THIS AGREEMENT is entered into as the date of registration (“Effective Date”) by and
between ITK SOLUCIONES CORP., a Florida Corporation with offices at 12015 Language Way,
Orlando, FL 32832, USA (“ITK Soluciones”) and with offices at Address, City, Country
(“Licensee”).
WHEREAS, Licensee wishes to license software and subscribe to hosting service for the
purpose of adquiring tracking and fleet management services for its own fleet.
WHEREAS, ITK SOLUCIONES desires to license this software and provide hosting
services to Licensee.
NOW THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
1.1. Licensed Programs. A collection of web-based applications under the
‘Monitoring Hosting’ brand and related APIs including translations, compilations,
modifications, and updates, used for fuel monitoring, vehicle tracking, asset tracking, fleet
management and other related activities
1.2. Monitoring Cloud Service. A hosted, cloud-based SaaS system employing
Licensed Programs. Monitoring Cloud Service is used to enter, store, manage and report
various data belonging to Licensee.
1.3. Unit. Unit shall mean a physical vehicle tracking or asset tracking device,
configured as a ‘unit’ using the Licensed Programs by Licensee, that sends location and other
information periodically to the Monitoring Cloud Service.
1.4. Total Units Maintained. Total Units Maintained shall mean the total number of
Units configured by Licensee and billed for by ITK SOLUCIONES from all geographic
regions and belonging to Licensee.
2. GRANT OF LICENSE
2.1. Subject to the terms and conditions of the Agreement, ITK SOLUCIONES grants
to Licensee a non-exclusive license to use the Licensed Programs for the purpose of providing
tracking and fleet management services for its own fleet. ITK SOLUCIONES further agrees to
provide Monitoring Cloud Service so that Licensee may store various data belonging to Licensee,
and manage its own business interests.
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2.2. Except as expressly set forth herein, no other rights or licenses are granted or
implied to the Licensee.
2.3. With respect to the Licensed Programs, ITK SOLUCIONES’s technical support is
available via email and via ITK Soluciones Help System 24 hours a day, 7 days a week, except
for (a) planned downtime; and (b) any unavailability caused by circumstances beyond the control
of ITK SOLUCIONES and/or its parent organization(s), including for example, an act of God, act
of government, flood, fire, earthquake, civil unrest, act of terror, strike, etc.
3. CONSIDERATION TO ITK SOLUCIONES
3.1. Licensee shall submit the initial payment for using the Licensed Programs
immediately, upon the activation of Licensee’s paid account in Monitoring Data Center.
Monthly fee for providing Licensed Programs and Monitoring Cloud Service shall be
computed by multiplying the Total Units Maintained of each kind by the Monthly Unit Fee
(the “Monthly License Fee”). The Monthly Unit Fee is calculated based on section 22.
3.2. Except for the first invoice that includes the start-up costs, Licensee shall postpay
for each calendar period of using the Licensed Programs and Monitoring Cloud Service.
The quarterly invoice will be delivered to the Licensee’s confirmed e-mail address on the first
calendar day of each quarter and will be due for payment within 45 days. For example, for
license fees incurred during the month of July, August, September ITK SOLUCIONES will
send an electronic invoice to Licensee on July 1st, with Licensee required to pay said invoice
in full by August 15th.
3.3 License fees do not include any shipping, duties, bank fees, sales, use, excise or
any other U.S. or international taxes or charges due. If ITK SOLUCIONES is required to
pay any such amounts, Licensee shall reimburse ITK SOLUCIONES in full. The invoice for
such amounts will be delivered to the Licensee’s confirmed e-mail address. Licensee shall
submit payment to reimburse ITK SOLUCIONES within thirty (30) days of ITK
SOLUCIONES delivering invoice to Licensee.
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4. OWNERSHIP
4.1. The Licensed Programs, including translations, compilations, modifications, and
updates, are the property of ITK Soluciones SAS of Colombia with offices at Cr 123 13 C 10
INTERIOR 3 Bogotá and its providers and are protected by the United States copyright laws and
international treaties provisions. Licensee acknowledges that the Licensed Programs are
proprietary to ITK Soluciones SAS and its providers, and that ITK Soluciones and its providers
retains all right, title, and interest in the Licensed Programs, including, without limitation, all
copyrights and other proprietary rights.
4.2. Licensee may not use, reproduce, sublicense, lease, display, distribute or dispose
of the Licensed Products, in whole or in part, except as expressly stated under Section 2 of this
Agreement.
4.3. Licensee recognizes that Licensed Programs may incorporate confidential
information and trade secrets of great value. Except for use stated in Section 2 of this
Agreement, Licensee agrees not to provide or to otherwise make available in any form the
Licensed Programs, or any portion thereof, to any person.
4.4. ITK SOLUCIONES has the unlimited rights to sublicense the Licensed Programs
in North America and South America.
4.5. This Agreement does not expressly or by implication convey any rights
in these trademarks to the Licensee or to any third parties.
