SmartRoute End User License Agreement (Terms & Conditions)

1. BINDING AGREEMENT

BY ACCEPTING THESE “TERMS AND CONDITIONS,” EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS, YOU AGREE TO THESE TERMS AND CONDITIONS AND THE TERMS AND CONDITIONS OF THE ORDER FORM (TOGETHER, THE “AGREEMENT”), WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU (“CUSTOMER,” “YOU,” OR “YOUR”) AND GREENLIGHT TECHNOLOGIES, INC. (“GREENLIGHT” or “WE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE SMARTROUTE.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE SEE SECTION 13.8 FOR MORE INFORMATION REGARDING DISPUTE RESOLUTION.

UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN SECTION 14 BELOW.

2. License Grant & Restrictions

2.1. Customer License to Use Greenlight’s Route Optimization Service (SmartRoute). Subject to the terms and conditions of this Agreement, Greenlight hereby grants you a limited, non-exclusive, non-sublicensable, revocable (in accordance with this Agreement), non-transferable, worldwide right to use the version of SmartRoute selected by you in the Order Form, solely for your own internal business purposes. By way of clarification, the right to “use” SmartRoute means the right to access and operate SmartRoute in accordance with any Documentation. To the extent you have selected in the Order Form to subscribe for Services which requires a client component, upon receipt of the applicable Fees, (i) the applicable client software will be delivered by electronic download or other means mutually agreed upon by the parties, and (ii) you may make copies of such software for use, backups, tests, and training environments; provided that Greenlight’s copyright and proprietary rights notices are maintained on such copies. You may allow Users to use SmartRoute in accordance with this Agreement. However, you acknowledge that (a) you will communicate to Users your obligations under this Agreement and (b) you will be responsible for the acts and omissions of Users with respect to their use of SmartRoute (i.e., a violation of the terms of this Agreement by a User shall be held a breach of this Agreement by you). All rights not expressly granted to you are reserved by Greenlight and its licensors. The license granted under this Section 2.1 is conditioned on your continued compliance with this Agreement (including, without limitation, User compliance with restrictions and obligations set forth herein).

2.2. Restrictions. You may not access SmartRoute if you are a direct competitor of Greenlight, except with Greenlight’s prior written consent. In addition, you may not access SmartRoute for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Without limiting the foregoing provisions of this Section 2.2, you shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party SmartRoute or Greenlight Materials in any way; (ii) modify or make derivative works based upon SmartRoute or Greenlight Materials; (iii) create Internet “links” to SmartRoute or “frame” or “mirror” any Greenlight Materials on any other server or wireless or Internet-based device; (iv) reverse engineer SmartRoute; or (v) access SmartRoute in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of SmartRoute, or (c) copy any ideas, features, functions or graphics of SmartRoute.

2.3. Term and Termination.

2.3.1. Term; Termination. This Agreement shall be effective throughout the Term (as defined in the Order Form). Subject to the Fee provisions set forth in the Order Form, at any time following 90 days from the Effective Date, either party may terminate the Agreement for convenience (i.e., for any reason or no reason) by providing the other party at least thirty (30) days prior written notice. If either party breaches in any material respect any of its obligations under this Agreement, in addition to any other right or remedy, the non-breaching party may terminate this Agreement in the event that the breach is not cured within seven (7) days after receipt by that party of written notice of the breach.

2.3.2. Effect of Expiration or Termination.  All licenses granted in favor of you shall terminate upon the expiration or termination of this Agreement, for any reason. Those provisions of this Agreement which by their nature should survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement (e.g., indemnification, disclaimer of warranties, limitation of liability). To the extent you are hosting any of the software underlying SmartRoute, you will remove all such software underlying SmartRoute within your control upon the effective date of expiration of termination of this Agreement.

3. Your Responsibilities.

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of SmartRoute.

