GENERAL TERMS AND CONDITIONS TO LICENSING AGREEMENT
ARTICLE I: DEFINITIONS
1.1 “Devices” are any mobile or in-vehicle units which utilize the Elite EXTRA application for tracking of a Driver, Vehicle, Order, or Work Order in the Licensed offering. Devices could be a mobile cellular phone handled by the carriers for the asset being delivered, a Sales Representative on his/her route, or an in-vehicle GPS unit attached to the delivery vehicle. Drivers use the mobile device to log in to the Licensed offering or will be tracked through in-vehicle units. Devices may be used to dispatch a route or simply logged in for Driver tracking.
1.2 “Dispatchers” means the assigned User(s) designated as dispatchers and provided appropriate log-in credentials and permissions for the Licensed Offering.
1.3 “Documentation” means EXTRA’s standard technical documentation, user manuals, specifications and/or instructions relating to the Licensed Offering.
1.4 “Drivers” are an Elite EXTRA user who is able to be tracked in the Licensed offering. Drivers could be the carriers for the asset being delivered, a Sales Representative on his/her route, or any other mobile user. Drivers use a mobile device to log in to the Licensed offering or will be tracked through in vehicle units. Drivers may be dispatched on a route or simply logged in for tracking.
1.5 “Fees” refers to any and all fees payable to EXTRA hereunder.
1.6 “Location” is defined as a unique place where Customer has designated items to be picked up by drivers, e.g. warehouse, dealership, store with inventory, etc.
1.7 “Licensed Offering” means EXTRA’s web-based, real-time routing and tracking system offered under its ELITE EXTRASM trademarks.
1.8 “Users” means: (i) the Drivers, Dispatchers and individuals employed by or being compensated by Customer (as would be reported on a W2, 1099 or W2P, or equivalent) who are authorized to access the Licensed Offering under this Agreement; and (ii) Customer’s own clients which who may be provided access by Customer to the Licensed Offering for the limited purposes of tracking or routing each such client’s shipments.
ARTICLE II: ACCESS AND AUTHORIZED USERS
2.1 Web Based Access: During the Term and subject to the terms and conditions of this Agreement, EXTRA will provide Customer with web-based access to the Licensed Offering to search, compile and display Customer’s routing and tracking information. Customer expressly acknowledges and agrees that the Licensed Offering is being provided to Customer pursuant to a “software-as-a-service” model and at no time shall Customer or its Users have access to object code or source code of EXTRA’s software applications.
2.2 Authorized Users: Customer is authorized the number of locations as stated on page One (1) of this Agreement. In the event that Customer’s User requirements exceed this amount, and another location is required, Customer may acquire additional licenses at the rates set forth on page One (1) of this Agreement. Customer is authorized to have unlimited users for each location. Subject to the terms of Section 5.2 of this Agreement, Customer may also provide access to the Licensed Offering to Customer’s own clientele so that each such client may track its own shipments by Customer.
2.3 User Names and Passwords: EXTRA will provide Customer with administrative access to the Licensed Offering via an issued user name and password. Customer shall have the responsibility for maintaining access control to the Licensed Offering by its Users. Each User shall access the Licensed Offering via a unique and secure user name and password. Customer is solely responsible for maintaining the security of all user names and passwords issued to Users.
2.4 Mobile Devices: Customer and authorized Users may also access the Licensed Offering via PDA’s, cell phones and other handheld devices. EXTRA shall provide Customer with the custom software required for Driver’s mobile devices to send real-time GPS coordinates to the Licensed Offering. At no time, should the Licensed Offering be accessed via mobile devices by Customer’s Users while driving.
ARTICLE III: INTELLECTUAL PROPERTY
3.1 Copyright Ownership and License: Customer acknowledges that the EXTRA owns the copyright in all graphic interfaces, reports, displays, and formats accessible by Customer and its Users in the Licensed Offering (“Original Works”). EXTRA grants Customer a revocable, non-exclusive license to display, reproduce and distribute the Original Works for its internal purposes during the Term.
3.2 Intellectual Property Rights: Customer acknowledges that the EXTRA owns all intellectual property rights in its ELITE EXTRASM trademarks (“Marks”) and in its proprietary software applications which power the Licensed Offering (“Software”). Customer further acknowledges that this Agreement does not include any rights to use the Marks, Licensed Offering or the Software except as expressly defined herein. Customer shall not: (a) remove or obscure any Marks and/or proprietary rights notices in the Licensed Offering; (b) access, alter, prepare derivative works, reverse engineer, decompile or disassemble the Software or Licensed Offering; (c) make any attempts to duplicate the Marks, Software or Licensed Offering; or (d) use or permit others to use the Marks, Software or Licensed Offering except as expressly permitted herein; or (e) do anything inconsistent with EXTRA’s intellectual property rights.
