DEEM CLOUD AND MOBILE CAR SERVICE AGREEMENT


THIS DEEM CLOUD AND MOBILE CAR SERVICE AGREEMENT (the “Agreement”) is made by and between Deem, Inc., a Delaware corporation (“Deem”) having a principal place of business at 642 Harrison St., 2nd Floor, San Francisco, CA 94107-1323 and the operator providing its information, including billing information, on the Webpage form (“Operator”). This Agreement is effective on the date the Operator checks the box stating “I have read and agree to the agreement” (meaning this Agreement), and clicks the button labeled “Submit. 

 

R E C I T A L S

 

WHEREAS, Deem is a leading cloud and mobile commerce network, platform, and application company using its Deem Platform to provide a variety of applications and application programming interfaces (“APIs”) to buyers and sellers of products and services including an automated system for the sending and receiving of ground transportation

reservations from, between and among Users and transportation service providers (the “Deem Platform”);

 

WHEREAS, Operator is a provider of chauffeured ground transportation and has developed an affiliate network of ground transportation providers or participates in an affiliate network to provide chauffeured ground transportation to Users;

 

WHEREAS, Deem would also deliver an integrated Cloud-based network to augment its advanced reservation capabilities with on-demand reservations; and

 

WHEREAS, Deem would enable a mobile application to be used for personal and business purposes that combines user preferences, corporate policies and negotiated rates in a consumer-grade experience;

 

NOW THEREFORE, the parties hereto, in consideration of the foregoing and other good and valuable consideration recognized by the parties, hereby agree as follows:

 

1 DEFINITIONS

 

The following terms shall have the following meanings for the purpose of this Agreement:

 

1.1 “Affiliates” means those third party entities who are independent contractors with respect to Operator and with whom an Operator on the Deem Affiliate network contracts to provide transportation services on behalf of Operator.

 

1.2 “Control” and its derivatives mean with regard to any entity the legal, beneficial or equitable ownership, directly or indirectly, of fifty and one-tenths percent (50.1%) or more of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights or the right to exercise managerial control of such entity through contract or other means, provided that such control continues to exist.

 

1.3 “Confidential Information” means the terms and conditions of this Agreement and certain financial, technical, legal, marketing, computer network, and/or other business information, including, but not limited to, software (in both source and object code), hardware, programming language, systems, analyses, interfaces, algorithms, passwords, business processes and workflows, procedures, output, sales data, vendor lists, customer lists, prospective customer lists, customer-related information, business strategies, financial information, advertising and promotional plans, creative concepts and related specifications and designs, which disclosing party deems, and the receiving party should consider, proprietary and/or confidential to (and of independent economic value to) the disclosing party.

 

1.4 “CNMA” means the Cloud-based Network and next generation Mobile commerce Application that facilitates the reservation and management of Ground Transportation Services by and for Users, components of which are available today and to be made available hereunder.  The CNMA may expand to include new features, functionality, extensions, punch-outs or distribution channels, all which when made generally available by Deem hereunder shall be included in the definition of CNMA.


1.5 “Deem Marks” means the Deem logos and trademarks licensed and provided to Operator in accordance with this Agreement.

1.6 “Deem Platform” means the applications, internal software components, operational and related cloud services and processes developed, owned, maintained and operated by Deem (including the CNMA) to provide a variety of external applications and APIs, including an automated system for the sending and receiving of ground transportation reservations from, between and among Users, Operators and Affiliates.

 

1.7     “Derivative Works” means a revision, modification, translation, abridgment, condensation or expansion of software or any form in which software may be recast, transferred, or adapted, and which, if prepared without the consent of the party owning such software would be a copyright infringement.

 

1.8 “Operator Controlled Entity” means, with respect to the entity it modifies, any other entity Controlled by Operator.  “Control” is defined above.

 

1.9 “Ground Transportation Services” means the performance of ground transportation services by Operator, its Affiliate(s), and their respective personnel.

 

1.10 “Integrated Services” means the provision of the CNMA integrated with the Operator Content, which provides to Users the ability to access Ground Transportation Services data, and to enable descriptions, reservations, delivery status, confirmation status, ride status updates, and/or prices as to the selected services to be provided by Operators to the CNMA so that reservation and/or service requests may be generated and forwarded by Deem to Operators and their Affiliates through the Deem Platform.

 

1.11 “Marks” means either or both of the Deem Marks and the Operator Marks, as the context may require.

