Last Updated: February 1, 2022

 

This Mobility Telematics Schedule (the “Schedule”) is entered into by and between the company on whose behalf you are electronically accepting this Schedule (“Customer,” “you” and “your”) and PeopleNet Communications Corporation, a Trimble company, with its principal place of business and address for notice purposes of 4400 Baker Road, Minnetonka, MN 55343 (“Trimble,” “our,” “we” and “us”) (each, a “Party,” and together, the “Parties”). The Master Terms and Conditions attached to this Schedule (the “Master Terms”) are hereby incorporated by reference into and are made a part of this Schedule as if the Master Terms were expressly set forth herein (this Schedule, the Master Terms, any Online Optional Subscription Terms as defined below, and all exhibits, attachments, supplements, addenda, amendments, Order Forms, and other additions thereto collectively, the “Agreement”). In the event of a conflict between a term or provision of this Schedule and a corresponding term or provision in the Master Terms, this Schedule controls. This Schedule is effective as of the date on which this Schedule is electronically accepted by you (the “Effective Date”).

IMPORTANT NOTE: IF YOU HAVE PREVIOUSLY ELECTRONICALLY ACCEPTED THE SCHEDULE AND MASTER TERMS THROUGH THIS ONLINE STORE, ANY SUBSEQUENT ACCEPTANCE WILL BE OF NO FORCE AND EFFECT, AND THE ADDITIONAL PURCHASE MADE THROUGH THIS ONLINE STORE WILL BE CONSIDERED AN ADDITIONAL ORDER FORM UNDER YOUR PREVIOUSLY-ACCEPTED SCHEDULE AND MASTER TERMS.

EXCEPT AS SET FORTH ABOVE, PLEASE READ THIS SCHEDULE AND THE ATTACHED MASTER TERMS CAREFULLY, AS THEY FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. YOU HEREBY AGREE AND ACKNOWLEDGE THAT THE MASTER TERMS ARE INCORPORATED BY REFERENCE INTO THIS SCHEDULE, AND SHALL BE BINDING ON YOU AS IF YOU HAD PHYSICALLY SIGNED THIS SCHEDULE AND THE MASTER TERMS. THE PERSON ELECTRONICALLY ACCEPTING THIS SCHEDULE ON YOUR BEHALF REPRESENTS AND WARRANTS THAT HE/SHE HAS READ THESE TERMS CAREFULLY AND AGREES TO THEM, AND THAT HE/SHE HAS THE REQUISITE CORPORATE AUTHORITY TO BIND YOU TO THESE TERMS. PLEASE PRINT A COPY OF THESE TERMS FOR YOUR RECORDS.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

A.     Definitions.  In addition to the definitions in the Master Terms, the following definitions apply to this Agreement:

A.1.  “Device” means an onboard computer Product (e.g., Duo) which is associated in your account with an active telematics service subscription (“active”), as determined by our system.

A.2.  “Management Portal” means our PeopleNet Fleet Manager portal, Trimble Fleet Manager portal, or any successor service made available by us through which you may manage your Devices, access reporting (such as estimated month-to-date, summary, and detail usage reports), purchase Products (which electronic purchase shall constitute a Schedule hereunder), and if such functionality is enabled by us in the future, order, manage and/or request termination of Optional Subscriptions.

A.3.  “Order Form” shall also include purchases made through the online store, shopping cart and checkout process through which you electronically accept this Schedule and the Master Terms, or any terms relating to Optional Subscriptions (the “Online Store”). If you have previously electronically accepted the Schedule and Master Terms, any subsequent acceptance will be of no force and effect, and the additional purchase made through the Online Store will be considered an additional Order Form under your previously-accepted Schedule and Master Terms.

A.4.  “OTAP^®” means over-the-air programming for Devices to wirelessly deliver updates for Device Software.

B.     Order Forms. You may enter into one or more Order Forms for the purchase of Products (including Devices, equipment, parts and accessories) and the purchase of Core Subscriptions and Optional Subscriptions, each of which shall be governed by the terms of this Agreement. An Order Form will only be considered accepted by us upon the earlier of (a) the date on which we first ship Products to you or make the Management Portal available to you in connection with such Order Form, or (b) the date on which we execute the Order Form thereby accepting it in writing. The quantity and monthly subscription fee for Subscriptions shall be set forth in an Order Form; a separate monthly Core Subscription is required for each Device. Subject to the terms of this Agreement, you agree to purchase, and we agree to sell, the Products listed on each Order Form at the prices stated therein.

We may accept or reject any Product order in whole or in part in writing. Amounts already paid toward the purchase of Products will be returned if an order is rejected.  Products are shipped Free Carrier (FCA) point of distribution (Incoterms 2020), freight collect to the street address stated on the signature page of the Order Form or as otherwise agreed upon by the Parties in writing. Title and risk of loss for Products will pass to you when we deliver the Products to the shipping carrier. You are responsible for shipping, handling, and insuring the Products during transit.   We will use commercially reasonable efforts to meet your requested delivery dates unless you are in breach any of your agreement(s) with us, inventory is not available, or our performance of our obligations hereunder is suspended pursuant to these terms, and may fill your orders in any sequence. We are not liable for late or delayed delivery, and late delivery is not a basis for your cancellation of any order. Orders are non-cancelable once shipped to you and you will accept delivery of shipped Products, subject to the right of return set forth below.

C.     Term. The term of this Agreement shall commence as of the Effective Date and shall terminate on the date of termination of the last Subscription hereunder.

The initial term of each Core Subscription purchased through the Online Store begins on the date of the purchase through the Online Store of the telematics device associated with that Subscription (for that Core Subscription subject to the terms of Section E.1, the “Billing Commencement Date”), and continues for a period of thirty-six (36) months. The initial Subscription term shall automatically renew for successive one (1) year renewal terms unless notice of non-renewal is provided by a Party to the other Party at least thirty (30) calendar days before the end of the then-current term (the initial Subscription term and renewal Subscription terms collectively, the “Subscription Term”). The initial term of each Optional Subscription purchased through the Online Store begins on the date of the purchase through the Online Store for that Optional Subscription (for that Optional Subscription, the “Billing Commencement Date”) and will continue for the duration of the Subscription Term of the Core Subscription in connection with which the Optional Subscription is used.

The initial term of each Optional Subscription purchased through the Online Store, and each Subscription purchased through any other Order Form, begins on the Order Form date and continues until the end of the initial Subscription term specified on that Order Form.  Each Subscription term shall automatically renew for successive one (1) year renewal terms unless notice of non-renewal is provided by a Party to the other Party at least thirty (30) calendar days before the end of the then-current term (the initial Subscription term and renewal Subscription terms collectively, the “Subscription Term”).

