Terms and Conditions

Geoforce Terms and Conditions Covering Australia, Brazil and Canada:

2021 Australia Terms and Conditions (opens in a new tab)
2021 Brazil Customer Sales Agreement (opens in a new tab)
2021 Brazil Customer Service Agreement (opens in a new tab)
2021 Canada Terms and Conditions (opens in a new tab)

GEOFORCE TERMS AND CONDITIONS

These Geoforce Terms and Conditions, including all attachments, addenda, schedules and exhibits, and documents at referenced URLs (collectively, this “Agreement”) are entered into by and between Geoforce, Inc. or one of its Affiliates (“Geoforce”), and the entity identified as the “Customer” (“Customer”) in the signature block of the applicable Order (as defined herein) executed by and between Geoforce and Customer, as of the date specified in such Order (the “Effective Date”).

1. Definitions

In addition to initially capitalized definitions set forth elsewhere in this Agreement and the Geoforce Privacy Policy (located at https://www.geoforce.com/privacy-policy/), incorporated herein by this reference (including all policies, procedures, and Geoforce websites made a part thereof), the following terms, as used in this Agreement, shall have the definitions set forth below and shall be equally applicable to the singular, plural, and derivative forms thereof.

“Affiliate” means, as to a Party, each person that is Controlled by such Party, that Controls such Party, or that is under common Control with such Party.

“Applicable Law” means all mandatory national, federal, provincial, state, municipal, and local laws, statutes, acts, ordinances, regulations, rules, codes, treaties, executive orders, supervisory requirements, official directives, circulars, opinions, interpretive letters and other official releases that are applicable from time to time to a Party’s performance of its obligations and exercise of its rights hereunder, including data protection and privacy laws, corrupt activities and illegal payment laws, economic/trade sanctions rules and regulations and export and import laws.

“Confidential Information” has the meaning set forth in Section 6.1 below.

“Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or interests (or the maximum equity ownership permitted by Applicable Law, if such Party is not permitted to own more than 50%) entitled to vote for the directors or other management of such Party or the equivalent, but only for as long as such ownership relationship continues to exist. Upon request, each Party agrees to confirm in writing to the other Party the status of any or all Affiliates.

“Customer Materials” has the meaning set forth in Section 5.3 below.

“Customer Networks” means Customer’s information technology networks, systems, assets, files, information, data and Required Products.

“Deliverables” means the deliverables defined in the Order, which Geoforce agrees to provide to Customer pursuant to the Order.

“Effective Date” means the Effective Date as defined in the introductory paragraph of this Agreement.

“Fees” has the meaning set forth in Section 4.1 below.

“GAAS” means the right to utilize the Software along with the purchase of the Hardware when bundled together as indicated on an Order.

“Hardware” means certain hardware components and ancillary accessories necessary to connect to and communicate with Geoforce systems that may include, but shall not be limited to, the following: tags (such as RFID tags or GPS enabled network delivery devices that may be attached to Customer assets) and equipment (such as tag readers and communication systems that may be installed within Customer’s facilities or other locations).

“Intellectual Property Rights” means, on a worldwide basis, any and all tangible and intangible: (i) copyrights; (ii) trademarks, service marks, logos, trade dress, trade names and the goodwill associated therewith; (iii) rights relating to know-how or trade secrets; (iv) patents; (v) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers) and similar identifiers; (vi) all other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vii) all registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions or reissues of any of the foregoing now or hereafter in force (including any rights in any of the foregoing).

“Order” means a Geoforce quote provided to Customer or a purchase order from Customer that is accepted in writing by Geoforce, which Order shall be subject to and governed by the terms and conditions of this Agreement. Notwithstanding anything to the contrary contained herein, any and all pre-printed terms stated on a Customer purchase order are void and of no force or effect to the extent that they conflict with this Agreement.

“Party” or “Parties” means each of the persons entering into this Agreement, in the singular, and both of the persons entering into this Agreement, in the plural. All other persons, such as Affiliates and contractors of each Party, are third parties without rights or benefits hereunder.

“Required Access” means the Customer Networks identified by Geoforce for the purposes of Geoforce providing the Services and Deliverables described in this Agreement.

“Required Access Rights” means the full license, rights and authorizations obtained by Customer, at its sole costs and expense, that are necessary to allow Geoforce to access or use Customer Networks in order to provide the Services and Deliverables.

“Required Products” means the third-party hardware, software, appliances, telecommunications, Internet and other connectivity (but only the model, version, release or other technical specifications of the foregoing that are supported by Geoforce from time to time) as may be specified by Geoforce in the Service descriptions for the applicable Services set forth in the Order.

“Services” means the Geoforce services (including GAAS) to be provided to Customer under the applicable Order. Geoforce’s Affiliates and third-party contractors may provide the Services to Customer on behalf of Geoforce. Customer acknowledges and agrees that such Affiliates and third-party contractors will be entitled to provide the Services to Customer.

“Software” means any software owned or licensed by Geoforce and provided to Customer under the applicable Order or used by Geoforce to provide the Services under the Order, whether stand alone or as incorporated in Hardware, including any APIs, guides and documentation provided therewith.

“Term” means the term of this Agreement as defined in Section 8.1.

“Work Product” means all deliverables (including Deliverables), data, information, reports, software, works of authorship, materials, inventions and discoveries created, developed or reduced to practice by Geoforce or its personnel or contractors as part of or in the course of providing the Services. For clarity, Work Product does not include Customer’s Confidential Information.

2. Hardware

2.1 Purchase of Hardware. All Hardware shall be purchased under the applicable Order. The Order will cover only the Customer entity specifically identified therein. Customer shall select in the Order the appropriate Hardware for Customer’s environment. Customer acknowledges that some of Geoforce’s Hardware has EX ratings for various zones, such as International Electrotechnical Commission (IEC) Explosive (EX), Atmosphere EXplosibles (ATEX), and Instituto Nacional de Metrologia, Qualidade, e Tecnologia (INMETRO), while some of Geoforce’s Hardware does not. Customer represents, warrants and covenants to Geoforce that it is aware that some of the Geoforce Hardware is more appropriate for particularly zoned environments and that Customer shall evaluate its environment and zone requirements and will only purchase the most appropriate Hardware for Customer’s needs. Customer shall ensure that it purchases the correct Hardware and that it shall install and operate the Hardware within Geoforce’s instructions and those of the appropriate regulatory bodies. Customer shall pay all shipping and handling costs for delivery beyond make ready at Geoforce’s dock (i.e., Ex Works Geoforce).

