These TransLoc Terms of Service (the “Agreement”) apply to any user of TransLoc or a TransLoc Affiliate’s services who does not otherwise have a mutually executed agreement with TransLoc (“Customer”), and is effective as of the date an Order Form is fully executed and will continue until such date all Order Forms between the parties are expired. TransLoc reserves the right to change these Terms of Service at any time, effective upon the posting of new terms and will make reasonable efforts to communicate these changes to the Customer via email or notification via the TransLoc website. It is the Customer’s obligation to ensure the Customer has read, understood, and agrees to the most recent terms available on the TransLoc website.
Description of Agreement
This Agreement governs Customer’s access to and use of software service and other services provided by TransLoc and define the rights and responsibilities between TransLoc and the Customer. and services Customer wishes to access TransLoc’s Service in accordance with the terms of this Agreement.
1. Definitions.
1.1. “Affiliates” means an entity that owns, is owned by, or is under common ownership with a party, in each case where ownership is direct and is greater than 50%.
1.2. “Confidential Information” means any non-public information or data whether in written, electronic, or other tangible form, or provided orally or visually, that is disclosed by or on behalf of one party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether owned by the Disclosing Party or a third party, pursuant to this Agreement. Confidential Information of Customer includes, but is not limited to, Customer’s financial and business information. Confidential Information of TransLoc includes, but is not limited to, the terms of this Agreement; the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Software and the Service; the Documentation; and TransLoc’s pricing, sales, proposals, implementation, and training materials, and procedures. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a Receiving Party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the Receiving Party as shown by its written records.
1.3. “De-Identified Data” means data that does not contain information that identifies Customer or Users.
1.4. “Documentation” means any instructional and user manuals relating to the Service, which may be amended from time to time by TransLoc.
1.5. “Equipment” means any hardware, antennas, cabling, wiring and other electronic components on Customer’s Vehicle Fleet that allows the functioning, delivery, or maintenance of the Service or through which the Service is provided to Customer.
1.6. “Fees” means all recurring and capital fees as identified in an Order Form or, in the absence of an Order Form, in an invoice.
1.7. “Initial Term” means the period defined in an Order Form.
1.8. “Service” means TransLoc Software service made available through subscription access via and any other services identified in an Order Form executed by the parties.
1.9. “Service Data” means any data, information, content, documents, or electronic files provided to or collected by TransLoc from either Customer or its Users during the course of their use of any component of the Service.
1.10. “Software” means (1) TransLoc’s proprietary vehicle tracking and passenger information Service provided through proprietary software made available in combination with equipment for use in the management, location, and inventory of Customer’s transportation resource; and (2) any of TransLoc’s proprietary software, solutions, or technologies identified in an Order Form
1.11. “Term” means the Initial Term plus any Renewal if applicable and as noted in an Order Form.
1.12. “Users” means the actual and prospective passengers on Customer’s transit system.
1.13. “Vehicle Fleet” means the vehicles comprising Customer’s transit system, on which the Equipment is installed in accordance with this Agreement.
1.14. “Order Form” means that document mutually executed by TransLoc and the Customer identifying the Services to be provided to Customer including any Special Terms and Conditions if applicable.
2. Software, Service, and Equipment.
2.1. Subscription. Subject to payment of the Fees and the remaining terms and conditions of this Agreement, TransLoc will make available to Customer, on a non- exclusive basis, the Service indicated in an Order Form. TransLoc will make the Documentation available to Customer in electronic form.
2.2. Suspension. TransLoc may suspend Customer’s access to or use of the Service if it believes (a) there is a significant threat to the functionality, security, integrity, or availability of the Service or any content, data, or applications in the Service; (b) Customer is accessing or using the Service to commit an illegal act; (c) there is a violation of the acceptable use or restrictions described herein; or (d) any undisputed invoice is thirty (30) days or more overdue. When reasonably practicable and lawfully permitted, Supplier will provide Customer with advance notice of any such suspension. Supplier will use reasonable efforts to re-establish the Subscription Services promptly after it determines that the issue causing the suspension has been resolved.
