Last Updated: July 5, 2021
This Mobility Telematics Schedule (the “Schedule”) is entered into by and between the company 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 Schedule:
A.1. “Device” means an onboard computer Product (e.g., PMG, PCG, Duo, etc.) which is in an active state 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 Schedule. 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 Schedule, 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) our shipping dock (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.
B.1. Extended Payment Plan Terms. If you purchase a Product under an Extended Payment Plan (“EPP”) as specified in the Online Store or via an Addendum (each such Product, an “EPP Product”), then this Section B.1 will apply. We will charge shipping and applicable taxes and fees on your EPP Product purchase up front, or at our option may charge it in installments over the EPP term. You will pay us the purchase price of each EPP Product in thirty-six (36) equal monthly installment payments over the last thirty-six (36) months of your initial Subscription term. We may combine your EPP installment payment with your monthly subscription fee into a single payment. Installment payments will continue on a monthly basis until fully paid. You may pay all or part of your remaining EPP balance at any time. If either (i) the Subscription associated with an EPP Product is terminated or expires for any reason prior to completion of all EPP installment payments or (ii) any monthly EPP installment payment is more than thirty (30) calendar days delinquent (e.g., due to a change in your Payment Information (as defined below) where you have not provided updated Payment Information to us), then the remaining EPP installment payments will accelerate and become immediately due and payable to us in full, and we may charge such amount to your Payment Information or alternatively at our discretion invoice such amount to you on net 30 terms. If any action at law or in equity is brought or commenced by us to collect any amounts payable under the EPP, we shall be entitled to, and you shall reimburse us for, our costs of collection (including without limitation reasonable attorneys’ fees and costs) in addition to any other relief to which we may be entitled. If a Product paid for through the EPP is damaged or destroyed such that the Product must be replaced by you (either temporarily or permanently), then (a) you will remain responsible for the remainder of the monthly installment payments on the damaged or destroyed Product, and (b) you will be responsible for the purchase and installation of a replacement at your cost and expense if one is needed by you. EPP is offered on a per-purchase basis. We maintain, and you hereby grant to us, a security interest in the EPP Product until payment in full has been received by us. You grant to us a security interest (as defined in the Uniform Commercial Code) in the EPP Product, which will be enforceable in accordance with applicable laws, rules and regulations. You authorize us to make all filings (including, without limitation, such Uniform Commercial Code filings) as are necessary in any jurisdiction to perfect our interest in the EPP Product.
C. Term. The term of this Schedule 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 forty-two (42) 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 our actual damages arising from such termination are impossible to ascertain and are not capable of being ascertained by any satisfactory and known rule, that the termination charges are a good faith, fair and reasonable estimate of such damages, and that 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.
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.
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FedEx Ground Contractor Bundle - Included with Core Subscription |
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● 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 ● State Miles Reporting |
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 (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 a Schedule, Addendum or Exhibit; 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, Services and Subscriptions purchased through the Online Store. Your purchased Products (or Product installment payments if you purchase Product under an Extended Payment Plan) 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). Your monthly Subscription Fee for Core Subscriptions purchased through the Online Store will be waived for the first six (6) months of the initial Subscription term for each Core Subscription. 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 Services and Extended Payment Plan installment payments, and to retain your payment account information on file and to use such Payment Information to process your monthly subscription fee payments and Extended Payment Plan installment payments. If you have multiple Subscriptions with us and/or have purchased Products via an Extended Payment Plan, we may aggregate your Subscription fees and Extended Payment Plan installment payments 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 Device is billable during a given billing cycle if it is active at any time during that billing cycle. 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 Device is used to replace an existing billed Device, you agree that (a) you are responsible both for requesting network and system deactivation of the replaced Device and for 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 Schedule, to all Order Forms governed by this Schedule, 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:
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Product(s) |
Warranty Period |
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Devices |
three (3) years from the date of shipment |
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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 |
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Product accessories such as standard cables, antennas, and memory cards |
ninety (90) days from the date of shipment |
If you notify us that a Product installed via installation 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.
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. Services Warranty. We warrant to you for a period of one (1) year from completion of any Services (which includes installation services and professional services as defined in the Master Terms) provided by us or on our behalf (e.g., by a Trimble Installer) under a SOW that the Services have been performed in a good and workmanlike manner (the “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 the installation services to which the claim relates at no additional charge to you; and (b) for a verified claim resulting from any other Services, our provision of commercially reasonable efforts to correct the performance deficiencies. This warranty will not apply if the results of the Services (e.g., an installed Product) has been damaged, misapplied or misused following completion of the 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 Services exceed the price paid for such Services.
F.4. Installation Services. Products purchased by you 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 pursuant to a separate Services Agreement (in which event the installation services warranty set forth above shall apply), or (b) by your employee or another third party on your behalf (in which event the Services warranty set forth above shall not apply to such installation). Your request for installation Services will be deemed to be your consent for us or a Trimble Installer to make certain minor modifications to your vehicles necessary for Product installation. Upon your request and as specified in a Services Agreement, 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 services consist 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 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 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.
