End User License Agreement

Except to the extent expressly provided otherwise, in this EULA:

This EULA shall come into force upon the Effective Date.

This EULA shall continue in force until terminated in accordance with Clause 11 or any other provision of this EULA.

Invarion hereby grants to the Licensee for the Term a limited, worldwide, non-exclusive license to:

The Licensee may not assign, transfer, or sub-license and must not purport to assign, transfer, or sub-license, any rights granted under Clause 3.1 without the prior written consent of Invarion.

Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any license granted under this Clause 3 shall be subject to the following prohibitions:

The Licensee shall use reasonable efforts to prevent unauthorized access to the Software. Without limiting the generality of the foregoing, (i) with respect to downloadable Software, Licensee shall use all reasonable endeavors (including all reasonable security measures) to ensure that access to all copies of the Software, and all devices on which such Software is installed, is restricted to Authorized Users; and (ii) with respect to non-downloadable Software, Licensee shall safeguard and maintain the confidentiality of its login credentials and shall ensure only Authorized Users have access to the Software or any passwords, tokens, or other access credentials of Licensee or its Authorized Users. Licensee shall be responsible for any activities or actions taken on or through its accounts, credentials, or instances of the Software, whether or not it has authorized such activities or actions. Licensee will notify Invarion immediately if it becomes aware of or suspects that any unauthorized person is using its access credentials or otherwise accessing the Software without authorization.

Nothing in this EULA shall give to the Licensee or any other person any right to access or use the Source Code or constitute any license of the Source Code.

Invarion may provide reasonable Maintenance Services to the Licensee during the Term, in its discretion. Invarion shall provide any such Maintenance Services with reasonable skill and care. Invarion may suspend the provision of the Maintenance Services if any amount due to be paid by the Licensee to Invarion under this EULA is overdue, and may terminate the Maintenance Services by giving to the Licensee at least 30 days' written notice. Termination of the Maintenance Services will not terminate the Software license or other Services, and all provisions of this EULA will continue notwithstanding such termination.

Invarion may provide reasonable Support Services to the Licensee during the Term, in its discretion. Invarion shall provide any such Support Services with reasonable skill and care. Invarion may suspend the provision of the Support Services if any amount due to be paid by the Licensee to Invarion under this EULA is overdue, and Invarion may terminate the Support Services by giving to the Licensee at least 30 days written notice. Termination of the Support Services will not terminate the Software license or other Services, and all provisions of this EULA will continue notwithstanding such termination.

Notwithstanding the foregoing, unless it has been otherwise agreed to between the Licensee and Invarion, this EULA does not create any obligations on the part of Invarion to provide any ongoing support or maintenance for the Software or Documentation at any time. Invarion may, at its absolute discretion, release upgrades, patches or the like but is in no way obligated to do so as part of the license or otherwise under this EULA.

Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from Invarion to the Licensee, or from the Licensee to Invarion.

The Licensee agrees to not intentionally or otherwise change, remove, partially or completely obscure, delete or otherwise deface or cover any trademark or copyright notices, branding or other information placed automatically on documentation created by the software. The foregoing applies, without limitation, to any notice posted on plans which explains that the Software was the application used to create the plan.

Any clipart files (including but not limited to sign glyphs and road tile glyphs) or other content, information, and designs included in the Software or any output thereof are protected by copyright and may not be used in other applications without the prior written consent of Invarion.

The Licensee may not copy, alter, modify, reproduce, create derivative works of, sub-license or otherwise exploit the Software except to the extent expressly authorized by this EULA.

Invarion reserves and retains all right, title and interest, including all Intellectual Property Rights, in and to the Software. From time to time, Licensee and its Authorized Users may choose to submit Feedback to Invarion. You agree that any such Feedback will be Invarion’s property, and any submission of Feedback will constitute an assignment to Invarion of all worldwide rights, titles, and interests in and to the Feedback. Without limiting the foregoing, Invarion may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this EULA limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

The Licensee grants to Invarion a perpetual, non-exclusive, transferable, royalty-free, fully paid-up license to use any data, documents, materials, or information provided to Invarion or uploaded or transmitted to or through the Software by or on behalf of Licensee or its Authorized Users (the “Licensee Data”) for purposes of providing, maintaining, improving, and developing the Software, Services, and other products, services, and offerings of Invarion and its service providers. Licensee is solely responsible for the content, quality, and accuracy of Licensee Data, and for ensuring that the Licensee Data complies with all applicable laws, rules, and regulations. Furthermore, by providing Licensee Data, Licensee represents and warrants that Licensee has all rights necessary to transmit Licensee Data to Invarion, and that Invarion’s use of the Licensee Data as contemplated in this EULA will not violate the privacy, intellectual property, or other rights of any third party, or any applicable laws, rules, or regulations. Invarion is not responsible for Licensee Data transmitted to the Software, nor is Invarion responsible for Licensee Data once it leaves the Software. Licensee Data does not include Usage Data, which shall be the property of Invarion.