3.3 Intellectual Property Enforcement: Customer agrees to use reasonable efforts to protect EXTRA’s intellectual property rights in the Marks, Software, Licensed Offering and related services from unauthorized use, reproduction, distribution or publication. Customer shall notify EXTRA in writing of any product or service having come to its attention that infringes or appears to infringe any intellectual property rights in the Licensed Offering, Marks or Software, and shall, as practicable, provide to EXTRA the name and address of the business or individual of such product or service. EXTRA shall have the right to institute legal action, at EXTRA’s sole discretion, to prevent or terminate such infringement. EXTRA shall have the right to control such action and select counsel. Customer shall lend its name, assistance, and cooperation to EXTRA in such legal action, to the extent reasonably requested by EXTRA. In the case that any legal action arises as a result of any breach or threatened breach of this Article by Customer, Customer will indemnify and hold harmless EXTRA from all losses, damages, causes of action, and attorneys’ fees incurred by Customer’s breach.
ARTICLE IV: ADDITIONAL SERVICES AND SUPPORT
4.1 Support Services: Customer acknowledges and agrees that EXTRA will provide all support services identified in this Article IV relating to the Licensed Offering and that neither Customer nor any third party shall be permitted to provide such services.
4.2 Integration Services: EXTRA shall provide Customer with consulting and technical services regarding set-up, configuration and customization of the Licensed Offering (“Integration Services”).
4.3 Training Services: EXTRA will provide Customer with on-site training relating to use and access to the Licensed Offering upon request (“On-Site Training Services”). Customer will be responsible for providing a training facility, equipment and Internet access for any On-Site Training Services. Customer shall reimburse EXTRA for all food, lodging and travel expenses and be responsible for all on-site expenses.
4.4 Standards: EXTRA will make the Licensed Offering and related services available in accordance with the Documentation and prevailing software-as-a-service industry standards and will use commercially reasonable efforts under the circumstances to remedy any errors, malfunctions, interruptions, omissions, mistakes or accidents occurring in connection with the Licensed Offering (“Service Standards”).
4.5 Failure to Conform to Standards: If EXTRA fails to meet the Service Standards, Customer shall provide written notice to EXTRA identifying any specific problems or failures. If EXTRA fails to remedy any such problems within thirty (30) days of receiving such written notice, Customer may terminate this Agreement in accordance with Section 7.2 (iii). However, Customer may not terminate if the problems are caused by or contributed to, directly or indirectly, by any act or omission of Customer or its Users, Customers, affiliates, agents, representatives, invitees or licensees, other than ordinary use of the Licensed Offering in accordance with the terms of this Agreement. If Customer terminates this Agreement under this Section, EXTRA shall be obligated only to refund the payments Customer made for the time there were interruptions in the Licensed Offering. This Section 4.7 provides Customer’s sole remedies for any claim relating to Service Standards in the Licensed Offering, including for any claims to meet any warranty, representation or guarantee herein.
4.6 Force Majeure: EXTRA shall not be deemed in default of any provisions of this Agreement or incur any liability for any delay or failure in performance due to force majeure, which shall include (without limitation): acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or supplies, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or any other occurrences which are beyond EXTRA’s reasonable control.
4.7 Modifications & Updates: During the Term, EXTRA may correct any defects, modify, and update the Licensed Offering, at EXTRA’s sole discretion. All such updates shall become part of the Licensed Offering and shall be subject to the terms of this Agreement.
4.8 Monthly Text Message Usage: Customer agrees to allow EXTRA to add additional numbers used to send or receive text messages to ensure the deliverability of the messages. Customer understands that the deliverability of the text messages is subject to the policies of each individual cellular provider and that delivery of the messages cannot be guaranteed.
Customer shall obtain consent from any person or entity that It sends text messages to prior to sending any messages and indicate that consent has been received by enabling the Text Notifications feature in the Extra application. Customer will stop sending text message if consent is ever withdrawn via an Opt-Out option in the EXTRA application.
ARTICLE V: RESTRICTIONS
5.1 Access Restricted: Only Customer and its authorized Users may access and use the Licensed Offering for Customer’s tracking and routing needs. The Licensed Offering may not be accessed without a valid user name and password. Failure to use valid user names and passwords, or failure to maintain the security of user names and passwords, will constitute a material breach of this Agreement and will relieve EXTRA of its obligations herein.