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. Entities Operating Under FedEx Ground Package System Authority. If you are operating under the authority of FedEx Ground Package System, Inc., the terms of this Section apply to you. You acknowledge that FedEx Ground Package System, Inc. (“FedEx Ground”) has contracted with Lytx, Inc. (and its subcontractors, if applicable) (“Lytx”) and/or with us to provide services to FedEx Ground utilizing data resulting from performance of services by us (“Your Data”). You hereby appoint Lytx and us to act as your limited agent and on your behalf to retrieve and utilize Your Data. We and Lytx are further authorized to use Your Data to perform services for FedEx Ground pursuant to an agreement between Lytx and FedEx Ground and a separate agreement between us or our Affiliates and FedEx Ground, including, without limitation, the authorization to share Your Data with FedEx Ground and the results of any analysis or other services performed using such Your Data and to use Your Data for such other purposes permitted in such agreements with FedEx Ground. You authorize us to utilize Your Data, and to provide Your Data to Lytx, for the purposes set forth in this authorization. You shall defend, indemnify and hold Lytx and its officers, directors, employees, agents, suppliers, subcontractors, vendors and licensors harmless from all third party losses, claims and costs, including reasonable attorneys’ fees, arising from the use of Your Data pursuant to this authorization. You shall also defend, indemnify and hold us, our officers, directors, employees, agents, suppliers, subcontractors, vendors and licensors harmless from all third party losses, claims and costs, including reasonable attorneys’ fees, arising from the use of Your Data pursuant to this authorization. You hereby agree to notify us in the event you revoke this authorization and Lytx is no longer authorized to use Your Data.
F.11. 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 1 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.12. 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 2 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 2 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.13. 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.14. 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.15. 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 (but for the avoidance of doubt you will remain responsible for payment for Products under any Extended Payment Plan). 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 provision of Services to you 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
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 2 to the Mobility Telematics Schedule
Trimble MAPS EULAs
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Trimble MAPS Product or Service |
End User License Agreement |
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CoPilot |
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PC*MILER On-Premise |
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PC*MILER Web Services |
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Trimble MAPS |
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.
PLEASE READ THESE TERMS CAREFULLY, AS THEY FORM PART OF A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. YOU HEREBY AGREE AND ACKNOWLEDGE THAT THESE TERMS FORM A PART OF, AND ARE INCORPORATED BY REFERENCE INTO, EACH SCHEDULE, AND SHALL BE BINDING ON YOU AS IF YOU HAD PHYSICALLY SIGNED THESE TERMS. PLEASE PRINT A COPY OF THESE TERMS FOR YOUR RECORDS.
BY SIGNING OR ELECTRONICALLY ACCEPTING THE SCHEDULE INTO WHICH THESE TERMS ARE INCORPORATED BY REFERENCE, THE PERSON SIGNING OR ELECTRONICALLY ACCEPTING SUCH SCHEDULE ON YOUR BEHALF REPRESENTS AND WARRANTS THAT HE/SHE HAS READ THESE TERMS CAREFULLY AND HAS THE REQUISITE CORPORATE AUTHORITY TO BIND YOU TO THESE TERMS.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. In General. We and/or our Affiliates may provide you and your Affiliates with Software, Subscriptions, Services and Products under one or more Schedules. Each Schedule automatically incorporates by reference these Terms (including all exhibits, amendments, and appendices related thereto) and any other mutually executed addendums, SOWs or other written supplemental terms related to that Schedule (collectively, an “Agreement”). These Terms will have no force or effect except and to the extent incorporated by reference into a mutually executed Schedule. Each Schedule, Order Form and SOW you initial or execute is conditioned upon, and confirms your acceptance of, these Terms and all other terms and documents which form part of the Agreement. Each Agreement will be independent of other Agreements that incorporate these Terms. Except to the extent otherwise expressly stated, in the event of a conflict between corresponding clauses the following order of precedence will apply from highest to lowest: the Schedule, these Terms, an Order Form or SOW, an addendum, an exhibit, amendment or appendix, and any other mutually executed supplemental terms. All quotes and all requests made by you for Software, Subscriptions, Services and/or Products are non-binding unless and until accepted by us. Schedules, Order Forms, and SOWs are accepted as valid and binding only when signed or electronically accepted by us and when fully executed. While you may issue a purchase order for administrative purposes, no provisions of your purchase orders, invoices, associated purchase documentation, or other business forms will apply to, modify, supersede or otherwise alter the terms of an Agreement or your payment obligations thereunder, and any such provisions will be of no force or effect.
1.1. Definitions. The definitions set forth above are hereby incorporated by reference.
1.1.1. “Affiliate” means any entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party in question. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
1.1.2. “Confidential Information” means the inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by us or you, which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.
1.1.3. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity, database rights and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
1.1.4. “Our Materials and Technology” means our Software (compiled or otherwise), Products and related documentation, and any written and electronic materials, proprietary information, documentation, code, technology, systems, infrastructure, equipment, and trade secrets developed, provided or used by us or our subcontractors to produce and provide Software, Services and Products together with all Intellectual Property Rights therein, together with all modifications, improvements or changes thereto, including without limitation (i) proprietary electronic architecture and other non-literal elements of the Software, Services and Products developed by us, (ii) functional and technical specifications and other technical, training, reference or service information, documentation and manuals and updates thereto, (iii) APIs, customized applications and computer programs, (iv) processes, methods, algorithms, ideas, and other “know how,” (v) data and information provided or sourced by us (specifically excluding Transportation Data), (vi) Products which you have the right to use via a Subscription, and (vii) network equipment and architecture.
1.1.5. “Order Form” means a written order form, quote, equipment schedule, or similar written agreement pursuant to a Schedule specifying Subscription rights granted to you, Software licensed to you, Services provided to you, and/or Products purchased by you or provided to you for use though a Subscription, together with quantities and pricing (and the initial Subscription term for each such Subscription right).
1.1.6. “Products” means hardware products, parts and accessories sold to you, or provided to you for your use through a Subscription, via a Schedule or Order Form.
