Pathfinder License Agreement

between
Gilbarco, INC. and [SUBSCRIBERS]

This LICENSE AGREEMENT (the " Agreement") is entered on [1ST DAY OF SUBSCRIPTION], (the " Effective Date") by and between Gilbarco, Inc., a Delaware corporation, with offices at 7300 W. Friendly Avenue, Greensboro, North Carolina 27410 (" Gilbarco") and [REGISTERED SUBSCRIBERS], , hereafter the “ Parties” .

WHEREAS, Gilbarco has developed a website and related technology for identifying replacement and after-market parts for fueling related equipment (“Pathfinder”); and

WHEREAS, Company desires to obtain, and Gilbarco desires to license, under the terms and conditions of this Agreement, the rights necessary to interface with Pathfinder; and

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows:

This Agreement specifies the terms and conditions upon which Company receives access to Pathfinder.

Definitions
1. “ 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 Pathfinder.
2. “ 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.
3. “ Affiliate” means any corporation, partnership or other entity that is under the direct or indirect control of the applicable Party or its respective successors and assigns. For purposes of the foregoing, “control” shall exist whenever there is an ownership, profits, voting or similar interest (including any right or option to obtain such an interest) representing at least 51% of the total interests of the pertinent entity then outstanding.
4. “ Authorized User” means Company’s employees, consultants, contractors, and agents (a) who are authorized by Company’s administrator to access and use Pathfinder under the rights granted to Company pursuant to this Agreement; and (b) for whom access to Pathfinder has been purchased hereunder; which, for the avoidance of doubt shall not include a Gilbarco Competitor or any employees, consultants, contractors or agents of a Gilbarco Competitor.
5. “ Company Data” means information, including Personal Information, data, and other content, in any form or medium, that is collected, uploaded, or otherwise received, directly or indirectly from Company or an Authorized User by or through Pathfinder or that incorporates or is derived from the Processing of such information, data, or content by or through Pathfinder. For the avoidance of doubt, Company Data does not include Resultant Data or any other information reflecting the access or use of Pathfinder by or on behalf of Company or any Authorized User.
6. “ Company Systems” means Company’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.
7. “ Documentation” means any manuals, instructions, or other documents or materials that Gilbarco provides or makes available to Company in any form or medium and which describe the functionality, components, features, or requirements of Pathfinder, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
8. “ Gilbarco Competitor” means any other provider or operator of a product and/or service similar to any Gilbarco Veeder-Root product or service.
9. “ Gilbarco 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 Gilbarco or its designee to disable Company’s or any Authorized User’s access to or use of Pathfinder automatically with the passage of time or under the positive control of Gilbarco or its designee.
10. “ Gilbarco Materials” means Pathfinder, Documentation, 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 Gilbarco or any subcontractor in connection with Pathfinder or otherwise comprise or relate to Pathfinder or Gilbarco Systems. For the avoidance of doubt, Gilbarco Materials include Resultant Data and any information, data, or other content derived from Company’s access to or use of Pathfinder but does not include Company Data.
11. “ Gilbarco Systems” means the information technology infrastructure used by or on behalf of Gilbarco in providing Pathfinder, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Gilbarco or through the use of third-party services.
12. “ 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 Company or any Authorized User from accessing or using Pathfinder as intended by this Agreement. Harmful Code does not include any Gilbarco Disabling Device.
13. “ 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.
14. “ Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, provincial, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
15. “ 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.
16. “ Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
17. “ Process” means to take any action or perform any operation or set of operations that Pathfinder is capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.
18. “ Resultant Data” means Company Data that has been aggregated and/or anonymized and data and information related to Company’s use of Pathfinder that is used by Gilbarco in an aggregate or anonymized manner, including, without limitation, to compile statistical and performance information related to the provision and operation of Pathfinder.
19. “ Software” means the executable, object-code version of the desktop and/or mobile application software offering described in the order form.
20. “ Term” has the meaning given to it in Section 21)a) .
21. “ Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to Pathfinder that are not proprietary to Gilbarco.