5.2 Use Restrictions: Customer may use the Licensed Offering for internal routing and tracking purposes and may provide access to its clientele for the limited purpose of each such client tracking its own shipments provided by Customer. To the extent Customer provides access to the Licensed Offering to its own clientele, Customer agrees to be bound by the terms and conditions of the Customer Waiver and Release From Liability attached hereto as Exhibit A. Excepting only the specific uses authorized herein, Customer may not otherwise: (a) act as a relay or intermediary allowing access to the Licensed Offering to any third party for any purpose; (b) access the Licensed Offering for the purpose of providing service bureau, data processing, time sharing services or any other service or product to third parties; or (c) sell, rent, lease, sublicense, lend or assign, other than to an affiliate or successor in interest, its rights hereunder.
5.3 Customer Hardware & Software: Except as otherwise expressly set forth herein, Customer shall, at its sole cost and expense, be responsible for obtaining and maintaining all hardware, hand held devices, software and Internet connectivity required to access and use the Licensed Offering.
ARTICLE VI: CONFIDENTIAL INFORMATION
6.1 Confidential Information: Each party may, during the performance of its obligations hereunder, have access to and acquire knowledge, materials, data and other information of the other party, its affiliates or partners, concerning the operations, financials, technology, business plans or opportunities that may not be known to the general public (“Confidential Information”). As used herein, Confidential Information includes the terms of this Agreement and all Customer Data. Confidential Information does not include information that is: (a) known by a party at the time of receipt from the other party; (b) is not subject to any Non-disclosure obligation; or (c) is generally known to the industry through no fault of the receiving party. Each party shall use the other party’s Confidential Information only for the purposes of fulfilling its obligations under this Agreement. Each party shall actively protect the other party’s Confidential Information from unauthorized use or disclosure with the same degree of care, but no less than reasonable care, as the party uses to protect its own confidential information of like nature.
6.2 Security: Each party shall (a) install and maintain industry-standard security measures on its computer systems; (b) implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect all Confidential Information obtained hereunder from unauthorized access, destruction, use, modification or disclosure; and (c) access the other party’s computer systems, if access is provided, only for the limited purpose of, and only for that period of time necessary for, fulfilling its obligations hereunder. Each party shall inform the other whenever it knows or reasonably believes a security breach has occurred, and cooperate with the other party to investigate, remediate and prosecute any such occurrence. In the event of any security breach, the breaching party shall reimburse the non-breaching party for remediation costs incurred in connection with such breach.
6.3 Restrictions: Neither party shall use nor disclose to any third party any Confidential Information without the other party’s prior written approval, which the other party may withhold in its sole discretion. Nor shall a party disclose to the other party any confidential information of any third party unless the disclosing party is expressly authorized in writing by such third party to do so.
6.4 Mandatory Non-Disclosure Agreement: Each party shall ensure that its Users, employees, agents, subcontractors and every other party it utilizes to perform services and undertake obligations hereunder, will not disclose any of the other party’s Confidential Information.
6.5 Notice: In the event that a party is directed to disclose any portion of the other party’s Confidential Information in conjunction with a judicial proceeding or arbitration, that party shall immediately notify the other party, and shall provide the other party with reasonable cooperation and assistance in obtaining a suitable protective order and in taking other steps to preserve confidentiality.
6.6 Termination: These confidentiality obligations shall survive termination or expiration of this Agreement. Upon the termination or expiration of this Agreement or upon a party’s request, the other party shall immediately destroy or return all Confidential Information.
6.7 Relief: If either party fails to comply with any of its obligations under this Article, the other party shall be entitled, in addition to monetary relief, to injunctive or other equitable relief as may be necessary to restrain any further breach by the other party, without showing or proving any actual damages sustained by that party, and without bond.
ARTICLE VII: TERMINATION
7.2 Termination: This Agreement may be terminated as follows:
i. EXTRA may terminate this Agreement immediately if Customer becomes insolvent (in either the equity or bankruptcy sense), is adjudged bankrupt, liquidates its business, makes an assignment for the benefit of creditors, or enters into receivership; or if Customer fails to make payment as set forth in this Agreement.
ii. Either party may terminate this Agreement at any time for any reason by providing written notice of termination to the other party. The agreement of the Licensed Offering between EXTRA and Customer will be dissolved following the current monthly term.
iii. Either party may terminate this Agreement in the event of a material breach or default by the other without waiver of any other remedy, by serving written notice of termination, effective thirty (30) days after the service of same and specifying the particulars of the breach or default. If, within thirty (30) days following such notice, the breach or default is remedied, this Agreement shall continue in full force and effect; otherwise, this Agreement shall terminate in accordance with the notice.