2.2 Limited Hardware Warranty. Geoforce warrants that, for one year (or longer, if Customer has elected to pay the additional fees due for such longer period as expressly set forth in an Order) from that date that title for the Hardware passes to Customer (or in the case of GAAS, for the Term of the applicable Order, so long as Customer timely pays all Fees due to Geoforce under such GAAS Order) (the “Warranty Period”), the Hardware will be free of defects in materials and workmanship when installed, operated, and serviced in strict accordance with Geoforce’s and the manufacturer’s requirements. If: (i) Geoforce is timely notified by Customer in writing that the Hardware fails to operate because of a defect in materials or workmanship within the Warranty Period; (ii) the failed Hardware is actively subscribed to the Services; and (iii) Customer’s account is in good standing, Geoforce will, at its sole option and at no charge to Customer, repair or send a replacement for the failed Hardware or, in its discretion, refund any monies paid for such failed Hardware. In the event of a device failure for a Hardware unit currently under warranty, Customer shall request a Return Merchandise Authority (“RMA”) via the Geoforce website. Geoforce shall then provide a return shipping label at its own cost. Upon receipt of the RMA shipping label, Customer shall remove and return the failed Hardware to Geoforce within 30 days. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL THIS WARRANTY COVER: (a) HARDWARE THAT HAS BEEN TAMPERED WITH OR SERVICED WITHOUT GEOFORCE’S AUTHORIZATION; (b) HARDWARE THAT HAS BEEN LOST OR STOLEN THROUGH NO FAULT OF GEOFORCE; (c) HARDWARE THAT IS DESIGNED TO BE CONSUMABLE, INCLUDING, BUT NOT LIMITED TO, NON-SERVICABLE GPS DEVICES OR ACTIVE RFID TAGS; (d) HARDWARE SUBJECTED TO ABUSE, MISUSE, NEGLECT, OR HOSTILE OPERATING ENVIRONMENTS, AS OPPOSED TO HARSH ENVIRONMENTS (e) (not applicable in the case of GAAS) HARDWARE THAT HAS EXHAUSTED ITS BATTERY (i.e., DEPLETION OF BATTERIES DUE TO INCREASED REPORTING OR OTHER OPERATIONAL FACTORS IS NOT A DEFECT THAT IS COVERED BY WARRANTY); OR (f) DAMAGE TO HARDWARE CAUSED BY CUSTOMER’S NEGLIGENCE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE HARDWARE IS OFFERED “AS IS,” AND GEOFORCE DOES NOT WARRANT THAT THE HARDWARE WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS.

3. Software and Services

3.1 Purchase and Provision of Services. All Services to be provided by Geoforce hereunder shall be purchased under the applicable Order. Unless explicitly included in the Order, the Services do not include any Required Products. Any Required Products included in the Services will be subject to the terms and conditions governing Customer’s license or use of such Required Products, as set forth in the Order. The Order will cover only the Customer entity specifically identified therein.

3.2 Grant. Subject to Customer’s compliance with this Agreement and the applicable Order, including payment of all applicable Fees owed to Geoforce hereunder, with respect to the Hardware and any Software set forth in the applicable Order, Geoforce hereby grants to Customer, for its internal business purposes only and for no other purposes, a non-exclusive, non-transferable right to access and use the Software for the Term, under the conditions and requirements set forth herein and in the applicable Order. Customer may authorize its contractors and consultants to exercise the above rights for the sole benefit of Customer, provided that Customer is responsible for any breaches of this Agreement by such contractors and consultants.

3.3 Customer Responsibilities. Customer is responsible for the following: (i) protecting the names and passwords of Customer’s users of the Software; (ii) preventing, and for promptly notifying Geoforce of, any unauthorized access to or use of the Software; (iii) each user’s compliance with the terms and conditions of this Agreement and the applicable Order and each user’s acts and omissions; (iv) using the Software and Hardware within the permitted scope and limitations and only in accordance with this Agreement and the applicable Order; (v) maintaining archival and backup copies of all Customer Data (and any prior versions thereof) outside of the instance being used by Geoforce to provide the Software; and (vi) using the Software and Hardware in accordance with applicable laws.

3.4 Restrictions on Customer’s Use. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the Software, or make either available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Software; (iii) disassemble, reverse engineer, decompile or otherwise attempt to derive source code or other trade secrets from the Software or any of the software comprising or in any way making up a part of the Software; (iv) access the Software in order to develop a competing product or service; (v) use the Software to provide a service for others; or (vi) use, include, store or send Malicious Code from the Software. For purposes of this Agreement, “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the Software or Geoforce’s computer systems in any manner.

3.5 Required Products.

3.5.1 Not Included in Services. Customer shall, at its sole cost and expense, procure and maintain during the Term all Required Products and all appropriate licenses and rights thereto, including rights of use and rights of access, for Customer, Customer’s Affiliates (if applicable) and for Geoforce, its Affiliates and third-party contractors, as necessary or desirable for Geoforce to provide the Services.

3.5.2 Included in Services. Notwithstanding Section 3.5.1 above, if and to the extent any such Required Products are explicitly included in the Services as set forth in the applicable Order, Geoforce shall provide such Required Products as part of the Services pursuant to and in accordance with the terms and conditions of the Order. In such event, any licenses to the Required Products will remain the property of Geoforce.

3.6 Required Access. Customer shall provide the Required Access and Required Access Rights to Geoforce. Customer agrees and acknowledges that Geoforce will be unable to provide the Services to Customer unless Customer provides the Required Access and Required Access Rights to Geoforce.

3.7 Required Decisions. Customer shall timely provide to Geoforce all such decisions and/or approvals relating to the Services and Deliverables that are identified or requested by Geoforce (the “Required Decisions”). In the event that Customer does not timely provide a particular decision or approval to Geoforce (as determined by Geoforce), Geoforce shall not be obligated to provide any affected Services or Deliverables.

3.8 Installation and Configuration.

3.8.1 Customer Responsibilities. Customer shall, at its sole cost and expense, install, configure, and set up all Required Products, including the Hardware and any other software, hardware or other products, as required by Geoforce, to ensure that all data and information necessary or appropriate for Geoforce to provide the Services is delivered and transmitted to and received by Geoforce in the form, format, and timing required by Geoforce.

3.8.2 Additional Professional Services. Any professional services work may be provided by Geoforce at Geoforce’s then-current rates under a separate Order to be executed by the Parties.

4. Fees

4.1 Invoicing and Payment. Geoforce shall invoice Customer for the fees (the “Fees”) for the Hardware, Software, Services and Deliverables in accordance with the applicable Order. Unless otherwise set forth in the Order, Customer shall pay each invoice within 30 days after Customer’s receipt thereof, without deduction, setoff or delay for any reason, including circumstances arising under any other Order executed by the Parties.

4.2 Overdue Payments. If any payments are not received from Customer by the due date, then such charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date Geoforce receives such payment.

4.3 Suspension of Services. In addition to the foregoing, if any payment from Customer is not received by Geoforce within 90 days of the due date, Geoforce may, without limiting its other rights and remedies, suspend the provision of Services until such payment is received by Geoforce.

4.4 Taxes. The Fees stated in the Order are exclusive of tax. All taxes, duties, fees and other governmental charges of any kind (including sales, services, use, and value-added taxes, but excluding taxes based on the net income of Geoforce) that are imposed by or under the authority of any government or any political subdivision thereof on the Fees for any of the Hardware, Software, Services, Deliverables and/or other products shall be borne by Customer and shall not be considered a part of, a deduction from or an offset against such Fees. All payments due to Geoforce shall be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law, in which case the sum payable by Customer in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, Geoforce receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding.