5. TERM
The license granted hereunder is at least 12 months, and shall continue for another 12
months unless and until terminated pursuant to Section 6 hereof and subject to Licensee’s proper
performance of its obligations hereunder.
6. TERMINATION
6.1. ITK SOLUCIONES may terminate this Agreement if Licensee is in default of any
of the terms and conditions of this Agreement and fails to correct such default within five (5) days
after written notice thereof from ITK SOLUCIONES. Notwithstanding anything to contrary in
this Agreement, for the purposes of this subsection notice emailed to the Licensee’s confirmed
email address will be deemed effective.
6.2. Either party may terminate this Agreement upon providing the other party with
One Hundred and Eighty (180) day written notice.
6.3. In the event of termination, ITK SOLUCIONES will immediately discontinue
Licensee’s access to its account(s) at Monitoring Data Center, and all of the Licensee’s rights
granted hereunder shall immediately cease. Licensee shall immediately but no later than five (5)
business days from the date of termination uninstall and otherwise remove the Licensed Programs
from the Licensee’s computer(s), including hard drive, server and/or virtual storage. Licensee may
not use the Licensed Programs in any way once the Agreement is terminated.
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7. WARRANTY DISCLAIMER
ITK SOLUCIONES licenses, and Licensee accepts, the licensed programs “AS IS.” ITK
SOLUCIONES PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE
LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR PARTICULAR
PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE
LICENSED PROGRAM IS WITH LICENSEE. ITK SOLUCIONES DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET
LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED
PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE
8. PATENT AND COPYRIGHT INDEMNITY
8.1. In the event that the Licensed Programs, or any component thereof, becomes, or in
ITK SOLUCIONES’s opinion is likely to become, the subject of a claim of infringement of a
patent, copyright, trademark or trade secret, ITK SOLUCIONES may at its option either secure
Licensee’s right to continue using the Licensed Programs; replace or modify the Licensed
Programs to make them not infringing; or immediately terminate the Agreement. Licensee agrees
to cooperate with ITK SOLUCIONES in the replacement and/or modification of the Licensed
Programs regarding a claim of infringement of a patent, copyright, trademark or trade secret.
8.2. Licensee agrees to indemnify, defend and hold harmless ITK SOLUCIONES its
corporate affiliates, against any claim, liability, cost, damage, deficiency, loss, expense or
obligation of any kind or nature (including without limitation reasonable attorneys’ fees and other
costs and expenses of litigation) for any claim of patent, copyright or trade secret infringement
based on Licensee’s use of the Licensed Programs in any form other than the original, unmodified
form provided to Licensee or the use of a combination of the Licensed Programs with hardware,
software or data not supplied by ITK SOLUCIONES where the used Licensed Programs alone in
their original, unmodified form would not constitute an infringement.
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9. LIMITATION OF LIABILITY
ITK SOLUCIONES’S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF
THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE
AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO ITK SOLUCIONES FOR
THREE MONTHS IMMEDIATELY PRECEDING SUCH AWARD. IN NO EVENT SHALL
ITK SOLUCIONES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR
INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF
LIABILITY. LICENSEE ACKNOWLEDGES THAT THIS ALLOCATION OF RISKS IS PART
OF THE BARGAIN OF THIS AGREEMENT.
10. NOTICES
All legal notices in connection with this Agreement shall be in writing and shall be given
by certified, or registered mail, delivered at the address set forth on the front page. For purposes
of this Agreement, a notice shall be deemed effective upon the earliest of personal delivery to the
party or five (5) days after deposit in a mail box. For billing purposes, Licensee’s email address
to which quarterly invoices should be sent is: __________________________________
11. SUCCESSORS
This Agreement will be binding upon and will inure to the benefit of the parties hereto
and their respective representatives, successors and assigns except as otherwise provided herein.
12. SEVERABILITY
In the event any provision of this Agreement is determined to be invalid or unenforceable,
the remainder of this Agreement shall remain in force as if such provision were not a part.
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13. GOVERNING LAW/FORUM
This Agreement shall be governed and interpreted by the laws of Florida, Orange County,
shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder.
Any and all claims, disputes or controversies arising under, out of, or in connection with
this Agreement, which have not been resolved by good faith negotiations between ITK
SOLUCIONES and Licensee shall be resolved by final and binding arbitration in Orlando,
Florida, in accordance with the rules then obtaining applicable to the appointment of a single
arbitrator of the American Arbitration Association (“AAA”). All expenses and costs of the
arbitrators and the arbitration in connection therewith will be shared equally, except that ITK
SOLUCIONES and Licensee will each bear the costs of its own prosecution and defense,
including without limitation attorney’s fees and the production of witnesses and other evidence.