You are also responsible for assuring any routing, directions, or mapping provided via SmartRoute are safe for your fleet vehicles and drivers.  SmartRoute leverages third-party services (i.e.,   Google Maps) to provide routing instructions and calculate driving and delivery times.  These third-party services may not include all possible safety information pertaining to specific vehicles, including but not limited to bridge height and capacity, road width, road obstructions, road construction, road conditions, and weather.  You hereby acknowledge and agree that you remain solely responsible for determining if the routes returned to you by SmartRoute are appropriate and safe for your specific fleet vehicles and drivers.

4. Proprietary Rights.

4.1. Greenlight Materials and Services. Greenlight alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Greenlight Materials and SmartRoute and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to SmartRoute. This Agreement is not a sale of, and does not convey to you any rights of ownership in or related to, SmartRoute, the Greenlight Materials or the Intellectual Property Rights embodied therein.

4.2. Trademarks. Greenlight owns all right, title and interest in and to the Greenlight Marks and any goodwill arising out of the use of the Greenlight Marks will remain with and belong to Greenlight. The Greenlight Marks may not be copied, imitated or used, in whole or in part, without the prior written consent of Greenlight Customer may not use any metatags or any other “hidden text” utilizing “Greenlight”, “SmartRoute” or any Greenlight Mark without the prior written consent of Greenlight. At no time will Customer challenge or assist others to challenge any Greenlight Marks or the registration thereof or attempt to use or register any trademarks or trade names confusingly similar to those of Greenlight or its affiliates. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Greenlight website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Greenlight.

4.3. Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, Greenlight’s Intellectual Property Rights. Without limiting the generality of the foregoing, Customer will: (i) not make SmartRoute or Greenlight Materials available to any third party without the prior written consent of Greenlight; and (ii) otherwise use its best efforts to prevent any Unauthorized Use. Customer will immediately notify Greenlight of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use of SmartRoute in connection with Customer’s account, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify Greenlight of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. Greenlight may, at its option and expense, assume control of such proceeding. If Greenlight assumes such control, Greenlight will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as Greenlight may reasonably request. Customer will assist Greenlight in enforcing any settlement or order made in connection with such proceeding.

4.4. Customer-Furnished Items. Except for any license or other right expressly granted under this Agreement, Customer reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in the Customer Data. Except as otherwise agreed upon by the parties in writing, no title to or ownership of any Customer Data is transferred to Greenlight under this Agreement. Customer hereby grants to Greenlight a nonexclusive, royalty-free license to use the Customer Data as reasonably required for Greenlight to perform its obligations in accordance with this Agreement. Customer warrants that it has the right to make the Customer Data available to Greenlight as provided for in this Agreement.

5. Fees.

5.1. Amount. Customer will pay Greenlight the fees, reimbursable expenses, compensation and other amounts specified in the applicable Order Form and these Terms and Conditions (collectively, the “Fees”) in accordance with the payment terms specified therein and these Terms and Conditions respectively. You acknowledge that you must pay all charges in advance unless otherwise mutually agreed upon in an Order Form. You agree to provide Greenlight with complete and accurate billing and contact information. To the extent you provide a credit card or bank account information to Greenlight, you grant Greenlight permission to recover amounts owed by debiting/charging such credit card or bank account. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 60 days of any change to it. If the contact information you have provided is false or fraudulent, Greenlight reserves the right to terminate your access to SmartRoute in addition to any other legal or equitable remedies it may possess. All amounts payable under this Agreement are denominated in United States Dollars. Customer will pay all such amounts in lawful currency of the United States. All invoices are final and you may not request a credit or adjustment unless you contact Greenlight in writing within 30 days of the invoice date of the invoice containing the amount in question. If you terminate this Agreement for any reason other than Greenlight’s material breach of this Agreement, or Greenlight terminates this Agreement due to your material breach of this Agreement, you will be responsible for all Fees that accrued prior to the termination date and any Fees that would have accrued for the duration of the Initial Term or any Renewal Term but for the termination of this Agreement.

5.2. Other Fees; Taxes. Services not clearly identified in this Agreement will be charged on an as-quoted basis. Unless otherwise indicated in an Order Form, the Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Greenlight’s income.