5. Intellectual Property

5.1 Intellectual Property Rights in Work Product, Services, Software and Deliverables. Subject to any licenses or use rights granted to Customer under this Agreement and the applicable Order, all Intellectual Property Rights in the Work Product, Services, Software and Deliverables are and will remain solely and exclusively the property of Geoforce. Customer agrees that all work product, inventions, discoveries, ideas, concepts, designs, specifications, feedback, observations, suggestions, reports, data, software, information systems, processes, methods, formulas and techniques, as well as improvements thereof or know-how related thereto, which relate to the Work Product, Services, Software or Deliverables shall be the sole property of Geoforce.

5.2 Geoforce Technology. Customer acknowledges that some or all of the Hardware will transmit data in proprietary device message protocol formats (the “Proprietary Formats”) and that such transmission of data, including the underlying satellite network communications, must be provided by Geoforce, with any costs associated with such transmission to be included in the Fees. All Intellectual Property Rights in the Proprietary Formats are and will remain solely and exclusively the property of Geoforce. Customer shall not (and shall not permit others to) attempt to access, obtain or otherwise make any unauthorized use of any Proprietary Formats.

5.3 License from Customer. To the extent Customer delivers to Geoforce, or provides Geoforce access to, any software, specifications, documentation, data, hardware, tools, know how, methodologies, processes and/or any other materials, information or intellectual property owned, leased, and/or licensed by Customer (collectively, “Customer Materials”), Geoforce will have the right to use such Customer Materials solely for Customer’s benefit and solely for the purpose of performing its obligations to Customer under this Agreement. Notwithstanding the foregoing, Geoforce shall have the right to compile, collect, copy, modify, and use anonymous and aggregated data generated from or based on Customer’s data and/or Customer’s use of the Services (the “Anonymous Aggregated Data”) solely for analytical and ongoing product development and improvement purposes only (and under no circumstances shall Customer be personally identified as part of such use of the Anonymous Aggregated Data). Except for the limited rights expressly granted above, Customer does not grant to Geoforce any other rights or licenses in or to the Customer Materials. Geoforce will return to Customer all Customer Materials in its possession (excluding the Anonymous Aggregated Data) upon Customer’s request.

6. Confidential Information

6.1 Definition. As used in this Agreement, “Confidential Information” means all confidential or proprietary information belonging to either Party hereto (the “Disclosing Party”) and disclosed or made available to the other Party (the “Receiving Party”), whether orally, in writing, by computer memory or other media, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes all trade secrets, pricing information, forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if: (i) the Disclosing Party has taken reasonable measures to keep such information confidential; and (ii) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information. Confidential Information shall include, but not be limited to, the terms of this Agreement and any information which concerns technical details of operation of any of Geoforce’s Services or any of Geoforce’s Software or Hardware offered, sold, provided or used to provide the Services hereunder. Confidential Information shall not include, however, any information which, as demonstrated by the Receiving Party: (a) was publicly known prior to the time of disclosure by the Disclosing Party, or becomes publicly known after disclosure by the Disclosing Party through no action or inaction of the Receiving Party in violation of this Agreement; (b) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party; (c) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

6.2 Use of Confidential Information. The Receiving Party will only use and disclose the Disclosing Party’s Confidential Information as reasonably necessary to exercise its rights and obligations under this Agreement and the applicable Order. Any other use or disclosure to a third party is prohibited unless expressly permitted in writing by the Disclosing Party. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence and use reasonable measures to protect it as confidential. The Receiving Party shall be permitted to disclose Confidential Information to third parties only to the extent required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement and, upon the request of the Disclosing Party, cooperates in good faith and at the expense of the Disclosing Party in any reasonable and lawful actions that the Disclosing Party takes to resist such disclosure or limit the information to be disclosed.

6.3 Return of Confidential Information. Upon written request by the Disclosing Party, the Receiving Party will promptly return or destroy all of the Disclosing Party’s Confidential Information, provided that the Receiving Party shall have the right, subject to the confidentiality requirements of this Agreement, to retain the Disclosing Party’s Confidential Information only to the extent contained in the Receiving Party’s (i) professional work papers, and (ii) secure, archival computer back-up files maintained in the ordinary course of business. If so requested by the Disclosing Party, the Receiving Party shall promptly certify to the Disclosing Party that all Confidential Information has been returned or destroyed in compliance with this Section.

7. Representations, Warranties and Indemnifications

7.1 Customer Representations and Warranties. Customer represents and warrants to Geoforce that: (i) it has the corporate power and authority and legal right to enter into this Agreement and to fully perform its obligations under this Agreement; (ii) it will not make any unauthorized representation or warranty to any third party relating to any Services, Software, Hardware or other products; (iii) it has obtained and will obtain all required authorizations, consents, permissions, and rights to provide and give access and rights to any and all Customer Materials, data, information, hardware, software and other products to Geoforce that Customer provides and gives access to Geoforce in connection with Geoforce’s provision of the Services; (iv) providing and granting access to such Customer Materials and data identified in clause (iii) to Geoforce complies with Customer’s own privacy policies; (v) it has obtained all Required Access Rights and will obtain and maintain all such Required Access Rights throughout the Term; and (vi) it shall at all times comply with all Applicable Laws.

7.2 Geoforce Representations and Warranties. Geoforce represents and warrants to Customer that it has the corporate power and authority and legal right to enter into this Agreement and to fully perform its obligations under this Agreement.

7.3 Disclaimer of Warranties. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.4 Indemnification.

7.4.1 By Geoforce. Subject to the remainder of this Section 7.4, Geoforce shall defend Customer against any third-party claim, demand, suit or proceeding (each, a “Claim”) made or brought against Customer (the “Indemnitee”) to the extent such Claim is based upon an allegation that the use of the Services, as permitted hereunder, infringes or misappropriates the Intellectual Property Rights of a third party (each, a “Covered Claim”), and shall indemnify the Indemnitee for any damages, reasonable attorneys’ fees and costs finally awarded against the Indemnitee as a result of, and for amounts paid by the Indemnitee under a court-approved settlement of, a Covered Claim Against the Indemnitee. Notwithstanding the foregoing, Geoforce will have no obligation to defend, indemnify or hold harmless Customer against any Claim that is the result of specifications or modifications of the Services that were designed or requested by Customer.

7.4.2 By Customer. Customer shall indemnify, defend, and hold Geoforce harmless from all Claims asserted against Geoforce that arise from or relate to any breaches of this Agreement by Customer.

7.4.3 Indemnification Conditions. In each instance, indemnification shall be made subject to the following conditions: (i) the indemnitee must promptly notify the indemnitor in writing of any claim, demand or cause of action made by any third party; (ii) the indemnitee must allow the indemnitor to assume full responsibility for conducting any defense (including the negotiation of any settlement, provided that the indemnitor may not settle any claim unless the settlement unconditionally releases the indemnitee of all liability) to any such third-party claim, demand or cause of action, including but not limited to the selection of counsel to represent the indemnitee in such defense; and (iii) the indemnitee must cooperate fully with the indemnitor in defending against any such third-party claim, demand or cause of action.