Any award rendered in such arbitration shall be final and may be enforced by either party.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to waive
any rights or timely performance of any obligations existing under this Agreement, including
without limitation Licensee’s obligations to make payments. Notwithstanding any other
provision of this Agreement, Licensee agrees that it shall not withhold or offset such payments,
and agrees that Licensee’s sole remedy for alleged breaches by ITK SOLUCIONES is pursuant
to this section.
Notwithstanding any other term of this Agreement, prior arbitration shall not be required,
nor shall any arbitrator have the power to enjoin, notice of termination or effective termination of
the license of this Agreement.
14. NON-ASSIGNMENT
Except for use explicitly stated in Section 2 of this Agreement, this Agreement and the
licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee
without the prior written consent of ITK SOLUCIONES.
15. COMPLIANCE WITH LAWS
15.1. Licensee agrees to use the Licensed Programs in compliance with all applicable
laws, including federal, state, and local laws of the jurisdiction where the Licensee downloads or
uses the Licensed Programs.
15.2. Licensee understands that ITK SOLUCIONES is subject to regulation by agencies
of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit
export or diversion of certain technical products to certain countries. Licensee warrants that it will
comply in all respect with the export and re-export restrictions set forth in the export license for
the Licensed Programs and all other applicable export regulations. Without limiting the generality
of the foregoing, the Licensed Programs may not be exported or re-exported (i) into any U.S.
embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially
Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
By using the Licensed Programs, Licensee represents and warrants that Licensee is not located in
any such country or on any such list. Licensee agrees to indemnify and hold ITK SOLUCIONES
harmless from any loss, damages, liability or expenses incurred by ITK SOLUCIONES as a result
of Licensee’s failure to comply with the provisions of this Section 15
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16. REPRESENTATIONS
ITK SOLUCIONES and Licensee hereby represent to one another as follows:
16.1. It is a company or corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated, and has full corporate or
other power and authority and the legal right to own or license and operate its property and assets
and to carry on its business as it is now being conducted and as contemplated in this Agreement.
16.2. This Agreement has been duly executed and delivered on behalf of ITK
SOLUCIONES and Licensee, by signatories duly authorized to enter into this Agreement.
17. RELATIONSHIP OF THE PARTIES
Neither party may represent or bind the other party in any way and nothing stated in this
Agreement will be construed as creating the relationships of joint venturers, partners, employer
and employee, franchisor and franchisee, or principal and agent.
18. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the
subject matter hereof, and merges and supersedes all prior agreements, discussions and
understandings, express or implied, concerning such matters. This Agreement shall take
precedence over any additional or conflicting terms which may be
contained in Licensee’s purchase order or ITK SOLUCIONES’s order acknowledgment forms.
19. DEFINITION OF CONFIDENTIAL INFORMATION.
“Confidential Information” means any information, data, or know-how (including but not
limited to that which relates to software, computer codes or instructions, developments,
inventions, processes, designs, drawings, engineering, hardware configurations, research,
statistics, business plans, product plans, products, services, customers or prospective customers,
contractors, licensors, suppliers, markets, marketing, finances, and any other materials that have
not been made available to the general public) that is revealed, either orally or in writing, by the
Discloser to the Recipient. Confidential Information also includes all information received from
third parties that either party is obligated to treat as confidential. Failure to mark any Confidential
Information as confidential or proprietary shall not affect its status as Confidential Information
under the terms of this Agreement. Confidential Information does not include information, data
or know-how that: (a) becomes part of the public domain prior to or after the time of disclosure,
through no improper action of the Recipient; (b) was in the possession of the Recipient at the time
of disclosure, as shown by the Recipient’s files and records immediately prior to the time of
disclosure; (c) is received by the Recipient from a third party, provided that such Confidential
Information was not obtained by such third party, directly or indirectly, from the Discloser; (d) is
developed independently by the Recipient without the benefit of any Confidential Information
disclosed by the Discloser hereunder; or (e) is approved for release by the Chief Executive Officer
of the Discloser, in his/her sole discretion, in writing and in advance.
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20. NON-USE AND NON-DISCLOSURE OF CONFIDENTIAL
INFORMATION.
The Recipient will not use or disclose any Confidential Information for any purpose
except to evaluate and to undertake the Relationship. The Recipient will not disclose any
Confidential Information to third parties or to the Recipient’s employees, except employees who
are required to have the Confidential Information in order to evaluate or to undertake the
Relationship. The Recipient will require employees who have access to Confidential Information
to sign or have signed a non-disclosure or other equivalent agreement that protects the
Confidential Information. The Recipient will take all reasonable measures to protect the secrecy
of, and avoid the unauthorized disclosure or use of, Confidential Information. Such measures
shall include the highest degree of care that the Recipient utilizes to protect the Recipient’s own
confidential information of a similar nature.
21. NOTICE OF REQUIRED DISCLOSURE.
If the Recipient is required by judicial or administrative process to disclose the
Confidential Information provided by the Discloser, then the Recipient shall promptly notify the
Discloser and allow the Discloser a reasonable time to oppose such process.