2.3. Implementation and Training.
2.3.1. Definition of Service Area. Customer shall provide TransLoc with the physical bounds of their intended service area upon request from TransLoc. This information can be provided either in a series of latitude and longitudes that correspond to the vertices of a contiguous shape, a radius (in miles or kilometers) from a single latitude and longitude, or a list of all the roadways and intersections that form the outer-edges of the service area.
2.3.2. Customer Delays. In the event TransLoc incurs delays, additional costs, or labor as a result of any act or omission of Customer, including but not limited to Customer’s failure to provide information, data, or access to Customer’s facilities or personnel, Customer agrees that TransLoc may, upon prior written notice to Customer, add reasonable charges to the amounts invoiced to Customer and adjust any implementation schedule provided to Customer.
2.3.3. Vehicle Fleet administrators will receive instructional materials and training to use the Service.
2.4. Software, Support and Maintenance.
2.4.1. Base Level Support. TransLoc will provide email and telephone support for the Software to assist Customer personnel in using the Service and in reporting suspected deviations from the Service and the associated Documentation (“Errors”). Support will be provided from 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday, excluding regular business holidays. Only in the event of an emergency, TransLoc will provide twenty- four (24) hours a day, seven (7) days a week telephone assistance.
2.4.2. Maintenance. TransLoc will use reasonable efforts to correct suspected Errors when such Errors are reported to TransLoc. TransLoc does not warrant that all Service Errors will be corrected.
2.5. Software Upgrades. TransLoc will provide upgrades to Software (“Upgrades”) that TransLoc generally makes available to its other customers for no additional charge. Customer acknowledges that Upgrades include only point releases that improve or maintain the stability of the Service and do not include major releases that add new functionality, which may be available for an additional fee. In the case where TransLoc provides new features to Customer at no charge, the continued availability, performance, or usefulness of such features are not guaranteed or warranted by TransLoc and such new features may be revoked at any time. Customer acknowledges that some newly integrated features in future releases of the TransLoc Software may require the purchase of the appropriate hardware upon which the features depend.
If TransLoc is no longer providing one or more Services, or in the event that a Service goes end-of-life, TransLoc may, replace the Service in accordance with the terms of this Agreement with a functional equivalent; provided, that any such functional equivalent shall have substantially similar features and functions as the Service it is replacing and shall reasonably meet or exceed the specifications and other requirements prescribed by this Agreement for the Service, and upon such replacement in accordance with this Section, such replacement Service shall be considered a Service for the purposes of this Agreement. To the extent necessary, TransLoc and Customer shall amend any applicable statement of work to reflect such replacement of Service.
2.6. Modification of Customer’s Physical Location. If Customer expands or modifies its physical location, Customer may be required to purchase additional hardware and/or Software subscriptions and/or services to enable the Service to function properly in the expanded, additional, or modified physical location.
2.7. Professional Services. Customer and TransLoc may enter into one or more Order Forms incorporating the provision of professional services which TransLoc will perform, subject to the fulfillment of any responsibilities and payments due from Customer.
3. Fees and Payment.
3.1. Subscription Fees. Customer will pay the Fees for the Service identified in the Order Form(s) or, in the absence of an Order Form, in an invoice.
3.2. Payment, Taxes and Procedures. TransLoc will invoice Customer for Fees. Customer shall pay TransLoc in accordance with payment terms set forth below:
3.2.1. Fees are payable in U.S. dollars only and are due no later than thirty (30) days after the invoice date. Fees are nonrefundable.
3.2.2. Payments shall be delivered to the address indicated on the invoice, unless otherwise instructed by TransLoc.
3.2.3. Late payments shall be subject to interest at the monthly rate of one percent (1%), or the maximum amount allowed by applicable law, if lower. Interest on late payments will be calculated from the date when payment becomes overdue until the date payment is received by TransLoc. TransLoc may suspend the Service if the Subscription Fee is not received by the due date. If TransLoc suspends the Service for non-payment, Customer may be charged a fee for reinstatement of the Service.
3.2.4. Customer shall pay TransLoc’s costs of collecting amounts past due under this Agreement, including reasonable attorneys’ fees.
3.2.5. Prices do not include applicable state and local sales, use and other taxes. Customer is responsible for such taxes or shall provide proof of tax exemption.