Access and Use . Subject to and conditioned on Company’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Gilbarco hereby grants Company a non-exclusive, non-transferable (except in compliance with Section 23)d) ), revocable, limited right to access and use Pathfinder and related Software during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Company’s internal use. Gilbarco shall provide to Company’s administrator the Access Credentials as of the Effective Date.
Documentation License . Gilbarco hereby grants to Company a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 23)d) ) license to use the Documentation during the Term solely for Company’s internal business purposes in connection with its use of Pathfinder.
Service and System Control . Except as otherwise expressly provided in this Agreement, as between the Parties , Gilbarco has and will retain sole control over the operation, provision, maintenance, and management of Pathfinder . For the avoidance of doubt, Gilbarco shall be free to change, modify and update Pathfinder without advance notice or warning.
Suspension or Termination of Subscription Solution . Gilbarco may, directly or indirectly, through any lawful means, suspend, terminate, or otherwise deny Company’s, any Authorized User’s, or any other Person’s access to or use of all or any part of Pathfinder, without incurring any resulting obligation or liability, if: (a) Gilbarco receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Gilbarco to do so; or (b) Gilbarco believes, in its good faith and reasonable discretion, that: (i) Company or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used Pathfinder 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 material instruction or requirement included in the Documentation; (ii) Company or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with Pathfinder; (c) this Agreement expires or is terminated; (d) Gilbarco or Company is subject to any security breach, other similar incident, or there exists a threat thereof; or (e) such suspension, termination, or denial is necessary or desirable for the security, integrity, or confidentiality of Pathfinder or Company Data. This Section 5 does not limit any of Gilbarco’s other rights or remedies, whether at law, in equity, or under this Agreement.
Standard Support for Subscription Solution . Gilbarco shall use commercially reasonable efforts to provide Pathfinder 24 hours a day, seven days a week, except for: (a) planned maintenance and (b) unscheduled or emergency maintenance. For the avoidance of doubt, the Parties agree Gilbarco shall provide no credits, refunds, or rebates for any unavailability of Pathfinder.
Use Restrictions; Service Usage.
1. Company shall not, and shall not permit any other Person to access or use Pathfinder or Documentation (and shall use commercially reasonable efforts to prevent another Person from accessing or using Pathfinder or Documentation) except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Company shall not, except as this Agreement expressly permits:
  1. copy, modify, or create derivative works or improvements of Pathfinder or Documentation;
  2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Pathfinder or Documentation 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;
  3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Pathfinder, in whole or in part, unless otherwise permitted by law;
  4. bypass or breach any security device or protection used by Pathfinder or access or use Pathfinder other than by an Authorized User through the use of his or her own then valid Access Credentials;
  5. input, upload, transmit, or otherwise provide to or through Pathfinder, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
  6. damage, destroy, disrupt, disable, impair, interfere with, benchmark, monitor, or otherwise impede or harm in any manner Pathfinder or Gilbarco’s provision of services to any third party, in whole or in part;
  7. remove, delete, alter, or obscure any trademarks, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Pathfinder or Documentation, including any copy thereof;
  8. access or use Pathfinder or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law;
  9. access or use Pathfinder or Documentation for purposes of competitive analysis of Pathfinder or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to Gilbarco’s detriment or commercial disadvantage;
  10. access or use Pathfinder or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of Pathfinder could lead to personal injury or severe physical or property damage; or
  11. otherwise access or use Pathfinder or Documentation beyond the scope of the authorization granted under this Agreement.
Corrective Action and Notice . If Company becomes aware of any actual or threatened activity prohibited by this Agreement, Company 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 activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Pathfinder and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Gilbarco of any such actual or threatened activity.
Company Obligations.
1. Export Control . Company shall not export, directly or indirectly, any technical data acquired from Gilbarco under this Agreement (or any products, including Software and Hardware, incorporating any such data) in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
Access and Security . Company shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of Pathfinder.

Fees and Payment.