1.1.7. “Schedule” means a mutually executed agreement that sets forth the Parties’ agreement on terms and conditions applicable to the Software, Subscriptions and/or Products licensed, sold or otherwise provided to you.
1.1.8. “SOW” means a statement of work, schedule, work order, change order, or any other similar mutually agreed upon written agreement, governing the provision of support & maintenance, professional services, installation, or other Services, which may include without limitation professional services methodology, deliverables and training, and fees.
1.1.9. “Services” means any implementation, installation, and/or set-up services, training services, or other professional services provided by us to you as described a Schedule and/or a SOW.
1.1.10. “Software” means the object code version of any software, library, utility, tool, or other computer or program code as well as the related documentation, whether locally installed on your systems (“On-Premise Software”) or provided as a service through the Internet or other remote means such as websites, portals, and “cloud-based” solutions (collectively, “Hosted Software”). Software also includes (a) firmware or other software pre-installed on a Product sold to you, or licensed to you for use through a Subscription, under an Order Form and (b) software and firmware of Trimble or its licensors which may be later loaded to such Product (collectively, “Device Software”).
1.1.11. “Subscription” means a right to use Software (whether as a standalone application or as a service), Products, a periodic allotment of Services, and/or other service-based products (e.g., cloud hosting services) for a fixed term, which subscription right is purchased through a Schedule or Order Form.
1.1.12. “Transportation Data” means the freight, driver, location, audiovisual, load movement, and other telematics and transportation management system data collected by or provided to us, or input by you or on your behalf, through your use of our Products, our service-based or licensed Software, and/or our Services, which may include but is not limited to data specific to your shipper customers (and, with respect to Products, data generated by, collected by and/or transmitted through Products installed in your vehicles).
1.1.13. “User” means a person given the right to access and use service-based or licensed Software by you.
2. Grant of Rights.
2.1. In General. For each Subscription purchased by you through an Order Form, for the Subscription term specified in that Order Form or the Schedule we grant to you a limited, non-exclusive, non-assignable and non-transferable (except in connection with a permitted assignment of an Agreement), non-sublicensable right to access and use the service-based or licensed Software, the Services, and/or the Products governed by your Subscription for your own internal business operations in accordance with these Terms and the terms of the Schedule. This Subscription is restricted to use by you and your Users and does not include the right to use our Software or Services by any third party unless expressly permitted under the terms of a Schedule or Order Form.
You and your personnel will generate unique login credentials for each User, will keep all login credentials confidential, and will not share login credentials between Users. You will immediately notify us if you believe any login credentials any of for your Users may have been disclosed or compromised, and you will hold us harmless from and against any unauthorized and/or harmful access to your accounts(s) and/or data, or breach of the Agreement, using login credentials issued to or by you. Transportation Data will be maintained in our systems during the term of the Agreement, except to the extent deleted by you, on your behalf, or at your request. You acknowledge that Transportation Data may be deleted from our systems following termination of the Agreement and that the Schedule sets forth terms governing such process. You will be solely responsible for archiving copies of Transportation Data if deemed necessary by you. We may access your and each of your users’ accounts, including Transportation Data, to respond to service or technical problems or at your request, or as otherwise permitted by these Terms and/or a Schedule.
Software is licensed to you or provided as a service, and is not sold to you. Our mobile apps available through app stores (e.g., Apple App Store, Google Play) are governed by separate end user license agreements for such software.
If you obtain Product from us (whether by purchase or Subscription) which contains Device Software, we grant to you a limited, non-exclusive, non-transferable (except together with the sale of the Product on which the Device Software resides), right and license to use Device Software for your own business operations solely as part of the Product on which such Device Software resides. You will not remove Device Software from a Product. The terms of the Agreement and an applicable Schedule relating to ownership of a Product and restrictions on use of the Device Software will be binding upon and apply to any subsequent purchaser of a Product.
2.2. Restrictions. You agree and covenant that you will not (i) transfer, publish, disclose, display or otherwise make available any of Our Materials and Technology to any third party, except as necessary for you to use the Products and Software for your internal business purposes; (ii) copy, modify, tamper with, alter, create derivative works of, sublicense, sell, lease, loan, rent, convey, pledge as security or otherwise encumber, or act as a service bureau with respect to any of Our Materials and Technology; (iii) reverse engineer, decompile, translate, adapt or disassemble any of Our Materials and Technology in an attempt to reconstruct or discover the design, source code or algorithms thereof for any other purpose, except and only to the extent expressly permitted by law; (iv) remove, delete or alter any trademarks or any copyright, trademark, patent or other Intellectual Property Rights notices from any of Our Materials and Technology; (v) use any of Our Materials and Technology in violation of applicable laws, rules, regulations, codes or ordinances; or (vi) cause or authorize any third party to do any of the foregoing.
2.3. Suspension Right. Notwithstanding anything to the contrary in an Agreement, we may suspend our performance under the Agreement, including without limitation suspending your use of our Products, Software and administrative portals and our provision of Services and warranty processing, (a) on five (5) business days prior notice to you if you fail to pay any amount not contested by you in good faith by the due date or fail to use diligent good faith efforts to resolve a good faith payment dispute (unless cured during such notice period), or (b) immediately if your or your Users’ acts or omissions threaten the integrity or security of our Software, systems, products or infrastructure (provided we will use commercially reasonable notice to provide you with advance notice of such suspension where we determine exigent circumstances do not exist). We will lift such suspension once such issue or failure is cured to our reasonable satisfaction. You will continue to be charged for service and subscription fees during such suspension. During such suspension, you will be prohibited from entering new data or processing existing data. If you attempt to access or manipulate Transportation Data utilizing third party software during suspension, we disclaim and you hold us harmless from any responsibility or liability relating to lost or altered data or related damages.
