. 209, Section 1, Nangang Road, Nangang District, Taipei City, Taiwan, R.O.C. (“Getac”) is the sole Licensor to grant the limited right as described in this Agreement to all the users who purchase Getac Software directly or indirectly(“Client”) from Getac

The terms and conditions of this license are as the followings:

 

1. License Grant.

1.1 Software License. (“Getac”) hereby grants to Clients a non-exclusive, non-transferable, non-sublicensable, irrevocable license of Getac Software Products (“the Software”) to use the Software.

1.2 No Other Rights. Getac reserves for itself all other rights and interest not explicitly granted under this agreement.

1.3 Scope of the Software. “The Software” means one of the following packages of Getac Software, as indicated at the document such as purchase order or quotation signed by Clients and accepted by Getac or one of Getac’s Reseller:

1.3.1 Getac Driving Safety Utility, a pure software screen blanking solution that helps to avoid distracted driving while the vehicle is on the move.

1.3.2 Getac KeyWedge Barcode Reader Utility, a software solution developed to provide end users an efficient, easy-to-implement, and cost-effective data input.

1.3.3 Getac Device Management System (GDMS), a cloud base system which includes web service, database, computing algorithm and client agent that allows corporations to manage and monitor the health condition of endpoint devices of Getac and help to spot potential issues proactively.

 

2. Support Services.

2.1 Support.

2.1.1 Initial Support. For the 37 months period starting on the date of the First Installation of the Software, and at Getac’s own expense, Getac shall provide Client with the following support:

2.1.1.1 Troubleshooting Service. Electronic support during Getac’s normal business hours in order to help Client locate and correct problems with the Software, and internet-based support system generally available seven days a week, twenty-four hours a day. The contact information is as the followings: eMail Addresses: Getac-SWSupport@getac.com

2.1.1.2 Updates. Getac shall provide Client, at Getac’s sole expense, with all updates, extensions, enhancement, modifications, and other changes Getac makes or adds to the Software and which Getac offers to other licensees of the Software.

2.1.1.3 Fixes and Patches. Getac shall provide Client, at Getac’s sole expense, with bug fixes and code corrections to correct Software malfunctions and defects in order to bring the Software into substantial conformity with its operating specifications.

 

3. Restricted Uses.

3.1 General Restrictions. Client shall not distribute, license or sublicense, loan, or sell the Software or other content that is contained or displayed in it, modify, alter, or create any derivative works from the Software, reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software, remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software.

3.2 License for Single Getac Device. The Software is licensed for single Getac device, Client shall not transfer the Software to another Getac or non-Getac device.

3.3 Special Restriction for GDMS. Clients of GDMS shall not upload any personal data onto the database for GDMS.

 

4. Permitted Uses

4.1 Installation. Client may install and use the Software solely for internal business use at a single Getac device.

4.2 Backup and Archival Copies. Client may make one copy of the Software solely for backup or archival purposes.

4.3 Transfers by Warranty. Client may transfer the Software from a Getac device which is replace under Getac Warranty to another Getac device.

 

5. Effective Date.

This Agreement shall be effective on the date that as indicated at the document such as purchase order or quotation signed by Clients and accepted by Getac or one of Getac’s Reseller at the document signed by Client Getac accept the Client’s Purchase Order.

 

6. Representations

6.1 Mutual Representations

6.1.1 Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.6.1.2 Authority and Capacity. The parties have the authority and capacity to enter into this agreement.

6.1.3 Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.

6.1.4 No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party’s performance of its obligations under this agreement.

6.1.5 No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under

6.1.5.1 its articles, bylaws, or any unanimous shareholders agreement,6.1.5.2 any Law to which it is subject,

6.1.5.3 any judgment, Order, or decree of any Governmental Authority to which it is subject, or

6.1.5.4 any agreement to which it is a party or by which it is bound.

6.1.6 Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to

6.1.6.1 own, lease, and operate its properties, and;6.1.6.2 conduct its business as it is now carried on.

6.1.7 No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.

6.2 Getac’s Representations

6.2.1 Ownership of Intellectual Property. Getac is the owner of all Intellectual Property rights included in the Software and granted under in the Software, and has the exclusive right to grant the license of the Software.6.2.2 Maintenance of Intellectual Property. Getac has properly maintained all its Intellectual Property rights licensed under the Software, including paying all applicable registration and maintenance fees.

6.2.3 No Infringement. To Getac’s best knowledge, the Software does not infringe the Intellectual Property rights or other rights of any third party.

6.2.4 No Third Party Infringement. To Getac’s best knowledge, no third party is infringing its Intellectual Property rights in the Software.