7.4.4 Infringement Remedies. In the event of a Claim against Customer, or if Geoforce reasonably believes the Services (or part thereof) may infringe or misappropriate the Intellectual Property Rights of a third party, Geoforce may, in its discretion and at no cost to Customer, (i) modify the affected Services so that they no longer infringe or misappropriate, without breaching Geoforce’s warranties hereunder, (ii) obtain a license for Customer to continue to use the affected Services in accordance with this Agreement, or (iii) terminate Customer’s rights to use the affected Services upon 30 days’ prior written notice and refund to Customer any prepaid fees covering the remainder of the applicable term of the affected Services after the effective date of termination.

8. Term and Termination

8.1 Term. The term of this Agreement commences as of the Effective Date and continues for the term of the applicable Order or until either Party terminates this Agreement in accordance with the provisions set forth herein (the “Term”). Unless stated otherwise in the applicable Order, the initial Term of each Order shall be 36 months and, upon the expiration of such initial Term, the Term of each Order shall automatically renew on a month-to-month basis, which month-to-month renewal shall be terminable by either Party upon at least 30 days’ written notice to the other Party.

8.2 Termination for Convenience. Customer shall have the right to terminate any Order, for any reason or for no reason, upon at least 30 days’ written notice to Geoforce; provided, however, that within 30 days after the date of such termination, Customer shall pay to Geoforce all remaining Fees that would have been payable under the applicable Order absent such termination for convenience by Customer (the “Termination for Convenience Payment”).

8.3 Termination for Material Breach. In the event that: (i) either Party commits any material breach of any of the representations, warranties, covenants, or obligations contained in this Agreement or the applicable Order; and (ii) such material breach is not cured within 30 days (or within five days with respect to a failure to make any payment required hereunder) after the non-breaching Party gives to the breaching Party written notice of such material breach, then the non-breaching Party will be entitled to terminate this Agreement and the Order immediately upon written notice thereof to the breaching Party.

8.4 Bankruptcy. In the event that either Party: (i) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed or discharged within 60 days after being commenced; (ii) admits in writing its inability to pay its debts generally as they become due (or takes any corporate action tantamount to such admission); (iii) makes an assignment for the benefit of its creditors; or (iv) ceases to do business as a going concern; then in any such instance, the other Party will be entitled to terminate this Agreement and the Order immediately upon written notice thereof to the first Party.

8.5 Effect of Termination. Upon the expiration or earlier termination of this Agreement, all licenses granted to Customer hereunder will terminate and Customer shall cease using the Services in any form and engaging in other activities hereunder.

8.6 Rights and Remedies upon Termination. In the event of any termination pursuant to Section 8.2, Geoforce will be entitled to the Termination for Convenience Payment from Customer. In the event of any termination pursuant to either Section 8.3 or Section 8.4, then the terminating Party will be entitled to all other rights and remedies which such Party may have under this Agreement and under applicable law.

8.7 Survival. The terms and conditions of this Agreement regarding confidentiality, indemnification, limitation of liability, accrued payment obligations and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement survive and continue in effect.

9. Limitation of Liability

EXCEPT FOR BREACHES OF CONFIDENTIALITY AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, FROM ANY CLAIM OR CAUSE OF ACTION, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO GEOFORCE UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL IN NO WAY LIMIT CUSTOMER’S OBLIGATIONS TO PAY FOR THE SERVICES AS SET FORTH IN THE APPLICABLE ORDER AND/OR SECTION 4 OF THIS AGREEMENT.

10. Exclusion of Certain Damages

EXCEPT FOR BREACHES OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.

9. General Provisions

9.1 Notice. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given in writing and delivered in person or by e-mail, if acknowledged received by return e-mail or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified in the applicable Order.

9.2 Entire Agreement. This Agreement (including the Orders), and any schedules or exhibits hereto or thereto, constitute the entire understanding and agreement between Geoforce and Customer with respect to any Software, Hardware and/or Services hereunder or thereunder, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication relating thereto.

9.3 Amendments and Waiver. Any term or provision of this Agreement (including the Orders) may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the Parties to be bound thereby, and this Agreement may not be modified solely by submission of a purchase order or similar instrument referencing this Agreement.

9.4 Force Majeure. Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other events beyond the reasonable control of such Party, provided that the Party relying upon this provision: (i) gives prompt written notice thereof to the other Party, and (ii) takes all steps reasonably necessary to mitigate the effects of the force majeure event; provided further, that in the event a force majeure event extends for a period in excess of 30 days in the aggregate, either Party may immediately terminate this Agreement upon written notice to the other Party.

9.5 Severability. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.

9.6 Compliance with Law, Export Requirements, and Foreign Reshipment Liability. Each Party agrees that it shall comply with all applicable federal, state and local laws, regulations, and export requirements in connection with its performance under this Agreement. Regardless of any disclosure made by Customer to Geoforce of an ultimate destination of the Software, Hardware, or technical data acquired from Geoforce and, notwithstanding anything contained in this Agreement to the contrary, Customer will not modify, export, or re-export, either directly or indirectly, any Software, Hardware, or technical data, or portions thereof, without first obtaining any and all necessary licenses from the United States government or agencies thereof or any other country that requires an export license or other governmental approval at the time of modification, export, or re-export. Geoforce shall have the right to suspend performance of any of its obligations under this Agreement, without any prior notice being required and without any liability to Customer, if Customer fails to comply with this provision.

9.7 Assignment. Neither Party may assign or transfer this Agreement or any obligation hereunder without the prior written approval of the other Party, except that, upon written notice, a Party may assign its rights and delegate its obligations under this Agreement, in whole or in part, without the approval of the other party: (i) to an entity which acquires all or substantially all of the assets of the assigning party; (ii) to any subsidiary or affiliate; or (iii) to any successor in a divestiture, merger, or acquisition involving the assigning party. Any assignment in violation of this Section 9.7 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.

9.8 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, joint venturer, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. Each Party shall bear its own costs and expenses in performing this Agreement.

9.9 Governing Law; Jurisdiction; Attorneys’ Fees; Remedies. This Agreement (and the rights and obligations of the Parties with respect to their relationship under this Agreement) are governed by and must be construed and enforced in accordance with the laws of the State of Texas, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties hereto consent to the jurisdiction of all federal and state courts in Texas, and agree that venue lies non-exclusively in Dallas, Texas. The prevailing Party shall be entitled to attorneys’ fees and costs. In the event of a breach of the provisions addressing confidentiality or intellectual property protection, the Parties agree that the non-breaching Party could suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching Party may be impossible to calculate; accordingly, the Parties agree that the non-breaching Party shall be entitled to seek temporary, preliminary and/or permanent injunctive relief in addition to such other rights and remedies to which it may be entitled.

9.10 Third Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other party.

9.11 Order of Precedence. In the event of a conflict between this Agreement and the applicable Order, the terms of the Order shall govern, but only in regard to the specific Service provided under the Order.