3. Services. We will use commercially reasonable efforts to perform for you, or on your behalf, Services set forth in the Agreement or in one or more SOWs. Each SOW will automatically be incorporated by reference into and made a part of the Agreement. All SOWs will be in writing and shall be effective only when signed by both Parties. Each Party will designate a person to be its designated representative concerning this Addendum and all SOWs and will serve as the primary day-to-day point of contact between the Parties (for each, the “Project Manager”). A Party may designate an alternative Project Manager upon notice to the other Party. The fees applicable to Services performed will be set forth in each SOW. Fees will be on a time and materials basis at the hourly rate set forth in the SOW, billed to the actual number of hours of Services performed by us personnel regardless of any estimate(s) set forth in the SOW, unless an alternative fee arrangement is expressly set forth in the SOW.
3.1. Change Orders. Services provided will consist of the in-scope services set forth in a SOW. Additional or supplemental work beyond, or changes to, the in-scope services in a SOW will be handled via mutually agreed-upon change order (“Change Order”) which sets forth the change in scope, incremental fees for that additional or supplemental work, and any other impacts to the SOW such as timeframes. Either Party may request a Change Order; if the Parties mutually agree to move forward with the work contemplated in such Change Order, we will prepare such Change Order and provide it to you for review. Upon the parties’ mutual written execution of a Change Order, the Services shall be modified or supplemented as set forth in such Change Order. All SOWs and Change Orders will be in writing and shall be effective only when signed by both Parties, and in no event shall any Services work subject to a SOW be deemed altered, amended, enhanced, or otherwise modified except through a fully executed Change Order.
3.2. Scoping Activities and Information. You agree and acknowledge that our ability to successfully complete Services is dependent on accurate and complete scoping of the integration and implementation effort required (“Scoping Activities”), and on your identification of non-standard systems, newly-released or older versions of software used by you that may require custom integration efforts, or similar non-standard requirements (“Scoping Information”). You will promptly provide to us all relevant Scoping Information. You agree and acknowledge that changes in the scope of implementation and set-up efforts, or additional Services, may from time to time be required despite the Parties’ cooperation on Scoping Activities and your provision of Scoping Information, and the Parties agree to work together in good faith to mutually agree upon a supplemental SOW or change order with the additional Services required to account for such change in scope, together with associated fees and other related terms.
3.3. Required Assistance; External Factors. You (and to the extent you utilize third parties to assist with implementation and set-up of the Services (“Third Party Consultants”), your Third Party Consultants) will (a) provide us with reasonably requested and timely information, access, resources and approvals to assist us with its provision of Services, and (b) will use diligent efforts to work with us to ensure timely completion of Services (collectively, “Required Assistance”). You acknowledge that the Required Assistance requires collaboration between us and you and/or Third Party Consultants, and will require your active and sustained participation in order to be completed in a timely, effective and complete manner. You will assign a point of contact within your organization within five (5) days of contract execution to work with us as our primary point of contact for Implementation and Set-Up Services. You agree and acknowledge that the failure to provide Required Assistance by you or any of your Third Party Consultants, or non-standard requirements requested by you, may result in delays in the completion of Services (which delays will not be our responsibility), and may require additional Services to correct issues or usability. You also agree and acknowledge that you will hold us harmless from any delays, incremental costs, or other liability resulting from the acts or omissions of Third Party Consultants.
You agree and acknowledge that our ability to meet the anticipated timelines set forth in a SOW or Change Order is dependent in part on factors beyond our reasonable control, including without limitation the timely provision by you of all reasonably requested input, materials, approvals and test results and delays due to force majeure events (“External Factors”). In the event External Factors cause a delay in our ability to meet anticipated timelines or may result in additional costs to complete performance, our Project Manager shall notify your Project Manager, and the parties shall work together in good faith to enter into a Change Order to memorialize the effects of External Factors.
3.4. Acceptance. If a SOW states that Services provided thereunder are subject to acceptance testing, then the terms of this paragraph shall apply with respect to the Services provided under that SOW. If so specified in a SOW, Services are subject to your acceptance to verify that the Work Product from those Services substantially conforms to the written specifications set forth in the SOW (the “Acceptance Criteria”). Upon completion of the Services set forth in a SOW (or portion thereof subject to separate acceptance testing if set forth in the SOW), we will notify you of completion, and you will promptly review and inspect the Work Product based on the Acceptance Criteria and notify us within ten (10) calendar days of its receipt of our completion notice or a different period if set forth in the SOW (the “Review Period”) whether the Work Product is accepted or rejected. If you reject the Work Product, you will provide written notice of rejection to us specifying the reasons for the rejection and the specific failures under the Acceptance Criteria. Following our receipt of a rejection notice, we will use commercially reasonable efforts to correct the Work Product and resubmit it for additional testing, in which case you will re-inspect the revised Work Product using the procedures set forth above. If you do not respond to us by the end of the Review Period, the Work Product will be deemed accepted by you as if you had provided a written notice of acceptance.