C.1.  Early Termination Charge. The Subscription pricing provided under an Order Form is based on the Subscription term commitment made by you. If you terminate a Core Subscription or Optional Subscription prior to the end of the then-current Subscription Term, (a) you will endeavor to give us at least ten (10) business days prior written notice of such early termination, (b) such early termination constitutes a breach hereunder, and (c) regardless of whether such notice was provided, as our sole and exclusive remedy for your early termination of that Subscription under this Section C.1 you agree to pay to us an early termination charge equal to the number of months remaining in the then-current term multiplied by the monthly Subscription fee (or prorated monthly fee if the Subscription fee is for a different period) for that Subscription. You acknowledge that (i) the Subscription fees you agreed to in the applicable Order Form(s) reflected our expectation that you would use our Products and Software for the duration of the Subscription Term and was set accordingly, (ii) our actual damages arising from such termination are impossible to ascertain and are not capable of being ascertained by any satisfactory and known rule, (iii) the termination charges are a good faith, fair and reasonable estimate of such damages, and (iv) such charges constitute liquidated damages and not a penalty or forfeiture, and shall not be deemed to be a penalty or forfeiture.

D.     Service Subscription. Pursuant to Section 3 of the Master Terms, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use (a) the services set forth in the table below in connection with each Device associated with an active Subscription purchased through an Order Form (each, a “Core Subscription”); and (b) optional services and service subscriptions in connection with the Devices purchased through that Order Form to the extent specified in Attachment 1 hereto (if any), separately agreed upon via an Order Form, Addendum or similar agreement, or ordered by you through the Management Portal, pursuant to the terms and at the fees set forth in such Attachment, that Order Form, Addendum or similar agreement, or as otherwise agreed to in the Management Portal (“Optional Subscriptions”). Terms and Conditions applicable to Optional Subscriptions are set forth either in an Order Form, in an Addendum or on a webpage with the URL specified in the Order Form. Our URL-based Optional Subscription terms may be amended from time to time by us provided we will notify you of such changes by email or through the Management Portal; if you do not agree to the changes, you may cancel the affected Optional Subscription without penalty by providing notice within 30 days of the date of our notice. The term of each Optional Subscription provided in connection with a Device shall be coterminous with the Subscription Term for that Device’s Subscription. If your display devices use our Instinct software, the terms set forth in Appendix 1 will also apply to you and are incorporated by reference into this Agreement.

You agree and acknowledge that based on the service package selected, your Subscription may not contain all features and functionality available through our online platform.  You may only use the features and functionality available through your purchased Subscription.  Additional features and functionality may require you to purchase an Optional Subscription or an upgraded Core Subscription.

Performance 12 Bundle - Included with Core Subscription
●    Core telematics services ●    Data usage for core telematics services ●    Access to the Management Portal ●    OTAP® services for Devices	●    Engine Fault Code Reporting ●    Onboard Event Recording (OER) ●    eDriver Logs ●    Mandatory eDVIR

Data usage for core telematics services includes the following for applications in your Subscription:  urgent or deferred messaging (forms-based, free-form or pre-programmed); personal driver email (must be sent deferred, per system control); supported vehicle management functionality; geofence event triggering (approaching, arrive, or depart); system settings changes; Trimble-initiated OTAPs; timed transactions (up to 48/Device/day, not pooled); urgent alarms (up to 5/Device/day, pooled across your entire fleet); and on-demand locates via the Management Portal.

Data usage does not include the following: in-cab navigation map application and source data updates (must be done via Wi-Fi (when available) or by memory card); in-cab scanning in Pmobile (must purchase separate MB-based data bucket); in-cab training video updates (must be done via Wi-Fi or memory card); custom application updates performed via OTAP (must be done via Wi-Fi or memory card); urgent alarms over 5 per unit per day; bandwidth and data used by applications provided by you (“backseat data”); data usage in excess of a data cap stated in this Agreement; and on-demand locates via the Open Interface. Data usage not included in your Subscription may be charged to your Payment Information for Subscriptions purchased through the Online Store (or alternatively at our discretion invoiced to you) on a monthly basis at our standard data overage rates, unless you have purchased from us a separate data plan covering such additional data usage.

E.     Billing. 

E.1.  Purchases through the Online Store. You are responsible to pay for Products, Professional Services and Subscriptions purchased through the Online Store. Your purchased Products and your monthly Subscription fee, plus all applicable taxes, fees and surcharges which we are required to collect, will be charged to the payment method provided by you through the Online Store (e.g., credit or debit card). `You authorize us to automatically charge the payment method and payment information provided by you (your “Payment Information”) for Product purchases and for monthly recurring payments for the Professional Services, and to retain your payment account information on file and to use such Payment Information to process your monthly subscription fee payments. If you have multiple Subscriptions with us, we may aggregate your Subscription fees into a single monthly charge to you. You will ensure we have current Payment Information on file for use in processing monthly charges. This authorization will remain in effect for the duration of the Subscription Term. If we are unable to charge your Payment Information, we may invoice you and you agree to pay such invoices in accordance with Section 4 of the Master Terms.

E.2.  Purchases Through Other Order Forms. Standard Product payment terms are half due prior to shipment and the balance due upon your receipt of Product. Fees for all Core Subscriptions and Optional Subscriptions will be billed on a calendar month basis unless otherwise specified in an Order Form. Subscription fees for the month in which the Billing Commencement Date occurs will be prorated. You will be invoiced in the currency set forth in the Order Form. A Subscription is billable during a given billing cycle if the Device associated with that Subscription is active at any time during that billing cycle. Notwithstanding the Master Terms, we may pass through any fee increase for a third party service imposed by our third party service provider upon thirty (30) calendar days prior notice to you. If a new telematics product is used to replace an existing Device associated with a Subscription, you agree that (a) you are responsible both for requesting network and system deactivation of the replaced Device and for Subscription charges on the replaced Device until it is deactivated on both the network and system, and (b) once installed the new Device shall assume the remainder of the Subscription term of the replaced Device. You are encouraged to recycle replaced and/or decommissioned Products or otherwise dispose of them in a secure, lawful, and environmentally-conscious manner.

F.     Additional Terms. The following additional terms apply to this Agreement, to all Order Forms governed by this Agreement, and to Products and Subscriptions purchased or licensed through them.  In the event of a conflict between a term or provision in this Section F and a corresponding term or provision of the Master Terms, this Section F controls. 