Fees . Company shall pay Gilbarco the fees (“Fees”) in accordance with this Section 11) , according to the following fee schedule:

[FEE SCHEDULE]

ANNUAL FEES – DNET (USD)
10-user licenses M19164B010	20-user licenses M19164B020
$9,600.00	$16,800.00

MONTHLY FEES – DNET (USD)
	1-user license	5-user licenses
Jan	$100.00	$450.00
Feb	$100.00	$450.00
Mar	$100.00	$450.00
Apr	$100.00	$450.00
May	$100.00	$450.00
Jun	$100.00	$450.00
Jul	$100.00	$450.00
Aug	$100.00	$450.00
Sep	$100.00	$450.00
Oct	$100.00	$450.00
Nov	$100.00	$450.00
Dec	$100.00	$450.00
Total	$1200.00	$5,400.00

Taxes . All Fees and other amounts payable by Company under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Company 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, provincial, or local governmental or regulatory authority on any amounts payable by Company hereunder, other than any taxes imposed on Gilbarco’s income.
Late Payment . If Company fails to make any payment when due then, in addition to all other remedies that may be available: (a) Gilbarco 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) Company shall reimburse Gilbarco for all costs incurred by Gilbarco in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Gilbarco may suspend Company’s and its Authorized Users’ access to Pathfinder (including firmware in the Hardware where applicable) until all past due amounts and interest thereon have been paid and/or terminate this Agreement, in each case without incurring any obligation or liability to Company or any other Person by reason of such suspension or termination.
No Deductions or Setoffs . All amounts payable to Gilbarco under this Agreement shall be paid by Company to Gilbarco in full without any setoff, recoupment, counterclaim, deduction, debit, compensation, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Fee Increases . Gilbarco may increase Fees no more than once annually, after the first contract year of the Term, including any contract year of any renewal term, by providing written notice to Company at least sixty (60) calendar days prior to the commencement of such renewal term.