 

1.12   “Operator Content” means, to the extent applicable, searchable Ground Transportation Services availability, vehicle GPS , and pricing data, reservation services, status and confirmation data, including text, pictures, graphics, sound, video, and other data and functionality, including but not limited to any error codes or conditions resulting from an inquiry, to be provided or made available by Operator and to which Deem has direct access.

 

1.13   “Operator Marks” means the Operator logos and trademarks licensed and provided to Deem in accordance with this Agreement.

 

1.14   “Reservation” means an entry of a transaction in the Deem Platform, relating to black car Ground Transportation Services that are to be performed by Operator.

 

1.15   “User” means a passenger, or the employer or travel agency of a passenger, as the context may be.


2 LICENSE GRANT; RESTRICTIONS

 

2.1 Purpose.  Deem and Operator desire to integrate the Operator Content with the Deem Platform in order to provide Users the ability to access Operator Ground Transportation Services through the CNMA.  Using the Operator Content or API as applicable, Deem will display real time inventory available data, services descriptions, rates, ride status, and/or order confirmation data in response to User inquiries for Ground Transportation Services through the CNMA.

 

2.2 CNMA License. Subject to Operator’s compliance with the terms and conditions of this Agreement, Deem grants to Operator a non-assignable, nonexclusive, nontransferable, revocable, internal use only license to use the CNMA, and any data obtained or processed through the CNMA, to send and receive Reservations with and through the CNMA and solely for use with back office systems that are approved by Deem. For the purpose of clarity, if data obtained or processed through the CNMA is transmitted to a back office system that is approved by Deem then such data may subsequently only be transmitted from such back office system to other back office systems that are also approved by Deem.  Deem reserves the right to modify the Deem Platform or the CNMA at any time without notice at Deem’s sole discretion, provided that the modification is nondisruptive to Operator’s normal business operations.  In the event that any modification, change or upgrade shall cause loss of normal continuity, data, transmission or otherwise, even on a temporary basis, then Deem shall provide fourteen (14) days’ notice to Operator.

2.3 Linking and Content License.  Subject to the terms and conditions of this Agreement, Operator hereby grants and Deem hereby accepts a royalty-free, paid-up, non-exclusive, non-transferable, worldwide right and license to establish and maintain an Internet web-link or hyperlink from the Deem Platform to Operator's Site and/or inventory as mutually agreed upon in writing, designated by the parties for access by Users and to use, reproduce, distribute, display, cache and transmit the Operator Content for the purpose of developing and testing the integration with the Deem Platform and to enable the Integrated Services.  For the avoidance of doubt the ability to use, reproduce, distribute, display, cache and transmit the Operator Content shall include, without limitation, mobile versions of such Integrated Services.

 

2.4 Operator shall not, or allow any third party to, use Deem’s services or any data obtained or processed through the Deem Platform in any manner other than as explicitly set forth herein. Operator shall not, directly or indirectly: (i) sell, lease, loan, rent, make available service bureau uses or external time sharing, license, sublicense, assign, transfer, transmit, disclose or divulge to, or otherwise make available the Deem Platform for any purpose other than Operator’s use as expressly allowed herein; (ii) use, copy, modify, distribute copies of, display or transmit the data obtain or processed through the Deem Platform or any other Deem services in any manner not expressly allowed herein; (iii)  disassemble, reverse engineer, emulate, decompile, tamper with, create derivative works from or otherwise attempt to discover the source code of the Deem Platform, and/or any software incorporated in the Deem Platform or in any other Deem services, or attempt to reduce same to human-readable form; and (iv) bypass, modify, defeat, tamper with or circumvent any of the security features of the Deem Platform or in any other Deem services.  Operator shall be solely responsible for the protection and backup of its data used in conjunction with the use of the Deem Platform. Operator agrees to assume full responsibility for any and all actions of its employees and agents related to the use of the Deem Platform and any Deem services.  Should Operator become aware of any unauthorized use of the Deem Platform or any other Deem services, Operator shall immediately notify Deem.

 

2.5 Trademark Usage.  Deem and Operator may, from time to time, promote and advertise the services provided by either or both parties, including using the Marks of the other party, subject to the approval of the owner of the respective Marks.  Promotions including the other party shall not be undertaken or released without prior review

and written approval of the other party. This does not apply to the listing of the Operator or Deem or its subsidiaries, name(s) and services on their respective web sites, information pages or sales materials.