F.1.   Limited Product Warranty. We warrant to you and only you that the following Products will conform substantially to the manufacturer’s published specifications during the following warranty periods:

Product(s)	Warranty Period
Devices	three (3) years from the date of shipment
Product add-ons such as keyboards, in-cab displays, vehicle management adapters, tablet cradles, and satellite modems; DVRs, cameras, transmitters and receivers	one (1) year from the date of shipment
Product accessories such as standard cables, antennas, and memory cards	ninety (90) days from the date of shipment

Our liability and your exclusive remedy under this limited product warranty which upon inspection we determine is non-conforming and covered by warranty is limited, at our option, to repairing, correcting, or issuing credit for a Product, or to replacing it with the same or functionally similar Product (a “Replacement”). You are responsible for shipping a Product to us under a warranty claim at your cost. To initiate a Product warranty claim, you must contact Trimble Customer Service during the warranty period to obtain a Return Merchandise Authorization (“RMA”) number. We will not accept warranty claims for original Products that are not securely packaged and insured, are sent Cash on Delivery (COD), and/or do not have the correct RMA number written clearly on the return packaging. If we pre-ship you a Replacement, you will be invoiced for, and agree to pay to us, the then-current list price of the Replacement if the Product being replaced under warranty is not returned to us within sixty (60) days of the date of shipment of the Replacement to you. Any repair or replacement of Products or accessories by us under this warranty will not extend the original warranty period.  This warranty is exclusive to a Product and is not assignable or transferable.

If you notify us that a Product installed via installation Professional Services (as further described below) fails within thirty (30) days of the date of installation, and faulty installation is determined by us to be the direct cause of the Product’s failure, we will install the Replacement at our expense. Otherwise, warranty coverage does not include costs of de-installing and reinstalling equipment which is done at your expense.

The foregoing limited warranty only applies if and to the extent that (a) the Product is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with our applicable documentation and specifications and under conditions of normal use, and (b) the Product is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of a Product with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us; (ii) operating a Product under any specification other than, or in addition to, our standard specifications for them; (iii) the installation, modification, repair or use of a Product other than by us or a third-party installer representing us (a “Trimble Installer”); (iv) damage not caused by us or a Trimble Installer; (v) normal wear and tear on consumable parts (e.g., batteries); or (vi) cosmetic damage. In any of these cases, we will keep the non-warranted part for thirty (30) days after receipt and make it available to you at our facility for inspection upon request. We do not warrant or guarantee the results obtained through the use of the Products or Software.

F.2.   Limited Right of Return for Products; Limited Cancellation Right for Subscriptions. You shall have the right, within thirty (30) calendar days from the date of shipment, to return a Product which has not been installed and is in new condition in the original packaging. You must contact Trimble Customer Service to initiate a return and must comply with our product return (RMA) procedures then in effect. We will not accept returns of Products that are not securely packaged and insured and/or do not have the correct RMA number written clearly on the return packaging. You shall be responsible for the cost of returning Products. Returned Products are subject to a 15% restocking fee.   Following timely receipt of a Product in qualifying condition at our designated facility within fourteen (14) calendar days of your receipt of an RMA for such Product, we will credit your account for the Product cost only less the applicable restocking fee. Risk of loss for returned Products shall remain with you until the Product is delivered to our designated facility. If purchased, installation certificates can either be returned for credit or redeemed for a period of twelve (12) months from the issuance date, after which date they expire and are non-refundable.

      You also have the right to cancel a Subscription for an onboard computer Product without penalty if such cancellation is requested by you during the RMA process contemporaneously with the return of a corresponding onboard computer Product under the process set forth in the preceding paragraph.

F.3.   Professional Services Warranty. We warrant to you, for a period of ninety (90) calendar days from completion of any Professional Services (which includes installation services) provided by us or on our behalf (e.g., by a Trimble Installer) under a SOW, that the Professional Services have been performed in a good and workmanlike manner (the “Professional Services Warranty”). For any timely claim under this warranty made by you, our liability and your exclusive remedy is limited to (a) for a verified claim related to installation services performed by us or a Trimble Installer which claim is received by us during the warranty period, our re-performance of the installation services to which the claim relates at no additional charge to you; and (b) for a verified claim resulting from any other Professional Services, our provision of commercially reasonable efforts to correct the performance deficiencies. This warranty will not apply if the results of the Professional Services (e.g., an installed Product) has been damaged, misapplied or misused following completion of the Professional Services. To obtain warranty service, you must notify us within the warranty period. This warranty does not extend to Products installed, repaired or serviced in any way by anyone other than us or Trimble Installers. You are not entitled to reimbursement for unapproved repair or other servicing work. In no event shall our liability for Professional Services exceed the price paid for such Professional Services.

F.4.   Installation Services. Products purchased from us as specified in an Order Form must be installed at your premises or other mutually agreed-upon location either (a) by us or a Trimble Installer, or (b) by your employee or another third party on your behalf (in which event the Professional Services warranty set forth above shall not apply to such installation). Your request for installation Professional Services will be deemed to be your consent for us or a Trimble Installer to make minor modifications to your vehicles necessary for Product installation. Upon your request and as specified in a SOW, we or a Trimble Installer will use commercially reasonable efforts to install the Products at an agreed-upon location (which may be your premises) on a mutually agreed-upon installation date. Installation consists of the initial set-up and programming and configuration of the Products as needed.

F.5.   Safety Stock. You may purchase additional Products which are kept as uninstalled and inactive backup equipment for use as replacements in the event of the failure of an installed Product (“Safety Stock”). Safety Stock enables you to add or maintain service with minimal downtime and comply with applicable law. When a Safety Stock Product is ready to be installed as a replacement for an existing Device, you must activate a Safety Stock Product for use via our activation process and associate it with an available Subscription.  Upon activation, it will be billed as an active unit.  For Products subject to monthly service fees, no monthly service fees apply to Safety Stock until activated. If Safety Stock is used as a warranty replacement, the replaced Product must be returned to us as required by Section F.2.  The limited product warranty set forth in Section F.1 applies to Safety Stock.  Regardless of whether an active unit is moved to Safety Stock, you will be billed for your minimum number of contracted Devices.

F.6.   Technical Training. We will offer you technical training Professional Services on the use of our Products and Software (“Training”) on a mutually-agreed schedule, which if requested will be purchased by you as a SKU on the Order Form, and/or as agreed upon in a SOW. Travel and expenses for training personnel are billed separately by us, and paid separately by you, unless otherwise stated in the SKU description or a SOW. Training cancelled or rescheduled by you within fourteen (14) calendar days of the scheduled Training date will be billed to you at fifty (50%) of original estimate plus non-refundable travel expenses if incurred prior to our receipt of the cancellation or reschedule request.

F.7.   Numbers; Security; Fraud; Privacy. For Products with cellular connectivity, we grant you a revocable, non-exclusive sublicense to use the cellular number assigned to the Product.  You shall not remove the SIM card installed in the Product. You shall not program a number into a Product other than, and shall not alter, the number assigned to that Product by us.  You are solely responsible for codes or passwords that may be required for the use of the Products, Software or the results of Professional Services. Cellular communications are susceptible to interception by third parties and we do not guarantee and have no obligation to secure the privacy of your communications.  We have the right to intercept and disclose your communications solely to protect our rights or property or as required by law or legal process.  Cellular numbers are susceptible to fraud and theft by third parties and we do not provide any guarantee against fraudulent use of such numbers.  You shall notify us immediately upon discovery of any theft or fraudulent use of such numbers.  You acquire no proprietary interest in the cellular numbers assigned by us.  You agree to hold us harmless from and against any damages arising through fraudulent use of such numbers. You agree that we may share truck system data (e.g., engine data) collected through a Product with the system and/or vehicle manufacturer.