Audits . Gilbarco or its agent may, on thirty (30) days’ notice, inspect and audit Company's use of Pathfinder under this Agreement at any time during the Term. All audits will be conducted during regular business hours, and no more frequently than twice in any twelve (12) month period. Company shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Gilbarco with respect to such audit. Gilbarco shall only examine information directly related to Company's use of Pathfinder. If the audit determines that Company has underpaid for Pathfinder, Company shall pay to Gilbarco within fifteen (15) days all amounts due plus interest on such amounts as calculated pursuant to Section 11)b) . If the audit determines that such excess use equals or exceeds 5% of Company's permitted level of use, Company shall also pay to Gilbarco all reasonable costs incurred by Gilbarco in conducting the audit within fifteen (15) days of receipt of Gilbarco’s invoice for the same.
Confidentiality.
1. “ Confidential Information” means any material or information that a Party considers confidential or that otherwise relates to the Party’s past, present and future research, development, business activities, products, software, services, technical knowledge, designs, methodologies, business plans or forecasts, finances, pricing, marketing plans, customers, prospects or other affairs and has been identified as confidential or would be understood to be confidential by a reasonable person under the circumstances. Confidential Information does not include information (i) previously known to the receiving Party, before it was received from the disclosing Party without an obligation not to disclose such information, (ii) independently developed by the receiving Party without use of the Confidential Information, (iii) acquired by the receiving Party from a third party that was not, to the receiving Party’s knowledge, under an obligation to the disclosing Party not to disclose such information, or (iv) that is or becomes publicly available through no breach of this Agreement by the receiving Party.
2. Ownership of Confidential Information . The Parties acknowledge that during the performance of this Agreement, each Party shall have access to the other Party’s Confidential Information. Both Parties agree that, as between the Parties, Confidential Information is owned by the disclosing Party.
3. Mutual Confidentiality Obligations . Each Party agrees: (i) to use the Confidential Information of the other Party only for the purposes described herein; (ii) that such Party shall not reproduce the Confidential Information of the other Party except as necessary to comply with this Agreement and shall hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party shall create any derivative work from the other Party’s Confidential Information; (iv) to restrict access to the other Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
4. Required Disclosure . In the event that the receiving Party becomes legally compelled by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any of the disclosing Party’s Confidential Information, the receiving Party shall, unless prohibited by Law, provide the disclosing Party with prompt prior written notice of such requirement, and, to the extent reasonably practicable, cooperate with the disclosing Party (at the disclosing Party’s expense) in any efforts by the disclosing Party to obtain a protective order or similar remedy, as the case may be, to cause such Confidential Information not to be disclosed, including interposing all available objections thereto, such as objections based on settlement privilege. The receiving Party shall furnish only that portion of the Confidential Information that has been legally compelled and shall cooperate with the disclosing Party (at the disclosing Party’s expense) in any efforts by the disclosing Party to obtain assurance that confidential treatment will be accorded such disclosed Confidential Information.
Intellectual Property Rights.
1. Gilbarco Materials . All right, title, and interest in and to the Gilbarco Materials, including all Intellectual Property Rights therein, are and will remain with Gilbarco 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. Company has no right, license, or authorization with respect to any of the Gilbarco Materials, except as expressly set forth in this Agreement in each case subject to any conditions or restrictions set out in this Agreement. All other rights in and to the Gilbarco Materials are expressly reserved by Gilbarco.
2. Resultant Data . In furtherance of the foregoing, and to the extent such right, title and interest does not automatically vest in Gilbarco as a matter of Law, Company hereby unconditionally and irrevocably assigns to Gilbarco all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights therein or thereto.
3. Company Data . As between Company and Gilbarco, Company is and will remain the sole and exclusive owner of all right, title, and interest in and to all Company Data, including all Intellectual Property Rights relating thereto and hereby grants Gilbarco a non-exclusive, non-transferable, royalty-free license to use the Company Data for the purpose of providing Pathfinder and create the Resultant Data.
4. Feedback . Any suggestions, enhancement requests, recommendations, or other feedback (collectively, “Feedback”) provided to Gilbarco by Company or its Authorized Users (and all Intellectual Property Rights therein or thereto) shall be owned by Gilbarco, and Company hereby unconditionally and irrevocably assigns to Gilbarco all right, title, and interest in and to such Feedback.
Representations and Warranties.
1. Mutual Representations and Warranties . Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
2. Additional Gilbarco Representations , Warranties, and Covenants. Gilbarco represents, warrants, and covenants to Company that Pathfinder will perform substantially in accordance with the Documentation and with reasonable skill and in a professional manner. If Pathfinder does not conform to the foregoing warranty, Gilbarco will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Company with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Company's sole and exclusive remedy for any breach of the undertaking set out in this Agreement.
3. Additional Company Representations, Warranties, and Covenants . Company represents, warrants, and covenants to Gilbarco that Company owns or otherwise has and will have the necessary rights and consents in and relating to the Company Data so that, as received by Gilbarco and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, any privacy or other rights of any third party or violate any applicable Law.