3.2.6. Customer must provide written notice of any disputed invoice and/or Fees owed to TransLoc within ten (10) days of receipt of such invoice.
3.3. Fee Increase. TransLoc shall, upon each anniversary of the Effective Date during the Term, increase Fees six percent (6%). Any increase greater than six percent (6%) shall be preceded by thirty (30) days written notice.
4. Term and Termination.
4.1. The Term for this Agreement is the period of time that begins on the Order Start Date and, unless terminated sooner as provided herein, will continue through the Order End Date, both dates identified on the Order Form. If no Order Start Date or Order End Date is identified in an Order Form, then the term shall be as noted in the respective invoice for Services.
4.2. Termination for Breach. Either party may terminate this Agreement if the other party materially breaches any of the terms and conditions of this Agreement and it is not cured:
4.2.1. Within ten (10) days after written notice if the breach relates to payment of Fees; or
4.2.2. Within thirty (30) days after written notice for any other breach.
4.3. Effect of Termination or Expiration.
4.3.1. Upon termination or expiration of this Agreement for any reason, (i) the Customer’s access to and use of the Service automatically terminates, and (ii) the Customer’s right to receive, view and/or access the Service Data automatically terminates. Termination of this Agreement does not relieve Customer of its obligation to pay monies due to TransLoc.
4.3.2. Should this Agreement be terminated before the end of the Term, for any reason other than TransLoc breach, Customer must pay all current, outstanding, and remaining Fees for the remainder of the Term. Fees are due no later than thirty (30) days from the effective date of termination of the Agreement.
4.4. Survival. The terms provided in Sections 4.5, 5, 6, 7, 8, and 9 herein shall survive any termination or expiration of this Agreement.
4.5. Excess Use Fees. Should a TransLoc audit reveal Customer’s use of the Service exceeds that as defined within its Order Form(s) (“Excess Use”), Customer must then pay Fees for all such Excess Use that are in effect at the time notice of Excess Use is given to Customer.
4.6. Service Decommissions. Customer may not decrease their Service subscription count during the Term. Upon not less than one hundred twenty (120) days before the end of the Term, Customer must provide written notice to TransLoc should Customer require fewer Service subscriptions during a Renewal. For avoidance of doubt, Customer may at any time during the Term purchase additional Service subscriptions via an Order Form.
5. Warranties and Disclaimer of TransLoc.
5.1. Equipment Base Warranty. In the event any third-party Equipment is provided to Customer hereunder, either as part of the Services or as necessary or incidental to TransLoc’s provision of Services (including hosting services), TransLoc shall pass through to Customer any and all representations, warranties and covenants from such third-party providers, in addition to any representations, warranties and covenants provided by TransLoc in this Agreement. Such warranties may be voided as the result of Customer’s negligence, willful misconduct, or if caused by an action under Section 5.4.
5.2. Professional Services Warranty. TransLoc represents and warrants that the professional services will be performed in a workmanlike manner consistent with industry standards.
5.3. Exclusive Remedy. Customer’s exclusive remedy for breach of related warranties in this Sections 5 shall be that TransLoc will use commercially reasonable efforts in endeavoring to resolve and cure any such breach.
5.4. Warranty Limitations. TransLoc is not responsible for failure of the Service to conform to the Documentation or to provide accurate information with respect to the location, time, status, availability or existence of Customer’s Vehicle Fleet if the Equipment is (i) damaged, blocked, modified, disassembled, vandalized, destroyed, or interfered with; (ii) subjected to extreme temperatures, flooding, over- voltage, electrical surges, misapplication of electrical power, or caustic chemicals; (iii) improperly installed or maintained by Customer or any third party; or (iv) used for a purpose other than as intended by TransLoc, including but not limited to use in a configuration not recommended by TransLoc.
5.5. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TRANSLOC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM TRADE USAGE OR COURSE OF DEALING. IN ADDITION, THE SERVICE DEPENDS UPON DATA BEING TRANSMITTED OVER THE INTERNET, CUSTOMER’S NETWORK, GPS SATELLITES, AND THIRD-PARTY CARRIER NETWORKS, AND AS TRANSLOC HAS NO CONTROL OVER THE FUNCTIONING OF THE INTERNET, THE SERVICE IS OFFERED ON AN “AS-AVAILABLE” BASIS. TRANSLOC DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
5.6. Excluded Parties. TransLoc represents that it has no knowledge that any prospective business partner, employee, subcontractor, or supplier is included in the General Services Administration’s (GSA’s) List of Parties Excluded from Federal Procurement and Non-Procurement Programs.