7.3 Waiver: Waiver by a party of any particular breach or default by the other shall be considered applicable only to such particular breach or default and shall not be construed as a waiver of any other or subsequent breach or default, or any other provision of this Agreement.
7.4 Effect: Upon termination of this Agreement for any reason, Customer will lose all login rights and access to the Licensed Offering.
7.5 Limitations: In the event of termination of this Agreement for any reason other than for termination by Customer for EXTRA’s failure to remedy a material breach of this Agreement, Customer shall not be entitled to a refund of any portion of the Fees paid to EXTRA and shall be obligated to pay EXTRA for the remainder of any Fees accrued and owing to EXTRA.
7.6 Survival: The parties recognize and agree that their obligations under Articles III and VI shall survive the termination of this Agreement for a period of three (3) years from the date of the last disclosure, except that the obligation of confidentiality shall continue as long as the disclosing party considers the Confidential Information to be a trade secret.
ARTICLE VIII: REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATIONS
8.1 EXTRA Warranty: EXTRA warrants that: (a) it will provide Customer with access to the Licensed Offering during the Term as provided for herein; and (b) it has all necessary rights, title and interest in the Licensed Offering to grant the rights to Customer provided in this Agreement and by doing so does not infringe any third-party rights in the Licensed Offering.
8.2 DISCLAIMER: EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, EXTRA NEITHER MAKES NOR GRANTS ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED. EXTRA EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN OR FROM A COURSE OF DEALING OR USAGE OR TRADE. EXTRA FURTHER EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, SPECIFIC OR OTHERWISE. THE FOREGOING EXPRESS WARRANTY IS THE ONLY WARRANTY OF ANY KIND FOR THE LICENSED OFFERING AND RELATED SERVICES. EXTRA MAKES NO WARRANTIES WHATSOEVER RELATING TO CUSTOMER’S DATA OR FOR ANY ELEMENTS OF THE LICENSED OFFERING THAT HAVE BEEN MODIFIED BY CUSTOMER.
8.3 Remedies for Breach of EXTRA Warranty: If the Licensed Offering does not operate substantially as warranted (hereinafter “Noncompliance”), Customer will provide EXTRA with sufficient details about the Noncompliance to allow EXTRA to remedy the Noncompliance. As Customer’s exclusive remedy for any Noncompliance, and as EXTRA’s entire liability in contract, tort or otherwise for such Noncompliance, EXTRA will either: (a) correct the Noncompliance; or (b) if EXTRA is unable to correct the Noncompliance after a reasonable opportunity to do so, Customer may terminate this Agreement in accordance with Section 7.2 (iii).
8.4 Limitation of EXTRA’s Liability, Consequential Damages: The cumulative liability of EXTRA to Customer for all claims relating to the Licensed Offering and any services rendered under this Agreement, will not exceed the total amount of all Fees paid to EXTRA by Customer for the Licensed Offering during the one-year period prior to the date EXTRA is notified of such claim. EXTRA SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS, LOSS OF GOODWILL, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE LICENSED OFFERING, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND EVEN IF EXTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, AND EXTRA WILL NOT INDEMNIFY CUSTOMER IN ANY WAY AGAINST ANY CLAIM. Customer acknowledges that this includes but is not limited to damages or losses that may arise from use of mobile devices to access the Licensed Offering. Customer agrees and acknowledges that it is in a better position to foresee any potential damages or losses it may have in connection with this Agreement and its use of the Licensed Offering, and that the Fees payable under this Agreement have been calculated on the basis that EXTRA shall expressly exclude liability as provided in this section.
8.5 Customer Warranty: Customer warrants that: (a) it will only allow access to the Licensed Offering as permitted under this Agreement; and (b) it will use all reasonable efforts to protect and maintain the security of the Licensed Offering and Confidential Information; and (c) it will use reasonable efforts to protect the Licensed Offering and related applications and services from unauthorized use, reproduction, distribution or publication; and (d) it will not use the Licensed Offering or related services to compete with EXTRA.
8.6 Remedies for Breach of Customer Warranty: Customer will indemnify and hold harmless EXTRA from all losses, damages, causes of action, and attorneys’ fees incurred by Customer’s breach. In addition to any other relief EXTRA may be entitled to in law or equity, if Customer fails to comply with any of its obligations under this Agreement, EXTRA shall be entitled to injunctive or other equitable relief as may be necessary to restrain any further breach by Customer, without showing or proving any actual damages sustained.