F.8.   eDriver Logs. You must have a message display, keyboard, and vehicle management adapter provided or otherwise approved by us to use eDriver Logs.  In the event of device malfunction, drivers must maintain a hard copy or traditional paper log. You will hold us harmless from and against any liability resulting from the failure of drivers as set forth in this paragraph, or for erroneous, accidental or intentional, input of data or misuse of eDriver Logs or our Products or Software.

F.9.   Hardware Limitations. Trimble Duo telematics devices do not support J1708 vehicles, power take-off, satellite communications, tethered trailer tracking, or Wi-Fi hotspot capability. The following functionality is available on PeopleNet Connected Gateway (PCG) telematics devices: eDriver Logs, GPS, breadcrumbs, fuel tax, fault codes, backseat data, eDVIR, onboard event recording, J1708/J1939 vehicle support, OTAP, automated workflow, messaging, wi-fi display connection, activity standards (PFM only), vehicle data management, Trimble MAPS in-cab navigation, Drivewyze, and Speedgauge.  Other features, applications, and services are not supported through PCG devices, including without limitation display compatibility with PD.4 and older display devices; satellite communications; tethered trailer tracking; power take-off; and wi-fi hotspot.

F.10.   Drivewyze. If you purchase one or more Optional Subscriptions to the Drivewyze service, the terms of this Section F.11 will apply to you. The Drivewyze service is provided by Drivewyze Inc. We are a reseller of Drivewyze service subscriptions. Prior to using the Drivewyze service, you must agree to the terms of the “Service and End User License Agreement” for the Drivewyze service set forth in Appendix 2 to this Schedule (the “Drivewyze EULA”). By the signature of your authorized representative below, you hereby accept and agree to the terms of the Drivewyze EULA, and agree that the Drivewyze EULA is an agreement between you and Drivewyze.  Drivewyze’s acceptance of the Drivewyze EULA is evidenced by its provision of the Drivewyze service to you.

F.11.   Trimble MAPS Products. If you purchase one or more Optional Subscriptions to software, add-ons, and/or services provided by Trimble MAPS, Inc., our corporate affiliate (collectively, “Trimble MAPS Products”), the terms of this Section F.12 will apply to you. We are a reseller of software licenses and service subscriptions for Trimble MAPS Products. Prior to using Trimble MAPS Products, you must agree to the terms of this Addendum and of those End User License Agreement(s) set forth in Appendix 3 to this Schedule which are applicable to the Trimble MAPS Products licensed and/or subscribed to by you through an Order Form (the “Applicable MAPS EULA(s)”)). We may modify Appendix 3 from time to time by notifying you in writing or by email. By the signature of your authorized representative below, you hereby agree, acknowledge and covenant that before submitting an order form to us for software licenses and/or service subscriptions to Trimble MAPS Products you will have read the terms of the Applicable MAPS EULA(s), and that you understand, accept and agree to the terms of the Applicable MAPS EULA(s) as if expressly stated herein, and that the Applicable MAPS EULA(s) are hereby incorporated by reference, and are made a part of, this Schedule. For the purposes of Sections 9 and 10 of the Master Terms, “we,” “our” and “us” shall also be construed as references to Trimble MAPS.

This second paragraph applies to data for Canada provided by Canada Post Corporation through Trimble MAPS as the owner of the copyright, and Statistics Canada as the owner of all intellectual property rights, in the same data (collectively, “Canada Post Data”). Neither Canada Post Data or Statistics Canada shall be liable: (i) in respect of any claim, demand or action, irrespective of the nature or causes of the claim whatsoever, alleging any loss, injury or damages, direct or indirect, which may result from your use or possession of Canada Post Data; or (ii) in any way for loss of revenues or contracts, or any other consequential loss of any kind resulting from any defect in such Canada Post Data. You agree to indemnify and save harmless Canada Post and Statistics Canada and its officers, employees, agents from all claims alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) arising out of your possession or use of Canada Post Data.

F.12.   Additional Optional Subscriptions. Certain Optional Subscriptions that may be ordered on an Order Form require the execution of a separate Addendum containing additional terms.  Certain other Optional Subscriptions that may be ordered on an Order Form, including without limitation SpeedGauge services, require the acceptance of additional terms set forth at https://transportation.trimble.com/optional-subscriptions-terms-and-conditions or such successor URL as we provide from time to time (the “Online Optional Subscription Terms”).  If you purchase one or more Subscriptions to Optional Subscriptions with Online Optional Subscription Terms, you agree that the Online Optional Subscription Terms for your purchased Optional Subscriptions will automatically be incorporated by reference herein as if expressly set forth herein, and that by electronically accepting this Agreement you agree and acknowledge that you have read and agree to the Online Optional Subscription Terms applicable to your purchased Optional Subscriptions.

F.13.   Disclaimer. YOU AGREE AND ACKNOWLEDGE THAT EQUIPMENT, CABLES, ACCESSORIES AND PARTS MAY BE DISCONTINUED WITH OR WITHOUT WARNING AND THAT PRODUCTS MAY NOT BE AVAILABLE IN QUANTITIES DESIRED OR ORDERED BY YOU, AND THAT FUTURE VERSIONS OF PRODUCTS MAY NOT BE BACKWARDS COMPATIBLE WITH EXISTING CABLES, MOUNTS AND OTHER ACCESSORIES. VEHICLE MOUNTING LOCATION AND SURROUNDING MATERIALS MAY IMPACT GPS AND CELLULAR RECEPTION. IF GLOBAL POSITIONING SYSTEM (“GPS”) SATELLITE SIGNALS ARE NOT WORKING OR THE SIGNALS ARE OBSTRUCTED, THE SERVICES AND THE PRODUCT MAY BE UNABLE TO DETERMINE A PRECISE LOCATION FOR YOUR COMMERCIAL VEHICLES. YOU FURTHER ACKNOWLEDGE THAT WE AND PRODUCT MANUFACTURERS MAY DISCONTINUE PROVIDING SOFTWARE OR FIRMWARE UPDATES IN THE FUTURE AND THAT NEW FEATURES AND FUNCTIONALITY MAY NOT BE AVAILABLE THROUGH OR COMPATIBLE WITH DISCONTINUED PRODUCTS OR PRODUCTS THAT ARE NOT RUNNING CURRENT SOFTWARE AND FIRMWARE. SOFTWARE MAY NOT BE COMPATIBLE WITH ALL HARDWARE AND/OR FIRMWARE COMBINATIONS. WE DO NOT WARRANT THE AVAILABILITY, ACCURACY, TIMELINESS, OR USEFULNESS OF ANY INFORMATION ACCESSED OR PROVIDED THROUGH USE OF THE PRODUCTS AND SERVICES. USE OF CERTAIN PRODUCTS AND SOFTWARE IS DEPENDENT ON THE AVAILABILITY AND COVERAGE OF WIRELESS AND TELECOMMUNICATIONS NETWORKS AND TECHNOLOGIES, GLOBAL NAVIGATION SATELLITE SYSTEMS AND THE INTERNET, WHICH INVOLVE FACILITIES OWNED AND OPERATED BY THIRD PARTIES (“CARRIERS”). WE ARE NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF CARRIERS’ SYSTEMS OR FACILITIES, OR FOR SUCH CARRIERS’ ELECTION TO SUNSET CELLULAR SPECTRUMS OR TECHNOLOGIES IN THE FUTURE. CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF YOUR USE OF OUR PRODUCTS, SOFTWARE, SUBSCRIPTIONS AND SERVICES, AND YOU WILL HAVE NO CLAIMS AGAINST CARRIERS OF ANY KIND WITH RESPECT THERETO.  THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING FEES CHARGED.