 

2.5.1 During the Term of this Agreement, each party hereby grants to the other party, a non-assignable, non-exclusive, non-transferable license to reproduce and use all of the other party’s trademarks, logos, designs, or symbols, now in use or later developed, solely in the identification, advertising, promotion, and marketing of the services hereunder to third parties, subject to the sole discretion of the owner of the respective Marks.

 

2.5.2 The Parties acknowledge that the Marks are exclusively owned or controlled by the respective Party and that all use of the Marks shall inure to the benefit of the respective Party.  Neither Party shall register any name or trademark that includes the name of the other Party, incorporates any Marks, or which would otherwise be confusingly similar with any Marks.

 

2.6 Further Assurances.  Each party hereto agrees to execute such further licenses and agreements as may be reasonably necessary to accomplish the integration of the Operator Content with the Deem Platform to enable the Integrated Services as more fully described herein or to support a particular customer of either party.

 

2.7 Reservation of Rights.  This Agreement does not transfer to Operator any right, title or interest in or to any of Deem’s intellectual property rights or those of Deem’s suppliers or licensors. Certain trademarks displayed through the Deem Platform, the CNMA or Deem services are owned by Deem’s suppliers or licensors or other third parties.

 

3 DEEM OBLIGATIONS

 

3.1 Deem shall refer to Operator all requests made by Users for Ground Transportation Service who have requested

Operator.

3.2 Deem shall provide technical support solely to Operator or Operator’s technology providers, in accordance with support SLAs in section Section 9.4.2.5.

 

3.3 Deem in its sole discretion retains the right to enhance or modify, in whole or in part, the Deem Platform, the

CNMA or the services that it offers through the Deem Platform.

 

3.4 Deem shall actively promote the CNMA as the preferred way to book chauffeured transportation services reservations.

 

3.5 Deem will be promoting the Mobile Application to its current direct and indirect corporate customers and channel partners, all new direct and indirect corporate customers and channel partners, and make it available to premium consumers.

 

3.6 Deem will leverage paid search, SEO, print media, trade publications and public relations, among other means to promote the full set of CNMA capabilities.


4 OPERATOR OBLIGATIONS

 

4.1 Operator, either directly or through its technology providers, will make commercially reasonable efforts hereunder to complete the integration of the Operator Content with the Deem Platform to enable the Integrated Services, in accordance with the terms and conditions set forth in this Agreement and the Integration SOW (Attachment B, if required) as amended from time to time.

 

4.2 Operator, either directly or through its technology providers, will provide real-time, direct access to Ground Transportation Services availability data such that Deem can access information describing the prices, availability, locations, ride statuses, GPS vehicle reporting, and other information related to the Ground Transportation Services as requested, as well as make, change and cancel Reservations.  As appropriate, Operator will make resources available to advise Deem on the appropriate service descriptions, driver and vehicle profiles, pricing, service guarantees, service policies, etc.

 

4.3 Operator, upon Deem making its mobile application generally available, will make commercially reasonable efforts to complete the integration of GPS data and Operator Content within mobile-enabled versions of the Integrated Services allowing users to see availability of inventory and, when reserved, the location and ETA of the vehicle to the pickup point.  Deem shall assist Operator with the integration of mobile versions of business offerings via Deem published API’s or a Deem driver application, as mutually agreed upon, subject to the terms and conditions set forth in this Agreement.

 

4.4 Operator shall be responsible for and assume all liability with respect to the accuracy of all information it enters into the Deem Platform.

 

4.5 Operator shall be responsible for providing service and first line support to Users.

 

4.6 Operator shall resolve as quickly as reasonably possible any disputes with Users related to the Operators provision of service, and in no event shall any payments due to Deem be held up pending the resolution of any such disputes.  Notwithstanding the forgoing, should Deem or the CNMA be responsible for the Operator being unable to correctly deliver services then the Operator shall be credited for such amounts.

 

4.7 Operator shall market and promote the Mobile application, as appropriate to the Operators Customers’ preferences, as a method for customers to book their car service reservations over phone reservations.

 

5 MUTUAL OBLIGATIONS

 

5.1 Integration of Ground Transportation Services. Each Party will use its reasonable efforts to maintain all of the necessary hardware, software, bandwidth and other facilities and equipment to provide the Integrated Services in accordance with this Agreement.

