Shippabo Platform License Agreement

Overview

Galleon Technology, Inc., a Delaware corporation, dba Shippabo (“Shippabo”) develops, markets and licenses this proprietary tracking and risk awareness software-as-a-service and related online products (“Service”) for use by entities (“Subscriber”) and its employees, consultants and other authorized agents (“Users”).

Subscriber enters into this Agreement (defined below) on a subscription basis as set forth on one or more order form(s) submitted by Subscriber and accepted by Shippabo (each an “Order Form”). The “Effective Date” of this Agreement is the date which is earlier of (a) Subscriber’s or its Users’ initial access to the Service, or (b) the effective date of the first Order Form. The (1) Order Form(s), (2) these Terms and (3) the Privacy Policy found at www.shippabo.com/en/privacy-policy, including any and all attachments, exhibits or schedules thereto and hereto, each and all attached and incorporated herein by reference, are collectively the “Agreement”. This Agreement specifically excludes and disavows any terms or conditions provided by Subscriber in any invoice, order form, receipt, acknowledgement or other form or document and all such terms and conditions are void and without effect; in the event of a conflict between an Order Form and these Terms, the Order Form governs.

Shippabo may, in its sole discretion, modify these Terms at any time in its sole discretion effective upon posting the modified Terms through the Service, with notice to Subscriber through the Service. Subscriber is responsible for regularly reviewing any information posted through the Service, including such modified Terms, if any. If Subscriber does not agree to the modified Terms, Subscriber agrees to immediately stop using the Service. CONTINUED ACCESS OR USE OF THE SERVICE AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) MEANS SUBSCRIBER ACCEPTS ANDS AGREE TO BE BOUND BY THE MODIFIED TERMS.

1. Service

Shippabo shall use commercially reasonable efforts to provide Subscriber the Service during the Term. Subject to the terms and conditions of this Agreement, Shippabo hereby grants to Subscriber a nonexclusive, nontransferable, nonassignable, nonsublicenseable, revocable, fee-bearing, limited right and license during the Term to access and use the Service and related documentation solely for its own internal business purposes. Shippabo shall host and provide the Service to Subscriber. Shippabo shall maintain the Service during the Term by providing updates and bug fixes to the Service from time to time, as determined by Shippabo in its sole but reasonable discretion; any such updates will be subject to the Agreement.

1.1 Restrictions

The Service is licensed, not sold; except as specifically set forth in Order Form(s), Shippabo retains all right, title and interest in and to the Service and all intellectual property rights therein. Subscriber shall not copy, modify, distribute, display or otherwise perform the Services or any results of the Services except for its internal business purposes. Subscriber will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service; modify, translate, or create derivative works based on the Service; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; or use or send viruses or other harmful computer code through the Services.

1.2 Suspension

Shippabo reserves the right to suspend Subscriber’s access to the Service in the event of breach or where Subscriber’s use of the Service threatens the integrity of the Service, with or without prior notice.

1.3 Obligations

Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation modems, hardware, servers, software, operating systems, networking, web servers and the like.

1.4 Support

Shippabo will provide Technical Support to Subscriber via email on weekdays during the hours of 9:00 am through 6:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Subscriber may initiate a helpdesk ticket during Support Hours by emailing support@shippabo.com. Shippabo will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

2. Term

2.1 Term

Except as otherwise stated differently on an Order Form, the term of this Agreement commences on the Effective Date and continues for one (1) year (“Initial Term”). Thereafter, this Agreement automatically renews for additional one-year periods (each a “Renewal Term”, and with the Initial Term, “Term”) unless either party requests termination at least sixty (60) days prior to the end of the then-current Term.

2.2 Termination

In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or with ten (10) days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement and fails to cure such breach within the applicable period.

2.3 Survival

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnity and limitations of liability.

3. Fees and Payment Terms

3.1 Fees

Subscriber shall pay to Shippabo the applicable fees for the Service as set forth in each Order Form, including without limitation any Platform Activation Fee, any Annual Fee, any Credits (as defined below in Section 3(b)) and any other fees set forth in an Order Form (“Fees”). All Fees are non-refundable and due in advance. In the event of auto-renewal pursuant to Section 2(a) above, the Fees for any Renewal Term shall be at Shippabo’s then-current rate. Unless otherwise set forth on the Order Form, Subscriber shall provide a valid credit card number to Shippabo and agrees that Shippabo is hereby authorized to charge Subscriber’s credit card for any and all Fees due hereunder; Customer shall keep such credit card active during the Term of this Agreement and shall provide an updated credit card to Shippabo, as necessary. In the event of any early termination of this Agreement or an Order Form, all Fees for the then-current Term shall automatically accelerate and be due and payable on such termination date.