F.14.  Future Changes to this Agreement and Incorporated Terms. We reserve the right to amend or modify this Agreement (including without limitation the Master Terms). In the event of an amendment or modification, we will provide you with thirty (30) calendar days prior written notice of the amendments and/or modifications to this Agreement and/or Master Terms (the “Updated Terms”), which notice may be provided to you by email.  If you do not want to accept the changes, you must terminate your Subscription upon written notice to us prior to the end of such thirty (30) calendar day notice period, in which case we will waive the application of any early termination fee. Otherwise, you shall be deemed to have accepted the changes to this Agreement and/or Master Terms set forth in the notice, and agree that the notice shall become an amendment to this Agreement and/or the Master Terms automatically adopted and ratified by both parties as if physically executed by both parties, and is automatically incorporated by reference into and made a part of this Agreement and/or Master Terms, as appropriate. You agree that our continued performance of our obligations hereunder is good and valuable consideration for your acceptance of the Updated Terms, and your election to allow your Subscription to continue constitutes your acceptance of the Updated Terms. Except as set forth above, no modification, addition or amendment to the Agreement shall be valid or binding unless made in writing and physically signed by the Parties to the Agreement.

Appendix 1 to the Mobility Telematics Schedule

Additional Terms for Instinct Software

1.      Definitions.

1.1.   “Instinct” is an Android-based suite of software applications, managed by your administrative users through an EMM and other management portals, which provide users with the ability to use certain Trimble and third-party software and solutions. As of the Addendum Effective Date, Instinct Base and Instinct ACE are the versions of Instinct available for licensing via an Order Form. An Instinct subscription fee may apply depending on the version of Instinct used by you; additional fees may apply for use of Third Party EMMs and/or Optional Apps, or related services.

1.2.   “Display Device” means an Android display device meeting minimum required specifications required to run Instinct which is associated in your account with an active telematics service subscription. You are responsible for ensuring your Display Devices meet the minimum requirements to run Optional Apps.

1.3.   “Trimble App Manager” is our back-office web portal for managing Instinct-enabled devices and software Apps installed on such devices through the Trimble-Provided EMM.

1.4.   “Core Apps” are those core Trimble Android Apps installed to every device running Instinct.

1.5.   “EMM” means either (a) the Google-powered enterprise mobility management application provided by us to manage Display Device enrollment and certain settings, such as managing deployment of Optional Apps to enrolled Display Devices (as further described below) and control over deployment of updates to Trimble apps (the “Trimble-Provided EMM”), or (b) a Third Party EMM provided by you as described below. Trimble-Provided EMM functionality depends on the version included in your Instinct subscription, and may be either “Advanced EMM” (which includes support for a collection of Optional Non-Integrated Apps curated by you and available via a Managed Google Play portal, and also includes Google Play Store access) or “Base EMM” (which excludes support for Optional Apps via managed Google Play or Google Play Store).

1.6.   “Optional Apps” are additional Android applications other than Core Apps, which may or may not be integrated with Instinct as further described below, and which are installed and managed on a per-Display Device basis through the EMM. Some Optional Apps may be available to you at no additional charge; others may require a purchase by you through the Google Play Store, and/or may require a separate license or subscription from us or from a third party for use. You warrant and covenant to us that you will only use Optional Apps for which you have a valid license or subscription and will immediately cease use of, and uninstall from all Display Devices, any Optional Apps for which you no longer have a valid license or subscription. You understand and acknowledge that all data used by Optional Apps will count towards your data plan.

1.6.1.    “Optional Integrated Apps” are Optional Apps that we have authorized to read data from, or publish data to, the Instinct service layer, such as an Optional App used in connection with a service from which you have purchased an add-on subscription through us, or an Optional App that uses Trimble’s Single-Sign-On (“SSO”) functionality.

1.6.2.    “Optional Non-Integrated Apps” are Optional Apps available through Google Play Store, Managed Google Play, or sideloading that do not interact with the Instinct service layer.

2.      Instinct Software. You must use the Trimble Fleet Manager Administrative Portal in order to use Instinct. You will be required to set up new drivers using Instinct in TFM.  Display Devices running Instinct will be managed through Google Play and your EMM, and will not receive updates via OTAP. You agree that you may not use Instinct with any devices other than Display Devices except as expressly permitted by us under a service subscription. You cannot downgrade to another software solution from Instinct unless you perform a full factory reset and reimage of your Display Device. You agree and acknowledge that Optional Apps may be governed by separate end user license agreements, and you are responsible for compliance with such agreements. We may modify and update Core Apps available through Instinct, may add, remove and/or modify Optional Apps available through Instinct, and may prohibit installation of certain apps through Instinct at our discretion.

3.      EMM. You are responsible for enrolling and managing your Display Devices through an EMM (except to the extent we provide enrollment services to you). To use the Trimble-Provided EMM you will be required to accept Google’s terms related to your use of the EMM and create a profile in the EMM system for your business; you will be presented with such terms during initial EMM set-up. You must have a Gmail account to set up your EMM, or create a Gmail account as part of your EMM enrollment. Updated versions of Instinct are automatically pushed to your Display Devices through the Trimble-Provided EMM by default; your EMM administrator may change this setting to determine when an updated version of Instinct is pushed to your Display Devices. You agree to allow prompt installation of all updated versions of Instinct through the Trimble-Provided EMM. You may use a third party enterprise mobility management application with Instinct separately licensed and provided by you (a “Third Party EMM”) if you provide us with the EMM enterprise account ID for the Third Party EMM during set-up. You warrant and covenant to us that you will only use a Third Party EMM which is approved for use by Google and for which you have a valid license or subscription and will immediately cease use of any Third Party EMM or app for which you no longer have a valid license or subscription.