 

5.2 Public Announcements; Marketing.  Operator and Deem shall cooperate with each other and issue joint press releases concerning this Agreement upon execution of this Agreement as well as upon the achievement of certain milestones.  The parties shall also conduct necessary public relations and marketing efforts to promote the relationship provided that each party must approve any press release prior to its release and any such approval shall not be unreasonably withheld or delayed.  Operator consents to Deem’s use of the approved Operator logo in Deem’s marketing collateral in the promotion of the CNMA as outlined in section 2.5.1.

 

6 TERM; TERMINATION


6.1 Term.  The initial term of this Agreement will commence on the Effective Date and will continue thereafter for a period of three (3) years (the “Initial Term”).  Thereafter, this Agreement shall automatically renew for one additional one (1) year terms (each, a  “Renewal Term”), unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the Initial Term.  The Initial Term and the Renewal Term shall be collectively referred to as the “Term.”

 

6.2 Termination.  Except as provided herein, neither party may terminate this Agreement, prior to the end of the Term, unless (a) there is a material breach of the obligations defined herein that is not cured after 30 days from the receipt of written notification of such breach; (b) either party files for bankruptcy protection; or (c) either party is indicted for any criminal activity.  Upon the effective date of expiration or termination, all rights and obligations defined herein expire except those set forth in Sections 6, 7.4, 8, 9.4, 9.5, 9.6, 9.7 and 10.

 

6.3 Return of Materials.  All Confidential Information, User Data, software and associated trademarks, marks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, samples, literature, and sales and promotional aids of every kind shall remain the property of its original owner.  Within thirty (30) days after the effective date of termination of this Agreement, each party hereto may require the other party to destroy all tangible items bearing, containing, or contained in, any of the foregoing in its possession or control, and provide written certification of such destruction, or prepare such tangible items for shipment to the other party or its designee, as may be directed, at each party’s own expense.  No party shall make or retain any Confidential Information that may have been entrusted to it.


7 FINANCIAL ARRANGEMENT

 

7.1 Operator shall pay the fees and other charges set forth on Attachment A (“Fee Schedule”) immediately upon the occurrence of the event giving rise to the obligation. The acceptable payment options for Operator to Deem are automatic ACH transfers or credit card. Operator shall process any consents or documents authorizing either the ACH debiting of its account or the charging of an acceptable credit card.  Except as otherwise provided herein, all payments due hereunder shall be made in United States dollars net thirty (30) days from receipt of invoice.  Fees due shall not be subject to set off other than credits agreed to  in section 4.6 and shall be made without deductions based on any taxes or withholdings, except where such deduction is based on payer’s net income.

 

7.2 Taxes.  The Fees due hereunder do not include taxes.  Payer shall be responsible for and shall pay for any taxes including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under this Agreement, including penalties and interest but specifically excluding any income taxes payable by payee.  Such taxes added to payee’s invoice, as prescribed by applicable law, will be paid by Payer net thirty (30) days from the date of invoice or other notification.  

 

7.3 Operator will be fully and solely responsible for all Ground Transportation Services as required by law and any and all damages, claims, liabilities and costs legally suffered therefrom by any User, directly or indirectly, in full or in part.

 

7.4 Audit Rights.  Deem may audit Operator’s compliance with this Agreement at any time, through manual or automated means. If such audit requires the presence of Deem employees or representatives on Operator’s premises, Deem shall provide Operator with a minimum of five (5) business days’ written notice of such audit to be conducted during normal business hours, and Deem and its employees or representatives will not unreasonably interfere with Operator’s normal business operations.  If any such audit finds that Operator is materially noncompliant with this Agreement, Operator shall reimburse Deem for its reasonable costs incurred in performing the audit. Deem shall invoice Operator for such amounts, including any underpayments, and Operator shall pay Deem within thirty (30) days of the date of the invoice.


8 USER DATA

 

8.1 User Data.  Operator may only use User Data solely for purposes of providing the Ground Transportation Services.

User Data shall only be used in accordance with this Agreement and shall be maintained in an adequately secure environment as set forth in Attachment B hereto.

 

8.2 Privacy and Security Compliance. Operator agrees that it will at all times maintain and abide by any U.S. or other nation’s federal, state or provincial law, regulation, ordinance, court order or other legal requirement or any applicable implementing regulations issued by regulatory authorities having jurisdiction pertaining to non-public personal information, which includes implementing and maintaining appropriate security measures to protect personal information.  Operator agrees that it will at all times maintain and abide by the Deem privacy policy found at https://www.deem.com/privacy/global-privacy-statement.   Operator shall notify Deem of any violation of the foregoing obligations and cooperate with Deem with respect to any compromise of User Data.