3.2 Credits

Certain features or functions within the Service may require advanced purchase in addition to any other Fees (“Credits”), as more particularly set forth on applicable Order Form(s). Subscriber agrees and acknowledges that (i) Credits must be used by Subscriber within the Term when they were purchased (i.e., Credits do not rollover to any subsequent Term), and (ii) if Subscriber requests additional Credits during the same Term as when they were first purchased, Subscriber may purchase additional Credits from Shippabo at that same discount rate for use within that same Term. Shippabo may audit Subscriber’s records related to its usage of Credits.

3.3 Payment Terms

Except as otherwise set forth in an Order Form, all Fees are due and payable electronically within thirty (30) days after the date of invoice therefor. Shippabo reserves the right to change Fees or applicable charges and to institute new charges and Fees at the end of the Term of an applicable Order Form upon thirty (30) days prior notice to Subscriber. Fees not paid when due are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If not paid by Subscriber within ten (10) days after notice from Shippabo, Shippabo may suspend or terminate the Service. All Fees are exclusive of any federal, state or local, excise, sales, use, VAT or other taxes and duties and Subscriber shall be responsible for all taxes associated with Services other than U.S. taxes based on Shippabo’s net income.

4. IP Rights

4.1 Ownership

As between Shippabo and Subscriber, all rights, title and interest in and to all intellectual property rights in the Service, including without limitation any improvements, enhancements or modifications thereto, are owned exclusively by Shippabo. Except as expressly provided in this Agreement, Shippabo does not grant Subscriber (and expressly reserves) any rights, express or implied, or ownership in the Service.

4.2 Data

By providing Shippabo with information through the Service, including without limitation non-public data about Subscriber provided to enable the provision of the Service (“Subscriber Data”), Subscriber hereby grants to Shippabo a royalty-free, fully paid-up, perpetual, irrevocable, assignable, transferable, sublicenseable right and license to copy, modify, distribute, and publicly display and perform the Subscriber Data to operate, market, improve and support the Service. Any reports, data or other results provided to Subscriber pursuant to the Service (“Reports”) are the property of Subscriber.

Shippabo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including without limitation Subscriber Data and Reports), and Shippabo will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Shippabo offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.3 Feedback

By sending Shippabo any feedback, comments, questions or suggestions concerning the Service (“Feedback”), Subscriber represents and warrants (i) that it has the right to disclose the Feedback, (ii) that the Feedback does not violate the rights of any other person or entity and (iii) that the Feedback does not contain the confidential or proprietary information of any third party or parties. By sending Shippabo any Feedback, Subscriber hereby grants Shippabo a royalty-free, fully paid-up, perpetual, irrevocable, assignable, transferable, sublicenseable right and license to copy, modify, distribute and publicly display and perform the Feedback in our sole discretion, for all purposes, and without any obligation to Subscriber.

4.4 Non-Disclosure

Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information that is marked or otherwise identified at the time of disclosure as ‘confidential’ or ‘proprietary’ (“Confidential Information”). Confidential Information of Shippabo includes without limitation non-public information regarding features, functionality and performance of the Service, product roadmaps and financial and pricing information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years from expiration or termination of this Agreement or any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. A disclosure of Confidential Information that is required to be made by Receiving Party pursuant to any request, order or requirement of a court, administrative agency or any other governmental agency shall not be deemed a breach of this Section 4, provided that Receiving Party has: (x) immediately notified Disclosing Party in writing of such, request, order or requirement, if legally permitted, (y) given Disclosing Party an opportunity to contest disclosure or seek an appropriate protective order, and (z) cooperated with Disclosing Party to narrow the scope of such disclosure to only that portion of the Confidential Information that is necessary to fulfill the request, order or requirement.

5. Representations and Warranties; Disclaimers

5.1 Warranty

Shippabo warrants that the Services will be free from defects in material and workmanship and will substantially conform to the requirements of this Agreement and the applicable user manuals, documentation and specifications (“Warranty”).

