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License and Support Agreement

Once signed by Client, the quote shall constitute an acceptance of the terms and conditions outlined in this license and support agreement. This agreement is between Active Navigation, Inc. dba ActiveNav a Delaware corporation (ActiveNav) and the customer accepting the quote (Customer), effective as of the date of the last signature on the quote. The ActiveNav software, updates, documentation, and license keys provided to Customer (Software) are licensed and are not sold.

  1. SCOPE. This agreement describes the licensing of the Software and Support services.
  2. LICENSE. Subject to the other terms of this agreement, ActiveNav grants Customer, under an order, a non-exclusive, non-transferable license for the duration specified and up to the license capacity purchased to:
    1. Use the Software only in Customer’s internal business operations; and
    2. Make one copy of the Software for archival and backup purposes.

    Third party contractors and Affiliates of Customer may use and access the Software under the terms of this agreement. Customer is responsible for their compliance with the terms of this agreement. Affiliate means any company controlled by or under common control with Customer, directly or indirectly, with an ownership interest of at least 50%.

  3. RESTRICTIONS. Customer may not:
    1. Transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service provider environment;
    2. Reverse engineer, decompile, disassemble, or translate the Software; or
    3. Evaluate the Software for the purpose of competing with ActiveNav.
  4. PAYMENT. Customer will pay all fees within 30 days of receipt of an invoice, unless otherwise provided on an order, plus applicable sales, use and other similar taxes.
  5. PROPRIETARY RIGHTS AND MUTUAL CONFIDENTIALITY
    1. Proprietary Rights. The Software, workflow processes, user interface, designs, know-how and other technologies provided by ActiveNav as part of the Software are the proprietary property of ActiveNav and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with ActiveNav and its licensors. The Software is protected by copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. ActiveNav reserves all rights not expressly granted.
    2. Mutual Confidentiality. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this agreement.
      • Confidential Information means all information that is disclosed to the recipient (Recipient) by the discloser (Discloser), and includes, among other things:
        • any and all information relating to products or services provided by a Discloser, software code, flow charts, techniques, specifications, and software roadmap;
        • as to ActiveNav the Software and the terms of this agreement, including without limitation, all pricing information
      • Confidential Information excludes information that:
        • was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser;
        • is or becomes a matter of public knowledge through no fault of Recipient;
        • is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or
        • is independently developed by or for Recipient without use or access to the Confidential Information.

      Recipient may disclose Confidential Information if required by law, but it will attempt to provide notice to the Discloser in advance so it may seek a protective order. Each party acknowledges that any misuse of the other party’s Confidential Information may cause irreparable harm for which there is no adequate remedy at law. Either party may seek immediate injunctive relief in such event.

  6. WARRANTY.
    1. SOFTWARE PERFORMANCE WARRANTY ActiveNav warrants that the Software will perform in substantial accordance with its accompanying technical documentation for a period of 90 days from the date of the order. This warranty will not apply to any problems caused by software not licensed to Customer by ActiveNav, use other than in accordance with the technical documentation, or misuse of the Software. The warranty only covers problems reported to ActiveNav during the warranty period or 30 days after. Customer will cooperate with ActiveNav in resolving any warranty claim. ActiveNav will use commercially reasonable efforts to remedy covered warranty claims within a reasonable period of time or replace the Software, or if ActiveNav cannot do so it will refund to Customer the license fee paid. THIS REMEDY IS CUSTOMER’S EXCLUSIVE REMEDY, AND ACTIVENAV’S SOLE LIABILITY FOR THESE WARRANTY CLAIMS.
    2. DISCLAIMER OF WARRANTIES. ACTIVENAV DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS THAT THE SOFTWARE MAY NOT BE ERROR FREE AND USE MAY BE INTERRUPTED.
  7. TERMINATION. This agreement expires at the end of the license period specified in the order. Either party may terminate this agreement upon a material breach of the other party after a 30 days’ notice/cure period, if the breach is not cured during such time period. Upon termination of this agreement or a license, Customer must discontinue using the Software, de-install and destroy or return the Software and all copies, within 5 days. Upon ActiveNav’s request, Customer will provide written certification of such compliance.
  8. ANNUAL SUPPORT. ActiveNav’s annual technical support and maintenance services (Support) may be purchased under an order. Support may be provided in subsequent years if Customer and ActiveNav agree on the support renewal for that year. Support is provided under the Support policies then in effect. ActiveNav may change its Support terms, but Support will not materially degrade during any Support term. Full details of our Support Terms can be found at http://support.activenav.com/
  9. LIMIT ON LIABILITY. There may be situations in which (as a result of material breach or other liability) Customer is entitled to make a claim against ActiveNav. In each situation (regardless of the form of the legal action (e.g. contract or tort claims)), ActiveNav is not responsible for any damage and does not have any liability beyond the greater of the amount paid or payable by Customer to ActiveNav within the 12 months prior to the event that gave rise to the claim. Even if it knows of the possibility of such damage or liability, in no circumstance is ActiveNav responsible for any: loss of, or damage to, data or information; lost profits, revenue, or productivity; or other special, consequential, incidental or indirect damages.
  10. DEFENSE OF THIRD PARTY CLAIMS. ActiveNav will defend or settle any third party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies ActiveNav of the claim in writing, cooperates with ActiveNav in the defense, and allows ActiveNav to solely control the defense or settlement of the claim. Costs. ActiveNav will pay infringement claim defense costs incurred as part of its obligations above, and ActiveNav negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then ActiveNav may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If ActiveNav determines that none of these are reasonably available, then ActiveNav may terminate the Software and refund (as applicable) any prepaid and unused fees subscription license, Support and service fees. Exclusions. ActiveNav has no obligation for any claim arising from: ActiveNav’s compliance with Customer’s specifications; A combination of the Software with other technology where the infringement would not occur but for the combination; or Technology not provided by ActiveNav. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ACTIVENAV’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
  11. GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the laws of the State of Virginia (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Fairfax County, VA and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party. UCITA as adopted in Virginia does not apply.
    1. Entire Agreement. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.
    2. Non-Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all of the business or assets, of a party.
    3. Independent Contractors. The parties are independent contractors with respect to each other.
    4. Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
    5. Survival of Terms and Force Majeure. All terms that by their nature survive termination of this agreement for each party to receive the benefits and protections of this agreement, will survive. Neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
    6. Compliance Audit. No more than once in any 12-month period and upon at least 30 days advance notice, ActiveNav (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
    7. Modification Only in Writing. No modification or waiver of any term of this agreement is effective unless signed by both parties.
    8. Export Compliance. Each party will comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations.
    9. US GOVERNMENT Restricted Rights. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. government or any agency thereof is subject to restrictions as set forth in subparagraph (c)(I)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
    10. No PO Terms. ActiveNav rejects additional or conflicting terms of a Customer’s form-purchasing document.