4. Fees and Charges. Fees and charges for Subscriptions, Services and Products will be set forth in each Schedule, Order Form or SOW. Subscription fees and other recurring fees are invoiced in advance at the start of the billing cycle; service fees that are prorated by us for usage less than the full billing cycle, Services fees, and usage-based charges (e.g., on-demand services), are billed in arrears at the end of the billing cycle. Except as otherwise set forth in a Schedule, invoices are sent electronically, by electronic mail or facsimile, will be due thirty (30) calendar days from date of invoice, and will be paid in the currency specified in the Schedule, Order Form or invoice (or USD if no currency is specified), by check or wire transfer. No credit, carryover or refund will be given for data paid for but not used in a billing cycle, or for other intangibles (e.g., Services hours) allocated or available for use during, but not utilized by you by the end of, a usage or Subscription period. We charge a Twenty-Five Dollar ($25) fee for each check returned for insufficient funds. Delinquent payments not contested by you in good faith will bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law. We have the right to periodically review your credit and, if determined reasonably necessary by us, to change your payment terms, and/or demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation. If you do not object in writing to an invoiced amount within thirty (30) calendar days of date of invoice, you will be deemed to have acknowledged the correctness of that invoice and to have waived your right to dispute that invoice. A dispute as to a portion of any invoice or amount owed will give you the right only to withhold or delay payment of only the disputed portion of that invoice or amount owed. You agree to be liable to us for all costs of collection of past due amounts (including attorneys’ fees). You will use diligent good faith efforts to resolve any payment dispute within thirty (30) calendar days of raising the dispute.
4.1. Changes to Prices and Fees; Taxes and Charges. Fees for active Subscriptions may be increased effective as of each annual anniversary of the Billing Commencement Date upon at least thirty (30) calendar days prior written notice, provided that the amount of such fee increase on an active Subscription may not exceed five percent (5%) on a year-over-year basis (excluding Subscriptions with pricing designated as promotional or one-time). We may periodically adjust the price of Subscriptions, Software, Services, Products and accessories available to you for subsequent purchase, license or subscription. Our stated prices for Products, Software, Subscriptions and Services do not include applicable sales taxes, value added taxes, goods and services taxes, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes, surcharges and fees, or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or a valid exemption certificate for the appropriate jurisdiction, you will pay us all such taxes, charges and fees invoiced by us in connection with the sale, delivery or provision of Software, Subscriptions, Services and Products.
5. Term and Termination. The term of each Schedule is set forth therein. Each SOW will commence on the effective date set forth therein and continue until completion of the Services set forth in that SOW, unless otherwise specified therein. Sections 2.2 and 5-10, your payment obligations, and any term or provision that applies to events occurring following termination or expiration, will survive termination or expiration of the Agreement.
A Party may terminate the Agreement upon written notice to the other Party in the event the other Party materially breaches any of its representations or warranties made hereunder or materially fails to substantially perform its obligations under the Agreement, provided that written notice of such breach or failure has been provided by the non-breaching Party specifying such breach or failure, and if such breach or failure is capable of cure, the breaching Party fails to cure such breach or failure or provide a written plan of cure reasonably acceptable to the non-breaching Party within thirty (30) calendar days of the breaching Party's receipt of such notice. Further, we may terminate all Schedules, Order Form(s) and SOWs then in effect immediately and without notice to or opportunity to cure by you in the event (i) you intentionally use Software, Services or Products in a fraudulent manner, a manner adversely affecting the provision of our Software, Services and/or Products to others or in violation of any applicable laws, rules or regulations; (ii) you cease to do business in the manner in which it was conducted as of the Effective Date of the Schedule; (iii) there is a change of law, statute, or regulation that prevents us from providing our Software, Services or Products to you; or (iv) you are a person or entity listed on listed on one or more export screening lists maintained by the U.S. Department of Commerce, the U.S. Department of State, and the U.S. Department of Treasury, or other similar lists.
Upon termination or expiration of a Schedule, Order Form or SOW, (i) each Party will cease performance of its obligations under that Schedule, Order Form or SOW; (ii) all fees and expenses due to us for services provided and expenses incurred on or prior to the effective date of termination or expiration will be come immediately due and payable by you; and (iii) each Party will promptly destroy any of the other Party’s Confidential Information or other materials in its possession or control provided in connection with that Schedule, Order Form or SOW and will provide a written certification of destruction executed by an officer upon request, provided, however, that (a) we will maintain Transportation Data in our systems in accordance with our standard data retention cycle, and (b) neither Party will be required to destroy or return digitally archived data stored as part of its standard network back-up practices provided that the data is secured and not readily accessible and is destroyed in accordance with its regular backup retention cycle, provided that while in its possession such Party continues to treat the data in accordance with its confidentiality obligations set forth in the Agreement.