4.      Use of Third Party Optional Apps and/or Third Party EMMs. Optional Apps may be provided and/or licensed by third parties other than Trimble and its Affiliates (“Third Party Optional Apps”). Trimble is not responsible for any issues with respect to the set-up and configuration of Third Party EMMs, and/or the deployment of Core Apps and/or Optional Apps to Display Devices through a Third Party EMM. You agree that Third Party Optional Apps are not created, licensed or supplied by us. You assume all risk for, and we provide no warranty for and disclaim all liability in connection with, and you hold us harmless from and against, any claims, damages, losses, or liabilities arising or resulting from or related to, the use of Third Party EMMs and/or the installation and use of Third Party Optional Apps on Display Devices, including without limitation (i) performance or feature degradation or inability to use Display Devices, Core Apps or other Optional Apps resulting from use of a Third Party EMM or Third Party Optional App, (ii) personal injury or property damage resulting from use of a Third Party EMM or Third Party Optional App (e.g., use of third party mapping software), and (iii) a breach of security or compromise of your Confidential Information or Transportation Data originating through a Third Party EMM or Third Party Optional App. You will indemnify and hold us harmless from and against any claims, damages, losses, or liabilities arising or resulting from or related to your installation and/or use of Third Party EMMs and/or Third Party Optional Apps.

We are not responsible for supporting issues related to or resulting from your use of Third Party EMMs and/or Third Party Optional Apps. If we elect to provide such support at our discretion, such support will be provided on a time and materials basis at our standard professional services support rate. Any unavailability or degradation of the Trimble platform or Trimble features or functionality (including Core Apps and Trimble-provided Optional Apps) resulting from use of a Third Party EMM or Third Party Optional Apps will not constitute Trimble system downtime.

5.      Media Manager. If you use the Media Manager Platform, this Section 5 will apply to you. The “Media Manager Platform” is a solution through which you may push certain content to a user through the “Media Manager App”, an Optional Integrated App installed on a Display Device, and managed through a management portal hosted by us (the “Media Manager Portal”) through which your back-office personnel who are authorized users may (a) deploy the Media Manager App to Display Devices (each, a Media Manager Device”), (b) create and manage Media Manager users (and if supported, import drivers from Trimble Fleet Manager) by Trimble ID, and (c) send driving-related, load-related, safety-related, or training-related content in a supported format (e.g., PDF) in connection with a driver’s business relationship with you, such as notifications and reports (collectively, “Media Manager Content”) to users logged into a Media Manager Device. You agree and acknowledge that Media Manager does not support bi-directional flow of content, and may be used to push Media Manager Content to Media Manager Devices only. Users must have a valid and active Trimble ID to log into the Media Manager App on a Media Manager Device. As of the Addendum Effective Date, the Media Manager Platform is provided at no additional cost to you, provided that Media Manager utilizes backseat data requiring a backseat data plan. However, we reserve the right to impose a separate subscription fee for your continued use of the Media Manager Platform in the future upon thirty (30) calendar days notice in writing or by email, to introduce different subscription tiers for different levels of Media Manager Platform features and functionality, and/or to impose usage caps.

5.1.   Media Manager Content.  Media Manager Content shall not include, and you covenant you shall not send through the Media Manager Platform, (a) sensitive personal information such as social security numbers; (b) personal information of a person other than the recipient of the content; (c) payroll information; (d) personal healthcare information; (e) inappropriate, harassing, hateful, threatening, or illegal content; or (f) any other information, data or content not related to driving, load, safety or training. You shall be solely responsible for all Media Manager Content shared by you through the Media Manager Platform. You are solely responsible for ensuring Media Manager Content does not contain viruses or other harmful code. In addition to your indemnification obligations under the Agreement, you will indemnify, defend and hold harmless us, our employees, directors, and officers from and against and in respect of any and all claims, demands, losses, and liabilities, whether known or unknown, including interest, litigation expenses and reasonable attorney’s fees that we incur, sustain, or suffer, which result from, relate to, or arise out of (a) your use of the Media Manager Platform, including without limitation any Media Manager Content transmitted through the Media Manager Platform, and (b) any damage to, or impact to the usability of, a Media Manager Device caused by Media Manager Content.

5.2.   Third Party Devices. The Media Manager App may be installed and used on Android mobile devices running a compatible Android version other than Display Devices (“Third Party Devices”). You will be responsible for deploying and installing the APK on Third Party Devices via sideloaded APK installation file obtained by you from the Media Manager Portal, or via the Google Play Store.  If you install the Media Manager App on a Third Party Device, we are not responsible for bandwidth charges resulting from your use of the Media Manager App.

 

Appendix 2 to the Mobility Telematics Schedule

Drivewyze EULA

 

Service and End User License Agreement

1.     Definitions. The following terms as used in the Agreement shall have the following meanings:

a.      “Agreement” means this Service and End User License Agreement, and, if applicable, the order form and subscription form.

b.      “Authorization and Waiver” means the form of Authorization and Waiver that may be provided to Customer.

c.      “Claim” means any action, claim, proceeding, damages, award, judgment, expense and cost, including but not limited to reasonable legal fees.

d.      “Confidential Information” means information disclosed to or otherwise obtained by a party or its Representatives during the term of the Agreement (whether or not marked “confidential” or “proprietary”) relating in any way directly or indirectly to the business of the other party and its affiliates, but excludes information that: (i) was publicly available before disclosure to the receiving party; (ii) enters the public domain except as the result of breach by the receiving party; (iii) was already in the receiving party’s possession without an obligation of confidence; or (iv) is disclosed to the receiving party by a third party having a lawful right to do so.

e.      “Customer” means an individual or entity that enters into a Service Agreement for access to and use of Software and Services, or an Independent Driver that enters directly into a Service Agreement for access to and use of Software and Services.

f.       “End User” means either an Independent Driver, or an individual that is a Representative of a Customer that accesses or uses the Software or Services.

g.      “Improvements” means any alterations, modifications, improvements or derivatives of any of the Services or Software.

h.      “Independent Driver” means an individual that directly contracts with Drivewyze for access to and use of the Software and Services.

i.        “Representatives” shall mean a party’s directors, officers, employees, contractors, agents, and other representatives.

j.        “Services” means the services, programs, Software or other functionality made available by Drivewyze and its affiliates to their customer base (directly or through Resellers), including but not limited to the Customer and its End Users.  Services may be further described at www.Drivewyze.com, or in documentation provided or made available electronically or otherwise by or for Drivewyze or its resellers or Representatives.

k.      “Service Agreement” means an order form subscription agreement, or other agreement specifying the term for receipt of the services, and pricing and payment obligations.

l.        “Service Sites” means federal, state or provincial sites, including but not limited to open weigh stations, ports-of-entry, temporary inspection sites, mobile inspection sites, agricultural interdiction facilities, and other government sites.

m.    “Software” means Drivewyze software installed on End User devices or otherwise provided to Customer or their respective End Users, or to which End Users are provided access as part of Services.

n.      “Third Party Providers” means government agencies, leasing companies, third party credential processors, and/or other third party service providers.

o.      “Waived Information” means information required to support or permit the provisioning of the Services, including without limitation information regarding registrations, permits, licenses, inspections, taxes, credentials, fleets, End Users, and registered vehicles.