5.7. Lobbying Disclosure Act. TransLoc represents that it has no knowledge that any prospective business partner, employee, subcontractor, or supplier is in violation of the Lobbying Disclosure Act of 1995.
6. Warranties and Acknowledgement of Customer.
6.1. Use Requirements, Restrictions and Limitations. Customer represents that it will observe the following requirements and restrictions in connection with its access to and use of the Service:
6.1.1. Customer shall not reverse engineer, de-compile or disassemble the Software or Equipment, shall not attempt to access any data underlying the Software or circumvent the user interface or other technological measures put in place by TransLoc, and shall not modify, access, download, copy, or interfere with the Equipment or its embedded software without the express consent of TransLoc.
6.1.2. Customer shall not rent, sell, assign, or lease its access to the Service. Customer shall not use the Service in a service bureau, outsourcing or other arrangement to process or administer data on behalf of any third party.
6.1.3. Customer shall not knowingly access, store, or transmit via the Service any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive; (ii) facilitates illegal activity; (iii) is discriminatory; or (iv) causes damage or injury to any person or property.
6.1.4. Customer shall not violate or attempt to violate the security of TransLoc’s networks, including (i) accessing data not intended for Customer; (ii) accessing a server or account which Customer is not authorized to access; (iii) attempting to scan or test the vulnerability of a system or network or to breach security or authentication measures; or (iv) attempting to interfere with the availability or functionality of the Services, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
6.1.5. Customer shall cause each of Customer’s employees, agents and independent contractors to comply with (i) the obligations set forth in this Section 6.1 and (ii) all applicable laws, rules and regulations in connection with their use of the Service.
6.1.6. TransLoc reserves the right, without liability to Customer, to disable Customer’s or a User’s access to the Service for breach of this Section 6.1.
6.2. Customer acknowledges and agrees:
6.2.1. That the Service is an information tool only and is not a substitute for competent management and oversight of Customer’s Vehicle Fleet, transportation system, and personnel;
6.2.2. That the Service depends upon data being transmitted over the internet, Customer’s network, GPS satellites, and third-party carrier networks, and that, TransLoc has no control over the functioning of the internet, Customer’s network, GPS satellites, or the network of a carrier; and
6.2.3. That Customer alone is responsible for acquiring and maintaining Customer’s Vehicle Fleet, Customer’s network, Customer’s internet access, and the rest of Customer’s physical and technological infrastructure; and
6.2.4. That Customer’s cooperation is required for the timely delivery of the Service, and, as a result, Customer will promptly respond to TransLoc’s requests and inquires and cause its Project Manager (or any applicable representative) to cooperate with TransLoc, in good faith, to complete the implementation of the Service and troubleshoot any issues with the Service.
6.3. International Roaming. The Equipment may transmit and receive data without user intervention and, as a result, will generate international roaming charges when it is taken out of the United States. Customer alone is responsible for roaming charges.
7. Confidentiality and Ownership.
7.1. Intellectual Property. TransLoc is the sole and exclusive owner of all rights, title and interest in and to the Service, including all updates, modifications, customizations, enhancements and other derivative works thereof (collectively “Derivative Works”), and in any and all copyrights, patents, trademarks, trade secrets and other proprietary and/or intellectual property rights therein or thereto. To the extent any Derivative Work is developed by TransLoc based upon ideas or suggestions submitted by Customer to TransLoc, Customer hereby irrevocably assigns all rights to modify or enhance the Service using such ideas or suggestions or joint contributions to TransLoc, together with all copyrights, patents, trademarks, trade secrets, and other proprietary and/or intellectual property rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Customer (or to any party claiming through Customer) any rights in or to the Service, other than the rights expressly granted in Section 2.1.