 

8.3 Notwithstanding anything to the contrary herein, the parties may use aggregated User Data in any manner not inconsistent with their respective agreements with the User’s employer and Privacy Policy.

 

9 GENERAL OBLIGATIONS.

 

9.1 Title.  Title to and ownership of the Deem Platform and the CNMA, whether in machine-readable or printed form, and including, without limitation, Derivative Works thereof provided by Deem hereunder, compilations, or collective works thereof and all related technical know-how and all intellectual property rights therein (including without limitation rights in patents, copyrights, and trade secrets applicable thereto), are and shall remain the exclusive property of Deem.  Operator shall have only those rights in or to the Deem Platform granted to it pursuant to this Agreement.

 

9.2 Branding.

 

9.2.1 The CNMA and its components (e.g., Clearinghouse, Mobile Application) shall be branded “Deem.”  In instances in which the Operator has an exclusive relationship with a customer, the mobile application shall have the capability to be configured so that only Operator’s branded content is displayed and available to that customer. Any exceptions shall be at the sole discretion of the Operator.

 

9.2.2 The Operator’s Brands, amenities and vehicles may be merchandized as mutually agreed to increase adoption and deepen individual Operator loyalty.

 

9.3 Confidential Information and Disclosure.  Each party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information and to use such Confidential Information only as permitted under this Agreement.  Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information including, without limitation, disclosing Confidential Information only to its employees (a) with a need to know to further permitted uses of such information and (b) who are parties to appropriate agreements sufficient to comply with this Section 9.3, and (c) who are informed of the nondisclosure/non-use obligations imposed by this Section 9.3 and both parties shall take appropriate steps to implement and enforce such non-disclosure/non-use obligations.  The foregoing restrictions on disclosure and use shall survive for three (3) years following termination of this Agreement but shall not apply with respect to any Confidential Information which (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (iii) is independently developed by the receiving party without violation of this Agreement; (iv) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; (v) is disclosed by the receiving party in connection with securities filings with the Securities and Exchange Commission or as otherwise required by government regulation; or (vi) the receiving party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.  In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose that Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.

 

9.4 Warranties and Representations

 

9.4.1 EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE, NEITHER OPERATOR NOR DEEM PROVIDE ANY OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, OR NON-INFRINGEMENT WITH RESPECT TO THIS AGREEMENT AND THE PRODUCTS AND SERVICES PROVIDED HEREUNDER.

 

9.4.2 General.   Each party (the “Warranting Party”) warrants to the other party as of the date hereof and on a continuing basis that:

 

9.4.2.1  Corporate Authority.  The Warranting Party has the right to enter this Agreement, is a corporation duly organized, validly existing, and in good standing under the laws of the state of its incorporation, has the power and authority, corporate and otherwise, to execute and deliver this Agreement and to perform its obligations hereunder, and has by all necessary corporate action duly and validly authorized the execution and delivery of this Agreement and the performance of its obligations hereunder and thereunder.

 

9.4.2.2  Binding Obligation.  This Agreement is the valid and legally binding obligation of the Warranting Party in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and similar laws and to general principles of equity that are within the discretion of courts of applicable jurisdiction.

 

9.4.2.3  No Conflicts.  The execution, delivery and performance by the Warranting Party of this Agreement and each other agreement, document, or instrument now or hereafter executed and delivered by the Warranting Party pursuant thereto or in connection herewith will not:  (i) conflict with or violate the articles or certificate of incorporation or by-laws of the Warranting Party or any provision of any law, rule, regulation, authorization or judgment of any governmental authority having applicability to the Warranting Party or its actions, the violation of which would have a material adverse effect on the ability of the Warranting Party to carry out is obligations hereunder; or (ii) conflict with or result in any breach of, or constitute a default under, any note, security agreement, commitment, contract or other agreement, instrument or undertaking to which the Warranting Party is a party or by which any of its property is bound, the violation of which would have a material adverse effect on the ability of the Warranting Party to carry out its obligations hereunder.