2.     Drivewyze Obligations. During the term of the Agreement, Drivewyze shall provide to Customers and End Users, as applicable, the Services and the Software.

3.     Customer Obligations. An Independent Driver shall be responsible both as a Customer and an End User under the Agreement. Customer shall be responsible and liable for all acts and omissions of the End Users and for any use of Software or Services by the End Users, including but not limited to anything that would be a breach of the Agreement if done by the Customer. Customer represents and warrants that it has the right to provide the authorizations and consents set out in Sections 6 and 10.

4.     Acceptable Use. Except as otherwise agreed in writing by Drivewyze, Customer agrees on behalf of itself and the End Users to: (i) obtain permission from a vehicle lessor to electronically screen the vehicle credentials when the Customer is leasing a vehicle in which Software has been downloaded to a device; (ii) use the lanes designated as Drivewyze lanes, where available, and obey all applicable laws, regulations and guidance in the use of the Software and Services; (iii) notify Drivewyze of any message conflicts from an alternate in-cab transponder so that they can be resolved in the Drivewyze system; (iv) report to Drivewyze in a timely manner any changes relevant to account, vehicle or fleet information; (v) use the Software or Services only in vehicles registered with Drivewyze and on devices owned or controlled by Customer, and in strict accordance with laws and policies applicable to the Services; (vi) keep Drivewyze updated with all information regarding all vehicles permitted for driving under the Customer’s Department of Transportation (“DOT”) number, and notify Drivewyze immediately if a vehicle is no longer approved or driving under the DOT number; and (vii) except as expressly provided under applicable law, not circumvent any technical limitations, decode, decompile, disassemble, derive the source code or otherwise reverse engineer, copy, modify, translate, create Improvements, reproduce, republish, upload, post, transmit, or distribute in any way, the Software or Services, including via a timesharing, service bureau, or other arrangement.

5.     License and Ownership. Drivewyze hereby grants to Customer and End Users, as applicable, a non-transferable and non-exclusive license to use any Software downloaded on Customer or End User devices solely to receive Services in accordance with the Agreement. All rights not expressly granted are hereby reserved by Drivewyze. Drivewyze retains all intellectual property rights in and to the Services and Software and retains all rights not expressly granted. To the extent Customer or End Users creates any Improvements, it hereby assigns and agrees to assign all right, title and interest in such Improvements to Drivewyze, including but not limited to all intellectual property rights in or to such Improvements.

6.     Data Retention and Privacy. Drivewyze routinely collects retains Customer and End User data regarding Customer’s fleet operation, vehicles and End Users, including data recorded in electronic recording devices as required by applicable law. Customer on behalf of itself and its End Users authorizes Drivewyze to collect, use, store, and disclose (including to government agencies as required by applicable law) this data and Waived Information to provide the Services, including but not limited to the Customer and its End Users. Customer authorizes and provides a waiver (including on behalf of End Users) for Third Party Providers, and for Drivewyze to provide such Waived Information to Third Party Providers. Customer expressly authorizes Drivewyze to generate an Authorization and Waiver document in Customer’s and End User’s names. Drivewyze shall comply with and have the rights set out in the Privacy Policy found at www.Drivewyze.com. In no circumstances will Drivewyze disclose to a third party (other than to government agencies as required by law or as part of Services to Customer) any information that identifies a specific Customer, carrier, fleet, vehicle or End User, without the consent of the Customer on behalf of itself and End Users, as applicable.

7.     Warranty and Disclaimer of Warranty. Drivewyze represents and warrants that the Software and Services shall materially conform to the documentation provided by Drivewyze. Drivewyze’s sole responsibility and the sole remedy for breach of this warranty are to reperform the non-conforming Services, or to use commercially reasonable efforts to remedy any non-conforming Software. CUSTOMER, ON BEHALF OF ITSELF AND END USERS, EXPRESSLY AGREES THAT THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AT THEIR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRIVEWYZE, AND DRIVEWYZE’S AFFILIATES, LICENSORS, AND SUPPLIERS DISCLAIM ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT USE OF SOFTWARE OR SERVICES WILL ENSURE COMPLIANCE WITH ANY STATUTORY OR REGULATORY OBLIGATIONS.

8.  Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF DRIVEWYZE, AND DRIVEWYZE’S AFFILIATES, LICENSORS, AND SUPPLIERS FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER OR END USER FOR THE SOFTWARE OR SERVICES, AS APPLICABLE, IN THE SIX (6) MONTHS PRIOR TO THE DATE THE LIABILITY AROSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRIVEWYZE AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR OTHER ECONOMIC LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF DRIVEWYZE, AND DRIVEWYZE’S AFFILIATES, LICENSORS, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN THE PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY.

9.     Indemnification. Except to the extent that such Claim is subject to indemnity by Customer under this Agreement, Drivewyze shall defend, indemnify, and hold the other party and its Representatives harmless from and against any third party Claim arising from any allegation that the Software or Services, or the use thereof by Customers infringes or misappropriates any intellectual property rights of a third party. Customer shall defend, indemnify, and hold Drivewyze, its resellers, and their Representatives harmless from and against any Claim arising from: (i) bodily injury, including death, to any person or persons caused by the negligence of Customer, an End User, or their respective Representatives, as applicable; (ii) damage to or destruction of any property, including loss of use thereof and damage to the environment, caused by the negligence of Customer, an End User, or their respective Representatives, as applicable; (iii) any services or work performed by Customer, End Users or their respective Representatives, as applicable; (iv) any warranty or representation concerning the Software or  Services made by Customer, or their respective Representatives, as applicable, that exceeds, is not included in, or is inconsistent with the warranties expressly provided by Drivewyze; (v) any breach of this Agreement, including but not limited to the Customer’s representations and warranties; (vi) tickets, penalties or accidents arising from the use of vehicles; or (vii) any allegation that any non-Drivewyze services or products, or their combination or use with the Software or Services infringes or misappropriates a third party’s intellectual property rights. The indemnified party shall immediately notify the other party upon receipt of notice of a Claim, provided that a party shall be relieved of its obligations only to the extent that failure to provide prompt notice prejudiced the ability to defend the Claim. The indemnifying party shall have full control over the defense and settlement of the Claim, and the other party shall provide information and assistance as reasonably requested by the indemnifying party, at its expense.