6. Confidentiality. Each Party (“Recipient”) agrees (a) to hold Confidential Information disclosed to it by the other Party (“Discloser”) strictly confidential and to not share, disclose, or provide Discloser’s Confidential Information to any third party except as expressly set forth herein; (b) to maintain the confidentiality and security of Discloser’s Confidential Information using the same care as it uses with its own confidential information of like importance, but no less than reasonable care; and (c) to restrict access to Discloser’s Confidential Information to those of its and its Affiliates’ employees, contractors, consultants, agents, and legal and financial advisors (“Representatives”) who have a need to know the information in connection with the exercise of Recipient’s rights and performance of Recipient’s obligations under the Agreement who (i) have been notified of the confidential nature of the disclosure and (ii) are under an enforceable obligation to hold the Confidential Information in confidence under terms and conditions at least as restrictive as the terms and conditions of the Agreement. Recipient will be responsible for any breach of the Agreement by the Representatives of Recipient or its Affiliates. For the avoidance of doubt, the terms of the Agreement, and Our Materials and Technology, are our Confidential Information. Confidential Information will not include information that Recipient can reasonably demonstrate through written evidence (A) is or becomes generally publicly available other than due to the acts or omissions of the Recipient, its Affiliates, or their Representatives; (B) is rightfully in Recipient’s possession on a non-confidential basis prior to receipt from Discloser; (C) is lawfully received, without obligation of confidentiality, by Recipient from a third party; or (D) is independently developed by or for Recipient without use of or reference to Discloser’s Confidential Information. We will be entitled to disclose Transportation Data if required pursuant to judicial, governmental or administrative process, requirement, order or disclosure demand. The Parties’ confidentiality obligations hereunder will survive the termination or expiration of the Agreement for a period of two (2) years, except that each Party will maintain the confidentiality of any Confidential Information labeled by a Discloser as a trade secret indefinitely until it becomes part of the public domain through no act or omission of Recipient, its Affiliates, or their Representatives. Recipient acknowledges that remedies at law may be inadequate to protect Discloser against any actual or threatened breach of the Agreement by Recipient or its Representatives and, without prejudice to any other rights and remedies otherwise available to Discloser, Recipient agrees that in the event of such actual or threatened breach Discloser may seek injunctive or other equitable relief in Discloser’s favor, without proof of actual damages or the requirement of posting a bond or other security.
7. Ownership; Suggestions. You agree that all right, title and interest in and to Our Materials and Technology and all service-based or licensed Software provided hereunder, including all changes, modifications and improvements thereto, belongs exclusively to, and will remain the sole property of, us, our Affiliates, and our and their respective licensors or partners. You will take reasonable precautions to prevent unauthorized access and use of service-based and licensed Software by third parties. Work performed and deliverables created by us under the Agreement, including without limitation via Services, will constitute Our Materials and Technology, and for the avoidance of doubt will not be considered “works made for hire” owned by you. You have no rights in or to Software source code under these Terms or any Agreement. We reserve all rights in Our Materials and Technology not specifically and expressly granted to you under these Terms. Our Materials and Technology (including without limitation our Software) are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. We agree that as between you and us, you will own your Transportation Data. We reserve the right to modify, expand, update or otherwise change portions of our Software, Products and offerings and the platform(s) on which they are provided, provided such changes do not adversely affect in a material manner your ability to use our Software, Products and offerings for their intended purpose. Notwithstanding anything in the Agreement to the contrary, you grant to us and our Affiliates a royalty-free, worldwide, irrevocable, perpetual non-exclusive license to use and incorporate into their services and technology, make available to their customers and commercially use any suggestions, enhancement requests, recommendations, or other feedback provided by you, your Affiliates, or their representatives relating to or resulting from the Software, Services or Products of us or our Affiliates.
7.1. Collection and Use of Transportation Data. You authorize us and our Affiliates to remotely and automatically collect Transportation Data that is input by you or on your behalf into service-based or licensed Software, is generated by a Product, or is otherwise provided to us, for the purposes(s) authorized in these Terms and in a Schedule. This authorization is in addition to, and does not replace or alter, any other data collection or like agreement(s) between the Parties. You authorize and consent to our collection and use of Transportation Data (1) to operate, manage and provide the Software and Services, including without limitation providing you and your Users with requested technical support and addressing and preventing service or technical issues; (2) to transmit such data for use by you and your designated customers for your respective internal business operations (e.g., to enable better understanding of the transportation and movement of the related freight); (3) to provide data to third-party freight tracking vendors, if applicable and as authorized by you, for visibility and information as to freight location and status; and (4) as otherwise requested and/or approved by you. The Agreement will not, and will not be construed to, limit or impair our ability to use data independently received from a carrier or other third party. Further, notwithstanding anything in the Agreement to the contrary you give us and our Affiliates the royalty-free, perpetual right (i) to use Transportation Data and other data provided to us by you or on your behalf to improve, enhance, and support the nature, quality and features of our and our Affiliates’ products, software and services subject to our confidentiality obligations set forth hereunder, and (ii) to aggregate and anonymize Transportation Data and other data provided by you or on your behalf in connection with the Agreement and to use such aggregated and anonymized data, as well as data regarding your use of our Products, Software and Services and summary or derivative information based thereon, for our and our Affiliates’ analytical and other business purposes during and following the term of the Agreement, provided that you will not be identified as the source of such information. You agree that we may share truck system data (e.g., engine data) collected through a Product with the system and/or vehicle manufacturer.
7.2. Data Protection Laws. “Personal Information” is defined as any personally identifiable information (i) which we may collect in connection with your normal use and operation of the Products and service-based or licensed Software, and (ii) which is either (a) provided by you or on your behalf, or (b) automatically collected through a Product or Software. Our processing of Personal Information, and your use of our Software, Services and Products, will comply in all material respects with applicable laws, rules, regulations, and directives relating to data privacy, trans-border data flows, and data protection (collectively, “Data Protection Laws”). Our privacy policy governs our processing of Personal Information. In order to use our Software, Services and Products, you warrant and covenant that prior to providing us with any Personal I or by using our Products and Software purchased by or licensed to you through which we collect such Personal Information, you have provided or, where necessary, obtained consent or have another valid legal basis under applicable Data Protection Laws to provide such Personal Information to us to or allow such Personal Information to be collected by us, and further you acknowledge that we are permitted to process and use such Personal Information in accordance with this Agreement.