 

9.4.2.4  Operator Service.  Operator represents and warrants to Deem that: (i) it has the right to provide the Operator Service and the licenses granted herein; and (ii) the services provided hereunder shall be performed, as applicable, by qualified individuals, in a professional and workmanlike manner, and in accordance with industry standards.

 

9.4.2.5  Deem Service.  Deem shall perform all services under this Agreement in a workmanlike manner in accordance with industry standards. Operator must provide Deem with written notice of any defective services, in reasonable detail specifying the deficiencies, within thirty (30) days of the date of performance of such defective services. As Deem's sole obligation and Operator's sole remedy, Deem shall re-perform the applicable services as warranted and perform the repairs as set forth below in this Section 9.4.2.5. In those cases where the defect and/or deficiency experienced by the Operator creates an issue with a severity of “high,” as defined below, Deem shall use commercially reasonable efforts to complete repairs and/or provide a workaround within twenty-four hours of notification.  Should the defect and/or deficiency create an issue with a severity of “medium,” as defined below, then Deem shall use commercially reasonable efforts to complete repairs and/or provide a workaround within seventy-two hours.  Should the defect and/or deficiency create an issue with a severity of “low,” as defined below, then Deem shall use commercially reasonable efforts to effect repairs and/or provide a workaround within thirty days.

Severity Time to complete repairs or provide workaround
High 24 hours
Medium 72 hours
Low 30 days

 

“High” means, in the case of a production environment, that the functionality of the Deem Platform is limited resulting in major impacts upon critical business processes or there is a high potential for an error to cause data corruption.

“Medium” means, in the case of a production environment, that the functionality of the Deem Platform is impaired, but key business processes are not interrupted.

“Low” means, in the case of a production environment, that the functionality of the Deem Platform is impaired, but a workaround exists; there is little or no operational or business impact, or a minor issue with no discernible impact on Operator’s operations, routine administrative requests, or queries that do not require an immediate response.

 

9.5 Indemnity

 

9.5.1     Indemnity by Deem.  Deem agrees to defend and/or settle at its own expense any claim or action against Operator or its affiliates to the extent based on any third party claim that: (i) the CNMA or any component thereof infringes or misappropriates any third-party Intellectual Property Rights (collectively for purposes of this paragraph, “Third Party Intellectual Property Rights”), (ii) arises from any breach of the covenants, representations and/or

warranties made by Deem hereunder; (iii) arises from Deem's willful misconduct; and/or (iv) arises from personal injury or tangible personal property damage caused by any employee, agent, or subcontractor of Deem, provided, however, that such indemnification shall not include any claim arising from injury or damage caused by Operator; subject to the obligations and limitations of section 9.5.3, and to pay such damages, judgments, suits, expenses, and other costs (including attorneys’ fees) resulting from such claim.  If it is adjudicatively determined, or if Deem believes, that the CNMA or any component thereof infringes any Third Party Intellectual Property Rights, or if the sale or use of the CNMA, or any component thereof is, as a result, enjoined, then Deem may, at its election, option and expense:  (i) procure for Operator the right under such Third Party Intellectual Property Rights in order to effectuate the purposes of this Agreement; or (ii) replace the CNMA, or any component thereof, with other noninfringing suitable functionality; or (iii) suitably modify the CNMA, or any component thereof to become noninfringing; or, if none of the foregoing are commercially reasonable, then (iv) remove the CNMA, or any component thereof and terminate any distribution thereof including this Agreement. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF DEEM AND THE SOLE AND EXCLUSIVE REMEDY OF OPERATOR WITH RESPECT TO ANY INDEMNIFIABLE CLAIM HEREUNDER.

 

9.5.2 Indemnity by Operator.  Operator agrees to defend and/or settle at its own expense any claim or action against Deem its affiliates and suppliers to the extent based on any claim arising from: (i) Operator’s failure to protect User Data in accordance with Section 8; (ii) that Operator infringed or misappropriated any third-party Intellectual Property Rights (collectively for purposes of this paragraph, “Third Party Intellectual Property Rights”); (iii) Operator's breach of the covenants, representations and/or warranties made by Operator hereunder, (vi) Operator's willful misconduct; and/or (v) personal injury or property damage caused by any employee, agent, or subcontractor of Operator, provided, however, that such indemnification shall not include any claim arising from injury or damage caused by Deem; subject to the obligations and limitations of section 9.5.3, and to pay such damages, judgments, suits, expenses and other costs (including attorneys’ fees) resulting from such claim. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF OPERATOR AND THE SOLE AND EXCLUSIVE REMEDY OF DEEM WITH RESPECT TO ANY INDEMNIFIABLE CLAIM HEREUNDER.