10.  Confidentiality. A party may use the Confidential Information of the other party solely for the purpose of fulfilling obligations or exercising rights under the Agreement. Neither party shall disclose Confidential Information of the other party to another person without prior written consent, except that a party may disclose Confidential Information of the other party if disclosure is required by applicable law, by a court of competent jurisdiction or by another appropriate regulatory body, provided, however, that to the extent permitted by applicable law, such party gives the other party prompt commercially reasonable notice in writing of that disclosure to permit it to contest or limit such disclosure.

11.  Term and Termination. The term of the Agreement, shall be as set out in the applicable Service Agreement. Drivewyze may terminate the Agreement at any time for convenience by providing ninety (90) days prior written notice. A party may terminate the Agreement on written notice if the other party has breached any material provision of the Agreement and such breach remains uncured thirty (30) days after receipt of notice detailing such breach. A party may terminate the Agreement on written notice if: (a) a receiver is appointed for the other party or its property the other party; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days of its commencement; or (d) the other party is liquidating or dissolving. Notwithstanding termination or expiration of the Agreement: (a) Customer shall not be relieved of its obligation to pay any monies due or accruing due by the effective date of termination; and (b) Sections 4-8, 10, 11 and 12 (with respect to ownership), shall survive the expiration or termination of the Agreement. This Agreement shall automatically terminate with respect to an End User upon the termination or expiration of the Service Agreement with the applicable Customer. Upon expiration or termination of the Agreement, Customer or End User, as applicable, shall immediately discontinue, and shall cause all End Users to discontinue, all use of the Software and Services, and delete all copies of Software.

12.  General. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), and all U.S. Government End Users acquire the Software with only those rights set forth herein. All notices, communications and deliveries hereunder shall be made in writing, signed, and shall be delivered by via email. The email address for the Customer or End User, as applicable, shall be set out in the Service Agreement, and End User agrees that Drivewyze may send notices to End Users to the attention of the Customer, as applicable. The email address for Drivewyze is legal@drivewyze.com. The parties’ relationship is that of independent contractors, and neither party shall have any right whatsoever to represent the other party, or to incur any liabilities or obligations on behalf of the other party. Customer or End User, as applicable, may not assign the Agreement, in whole or in part, without the prior written consent of Drivewyze, which may be withheld in its sole discretion. This Agreement, together with any documents referenced herein, constitutes the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing. This Agreement shall be governed by laws of the State of Delaware, without regard to its choice of law or conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods is disclaimed by the parties and does not apply. The parties hereby attorn and submit to the exclusive jurisdiction and venue of the courts located in the State of Delaware. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect any other provision of the Agreement. No modification or amendment to the Agreement, nor any waiver of any rights under the Agreement, shall be effective unless signed and in writing. Failure by either party to enforce any provision of the Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Drivewyze shall not be liable for failures or delays in performing its obligations arising from any cause beyond its reasonable control, including but not limited to, acts of God, and in the event of any such delay the time for performance shall be extended for a period equal to the time lost by reason of delay. Each party acknowledges that any breach of its obligations under the Agreement with respect to the intellectual property rights, proprietary rights or confidential information of the other party will cause such party irreparable injury for which damages will be inadequate remedies at law, and such party will be entitled to seek injunctive or other equitable relief.  Customer agrees to execute such documentation and provide such information and cooperation as reasonably required to give effect to this Agreement, including but limited to any waivers, authorizations or assignments.

13.  Florida Agricultural Inspection Site Usage Important Notice and Additional Terms. Customers may opt in for an additional feature of the Service, for no additional charge, that allows Customer to be eligible to participate and receive bypasses at Florida Agriculture Sites. By entering into a Services Agreement for the provision of Services, Customer agrees to the program criteria for the vehicle being driven and must comply with all statutes and rules in order to participate as outlined in Chapter 570 of Florida Statutes and Rule 5A-16.005. Customers who fail to stop and submit to agriculture inspections when required by law are subject to administrative and criminal penalties. Customers who fail to comply with the program criteria or otherwise violate the governing laws are subject to loss of participation in the pre-clearance program. By entering into a Services Agreement for the provision of Services, the Customer and ultimate transporter of the vehicle being driven hereby:

a.      Agrees to directly provide to the Florida Department of Revenue when notified, all Florida destination bills of lading in an approved electronic format. This includes bills of lading for shipments that originated outside Florida that are delivered to a final destination in Florida. These electronic bills of lading must be submitted on a calendar quarter basis, unless an alternative reporting cycle is approved in writing by the Florida Department of Revenue. This data must be received by the Florida Department of Revenue within 30 days after the end of each quarter.

b.      Shall be engaged primarily in the transportation of commodities other than commodities over which the Florida Department of Agriculture and Consumer Services (FDACS) exercises regulatory authority. Customers who routinely or regularly transport agricultural, horticultural, aquaculture, livestock or other commodities over which FDACS exercises regulatory authority are ineligible to participate in the pre-clearance program.

c.      Understands that enrollment in the Service does not preclude any FDACS representative from inspecting the cargo, or absence thereof, regular manifest and/or other bills of lading of all vehicles at all Florida terminals or drop sites any time, as provided by Florida Statutes.

d.      Agrees that each and every truck shipment which contains or includes agricultural, horticultural, aquaculture, livestock or other commodities over which FDACS exercises regulatory authority will voluntarily stop at all agricultural inspection stations and declare such commodities even when enrolled in the Service.

e.     Understands that all vehicles enrolled in the pre-clearance program approaching a specified agricultural inspection station may be randomly selected and routed into the inspection station.

 

Appendix 3 to the Mobility Telematics Schedule

 

Trimble MAPS EULAs

Trimble MAPS Product	End User License Agreement
CoPilot	https://copilotgps.com/eula/
PC*MILER (On-Premise or Web Services)	http://www.pcmiler.com/eula/
Trimble MAPS JavaScript API	http://maps.alk.com/account/license-page

 

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Master Terms and Conditions

Thank you for providing Trimble the opportunity to provide you with our transportation solutions. These Trimble Transportation Master Terms and Conditions (the “Terms”) are incorporated by reference into, and are made a part of, each Schedule between (a) on the one hand, the Trimble legal entity which executes the Schedule into which these Terms are incorporated by reference ("Trimble", “our,” “we”, and “us”) and the other company or entity which executes that Schedule (“Customer,” “you” and “your”) (each, a “Party,” and together, the “Parties”), where that Schedule references these Terms and incorporates them by reference.