5.3. Late Payments. In addition to any other rights granted to Greenlight herein, Greenlight reserves the right to suspend or terminate this Agreement and your access to SmartRoute if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection (including reasonable attorneys’ fees). You will continue to be charged for User licenses during any period of suspension, and Greenlight reserves the right to impose a reactivation or reconnection fee in the event you are suspended and thereafter request access to SmartRoute.

6. Representations & Warranties; Disclaimer.

6.1. Representations and Warranties. Each party represents and warrants to the other that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to SmartRoute and that your billing information is correct.

6.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

7. Indemnification.

7.1. By Greenlight. Greenlight shall defend at its expense any third-party suit or proceeding brought against you to the extent that such suit or proceeding is based on any claim that Greenlight Materials infringe any United States patent issued as of the date of this Agreement. We will pay any finally settled or court imposed damages and costs finally awarded against you provided that (i) We are promptly notified by you in writing of such claim, and (ii) We are given full authority, information, and assistance by you to defend and settle the matter. We shall have the right and option at any time, in order to avoid such claims or actions and minimize potential liability, to (a) procure for you the right to use the allegedly infringing Greenlight Materials, (b) modify the Greenlight Materials so that they are non-infringing, or (c) replace the allegedly infringing Greenlight Materials with non-infringing Greenlight Materials. Notwithstanding the foregoing, we will not indemnify you for claims regarding Greenlight Materials if you alter the Greenlight Materials or uses the Greenlight Materials outside the license and scope of use identified in this Agreement, nor will we indemnify you to the extent that an infringement claim is based upon any information, design, specification, instruction or other material not provided by us or a combination of the Greenlight Materials with any products or services not provided by us.

7.2. By Customer. You will defend, indemnify and hold harmless Greenlight and its employees, officers, directors and affiliates (collectively the “Greenlight Parties”) from and against any third-party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (i) unauthorized use of SmartRoute by you or any Users; (ii) violation of any terms of this Agreement by you or any Users; or (iii) any alleged or actual infringement, violation, or misappropriation of any intellectual property rights, by you, your agents or representatives, or by Users related to any Customer Data. You will provide Greenlight prompt written notice of any assistance you may reasonably request to help you defend any claim subject to this paragraph. You will pay or reimburse all of the costs and expenses reasonably incurred by Greenlight in connection with any such assistance. You will not have any right to settle any claim without Greenlight’s written consent. Greenlight will have the right to approve the counsel you select for defense of any claim. Further, Greenlight may, at its option and expense, participate in or assume control of the defense and settlement of any claim at any time. Each of the Greenlight Parties is an intended third-party beneficiary under this paragraph and consequently has the right to assert and enforce this paragraph directly against you on its own behalf. Greenlight, however, has no obligation to assert or enforce this paragraph on behalf of any of the Greenlight Parties.

8. LIMITATION OF LIABILITY.

IN NO EVENT SHALL GREENLIGHT’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. IN NO EVENT SHALL GREENLIGHT AND/OR ITS LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE SMARTROUTE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH SMARTROUTE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE CONTENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Qualification.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

10. Confidentiality.

10.1. Confidentiality Obligations. Each party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. Commencing on the date a party disclosed Confidential Information and for three (3) years thereafter, the Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information. Notwithstanding the foregoing, each party will hold in confidence the Confidential Information of the other party that is a “trade secret” under Washington law until such Confidential Information is no longer a trade secret under Washington law through no fault of the Recipient. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This paragraph will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The foregoing shall not restrict Greenlight’s right to remove Customer Data in accordance with this Agreement.