7.2. Trademarks. Customer hereby consents to use of Customer’s name and/or logo (i) on TransLoc’s website in order to direct end-users to the public-facing aspects of the Service; (ii) to create a Customer-specific public-facing website hosted by TransLoc where Users may access the Service; and(iii) in the event TransLoc’s white label application is included as part of the Service, to create a Customer- branded application.
7.3. Ownership of Data. Customer acknowledges and agrees that, as between Customer and TransLoc, TransLoc retains all ownership right, title and interest in and to all Service Data, including all copyrights, patents, trademarks, trade secrets, and other proprietary and/or intellectual property rights therein or thereto. TransLoc may analyze and compile Service Data for the purpose of creating De-Identified Data. TransLoc may use the De-Identified Data without restriction and may combine the De-Identified Data with data from other sources to create aggregate statistical data.
7.4. Nondisclosure.
7.4.1. A Receiving Party (a) shall hold the Disclosing Party’s Confidential Information in strict confidence and will use the same degree of care in protecting the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) except as expressly authorized by this Agreement, shall not, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information. Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information of the Disclosing Party as required by law or court order. In such event, the Receiving Party shall (i) use its best efforts to inform the Disclosing Party before any such required disclosure, and (ii) provide reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.4.2. The Customer shall limit access to the password-protected portions of the Service and any Equipment to Customer’s employees who have a legitimate need to access the Service and Equipment.
7.4.3. Upon the termination or expiration of this Agreement, or upon the request of the Disclosing Party, the Receiving Party will return to the Disclosing Party all the Confidential Information delivered or disclosed to the Receiving Party, together with all copies in existence thereof at any time made by the Receiving Party.
7.5. Remedies. Each party acknowledges and agrees that any violation of this Article 7 (Confidentiality and Ownership) may cause irreparable injury to the other party for which there would be no adequate remedy at law and, therefore, such other party shall be entitled to preliminary and other injunctive relief against the other party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that the parties may have at law or in equity.
8. Indemnity and Liability.
8.1. TransLoc Intellectual Property Infringement Protection.
8.1.1. If a third party claims that the Service provided to Customer by TransLoc under this agreement infringes that party’s United States patent or copyright, TransLoc shall defend Customer and Customer’s Affiliates against that claim and shall pay any losses, liabilities, damages, judgments, awards, expenses, and costs, including reasonable attorneys’ fees that a court finally awards against Customer, provided that Customer (i) promptly notifies TransLoc of the claim and (ii) permits TransLoc to control and cooperates with TransLoc in the defense and any related settlement negotiations. Customer may participate, at Customer’s own expense, in the defense of such claim.
8.1.2. If any part of the Service is, or in TransLoc’s reasonable judgment may become, the subject of any such proceeding TransLoc may, at its expense and option, do one of the following: (i) procure for Customer the necessary right to continue using the Service and Equipment; (ii) replace or modify the infringing portion of the Service or Equipment with a functionally equivalent non-infringing item or portion thereof, or (iii) if none of the foregoing are commercially reasonable, terminate Customer’s right to use the Service or the affected portion thereof, and refund to Customer an amount equal to the prepaid Subscription Fee or the affected portion thereof and the cost of any equipment, less amortization for its use on a straight line basis over a period of five (5) years from the Effective Date. The preceding sets forth TransLoc’s only obligations and Customer’s sole and exclusive remedies with respect to infringement or misappropriation of intellectual property rights.
8.1.3. TransLoc will not be liable hereunder for any claim of infringement that is based upon (i) the combination of the Service, or any part of the Service, or the Equipment with any product, software, hardware, machine, or device which is not provided by TransLoc or identified by TransLoc in its specifications as necessary to operate the Service, (ii) any modification of the Service or Equipment by a party other than TransLoc, or (iii) the use of a version of the Service other than a current, unaltered release of the Service if such infringement would have been avoided by the use of a current, unaltered release.
8.2. Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS ARISING FROM OR RELATING TO (i) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TRANSLOC OR (ii) DAMAGES ARISING FROM OR RELATING TO BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY TRANSLOC IN THE PERFORMANCE OF SERVICES UNDER THE AGREEMENT: NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS OR LOSS OF DATA OR BUSINESS INTERRUPTION), WHETHER ARISING FROM NEGLIGENCE, ERRORS, OR FAILURE OF PERFORMANCE, EVEN IF TRANSLOC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.3. Damages. IN NO EVENT SHALL TRANSLOC’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER OR CUSTOMER’S AFFILIATE IN THE SIX (6) MONTH PERIOD PRECEDING THE ACT GIVING RISE TO THE CLAIM FOR DAMAGES.