9.12 English Version. In the event this Agreement is translated in any language other than the English language, then in the event of a conflict between the English language version and the translated version, the English language version shall prevail in all respects.

9.13 Addendums. Depending on which satellite service provider Customer selects in connection with the Services, the following addendums will also apply and govern Customer’s receipt of the Services:

9.14.1 Globalstar Satellite Service EULA Addendum

9.14.2 Iridium Satellite Service EULA Addendum

9.14.3 Geotab Service EULA Addendum

9.14.4 driveTIME/Lone Worker/VisTracks Services EULA Addendum

9.14.5 Lone Worker Services EULA Addendum

9.14.6 Geoforce Customer GDPR Notice

Globalstar Satellite Service EULA Addendum

ANY PURCHASE OR USE OF A GLOBALSTAR PRODUCT IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED.
Purchaser affirms that it has read and agrees to this Globalstar Satellite Service EULA Addendum as follows. In the event of conflict between these terms and those in the body of the agreement, the addendum controls:

    1. Disruptions in Service. The provision of Service to Purchaser relies on the proper functioning of Geoforce and Purchaser’s equipment, as well as the proper functioning of the equipment forming the Globalstar System not under Geoforce’s control. Geoforce’s obligations to provide Service to Purchaser is subject to each of the following:

(a) The proper functioning of the satellite system owned by Globalstar;

(b) The proper functioning of any third party Gateway operator or carrier system relied upon to complete a transmission or call (such as long-distance, roaming, exchange or interconnection providers); and

(c) The availability of capacity on the Globalstar satellite system.

    1. System Limitations. Be advised of the following constraints on Geoforce’s ability to provide Service without disruption:

(a) Each of Geoforce’s system and the Company satellite system is inherently capacity constrained;

(b) Service may be refused or limited, without liability to Geoforce or Globalstar, due to capacity limitations, including capacity limitations due to any repair, testing, upgrade or modification work on either Geoforce’s system or the Globalstar satellite system;

(c) Emergency access on the Globalstar System by public safety organizations may preempt Purchasers’ use on the system;

(d) Service is subject to disruptions and/or deficiencies caused by atmospheric or terrain conditions or in-building conditions;

    1. Equipment. Equipment used on the Globalstar system is either Globalstar Registered or Globalstar Certified.

(a) Globalstar Certified products have been tested to ensure that their performance meets Globalstar’s certification performance specifications. Certified Products, when used with a clear view of the sky and no local interference, will provide the message success rates advertised on the online Simplex Coverage map at www.globalstar.com.

(b) Globalstar Registered products are approved for operation on the Globalstar System but have no associated performance requirements. The effective coverage area for Globalstar Registered Products may differ from the coverage advertised for Globalstar Certified Products and displayed on the online Simplex Coverage map at www.globalstar.com.

    1. Roaming. Every nation has the sovereign right to specify limits on roaming. It is the Purchaser’s responsibility to be cognizant of, and compliant with any laws or requirements imposed by the location that they roam into, and to confirm that they are allowed to use the equipment in that location. The Company is not liable for confiscation of equipment, lost revenue, fines, penalties or any other consequences resulting from illegal or disallowed roaming usage.

 

  1. Limitation of Liability. Purchaser acknowledges and agrees that its sole remedy for damages due to any failure, disruption or degradation in Service shall be limited to the charges imposed for the affected Service for the period such failure, disruption or degradation occurred. IN NO EVENT SHALL GLOBALSTAR BE LIABLE, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, FOR LOSS OF PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND.

Iridium Satellite Service EULA Addendum

ANY PURCHASE OR USE OF An iridium PRODUCT IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED. Purchaser affirms that it has read and agrees to this Iridium Satellite Service EULA Addendum as follows. In the event of conflict between these terms and those in the body of the agreement, the addendum controls:

    1. DISCLOSURE OF USER INFORMATION. By using any product using Iridium Satellite Services Purchaser consents to Iridium’s disclosure of user information, including but not limited to name, address, telephone number and location information, including, where available, the geographic coordinates of equipment, to governmental and quasi¬ governmental agencies where Iridium deems it necessary in its sole discretion to respond to an exigent circumstance.

 

    1. LIMITED WARRANTY. Further Purchaser is required to comply with the terms of the Limited Warranty offered by Iridium, as well as all terms and conditions that are provided by Iridium and Geoforce, as such terms and conditions may change from time to time. Iridium may establish additional terms and conditions for Geoforce, and Geoforce may also establish additional terms and conditions from time to time. In the event any Iridium term or condition conflicts with any Geoforce term or condition, the Iridium term or condition shall govern with respect to Iridium liability. Geoforce will be provided with notice of any new Iridium terms and conditions or any changes in the Iridium terms and conditions which will be effective as of its receipt.

 

  1. MODIFICATION OF 9603 MODEM COMPONENT OF GT2. Purchaser may not modify the 9603 (“Iridium Modem”) or any component of the 9603. Purchaser may not reverse-engineer, or attempt to reverse-engineer, the 9603, any component of any 9603 or the manner in which the 9603 connects to, sends information to, receives information from, or otherwise interacts with the Iridium system.Purchaser is required to comply with all applicable laws and regulations in its use of the 9603. To the extent that Purchaser either: (i) violates Iridium’s Limited Warranty, the terms and conditions applicable to the Iridium system or other agreements between Geoforce and Iridium, or between Geoforce and Purchaser; (ii) utilize a product other than Iridium-Certified Equipment with the 9603 or on the Iridium system; (iii) modify the 9603 or any 9603 component, reverse-engineer the 9603 or any 9603 component or attempt to do so; or (iv) violate any applicable laws or regulations (collectively “Unauthorized Use”), Purchaser agrees to defend, indemnify and hold Iridium harmless with respect to any claims or actions by governmental entities or other third parties related to the Unauthorized Use and to pay all costs, damages, fines and other amounts incurred by us, or on Iridium’s behalf, in the defense of any such claims or actions. Further, Iridium specifically disallows any liability and will not credit back airtime charges related to any unauthorized use.

    In addition to Iridium’s express reservation of other remedies available, Iridium reserves the right to discontinue providing Iridium Satellite Services to the Purchaser and/or to disable their 9603’s access to the Iridium system. If Iridium reasonably believes that the user is in engaged in any Unauthorized Use, Iridium may seek equitable relief to prevent such unauthorized use without having to wait to see if damage to the Iridium system occurs.

  2. SOFTWARE LICENSE

To the extent Purchaser obtains the right to use any firmware or other iridium software the following terms apply:

(a) License. Conditioned upon compliance with the terms and conditions of this Limited Warranty, Iridium grants to Purchaser a nonexclusive and nontransferable license to use the Software and the Documentation. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by Iridium with the Software in any manner. You shall use the Software solely as embedded in (or, if downloaded, as provided via download), for execution on, and for communication via the Iridium system.

No other licenses are granted, by implication, estoppel or otherwise.