In connection with a verified request by a data subject pursuant to an exercise of rights under applicable Data Protection Laws relating to Personal Information, including without limitation the California Consumer Privacy Act of 2018 (Title 1.81.5, §1798.100 et. seq., as it may be amended over time), you agree and acknowledge that we are your service provider, that you (and not us) will respond to such request, and that if necessary in connection with such verified request you will utilize the tools and information provided or made generally available by us, e.g., our online portals or APIs, our Privacy Policy, standard documentation regarding our products, software and services, etc. To the extent such tools do not enable you to respond to a verified request, upon your request we will provide you with reasonable assistance with respect to Personal Information in our systems that is required for your response to such request. Our obligation to respond to a request to delete Personal Information does not include our right to maintain and use Personal Information required to provide you with our products, software and services, which includes any of our service provider(s) acting on our behalf to provide such products, software and services provided that such service provider(s) do not have a separate right to sell or use your Personal Information other than as required for our business purposes. We may update this paragraph from time to time upon notice to you as necessary to comply with Data Protection Laws.
8. Indemnity. You will indemnify and hold us, our affiliates, and their respective officers, directors and employees harmless from and against any and all defense costs (including reasonable attorneys’ fees and other litigation expenses), fines and penalties imposed, negotiated settlement amounts, and court-awarded damages in connection with claims, demands, actions, proceedings and suits brought or commenced by a third party to the extent resulting or arising from (i) your breach of the material terms of this Agreement, (ii) your actual or alleged use or modification of any Software, Subscriptions, Services, or Products in breach of this Agreement, or in any manner not authorized by this Agreement; (iii) your failure to comply in all material respect with laws, rules, or regulations applicable to you, your business, or your use of our Products and Software, or your violation of the rights of a third party, or (iv) any accident in which one of your vehicles is involved in which Software or Products (including mobile software applications) supplied by us are installed and/or used.
9. Disclaimers; Risk Allocation. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OUR PRODUCTS, SOFTWARE, SUBSCRIPTIONS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND WE MAKE NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, SOFTWARE, SUBSCRIPTIONS OR SERVICES, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS, SOFTWARE, SUBSCRIPTIONS AND SERVICES, INCLUDING UPDATES, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE, AND WE GRANT NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM. WE ARE NOT RESPONSIBLE FOR ISSUES WITH OUR PRODUCTS AND SOFTWARE ARISING OUT OF THEIR USE ON OR IN CONJUNCTION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US. FMCSA AND OTHER LAWS, RULES AND REGULATIONS ARE SUBJECT TO CHANGE. THE ABILITY TO TRANSMIT MESSAGES AND/OR TRANSPORTATION DATA ARE SUBJECT TO WIRELESS PROVIDER COVERAGE AREAS AND MAY BE TEMPORARILY INTERRUPTED OR OTHERWISE LIMITED BY EVENTS BEYOND OUR CONTROL. USE OF PRODUCTS, SOFTWARE, SUBSCRIPTIONS OR SERVICES MAY BE IMPACTED IF YOUR SYSTEMS ARE NOT PROPERLY CONFIGURED AND/OR IF VEHICLES ARE OPERATED OUTSIDE OF LICENSED WIRELESS CARRIER SERVICE AREAS. IF YOU UTILIZE DATA FIELDS AVAILABLE IN OUR SOFTWARE TO STORE DATA NOT REQUIRED FOR THE NORMAL USE AND OPERATION OF OUR PRODUCTS AND SOFTWARE FOR THEIR INTENDED PURPOSE, (i) YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR COMPLIANCE WITH LAWS, RULES AND REGULATIONS SPECIFIC TO SUCH DATA (E.G., HIPAA OR PCI RULES); AND (ii) YOU ASSUME ALL RISKS ASSOCIATED WITH, AND AGREE TO HOLD US HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RELATED TO OR ARISING FROM, YOUR USE OF DATA FIELDS TO STORE SUCH DATA.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR DATA, LOSS OF USE, COSTS OF COVER, DOWNTIME AND USER TIME REGARDLESS OF THE LEGAL THEORY ASSERTED OR WHETHER A CLAIM IS BROUGHT IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE LEGAL THEORY ASSERTED OR WHETHER A CLAIM IS BROUGHT IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHER THEORY, IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE PURCHASE PRICE OR FEES PAID BY YOU FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY, OR FOR THE SOFTWARE, SUBSCRIPTION OR SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE OF PRODUCTS AND PROVISION OF SUBSCRIPTIONS, SOFTWARE AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY OR MAY NOT FULLY APPLY TO YOU.
10. Other Provisions.
10.1. Publicity. You agree that (a) we may issue a press release in the form approved by the Parties regarding the Parties' entry into the Agreement, and (b) we may identify you (including through use of your name and logo) as our customer, including on our website, and may include you in our customer list and marketing materials.
10.2. Export Control. You acknowledge that our products, services, proprietary information, and derivatives thereof may be subject to United States and international export control, embargo, and sanctions laws, regulations, and licensing requirements, including those administered by the U.S. Department of Treasury, U.S. Department of State, and others (“collectively, “Export Control Laws”). You will strictly comply with such laws, and will not export, re-export, transfer, divert, or disclose any of our products, services, proprietary information, or derivatives thereof to any individual, entity, or destination in violation of any U.S. and international Export Control Laws.
10.3. Anti-Corruption Compliance. You, and any third party acting on your behalf, will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others (collectively, “Anti-Corruption Laws”). You, and any third party acting on your behalf, will not directly or indirectly offer, promise, or give any payment or anything of value to a government official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage for you or us. You, and any third party acting on your behalf, also will not solicit or accept any sort of payment or anything of value from anyone, where the intent is to improperly influence any of your acts, our acts, any the acts of any third party acting on your behalf.