9. General Provisions.
9.1. Notices. Any notice permitted or required under this Agreement may be delivered in person, by registered or certified mail (postage prepaid), by recognized overnight delivery service, or by e-mail to the party’s address identified on the Order Form, with a copy, in the case of TransLoc, to legal@transloc.com. Notice will be deemed effective upon personal delivery, on the day after deposit for overnight delivery, three days after deposit by registered or certified mail, upon receipt if by email, when receipt is acknowledged by the receiving party.
9.2. Compliance with Laws. Each party will comply with all applicable federal, state, and local laws, ordinances, rules and regulations relating to the performance and use of the Service as set forth in this Agreement.
9.3. Ineligibility. TransLoc will not knowingly contract with, purchase from, employ, sub-contract with or carry on business in any form with any person or entity that is officially listed as excluded, debarred, declared ineligible, suspended or otherwise ineligible for participation in any Federal or State program.
9.4. Assignment. Neither party may assign or otherwise transfer any of the rights and obligations arising out of this Agreement without the prior written consent of the other party, except in connection with the sale or transfer of all or substantially all of such party’s business, whether by merger, sale or otherwise. Notwithstanding the foregoing, however, Customer’s consent shall not be required for assignments of this Agreement in whole or in part that result from a merger or acquisition, provided the contract is assigned to an affiliate of TransLoc or an entity under common control with TransLoc or TransLoc’s corporate parent.
9.5. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the state where the Customer is physically located as stated in the Order Form , without reference to any choice of law principles of such state and will not be construed in accordance with or governed by the United Nations Convention for International Sales of Goods.
9.6. Arbitration. Any controversy or claim arising out of or relating to this Agreement, with the exception of injunctive relief sought by either party, may be submitted to arbitration before an arbitrator agreed upon by the parties, or, if the parties cannot agree upon an arbitrator within thirty (30) days, to an arbitrator selected by the American Arbitration Association. Arbitration shall occur in the capital of the state specified in Section 9.5. The arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrators may award attorneys’ fees and costs as part of the award. The award of the arbitrators shall be binding and may be entered as a judgment in any court of competent jurisdiction.
9.7. Force Majeure. Except for payment obligations, neither party will be liable or responsible for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected or its subcontractors or suppliers, including but not limited to war, sabotage, insurrection, epidemics, earthquakes, terrorism, riot or other act of civil disobedience, strikes or other labor shortages, accident, fire, explosion, flood, hurricane, severe weather or act of God. The obligations of the party suffering from the force majeure event will be suspended for the duration of the force majeure.
9.8. Integration. This Agreement, together with the Order Form(s) which incorporate these terms, constitutes the final and exclusive agreement between the parties as to the matters described in it. This Agreement supersedes all prior proposals, negotiations, conversations, discussions, understandings, representations, or agreements between the parties concerning its subject matter. Without limiting the generality of the foregoing, TransLoc will not be bound by any standard or printed or referenced terms produced by Customer, including but not limited to terms included or referenced in any of Customer’s purchase orders.
9.9. Severability. If any term, provision, or condition of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.10. Promotion Rights. No public statements concerning the existence or terms of this Agreement will be made or released to any media except with the prior approval of both parties or as required by law. With Customer’s prior approval, approval of which will not be unreasonably withheld by the Customer, TransLoc may publicize its relationship with Customer for marketing and promotion purposes, which may include issuing a press release, mentioning the relationship on the TransLoc website (in each case by disclosing Customer’s name, general information and/or a link to Customer’s website), and/or list Customer as a user of the Service.
9.11. Relationship. In making and performing this Agreement, TransLoc and Customer act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between TransLoc and Customer.
9.12. Document. Neither this Agreement nor any of the matters set forth herein or in the schedules will be construed against either party by reason of the drafting or preparation thereof. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.