The Licensee grants to Invarion a perpetual, non-exclusive, transferable, royalty-free, fully paid-up license to use any data, documents, materials, or information generated by or on behalf of the Licensee or its Authorized Users on or through the Software (the “Outputs”) for purposes of providing, maintaining, improving, and developing the Software, Services, and other products, services, and offerings of Invarion and its service providers.

The parties acknowledge that Licensee Data may include information that is reasonably capable of identifying or being associated with an individual, or that otherwise qualifies as “personal data,” “personal information,” or similarly protected information under applicable consumer data privacy laws (“Personal Data”). By providing Personal Data, Licensee acknowledges and agrees that Invarion may collect, process, store, and otherwise use and hold that Personal Data in accordance with this EULA and its Privacy Policy, available at https://invarion.com/en-US/terms, as the same may be updated from time to time.

Licensee agrees that Invarion may receive, collect, store, transmit, process, analyze, and use non-Personal Data related to Licensee’s and its Authorized Users’ use of the Software (“Usage Data”). Licensee agrees that, to the fullest extent permitted by applicable law, Invarion owns all rights, title, and interest in and to the Usage Data and may use the Usage Data for any lawful purpose.

The Licensee shall pay the Charges to Invarion in accordance with this EULA. Unless otherwise expressly set forth herein, all Charges are non-cancellable and non-refundable.

All amounts stated in or in relation to this EULA, or otherwise applicable to the Software or Services, are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Licensee to Invarion.

Licensee agrees that it is responsible for all Charges applicable to its use of the Software, whether such Charges are set out in the online payment or registration form or invoiced to Licensee. If Invarion agrees to invoice Licensee, Invarion shall issue an invoice for the Charges to the Licensee, and the Licensee must pay the Charges to Invarion within 30 days following the date of an invoice. Otherwise, Charges are due as indicated in the online payment or registration form. The Licensee must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by Invarion to the Licensee from time to time).

Licensor and Licensee each warrants to the other party that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

Invarion warrants to the Licensee that:

Licensee warrants to Licensor that:

Licensee acknowledges and agrees that all of Invarion’s warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract. Without limiting the generality of the foregoing, the Software, Documentation, and Services, and all information provided on or through the same, are provided on an “as-is” and “as available” basis, without any warranties of any kind, and Invarion, together with its affiliates and its and their directors, officers, employees, contractors, agents, and representatives, hereby expressly disclaim all warranties, express or implied, including the warranties of title, merchantability, noninfringement, and fitness for a particular purpose, in each case whether arising out of law, statute, course of dealing, trade usage, or any other relationship.

The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs and that, subject to the other provisions of this EULA, Invarion gives no warranty or representation that the Software will be available or free from defects, errors, or bugs or any other warranties with regard to the accuracy, reliability, completeness, quality, functionality, timeliness, speed, or accessibility of the Software or any information provided on or through the same.

The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, Invarion gives no warranty or representation that the Software will be entirely secure, operational, or virus free.

The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification, and Invarion does not warrant or represent that the Software will be compatible with any other software.

The Licensee acknowledges that Invarion does not and will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software and that Invarion does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person. Licensee is solely responsible for any actions it or any third party takes in reliance on the Software, Documentation, Services, or any information provided on or through the same.

Licensee agrees that it is solely responsible and liable for the interpretation and implementation of any documentation created in the Software and for ensuring that the same is undertaken in accordance with all applicable federal, state, and local laws, rules, regulations, and standards, including without limitation, those relating to road works. Licensee acknowledges and agrees that neither the Software nor any documentation included or packaged with the Software offers any suggestion, advice, example or other information concerning compliance with such laws, rules or regulations. Any documentation included in or with the Software is included for Software capability illustrative purposes only and Invarion does not warrant that it is suitable for any application or use on roadways in the United States or elsewhere. Licensee further acknowledges and agrees that it understands that applicable laws, rules and regulations may require people engaging in traffic management practices to hold certain accreditations relating to traffic management or traffic control, and Licensee shall ensure that it obtains any such accreditations and otherwise complies with all such requirements and other applicable laws, rules, regulations, or standards.

Invarion shall indemnify, defend, and hold harmless the Licensee against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensee and arising directly as a result of any claim by a third party that the Software, when used in accordance with this EULA and the Documentation, infringes the Intellectual Property Rights of such third party (a "Invarion Indemnity Event"). Notwithstanding the foregoing, Invarion shall have no obligation with respect to any Invarion Indemnity Event if such Invarion Indemnity Event was caused, directly or indirectly, by any of the following:

The Licensee must:

If Invarion reasonably determines, or any third-party alleges, that the Software or Licensee’s use of the same infringes or is likely to infringe the Intellectual Property Rights of any third party, Invarion may, in its sole discretion, (a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, (b) procure for Licensee the right to use the Software in accordance with this EULA, or (c) if Invarion determines that (a) and (b) are not reasonably feasible, terminate this EULA by written notice to Licensee and refund to Licensee all Charges prepaid applicable to the period after the effective date of the termination. The obligations set forth in Clauses 9.1 and 9.3 shall be Invarion’s sole and exclusive obligation, and Licensee’s exclusive remedy, with respect to any infringement of third-party Intellectual Property Rights.