 

7. No Warranty

7.1 “As-Is”. The Software is provided “as is,” may contain certain faults, defects, bugs, and errors.

7.2 No Warranty.
Getac does not make any warranty regarding the Software, which includes that Getac disclaims to the fullest extent authorized by Law any and all other warranties, whether express or implied, including any implied warranties of title, non-infringement, quiet enjoyment, merchantability or fitness for a particular purpose.

 

8. Intellectual Property.

Getac will retain exclusive interest in and ownership of its Intellectual Property rights in and to the Software and expressly reserves all rights not expressly granted under this agreement.

 

9. Compliance with Laws.

Each party shall comply with all applicable Laws, and notify the other party if it becomes aware of any non-compliance in connection with this section.

 

10. Confidentiality.

Each party shall keep confidential and not disclose to any information disclosed and notified by the other party as confidential, except as expressly permitted herein, (“Confidential Information”), but excluding information which (a) is or becomes generally known or available through no act or failure to act by the receiving party; (b) is already known by the receiving party as evidenced by its written records; or (c) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.

 

11. Publicity

11.1 Consent. Neither party will use the other party’s name, logo, or trademarks, or issue any press release or public announcement regarding this agreement, without the other party’s written consent, unless specifically permitted under this agreement or required by Law.

 

12. Termination

12.1 Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and the failure, inaccuracy, or breach continues for a period of ten (10) Business Days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.

12.2 Termination of License Grant. On the expiration or termination of this agreement, the license of the Software granted under this agreement will terminate with immediate effect.

 

13. Indemnification

13.1 Indemnification by Client. Client (as an indemnifying party) shall indemnify Getac (as an indemnified party) against all losses and expenses in connection with any proceeding arising out of Client’s unauthorized customization, modification, or other alterations to the Software, including claims that its customization, modification, or other alterations infringe a third party’s Intellectual Property rights,

13.2 Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses in connection with any proceeding arising out of the indemnifying party’s willful misconduct or gross negligence.

13.3. Notice and Failure to Notify

13.3.1 Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.13.3.2 Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.

13.4 Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section 13.

13.5 Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

 

14. General Provisions

14.1 Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement, represent the final expression of the parties’ intent relating to the subject matter of this agreement, contain all the terms the parties agreed to relating to the subject matter, and replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.

14.2 Amendment. This agreement can be amended from time to time via Getac’s digital websites.

14.3 Relationship of the Parties

14.3.1 No Relationship. Nothing in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.14.3.2 No Authority. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner.

14.4. Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.

14.5 Notices

14.5.1 Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.14.5.2 Receipt of Notice. A notice given under this agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the fifth (5th) business day after mailing it.

14.6 Governing Law and Jurisdiction

14.6.1 This Agreement shall be governed by and construed in accordance with the law of the State of Delaware in the United States of America as to matters within the scope thereof, without regard to its principles of conflicts of laws.14.6.2 Any dispute, controversy or, claim or difference of any kind whatsoever arising out of, relating to or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof, the validity, scope and enforceability of this arbitration provision and any dispute regarding the contractual obligations arising out of or relating to it (the “Dispute”) shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the AAA Arbitration Rules in force at the time of the notice of arbitration is submitted.

14.6.3 The law of this arbitration clause shall be the law of the State of Delaware in the United States of America law. The seat of arbitration shall be in the State of Delaware in the United States of America.

14.6.4 The number of arbitrators shall be one (1) to be appointed in accordance with the AAA Arbitration Rules. The language of the arbitration proceedings and written decisions or correspondence shall be English.

14.6.5 Any party to the Dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the tribunal.

14.7 Equitable Relief
Either party acknowledges that Confidential Information and both parties’ Trademarks have unusual and extraordinary value, and that unauthorized disclosure or use of Confidential Information by the receiving party and infringement or unauthorized use of the other’s Trademarks will cause the disclosing party, as applicable, great and irreparable harm, for which remedies available at law are inadequate. Therefore, the disclosing party, as applicable shall be entitled to injunctive and other equitable relief, including, but not limited to, specific performance, to prevent a breach, continued breach or threatened breach of Section 12 of this Agreement, in addition to any appropriate monetary damages available at law.

14.8 Waiver
No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Any waiver (express or implied) by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

14.9 Force Majeure.
Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

14.10 Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

14.11 Survival. The parties’ obligations under sections 12 will survive the termination of this agreement for a period of three (3) years.

14.12 Headings. The section headings contained in this agreement are for reference purposes only and shall not affect the meaning or interpretation of this agreement.

14.13 Attorney Fees. If either Client rings an Action to enforce their rights under this agreement, the prevailing party may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the Action and any appeal from the losing party.