(b) General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Iridium retains ownership of all copies of the Software and Documentation. Purchaser acknowledges that the Software and Documentation contain trade secrets of Iridium or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided, Purchaser shall have no right, and specifically agrees not to:

(i) transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any Iridium relicensing/transfer policy then in force), or use the Software on unauthorized or secondhand Iridium equipment, and acknowledges that any attempted transfer, assignment, sublicense or use shall be void;

(ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;

(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;

(iv) use or permit the Software to be on a service bureau or time sharing basis or otherwise, without the express written authorization of Iridium; or

(v) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Iridium. Purchaser shall implement reasonable security measures to protect such trade secrets.

To the extent required by law, and at Purchaser’s written request, Iridium shall provide Purchaser with the interface information needed to achieve interoperability between the Software and another independently-created program, on payment of Iridium’s applicable fee, if any. Purchaser shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Iridium makes such information available.

(c) Software, Upgrades and Additional Copies. “Software” shall include computer programs, including firmware, as provided to you by Iridium or Geoforce, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of any of the foregoing. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LIMITED WARRANTY: (1) UNLESS AUTHORIZED BY IRIDIUM, PURCHASER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES. IRIDIUM MAY MAKE SOFTWARE AVAILABLE BASED ON ADDITIONAL TERMS; (2) USE OF UPGRADES IS LIMITED TO IRIDIUM EQUIPMENT FOR WHICH YOU ARE THE ORIGINAL END USER PURCHASER OR OTHERWISE HOLD A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.

(d) Proprietary Notices. You agree to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized, you shall not make any copies or duplicates of any Software without the prior written permission of Iridium.

(e) Term and Termination. The license granted herein shall remain effective until terminated. Purchaser may terminate the license at any time by destroying all copies of Software and any Documentation. Purchaser’s rights under the license will terminate immediately without notice from Iridium if Purchaser fails to comply with any provision of the license and Limited Warranty. Upon termination, Purchaser shall destroy all copies of Software and Documentation in its possession or control. All of Purchaser’s confidentiality obligations and all limitations of liability and disclaimers and restrictions of warranty shall survive termination.

(f) Export, Re-Export, Transfer and Use Controls. The Software, Documentation and technology or direct products thereof (hereafter referred to as Software and Technology), supplied by Iridium are subject to export controls under the laws and regulations of the United States (U.S.). Purchaser shall comply with such laws and regulations governing export, re-export, transfer and use of Iridium Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Geoforce and Purchaser each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.

(g) U.S. Government End User Purchasers. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Limited Warranty may be incorporated, Purchaser will acquire, as applicable, the Software and Documentation with only those rights set forth in this Limited Warranty. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.

Geotab Service EULA Addendum

ANY PURCHASE OR USE OF A GEOTAB PRODUCT IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED.

Purchaser affirms that it has read and agrees to this Geotab Service EULA Addendum as follows. In the event of conflict between these terms and those in the body of the agreement, the addendum controls:

IMPORTANT! BY DOWNLOADING, USING, OR ACCESSING ANY OF GEOTAB DEVICES, SOFTWARE, SERVICES AND OTHER PRODUCTS, INCLUDING UPDATES AND UPGRADES THEREOF (COLLECTIVELY “PRODUCTS”), PURCHASER CONCLUDES A LEGALLY BINDING AGREEMENT BASED ON THE TERMS OF THIS GEOTAB END USER AGREEMENT (“AGREEMENT”) WITH GEOTAB INC. (“GEOTAB” OR “WE”) ON BEHALF OF PURCHASER, UNLESS PURCHASER IS ACTING AND AUTHORIZED TO ACT FOR A COMPANY OR OTHER ORGANIZATION IN WHICH CASE THE AGREEMENT IS WITH SUCH ORGANIZATION AND ANY REFERENCES TO PURCHASER HEREIN MEANS SUCH ORGANIZATION. IF PURCHASER DOES NOT WISH TO AGREE, DO NOT INSTALL, USE, ACCESS OR RETAIN ANY OF GEOTAB PRODUCTS AND RETURN ANY PRODUCTS PURCHASER HAS PURCHASED TO THE SELLER FROM WHICH YOU PURCHASED SUCH PRODUCTS FOR A FULL REFUND OF THE PURCHASE PRICE.