 

9.5.3 Mechanics of Indemnity.  The party seeking indemnification (the “Indemnified Party”) shall:  (a) give the proposed indemnifier (the “Indemnifying Party”) prompt written notice of the claim, (b) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such claim, and (c) give the Indemnifying Party the right to solely control the defense and settlement of any such claim.

 

9.6 LIMITATION OF LIABILITY.  OPERATOR UNDERSTANDS THAT DEEM IS NOT IN THE BUSINESS OF PROVIDING GROUND TRANSPORTATION SERVICES AND NEITHER OWNS NOR CONTROLS ANY COMPANY THAT OWNS CHAUFERRED VEHICLES.  OPERATOR, THEREFORE, AGREES THAT DEEM SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER TO THE OPERATOR, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, OR TO ANY INDIVIDUAL OR ENTITY WHATSOEVER, OR FOR DAMAGES OF ANY TYPE, FOR ANY ACTIONS OR INACTIONS OF ANY GROUND TRANSPORTATION SERVICE PROVIDER. EXCEPT WITH RESPECT TO ANY LIABILITY OF EITHER PARTY TO THE OTHER PARTY ARISING UNDER SECTION 9.6 HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OF SAVINGS, LOSS OF USE, INTERRUPTIONS OF BUSINESS, AND CLAIMS OF CUSTOMERS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HERETO TO THE OTHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL CLAIMS INCLUSIVE, EXCEED THE AMOUNT PAID OR PAYABLE BY OPERATOR SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE).


10  GENERAL TERMS AND CONDITIONS

 

10.1   Governing Law.  This Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to any conflict of law principles and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in San Francisco County, California, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the state courts of San Francisco County, California.

10.2   Compliance with Laws.  At their own expense, Deem and Operator shall comply with all applicable laws, regulations, rules, ordinances and orders regarding their respective activities related to this Agreement.

 

10.3   Severability; Headings.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.  Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.

 

10.4   Independent Contractors.  The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Neither party may take any actions, which are binding, on the other party.  Without limiting the foregoing, Deem shall not make any representations or warranties to third parties on behalf of Operator.

 

10.5   Freedom of Development.  Deem may enter into similar agreements with other parties who may compete directly or indirectly with the other.  Nothing contained in this Agreement will limit the right of Deem to develop products and/or offer services similar to those of the other party, provided that such development activity does not violate any term or condition of this Agreement, including but not limited to the confidentiality provisions.

 

10.6   Notice.  Any notices required or permitted hereunder shall be given to the appropriate party at the address specified above (or for Deem at its corporate headquarters address as specified on its corporate website if different from above) or at such other address as the party shall specify in writing.  Unless otherwise specified, such notice shall be deemed given:  (i) upon personal or overnight mail delivery; (ii) if sent by fax, upon confirmation of receipt; or (iii) if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.  Notices to Deem shall also include a copy sent to the attention of its General Counsel addressed as above.

 

10.7   Entire Agreement; Waiver.  This Agreement and the Attachments attached hereto set forth the entire understanding and agreement of the parties, and supersede any and all prior or contemporaneous oral or written agreement or understandings between the parties, as to the subject matter of this Agreement.  In the event of any conflict between the Agreement and an Attachment, the terms of the Attachment shall control.  Except as provided herein, only a writing signed by both parties may modify this Agreement.  Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver shall be construed as a waiver of any other breach of such provision or a waiver of the provision itself.

 

10.8   Assignment.  Neither party shall transfer or assign this Agreement except as expressly allowed below without the prior written consent of the other party and any purported assignment in violation of the foregoing shall be null and void.  Either party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, to any successor in interest to all or substantially all of such party’s business or assets related to this Agreement or to a wholly owned subsidiary.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

 

10.9   Force Majeure.  Except with respect to payment obligations, neither Operator nor Deem shall be deemed to be in default for failure or delay in performing under this Agreement or interruption of service resulting, directly or indirectly, from acts of God, man-made or natural disasters, acts of government, acts of public enemy, war, accidents, fires, explosives, earthquakes, floods, the elements, strikes, labor disputes, shortages of materials, labor or transportation, disruption of utilities, communication line failure, nuclear damage of any kind, or any other cause beyond the control of the applicable party. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.