10.2. Definitions. “Confidential Information” means any proprietary information, technical data, trade secrets or know-how of the disclosing party, including, but not limited to, the Customer Data, SmartRoute, product plans, prices and costs, or other business or technical information of the Discloser that is designated to be confidential or proprietary or which reasonably appears to be confidential or proprietary. Confidential information will not include information that (a)  is already in the possession of the Recipient without obligation of confidence, (b) is independently developed by the Recipient without use of Confidential Information, (c) becomes available to the general public without breach of this Agreement, or (d) is rightfully received by the Recipient from a third party without obligation of confidence. Each party agrees that for a period of three (3) years following the date of such party’s receipt of Confidential Information from the other party, the Recipient will hold all Confidential Information in confidence and not disclose it to others or use it in any way except in performing the Recipient’s obligations under this Agreement, unless otherwise required by law or court order, and take actions reasonably necessary to protect the confidentiality of the Confidential Information. The Recipient agrees to promptly return or destroy all Confidential Information provided by the Discloser at the Discloser’s request. “Recipient” means a party that receives any Confidential Information of the other party. “Discloser” means a party that discloses any of its Confidential Information to the other party.

11. Local Laws and Export Control.

SmartRoute use software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You and your respective Users acknowledge and agree that SmartRoute shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries“), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals“). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using SmartRoute, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

SmartRoute may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

Greenlight and its licensors make no representation that SmartRoute is appropriate or available for use outside the United States of America. If you use SmartRoute from outside the United States of America, you are solely responsible for compliance with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion of Greenlight Materials contrary to United States law is prohibited. None of the Greenlight Materials, nor any information acquired through the use of SmartRoute, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.

12. Service Agreement.

12.1. Support Service.   Provided that Customer has paid all applicable Fees (plus any applicable taxes), Greenlight shall provide the maintenance and support services described in this Section 12 (the “Service Agreement”). Greenlight shall have no obligation to provide maintenance or support with respect to SmartRoute except for the most recent Maintenance Release.

12.2. Technical Support. Greenlight shall provide Customer with technical support for SmartRoute via e-mail and telephone after the Effective Date on business days (Monday – Friday) and during business hours (8am – 5:00pm Pacific Time) only, excluding holidays for Critical Support Issues and non-critical support issues.  Critical Support Issues must be reported via telephone.  All Critical Support Issues will be responded to within 4 business hours and all non-critical support issues will be responded to within one business day of Greenlight’s receipt thereof. Customer shall provide Greenlight with regular and reasonable remote access to SmartRoute to allow Greenlight to monitor Customer’s compliance with the terms of this Agreement and to permit the Greenlight to provide support and maintenance services contemplated hereby. Customer shall comply with all of Greenlight’s reasonable requests necessary or desirable to provide such remote access. Notwithstanding the foregoing, in no event shall the technical support provided by Greenlight hereunder include technical support of third-party software, hardware, internet connection, networking or related matters.

12.3. Maintenance. With respect to SmartRoute, Greenlight may, in its sole and absolute discretion, develop maintenance releases. Greenlight shall make available to Customer those maintenance releases which are made generally available to other customers of SmartRoute. Customer shall be solely responsible for the installation and configuration of each maintenance release if a client software module is involved. Greenlight may, in its sole and absolute discretion, change or modify the system requirements in connection with any maintenance release.

Greenlight reserves the right at any time and without prior notice to Customer to limit Customer’s access to SmartRoute in order to perform repairs, make modifications or as a result of circumstances beyond Greenlight’s reasonable control.

12.4.  Updates and Upgrades; Date Security.  Greenlight will make Updates and Upgrades to SmartRoute available to Customer.  All Upgrades and Updates shall be part of SmartRoute and subject to the terms of this Agreement. Additional services related to an Upgrade or Update, such as additional training, will be provided by Greenlight at its standard professional services rates. Moreover, if you subscribe to SmartRoute, Greenlight will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data to the extent we host such Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Greenlight personnel except (i) to provide SmartRoute, (ii) to prevent or address service or technical problems, (iii) as compelled by law, (iv) as you expressly permit in writing, or (v) as otherwise allowed by our Privacy Policy located at http://www.Greenlight.com/privacy-policy.