    1. LICENSE. We grant Purchaser a limited, revocable, non-exclusive right to use any software, firmware and intellectual property (collectively, “software”) embodied in Products solely for Purchaser’s own internal business purposes and solely in connection with Purchaser’s use of our in-vehicle telematics devices, on the condition and so long as Purchaser complies with all terms and conditions of this Agreement. Except as otherwise provided herein, such rights are non-assignable, non-transferable and non-sublicensable. Purchaser may not extract, copy or use the software in connection with any other Product or for use on any other device.
    2. PRODUCTS OWNERSHIP. The Products are protected by copyright and other intellectual property rights. Software and services are not sold, but only licensed or made available on a limited basis. Notwithstanding anything to the contrary herein, and notwithstanding any reference to the sale of any product to Purchaser hereunder, except for the rights expressly granted to Purchaser under this Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Products and any copies thereof (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by us and our licensors. Purchaser shall not remove or attempt to remove any marks, labels and legends from Products.
    3. PROTECTIVE MEASURES. Products may contain technological measures (including the ability to disable the Products) designed to prevent the illegal usage of software or other violations of this Agreement or applicable law. Purchaser agrees not to circumvent or attempt to circumvent such measures.
    4. UPDATES AND PATCHES. We shall continuously improve our Products and may, from time to time, cause software updates to be automatically installed with or without prior notification to Purchaser or provide access to updates through our website. Purchaser hereby consents to such automatic installations and agree to use only the updated version once it has been installed.
    5. FORCE MAJEURE. Purchaser acknowledges that Wireless Services may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of transmission facilities. Purchaser agrees that we and the Carrier shall not be responsible for such interruptions of Wireless Services or the Inability to use the Wireless Services within or outside the territory serviced by the carrier or Its roaming partners. Purchaser understands that the Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Wireless Services.
    6. FAILURE OF TRANSMISSION SERVICE. Purchaser expressly understands and agrees that the liability and obligations of us or the Carrier to Purchaser are strictly controlled and limited by Carrier’s tariff, if any, and the laws, rules and regulations of the applicable governmental authorities which from time to time have jurisdiction. In any event, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, Purchaser’s exclusive remedy and the total liability of us or any supplier of services to you arising in any way in connection with the Wireless Services, for any cause whatsoever, including but not limited to any failure or disruption of Wireless Services provided, shall be limited to payment by us of damages in an amount equal to the amount charged to you for the applicable Wireless Services. In no event shall we or the Carrier be liable for any cost, delay, failure or disruption of Wireless Service, lost profits, or incidental, special, punitive or consequential damages.
    7. INCOMPATIBILITY OF EQUIPMENT. In no event shall we or the Carrier be liable for the failure or incompatibility of equipment utilized by you or your customers in connection with the Wireless Services. Purchaser shall use equipment at their own risk.
    8. INDEMNITY FOR CHOICE OF WIRELESS SERVICE. Purchaser shall indemnify, defend and hold us and the Carrier and the officers, employees and agents of each of them harmless from and against all claims, causes of action, losses, expenses, liability or damages {including reasonable attorneys’ fees and costs), and including without limitation for any personal injury or death, arising in any way directly or indirectly in connection with provision or use of the Wireless Services; or the use, failure to use or inability to use any numbers. This provision will survive the termination of any Wireless Services provided to you or your customers and any related agreement for same. You acknowledge that such agreement is assignable by us.
    9. CARRIER TERMINATION. Purchaser’ Wireless Services may be temporarily suspended or permanently terminated upon little or no notice in the event that our agreement with the Carrier is terminated. Purchaser waives any and all claims against us and the Carrier for such suspension or termination.
    10. ABUSE AND FRAUDULENT USE. Purchaser agrees to make good faith efforts to minimize abuse or fraudulent use, to promptly report to us and the Carrier any such abuse or fraudulent use of which you or your customers become aware, and to fully cooperate in any investigation or prosecution initiated by us or the Carrier. Purchaser acknowledges that Wireless Services to any of our products or to you may be restricted or cancelled if there is in the Carrier’s sole discretion a reasonable suspicion of abuse or fraudulent use. The Carrier shall use commercially reasonable efforts to provide prompt notice of the restriction or termination to Purchaser. You further acknowledge that the Carrier may temporarily block automatic roaming in a particular portion of the territory that the Carrier services which is experiencing fraudulent usage. You shall have sole liability for charges, costs or damages resulting from any abuse or fraud facilitated by you or your customers, their employees, agents or persons authorized by you or your customers to use the Wireless Services.
    11. APPROVED EQUIPMENT. Purchaser may use the Services for Web browsing, messaging, and similar activities on equipment approved by the Carrier and not on any other equipment. Unless explicitly permitted by the plan for your Wireless Services, other uses, including for example, tethering a device to a personal computer or other hardware, are not permitted. Examples of prohibited uses include but are not limited to: (a) server devices or host computer applications, including continuous Web camera posts or broadcasts, automatic data feeds, or peer-to-peer (P2P) file-sharing applications that are broadcast to multiple servers or recipients, “bots” or similar routines that disrupt net user groups or email use by others or other applications that denigrate network capacity or functionality; (b) any activity that adversely affects the ability of other users or systems to use either the Carrier’s services or the network-based resources of others, including the generation or dissemination of viruses, malware or “denial of service” attacks; (c) any activity that the Carrier in its sole discretion deems may harm its transmission facilities in any way; or (d) accessing, or attempting to access without authority, the information, accounts or devices of others, confidential information or subscriber information or any activity relating to or causing a security breach, or to penetrate, or to attempt to penetrate, the Carrier’s or another entity’s network or systems.
    12. RESTRICTIONS. To the fullest extent permissible under applicable law, Purchaser agrees not to: (a) disclose, transfer or transmit in any manner any services, software or other copyrightable or licensed elements of Products whether temporarily or permanently; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any software elements of Products; (c) use Products in a manner that violates laws or rights of others; (d) use the Products as part of a fail-safe design for dangerous or emergency applications or as part of control measures required for hazardous materials, life support systems, munitions or weapons; (e) engage in any activity that interferes or disrupts services or any computer, software, network or other device used to provide the services; or (f) attempt, or cause, permit or encourage any other person to do any of the foregoing.
    13. COMPLIANCE. Purchaser shall comply with all applicable laws, including export control laws and regulations of the USA and Canada. Purchaser shall not export or re-export any Product directly or indirectly in contravention of such laws and regulations. Purchaser further acknowledges that the Products cannot be exported to, or used in, countries which are listed on Canada’s Area Control List, including (as of the date of this Agreement), Belarus and North Korea.
    14. SECURITY. Purchaser is solely responsible for Purchaser’s failure to keep all user identifications and passwords (Purchaser’s “Login Credentials”) secure. If Purchaser believes the security of Purchaser’s Login Credentials has been compromised, or Purchaser suspect unauthorized use, Purchaser will promptly notify us. We will be entitled to treat all communications, instructions and transactions as authorized by Purchaser if Purchaser’s Login Credentials are used unless Purchaser have notified us of compromise or unauthorized use of Purchaser’s Login Credentials. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on Purchaser’s account, we reserve the right to terminate or suspend Purchaser’s access to our website or any applicable services or both and will use reasonable efforts to contact Purchaser.
    15. CONFIDENTIALITY AND DATA TRANSFER. We will implement and maintain reasonable technical and organizational security and data storage policies and measures consistent with industry standards for facilities within our control and make these measures and policies available to Purchaser on request. Purchaser acknowledges and agrees that data may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the internet, in the course of using our Products. Purchaser shall not provide third parties with access to any software and non-public information in and regarding the Products and any other confidential information that we provide without our prior written consent, except to Purchaser’s own employees, subject to adequate confidentiality agreements.
    16. PURCHASER’S VEHICLE DATA. We claim no ownership of any vehicle data generated by and associated with our devices installed in Purchaser’s particular vehicle(s) (“Individual Vehicle Data”) that is transmitted or processed using our Products, provided however that Purchaser hereby instructs us and grants to us the right to use, process and transmit Individual Vehicle Data as reasonably required for the purposes for which it is provided to us, including the provision, administration, troubleshooting and improvement of our Products or as required by applicable law. In furtherance of such purposes, based on certain non-position data elements in Purchaser’s vehicle database (such as vehicle VIN), from time to time in certain jurisdictions we may query, on a confidential basis, databases maintained by reputable third party providers for additional information.
    17. AGGREGATED DATA. Purchaser acknowledges that Geotab compiles, stores and uses aggregated data and system usage information to monitor and improve the Products and for the creation of new products. This aggregated data is no longer associated with a device and as such is not Individual Vehicle Data. Geotab will not attempt to disaggregate the data or re-associate it with a device without Purchaser’s consent or unless legally compelled to do so or unless required for safety or troubleshooting purposes.
    18. FEEDBACK. Purchaser understands and agrees that any feedback, input, suggestions, recommendations, troubleshooting information or other similar information that Purchaser provides or which is made available to us (whether directly or through a reseller including in the course of utilizing support, maintenance or other services) may be used by us to modify, enhance, maintain and improve our Products and shall become our exclusive property without any obligation or payment to Purchaser or to any of Purchaser’s customers whatsoever.
    19. OUR LIMITED PRODUCT WARRANTY. We warrant that during the Warranty Period each Product (excluding beta, test or demonstration products or product versions) will perform in accordance with the written specifications that we issue with respect to such Product, subject to the limitations and conditions set forth in our specifications and this Agreement, when used in accordance with our documentation and specifications. “Warranty Period” means either: (a) the one year period commencing on the activation date; or (b) the lifetime of the device, provided that the device is activated on certain rate plans (currently the ProPlus rate plan and any other rate plan as announced by us from time to time (“Limited Lifetime Warranty”)). Provided Purchaser properly complete and we receive from Purchaser, directly or through an authorized reseller, a justified written warranty claim and, if applicable, all affected devices (returned at Purchaser’s expense to the reseller from whom Purchaser purchased the devices or as otherwise specified by us), prior to the expiration of the Warranty Period, we will either repair or replace such device or use commercially reasonable efforts to correct any material defects in software and services. We reserve the right to replace any device and software with a more current version or model or refurbished device units in our sole discretion. We also reserve the right to charge Purchaser return shipping and a service fee if we determine that Purchaser’s warranty claim was not justified. The remaining Warranty Period for any purchased Products we repair or replace under warranty is deemed to be the greater of: (aa) the actual remaining Warranty Period for the replaced or repaired Product; and (bb) 90 days following the completion of such repair or replacement. Additionally, under the Limited Lifetime Warranty we will replace the device in accordance with the process specified above if the network on which the device operates no longer provides adequate coverage in Purchaser’s usage area (as determined by us in our discretion). To the maximum extent permitted by applicable law, the foregoing constitutes Purchaser’s sole and exclusive remedy and our sole and exclusive obligation for any breach of the foregoing warranty.
    20. CONDITIONS AND EXCLUSIONS. Warranty claims must be submitted within 10 days of the date when Purchaser did notice or could reasonably have noticed the defect. In order to make a warranty claim, Purchaser may be required to prove that the installation did not cause the defects or failures of the Product, unless the installation was performed by a Geotab-certified installer. Any products, services or items made or supplied by third parties (including vehicles tracked with our Products) are not covered by our limited warranty and we are not responsible for malfunctions by or in such products, services or items. Purchaser needs to purchase, license or procure products, software, data or services from third parties to enable the full use or functionality of our Products. Purchaser is responsible for ensuring that all such third party products, software, data or services meet our minimum requirements, including without limitation, processing speed, memory, client software, internet access, internet or other communication channel bandwidth.
    21. INSTALLATION WARNING. Certain vehicles or installation configurations may require professional installation, additional equipment or modifications to Purchaser’s vehicles. If Purchaser is uncertain that Purchaser have the requisite skills and understanding to install our Products, Purchaser must consult with an authorized Geotab reseller or installer. Improper installation can lead to short circuits and the risk of fire, leading to personal injury or significant damage to Purchaser’s vehicle. Installation or servicing may also require modifications to Purchaser’s vehicle. Failure to comply with procedures specified in the installation instructions for a Product or attempting to install our Products without adequate knowledge of our Products, proper installation, configuration, servicing, repair or removal procedures, for Purchaser’s vehicle, may result in damage to the Product or Purchaser’s vehicle, which may cause malfunctions of vehicle controls or vehicular environmental systems and result in personal injury. Purchaser understands that any such activities not performed by an authorized Geotab reseller or installer will be at Purchaser’s sole risk. Purchaser hereby releases and forever discharges, and will indemnify and hold harmless, us, our affiliates, resellers and agents and their directors, officers, employees and representatives from any and all losses, actions, causes of action, liability, claims, demands, penalties, costs, expenses (including legal fees and disbursements on a full indemnity basis), judgments and damages of any nature or kind whatsoever, whether under contract, tort, or any other theory of law or equity, which Purchaser or any other third party has or will have, arising or accruing from, as a result of, in relation to, or in connection with, same.
    22. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY TERMS, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT OR QUIET POSSESSION AND THOSE ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT: (A) ANY OF THE PRODUCTS WILL MEET PURCHASER’S BUSINESS OR OTHER REQUIREMENTS; (B) THE PRODUCTS WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION; (C) THE PRODUCTS WILL BE ERROR-FREE, VIRUS-FREE OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE, RELIABLE OR CURRENT (D) ANY ERRORS IN THE PRODUCTS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. MOREOVER, WITHOUT LIMITING THE GENERALITY OF SECTION 13 (CONDITIONS AND EXCLUSIONS) WE DO NOT ENDORSE, AND MAKE NO REPRESENTATION, OR WARRANTY WITH RESPECT TO, AND ASSUME NO RESPONSIBILITY, OBLIGATION OR LIABILITY FOR, ANY NON-GEOTAB PRODUCTS, SOFTWARE, DATA OR SERVICES INCLUDING BUT NOT LIMITED TO WIRELESS SERVICES, MAPPING SERVICES, POSTED ROAD SPEED SERVICES, INTERNET BANDWIDTH AND CLOUD STORAGE.
    23. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