10.4. Disputes. If any dispute arises between the Parties relating to, arising out of or in any way connected with the Agreement or any term or condition of it, or the performance by either Party of its obligations under or related to the Agreement, the Party raising such dispute will provide written notice of the dispute to the other Party and the Parties’ primary points of contact for the Agreement will work diligently and in good faith to resolve such dispute. If such dispute is not resolved after thirty (30) days following the date of the written notice of such dispute, each Party will promptly appoint a representative holding the title Division Vice President or higher and having the decision-making authority to resolve the dispute on behalf of such Party. Such representatives will promptly meet and will work diligently and in good faith to resolve such dispute. In the event such dispute is not resolved by the appointed representatives described above within another fifteen (15) days thereafter, then each Party will be free to pursue any and all remedies available to such Party, at law or in equity. No Party may bring an action or claim against the other at law or in equity in any forum without first completing the dispute process set out in this Section, except a Party may file such an action or claim at any time if (a) the Party is legally required to file the action or claim at that time so as not to lose a legal right (including the ability to file the claim); (b) the action or claim is one to enforce confidentiality obligations or Intellectual Property Rights, or to recover unpaid fees; or (c) the action or claim is an equitable action to prevent imminent and irreparable harm with no adequate remedy at law.
10.5. Governing Law and Venue; Waiver of Jury Trial. This Agreement will be governed exclusively by, and construed and enforced exclusively in accordance with, the laws of the State of Minnesota, United States of America without regard to or application of its conflicts-of-laws provisions. Any legal proceeding arising out or relating to this Agreement will be subject to the sole and exclusive jurisdiction of the United States District Court for the District of Minnesota or any state court sitting in Hennepin County, Minnesota, to the exclusion of all other courts and venues, and each Party irrevocably consents to the sole and exclusive jurisdiction and venue of the United States District Court for the District of Minnesota or any state court sitting in Hennepin County, Minnesota and waives any right to object thereto. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.6. Force Majeure. Except for payment obligations, neither Party will be liable for a failure to perform hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, which include without limitation (i) disruptions in a wireless provider’s network or infrastructure; (ii) system capacity limitations, equipment repairs and similar activities not within our complete control; (iii) failures of, changes, modifications, or alterations to your network facilities, equipment or software; (iv) misuse of or damage to a Product; or (v) any accident involving any of your vehicles. Delays or failures that are excused as provided in this paragraph will result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure. No such excused delay or failure will constitute a default, or, except to the extent a related performance obligations is incomplete or unperformed, be a basis for disputing or withholding amounts payable hereunder, provided that the Party whose performance is delayed or suspended will use commercially reasonable efforts to resume performance of its obligations hereunder as soon as feasible.
10.7. Assignment. You may not assign or otherwise transfer the Agreement to any third party without our express prior written consent. Notwithstanding the foregoing, you may assign the Agreement (in whole, but not in part) upon written notice to us to (i) any Affiliate or (ii) to a successor in interest as a result of an acquisition of your business (including by stock sale, asset sale or merger) or corporate reorganization or restructuring, provided that if requested by us, you and your successor-in-interest execute an assignment amendment in a form reasonably requested by us. Subject to the foregoing, the Agreement will be binding upon, inure to the benefit of, and be enforceable by the Parties and their successors and permitted assigns. Any assignment, transfer, or attempted assignment or transfer by you in violation of the terms of the Agreement will be void and of no force or effect and will constitute a material breach of the Agreement.
10.8. Miscellaneous. The Agreement sets forth the entire understanding between the Parties in connection with the Agreement, and supersedes all prior or contemporaneous proposals, communications, agreements, negotiations, and representations, whether written or oral, regarding the subject matter thereof. There are no third-party beneficiaries under the Agreement. We may utilize subcontractors in the performance of our obligations under a Schedule, Order Form or SOW, and we will be responsible for the acts and omissions of our subcontractors in their performance of our obligations thereunder. No waiver of any provision or breach of the Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. Regardless of which Party may have drafted the Agreement, no rule of strict construction will be applied against either Party. In the event any portion of the Agreement is held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made, such provision or portion thereof will be severable from the Agreement, provided that the same will not affect in any respect whatsoever the remainder of the Agreement. Except with respect to notices of Updated Terms as set forth above, any notification of any event required pursuant to the Agreement will be in writing, will reference the Agreement, and will be personally delivered or sent by nationally or internationally recognized express courier to the other Party at the address set forth on the first page of the Schedule, ATTN: Legal. Notice will be deemed effective upon delivery or refused delivery attempt (as evidenced by the delivery receipt). The Parties have specifically requested that the Agreement be drafted in English. Les Parties ont spécifiquement demandé à ce que cette entente soit rédigée en anglais. If there is a conflict between versions of the Agreement in any other language, the English language version controls. Each Party is an independent contractor of, and is not an employee, agent, fiduciary or authorized representative of, the other Party. The Agreement may be executed in several counterparts and by each Party on a separate counterpart, each of which, when so executed and delivered will be an original, but all of which together will constitute but one and the same instrument.
10.9. Electronic Signatures. YOU HEREBY AGREE (A) TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND (B) TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED IN CONNECTION WITH THE AGREEMENT. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. A fax signature or signature delivered as an imaged attachment to an e-mail message will be deemed equivalent to an original ink signature.