12.5. Service; Renewal; Fees. The term of the Service Agreement for SmartRoute shall begin on the Effective Date and shall continue for ninety (90) days thereafter the (“Service Agreement Initial Term”. This Service Agreement shall automatically renew for successive one (1) month periods (each a “Service Agreement Renewal Term”) unless Customer provides written notice of termination at least fourteen (14) days prior to the expiration of the Service Agreement Initial Term or any Service Agreement Renewal Term. Service Agreement Fees shall be as set forth in the Order Form. Service Agreement Fees for each subsequent Service Agreement Renewal Term shall be the same as the prior Service Agreement Initial Term or Service Agreement Renewal Term, as applicable, and due within 14 days prior to the beginning of such period, unless otherwise stated in the Order Form.  Greenlight will not increase the Fees set forth on the Order Form during the first twelve (12) months of the Term. Following the first twelve (12) months of the Term, Greenlight may change the Fees by providing Customer at least sixty (60) days’ advance notice..

12.6. Qualifications and Exceptions; Remedies. Notwithstanding anything to the contrary herein, Greenlight shall have no obligation to provide the Support Service if: (i) Customer makes any unauthorized modifications or changes to the SmartRoute software; (ii) Greenlight cannot reproduce or identify the defect; (iii) the difficulties or defects are due to changes to the SmartRoute software by the Customer, the computer equipment at the Customer site or hosting facilities, other causes external to the SmartRoute software, or failure to use the SmartRoute Software in accordance with the Documentation; (iv) Customer is not using the most current Upgrade of the SmartRoute software; or (v) Customer is in breach of the Agreement. Greenlight’s entire liability and Customer’s exclusive remedy for failure to remedy any defect or error shall be to terminate the Agreement and receive a pro-rata refund of any Fees paid relating to future use of SmartRoute.

12.7. Miscellaneous. Greenlight reserves the right to provide Support Services only for the most current version of SmartRoute.  By way of clarification, to the extent you decline to implement or facilitate an Update or Upgrade, you acknowledge and agree that Greenlight may solely determine whether to maintain or support prior versions of SmartRoute. Greenlight shall charge its standard Fees for: (i) corrections and remedies to SmartRoute which Greenlight provides in response to a request by Customer and which Greenlight is not obligated to provide under this Services Agreement; (ii) corrections for difficulties or defects traceable to Customer’s or its Users’ errors or system changes; or (iii) consultation or assistance with installation or use of SmartRoute beyond the consultation and training services described in this Support Services Agreement, if any. Customer agrees to limit direct interaction with Greenlight regarding the  Service to Customer employees that have received end-user training or otherwise possess sufficient skills to use SmartRoute. This Service Agreement supersedes all prior agreements and understandings between the parties related to the subject matter hereof, with the exception of the rest of the Agreement and the Order Form (which are incorporated herein by reference).

12.8. Training. To the extent the Order Form signifies your purchase of training services, Greenlight will provide you on-site or off-site training to use SmartRoute, as designated in the Order Form, at the levels set forth in the Order Form. You acknowledge that if you do not order training services in your initial Order Form, any subsequent request for training will be subject to the terms in any Change Order.

13. Miscellaneous

13.1. Independent Contractors. Each party is an independent contractor and not a joint venture, partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any joint venture, partnership or agency between the parties or as imposing any joint venture, partnership or agency obligations or liability upon either party. Further, neither party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other party.

13.2. Non-Exclusive Relationship. This Agreement will not be interpreted or construed to prohibit or in any way restrict Greenlight’s right to license any software to or from third parties or to perform any services for any third party.

13.3. Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to the Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during the Term, either party may include the names, trademarks and other logos of the other party (collectively the “Marks”) in lists (including on its website) of customers or vendors in accordance with the other party’s standard usage guidelines relating to its Marks.

13.4. No Third-Party Beneficiaries. Except as set forth in Section 7.2 above, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.5. Notices. Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and delivered in person, sent via overnight courier or mailed via registered mail, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the Order Form. Notice will be effective upon receipt. Either party may from time to time change its address for purposes of this paragraph by giving the other party notice of the change in accordance with this paragraph.

13.6. Assignment. Customer may not assign this Agreement, or delegate any of its rights under this Agreement, without Greenlight’s prior written consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns. Greenlight may assign this Agreement without consent to an affiliate or in connection with a change of control, reorganization, or sale of at least a majority of its assets or outstanding voting securities.