8.7 Material Breach: A breach of any warranty or representation shall be considered material and shall give the non-breaching party the right to terminate this Agreement.
ARTICLE IX: MISCELLANEOUS PROVISIONS
9.1 No Agency: This Agreement creates no agency relationship between EXTRA and Customer, and nothing herein contained shall be construed to place the parties in a franchisor-franchisee or employer-employee relationship or in the relationship of partners or joint ventures. Neither party may assume or create any obligation or responsibility on the behalf of or in the name of other party, including (without limitation) making any warranties, guarantees or other contractual obligations.
9.2 No Assignment: Except as expressly provided herein, neither party may assign any of its rights under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, EXTRA may assign its rights and obligations hereunder to its successor or a purchaser of all or substantially all of the assets of or ownership interests in EXTRA, the Software or the Licensed Offering. Any assignee of EXTRA or Customer must consent in writing to the terms and conditions of this Agreement as amended from time to time.
9.3 Severability: This Agreement shall be enforced to the fullest extent permitted by applicable law. If any term, provision, covenant or condition of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.4 Notices: All notices provided for in this Agreement shall be in writing and shall be effective when served by personal delivery, by electronic mail at the addresses that the parties may later designate by notice, or three days after deposit, postage prepaid, in registered or certified mail, addressed to the party at the address given below the party’s signature on this Agreement, or such addresses as the parties may later designate by notice.
9.5 Entire Agreement: This Agreement constitutes the entire agreement between the parties and expressly supersedes all previous understandings and agreements between the parties, whether oral or written. The parties each hereby acknowledge and represent that they have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance made by or on behalf of the other party or other person or entity prior to the execution of this Agreement, except those expressly set out in this Agreement. The parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on any such representation, assertion, guarantee, warranty, collateral contract or other assurance outside of this Agreement, provided that nothing herein contained shall be construed as a restriction or limitation of said party’s right to remedies associated with the gross negligence, willful misconduct or fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Agreement. This Agreement may not be modified or amended unless such modifications are in writing, specifically reference this Agreement, and are signed by both parties.
9.6 Counterparts: This Agreement may be executed in multiple counterparts and each executed counterpart shall have the same validity, force and effect as the original. Facsimile and PDF signatures shall have the same validity, force and effect as original signatures.
9.7 Venue & Governing Law: This Agreement shall be governed by, and interpreted and construed pursuant to, the laws of the State of Wisconsin.
9.8 Mediation & Arbitration: In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If they do not reach settlement within a period of 60 days, then either party may, by notice to the other party, demand mediation by a mediator who is a member of the Wisconsin Association of Mediators. The parties shall jointly agree on a mediator and if are unable to do so, then the party demanding mediation shall choose a mediator. If settlement is not reached within 90 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this Agreement, shall be settled by arbitration in accordance with the Wisconsin Arbitration Act.
CUSTOMER WAIVER AND RELEASE FROM LIABILITY
Elite EXTRA™ offers customers the ability to view order and delivery information. This feature displays the Past/Expected Delivery Time, Customer Name, Invoice Number, Purchase Order Number, and Date Ordered. This information is provided as a valuable tool for the benefit of the customer and is available to the customer upon secure login.
Elite EXTRA is designed to provide for the protection of the customer and their customer information and for the security of your transactions. However, Elite EXTRA does not assume liability should customer share their login information with third parties or allow third parties to view customer order information. Additionally, security breaches may occur even with the most secure sites.
Among our security measures, you may elect to opt-out of this feature to suppress information regarding orders placed through your company from appearing on customer pages. Contact your Elite Extra administrator to enable the opt-out feature for your location. While this opt-out provides additional security, keep in mind that it also prevents your customers from viewing expected delivery times for orders placed through your company.
SUBJECT TO THE TERMS OF THE LICENSING AGREEMENT, EXTRA LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS, WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH ELITE EXTRA.
STATE LAW MIGHT NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
By signing this Agreement, you acknowledge that you are aware of security and privacy limitations, including but not limited to: the limitation of security, privacy and authentication measures and features in this or any system; and that data or information on Elite EXTRA may be subject to unauthorized, damaging or harmful access of information.
Subject to the terms of the licensing agreement, you agree to defend, indemnify, and hold harmless EXTRA and its officers, directors, employees, agents, successors, or assigns from any and all claims, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising in any way from your use of Elite EXTRA, or the placement or transmission of any data or information on or through Elite EXTRA.
In the event of any conflict between this Waiver and the Licensing Agreement the Licensing Agreement shall control.
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