DISCLAIMER OF WARRANTIES . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 17 PATHFINDER IS PROVIDED “AS IS,” “WHERE IS” and “WITH ALL FAULTS”. GILBARCO 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, GILBARCO MAKES NO WARRANTY OF ANY KIND THAT PATHFINDER OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET COMPANY’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY 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 COMPANY AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Indemnification. Company shall indemnify, defend, and hold harmless Gilbarco from and against any and all Losses incurred by Gilbarco resulting from any Action by a third party that arise out of or result from, or are alleged to arise out of or result from: any (a) Company Data, including any Processing of Company Data by or on behalf of Gilbarco in accordance with this Agreement; (b) other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Company or any Authorized User, including Gilbarco’s compliance with any specifications or directions provided by or on behalf of Company or any Authorized User; (c) allegation of facts that, if true, would constitute Company’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence, willful misconduct or fraud by Company, any Authorized User, or any third party on behalf of Company or any Authorized User; (e) any violation of laws or regulations including but not limited to privacy laws by Company, any Authorized User, or any third party on behalf of Company or any Authorized User.
Mitigation . If Pathfinder is, or in Gilbarco’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Company’s or any Authorized User’s use of Pathfinder is enjoined or threatened to be enjoined, Gilbarco may, at its option and sole cost and expense:
1. obtain the right for Company to continue to use Pathfinder under substantially similar terms and conditions as contemplated by this Agreement;
2. modify or replace Pathfinder, in whole or in part, to seek to make Pathfinder (as so modified or replaced) non-infringing, while providing substantially similar features and functionality, in which case such modifications or replacements will constitute Pathfinder, as applicable, under this Agreement; or
3. by written notice to Company, terminate this Agreement with respect to all or part of Pathfinder, and require Company to immediately cease any use of Pathfinder or any specified part or feature thereof .
  SOLE REMEDY. THIS SECTION 18 SETS FORTH COMPANY’S SOLE REMEDIES AND GILBARCO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT PATHFINDER OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability.
1. LIMITATIONS. THE CUMULATIVE LIABILITY OF GILBARCO TO COMPANY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO GILBARCO BY COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. THE FOREGOING MONETARY CAP ON LIABILITY SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION OTHER THAN FRAUD, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL GILBARCO OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO COMPANY FOR ANY EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST SALES, BUSINESS OR PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR ACCESS THERETO, LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING STRICT LIABILITY, NEGLIGENCE OR OTHERWISE), FAULT OR LEGISLATION OR REGULATION, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES IS FORESEEABLE, AND EVEN IF GILBARCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GILBARCO BE LIABLE FOR ANY LOSSES DUE TO FAILURE IN COMPANY’S ENVIRONMENT OR NETWORK SECURITY. NOTWITHSTANDING ANY OTHER PROVISION HEREIN NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF CASH, REVENUES, OR OTHER MONEY, FUNDS, OR VALUABLES RESULTING FROM ANY MISDISPENSING OF FUNDS, OR CRIMINAL OR MISCHIEVOUS ACTS OCCURRING ON OR AT ANY EQUIPMENT OR AT AN EQUIPMENT LOCATION.
Essential Basis . The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
Term and Termination.
1. Term . This Agreement shall become effective upon the Effective Date and shall continue for the period of 12 months (the “Initial Term”) and thereafter shall renew automatically for successive equal periods until terminated in accordance with this Section 21) , or until either Party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Initial Term or renewal term, as applicable (the “Term”). Company may terminate this Agreement within 30 days of the Effective Date, subject only to a pro rata charge for the period between Effective Date and the date of termination.
2. Termination for Breach . Either Party may terminate this Agreement upon written notice if the other Party breaches a material term of this Agreement and thereafter (i) in the case of a breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other breach within thirty (30) days after receiving written notice thereof (provided that such thirty (30)-day period shall be automatically extended as long as the Party is exercising diligent efforts to cure such breach).
3. Effect of Termination or Expiration . Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
  1. all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate and Company shall cease using or accessing any of Pathfinder subject to such rights, licenses, consents, and authorizations;
  2. Gilbarco shall immediately cease all use of any Company Data and Company’s Confidential Information and on Company’s written request within sixty (60) days of the Termination date (i) promptly return to Company all Company Data and Company’s Confidential Information; or (ii) permanently erase all Company Data and Company’s Confidential Information from all Gilbarco Systems directly or indirectly controlled by Gilbarco, provided that, for clarity, Gilbarco’s obligations under this Section 21)c)ii) ) do not apply to any Resultant Data;
  3. Company shall immediately cease all use of any Gilbarco Confidential Information and (i) promptly return to Gilbarco, or at Gilbarco’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Gilbarco Confidential Information; and (ii) permanently erase all Gilbarco’s Confidential Information from all Company Systems;
  4. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) a receiving Party may retain a disclosing Party’s Confidential Information; ii) Gilbarco may retain Company Data; in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iii) Gilbarco may also retain Company Data in its backups, archives, and disaster recovery systems until such Company Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 21)c)iv) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
  5. Gilbarco may disable all Company and Authorized User access to the Gilbarco Materials;
  6. if Company terminates this Agreement pursuant to Section 21)a) or Gilbarco terminates this Agreement pursuant to Section 18)c) , Company will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Gilbarco will refund to Company unused Fees paid in advance for access to Pathfinder that Gilbarco has not delivered as of the effective date of termination; and