13.7. No waiver. The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect. Notwithstanding the foregoing, Customer acknowledges that certain remedies set forth in this Agreement are exclusive (when stated herein).

13.8. Dispute Resolution Procedures.

13.8.1. The parties will attempt to resolve through good faith discussion any dispute that arises under this Agreement. Any such dispute may at any time, at the election of either party, be referred to a senior executive of each party for discussion and possible resolution. If the senior executives are unable to resolve the dispute within sixty (60) days after delivery of written notice of the dispute, then either party may, by notice to the other party, demand mediation under the mediation rules of the American Arbitration Association in Seattle, Washington. The parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation, except that the parties are NOT required to arbitrate any dispute (i) in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, or (ii) which may under applicable law be brought in small claims court. The parties will not commence against the other a class action, class arbitration or other representative action or proceeding.

13.8.2. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator in Seattle, Washington. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.

13.8.3. You and Greenlight agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and Greenlight agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s).

13.9. Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (i) such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (ii) such invalidity or unenforceability will not affect any other provision of this Agreement.

13.10. Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to Section 13.8 each party hereby consents to the jurisdiction and venue of the state and federal courts located in King County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement.

13.11. Entire Agreement. This Agreement, collectively with the Order Form and any Change Order (defined below), constitutes the entire agreement, and supersedes any and all prior agreements between Greenlight and Customer with respect to the subject matter herein, including any acceptance by Customer or any of its employees, personnel, contractors, agents or representatives of any click-through agreements on the Greenlight website. If the terms of these Terms and Conditions are inconsistent with the terms contained in any Order Form or Change Order, the terms contained in these Terms and Conditions will control unless the Order Form or Change Order clearly state that the applicable conflicting term should supersede the terms in these Terms and Conditions. To the extent the parties desire to modify any Order Form, such changes shall not be effective or enforceable unless the parties each execute a Change Order (the form of which will be provided by Greenlight) and such Change Order shall be incorporated into the Agreement. The parties may execute multiple Order Forms or Change Orders.

13.12. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party.

14. Definitions.

“Critical Support Issues” are those issues where the lack of access to or data being returned from SmartRoute has at least a 15% negative impact on productivity and there are no other viable options available for determining routing

“Customer Data” means any data, information or material provided or submitted by you to Greenlight in the course of using SmartRoute.

“Documentation” means the user manuals, technical manuals, specifications and other documentation relating to any Services furnished by Greenlight to Customer under this Agreement.

“Greenlight Marks” means the following trademarks and services marks: (a) Greenlight; (b) SmartRoute; (c) SmartCradle; (d) the Greenlight Logo; and (e) the SmartRoute Logo.

“Greenlight Materials” means the information, documents, software, products and services contained or made available to you in the course of using SmartRoute, including, but not limited to, Greenlight’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Greenlight in providing SmartRoute.

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“License Administrator(s)” means those Users designated by you who are authorized to purchase licenses online using the Online Order Cart or by executing written Order Forms and to create User accounts and otherwise administer your use of SmartRoute.

“Order Form(s)” or “Change Order(s)” means the document executed by Greenlight and Customer (by wet signature or click-wrap consent) evidencing the initial subscription for SmartRoute and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties.

“SmartRoute” shall mean Greenlight’s proprietary route optimization service (branded “SmartRoute”) intended to optimize routing for delivery vehicles.

“Support Services” shall mean the support, maintenance and Software management services set forth in Section 12.

“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, disclosure or other activity involving SmartRoute, Greenlight Materials or Confidential Information of Greenlight that is not expressly authorized under the Agreement or otherwise in writing by Greenlight.

“Update” shall mean any software (i.e., bug patches, fixes and minor enhancements) and related Documentation that corrects errors or provides minor functionality enhancements.

“Upgrade” means an upgraded version of the Software that includes material changes to the overall utility, functional capability, or application of the Software.

“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use SmartRoute and have been supplied user identifications and passwords by you (or by Greenlight at your request).