The Licensee shall indemnify and shall keep indemnified Invarion against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Invarion and arising directly or indirectly as a result of (a) any breach by the Licensee of this EULA; (b) any decisions made or actions taken by or on behalf of Licensee in connection with its use of the Software, including without limitation, the implementation of any documentation created in the Software; or (c) any gross negligence, willful misconduct, or fraud of Licensee (a "Licensee Indemnity Event").

Invarion must, without prejudice to Licensee’s obligations under Clause 9.4:

For purposes of clarity, the indemnity protection set out in this Clause 9 shall be subject to the limitations and exclusions of liability set out in this EULA.

Nothing in this EULA will:

The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this EULA govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

Except as set forth in Clause 10.1, notwithstanding anything to the contrary herein, Invarion will not be liable to the Licensee in respect of any losses arising out of a Force Majeure Event, loss of profits or anticipated savings, loss of revenue or income, loss of business, contracts or opportunities, or loss or corruption of any data, database or software, or in respect of any special, indirect, punitive, or consequential loss or damage.

Except as set forth in Clause 10.1, notwithstanding anything to the contrary herein, the aggregate liability of Invarion to the Licensee under this EULA or otherwise related to the Software or Services shall not exceed the total amount paid and payable by the Licensee to Invarion under this EULA in the 12-month period preceding the commencement of the event or events giving rise to the liability.

Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

Invarion may terminate this EULA immediately by giving written notice to the Licensee if:

Notwithstanding anything to the contrary in this Agreement, Invarion may suspend the Services and/or Licensee’s and any Authorized User’s access to any portion or all of the Software if it determines, in its sole discretion, that (a) Licensee or any of its Authorized Users has breached the terms of this EULA; or (b) Licensee’s or its Authorized Users’ use of the Software disrupts or poses a security risk to the Software. No such suspension shall be considered a breach of this EULA or give rise to any rights or remedies on the part of Licensee, including any rights to offset or withhold payment of Charges hereunder.

Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.2, 3.3, 3.4, 3.5, 5, 6, 7, 8.4-8.9, 9, 10, 12, 13, and 14.

Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

Within 30 days following the termination of this EULA for any reason, the Licensee must pay to Invarion any Charges in respect of Services provided to the Licensee before the termination of this EULA and in respect of licenses to Software in effect before the termination of this EULA.

For the avoidance of doubt, the licenses of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this EULA. This includes, with respect to any downloadable Software, immediately uninstalling or otherwise deleting any copies of the Software in the Licensee’s possession or control.

No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

Invarion shall have the right to modify this EULA at any time, with or without notice, in its sole discretion, and the Licensee’s or its Authorized Users’ continued use of the Software or Services shall be considered acceptance of these modifications. Subject to the foregoing, this EULA may not be varied except by a written document signed by or on behalf of each of the parties. No inconsistent, additional, or conflicting terms of any purchase order or other form or document of the Licensee shall be binding upon Invarion unless Invarion expressly consents to such terms in a signed writing.

The Licensee hereby agrees that Invarion may assign Invarion's contractual rights and obligations under this EULA to any successor to all or a substantial part of the business of Invarion from time to time. The Licensee must not without the prior written consent of Invarion assign, transfer or otherwise deal with any of the Licensee's contractual rights or obligations under this EULA. Any assignment or attempted assignment by the Licensee in contravention of this Clause 13.4 shall be null and void.

This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

This EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

This EULA shall be governed by and construed in accordance with the laws of the United States and the State of Delaware, without regard to rules governing conflict of laws.

The courts in the County of New Castle in the State of Delaware shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA, and each party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that such action is brought in the courts identified above.

The parties agree that any notice under this EULA will be effective (a) if to Licensee, when sent by email to the address on file with Invarion, when posted or displayed in the Software, or when otherwise transmitted by or on behalf of Invarion by any other reasonable means or method; or (b) if to Invarion, when actually received by Invarion via personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case return receipt requested, postage pre-paid) at Invarion LLC, 2057 Green Bay Road, Unit A109, Highland Park, IL 60035. Invarion may update its notice address at any time by notifying Licensee in accordance with this Clause 13.9.

In this EULA, a reference to a statute or statutory provision includes a reference to:

The Clause headings do not affect the interpretation of this EULA.

References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.