  7. if Gilbarco terminates this Agreement pursuant to Section 21)a) , all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Company shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Gilbarco’s invoice.
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: 7, 14, 15, 17, 21, 23.
Miscellaneous.
1. Applicable Law . This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to conflict of law rules. For any Action between the Parties arising from or related to this Agreement, the Parties hereby submit to and consent to the exclusive jurisdiction of the State of North Carolina and agree such Action shall be conducted exclusively in the state and federal courts located in the State of North Carolina.
2. Force Majeure . Neither Party shall be liable to the other for any failure or delay in the performance of its obligations under this Agreement (other than with respect to payment obligations), to the extent such failure or delay is caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, (a) the non-performing Party shall promptly notify the other Party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, (b) the non-performing Party shall be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail, and (c) the non-performing Party shall use commercially reasonable efforts to attempt to recommence performance or observance. The non-performing Party shall also notify the other Party promptly when the Force Majeure Event has abated. The term “Force Majeure Event” shall mean an event or condition that is caused by or results from any (i) act of war, insurrection, terrorism, riot or rebellion, (ii) Law, demand, seizure or requirement of any governmental authority (including court of law), quarantine, embargo or any other similar unusual action of a governmental authority, (iii) extraordinary element of nature or act of God, fire, flood, or storm, (iv) strike, lockout or other labor trouble, delays by suppliers or carriers, shortages of fuel, power, raw materials or components, (v) pandemic or epidemic, or (vi) any other event or condition outside the reasonable control of the Party subject to such failure or delay.
3. Notices . All notices required by or relating to this Agreement shall be in writing and shall be sent by registered mail, return receipt requested, or via an internationally recognized express mail carrier (postage prepaid, return receipt requested) to the contact and address for each Party set forth in the Order Form or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by electronic mail, if the sender also mails a hard copy of such notice to the aforementioned address.
4. Assignment . This Agreement will be binding upon and will inure to the benefit of each Party and each Party’s respective successors and permitted assigns or transferees. Neither Party shall assign or transfer this Agreement, or any of its rights or obligations hereunder, to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, Gilbarco shall not be required to obtain the prior written consent of Company to assign or transfer this Agreement in the event of a Change in Control, provided that the acquirer(s) assumes Gilbarco’s obligations hereunder after such Change in Control. For the purposes of this paragraph, “ Change in Control” means (a) a merger or consolidation involving Gilbarco, (b) a transaction or series of related transactions in which a third party, together with its affiliates, becomes the beneficial owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of Gilbarco, or (c) the sale of all or substantially all of the assets of Gilbarco. Any attempted assignment in contravention of this Section 23)d) will be null and void.
5. Independent Contractors . Company and Gilbarco acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
6. Amendment . No amendment to this Agreement or any Order Form shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
7. Waiver . No waiver under this Agreement shall be binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
8. Severability . If any provision, or portion thereof, of the Agreement is held unenforceable or invalid by a court of competent jurisdiction, the enforceability of the remaining provisions shall not be affected, and the affected provision(s) shall be deemed revised to the extent permitted by a court of competent jurisdiction with respect to the original intent of the provision(s).
9. No Third-Party Beneficiaries . No person or entity shall be a third-party beneficiary of this Agreement or have any right or cause of action hereunder.
10. Headings; Interpretation . The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement. The terms “hereof,” “herein” and “hereunder” and terms of similar import will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section, clause, exhibit and addenda references contained in this Agreement are references to Sections, clauses, exhibits and addenda in or attached to this Agreement, unless otherwise specified. Each defined term used in this Agreement has a comparable meaning when used in its plural or singular form. Each gender-specific term used in this Agreement has a comparable meaning whether used in a masculine, feminine or gender-neutral form. Each reference in this Agreement to any Law will be deemed to include such Law as it hereafter may be amended, supplemented or modified from time to time and any successor thereto, unless such treatment would be contrary to the express terms of this Agreement. Unless expressly stated otherwise, wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation” regardless of whether such words are included in some contexts but not others.
11. Publicity . All communication, publicity, information concerning this Agreement, its contents and/or its execution are strictly prohibited in any written or oral announcement, press release or other public release of information, catalog or reference list on any media unless previously authorized in writing by the other party. Notwithstanding the foregoing, Gilbarco shall be entitled to include Company’s name and logo in any presentation, marketing materials, and/or Company lists (including, without limitation, Company lists posted on Gilbarco web sites). Company acknowledges that Gilbarco is a subsidiary of a publicly traded company in the NYSE and as such is required to provide reports and/or make announcements, from time to time, as required under applicable securities acts and regulations.
12. Entire Agreement . This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes any prior agreements and understandings between the Parties, whether written or oral, which may have related to the subject matter hereof in any way.
13. Language. This contract is drawn up in English at the request of the Parties

Pathfinder License Agreement

between Gilbarco, INC. and [SUBSCRIBERS]

between
Gilbarco, INC. and [SUBSCRIBERS]