5.2 Representations and Warranties

Each party represents and warrants to the other that (i) it is a company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the legal power and authority to execute, deliver and perform this Agreement; (iii) this Agreement constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement will not cause or result in a violation of any law, of a party’s charter documents, or of any contract by which it is bound.

5.3 Warranty Disclaimer

5.4 Limitations of Liability

6. Indemnification

6.1 By Shippabo

Shippabo shall defend, indemnify and hold Subscriber harmless from liability to third parties resulting from infringement by the Service of any United States patent or copyright or misappropriation of any trade secret, provided Shippabo is (1) promptly notified of any and all threats, claims and proceedings related thereto, (2) given the opportunity to assume sole control over defense and settlement, and (3) Subscriber provides reasonable assistance as requested; Shippabo will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Shippabo, (ii) made in whole or in part in accordance with Subscriber’s specifications, (iii) that are modified after delivery by Shippabo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Subscriber’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or are believed by Shippabo to be infringing, Shippabo may, at its option and expense (x) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Subscriber a license to continue using the Service, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a refund of any prepaid, unused fees for the Service.

6.2 By Subscriber

Subscriber shall defend, indemnify and hold Shippabo and its officers, directors, representatives, and employees harmless from any and all liabilities, costs, claims, damages and expenses arising out of or in connection with: (i) this Agreement; (ii) Subscriber’s use of the Services; or (iii) any actions, suits or claims brought by Subscriber’s shareholders, customers, contractors, officers, directors, agents or employees.

7. Dispute Resolution

7.1 Attorney Fees

In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.

7.2 Mandatory Arbitration

Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration. The arbitration shall be heard by a single arbitrator and shall be conducted in San Diego, California. Judgment on the Award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (i) punitive, exemplary, or multiple damages under any legal theory; (ii) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (iii) any damages in excess of the limits set forth in this section or Section 5 (Limitation of Liability) of these Terms.

7.3 Class Action Waiver

No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.

7.4 Litigation Claims

The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (i) claims against a party arising from the indemnification obligations in these Terms; (ii) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (iii) claims by Shippabo to collect Fees; and (iv) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.

7.5 Governing Law and Jurisdiction

Subject to the rest of this Section 7, this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to principals of conflicts of laws and the parties hereby submits to the exclusive jurisdiction of the federal and state courts situated in San Diego County, CA, and the applicable service of process.

8. Marketing

For so long as the Agreement is in effect, Shippabo may identify Subscriber as a “customer” on its website and on other marketing materials, provided that the inclusion of Subscriber’s name is done in accordance with Subscriber’s brand guidelines. Subscriber shall, upon request from Shippabo, provide a positive quote about Shippabo’s Services, which Shippabo may, for so long as the Agreement is in effect, include on its website and other marketing materials. Subscriber shall reasonably cooperate with Shippabo to serve as a reference account upon request. In addition, Shippabo may issue one press release within thirty (30) days after the Effective Date and publish one case study on Subscriber’s use of the Services within one hundred twenty (120) days after the Effective Date, in each case subject to Subscriber’s prior approval as to any quotes or other statements attributed to it, such consent not unreasonably withheld or delayed.

9. General

9.1 Entire Agreement

The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Any and all waivers or modifications must be in a writing signed by both parties, except as otherwise provided herein.

9.2 Severability

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

9.3 Independent Contractors

No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority of any kind to bind the other in any respect whatsoever.

9.4 Notices

All notices under this Agreement will be in writing, including by email from Shippabo, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.5 Export

Subscriber may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

9.6 Assignment

Neither Party shall assign or transfer any rights or obligations under this Agreement (including any applicable Order Form(s)) without the prior written consent of the other Party, not to be unreasonably withheld or delayed, except that Shippabo may assign or transfer this Agreement (including any applicable Order Form(s)) to (i) an entity controlling, controlled by or under common control with it; or (ii) in connection with a spin-off, split-off or other distribution of all or part of the equity interest of Shippabo or an entity controlling, controlled by or under common control with Shippabo, its assigns or a successor of either. In addition, upon prior notice to Subscriber, Shippabo may assign its rights and obligations to account receivables or other moneys owed under this Agreement as part of a factoring arrangement.