(a) We will, at our sole cost and expense, defend and indemnify or, at our option, settle, any claim, assertion or action brought against Purchaser or Purchaser’s affiliates, successors or assigns to the extent that it is based on a claim (an “Infringement Claim”) that any of our Products which we have supplied to Purchaser directly or through an authorized reseller infringes any copyright, patent, trade secret or trademark of any third party (excluding any of Purchaser’s affiliates) and indemnify Purchaser against damages awarded against Purchaser by a court of competent jurisdiction by final order from which no appeal is taken or after the time for appealing has expired, provided that Purchaser: (i) notify us promptly and within no more than 10 days after Purchaser’s receipt of notice of such claim in writing; and (ii) permit us to defend, compromise or settle the claim or action and provide all available information, assistance and authority to enable us to do so. We shall not be liable to reimburse Purchaser for any compromise or settlement made by Purchaser without our prior written consent, or for any legal fees or expenses incurred by Purchaser in connection with such claim.

(b) Should any of our Products or any part thereof become, or in our sole opinion are likely to become, the subject of an Infringement Claim, we may, at our option and expense: (i) procure, at no cost to Purchaser, the right to continue to use such Products which are the subject of the Infringement Claim; (ii) replace or modify the Products or infringing part thereof with non-infringing equivalents, at no cost to Purchaser; or (iii) if none of the foregoing alternatives are reasonably practical in our sole judgement, we may: (A) in the case of software or services, terminate such services or the licenses for such software and refund or issue a credit for any prepaid but unused fees for such software or services, if any; and/or (B) in the case of our devices, require Purchaser to return such devices and refund or issue a credit for the purchase price paid by Purchaser to us for the devices returned, depreciated on a straight-line basis over a 36 month period from the date of purchase.

(c) We have no obligation or liability whatsoever in respect of any Infringement Claim that is based on any of the following (collectively, the “Excluded Claims”): (i) in the case of any software, the use of other than the latest release and version of such software; (ii) the use of any Products in breach of this Agreement; (iii) non-Geotab products, software, data or services, (iv) the use, association or combination of any of our Products with, or the incorporation or integration into our Products of, any non-Geotab product, software, service, data, information or other material (including Purchaser’s own) that is not supplied by us or expressly identified by us in our written specifications or documentation as being required for the use and operation of our Products; (v) the use or operation of any of our Products, in any manner or for any purpose other than as expressly specified in our documentation for same; (vi) any modification, alteration, change, enhancement, customization or derivative work of the Products made by anyone other than us or our agents; (vii) changes we make to Products to comply with Purchaser’s instructions or specifications; (viii) any use of data in accordance with this Agreement that is collected through the operation of or generated by our Products; (ix) for insurance purposes, the use of the Products in association with driving, driver or vehicle activity or performance; or (x) any reselling or distribution of our Products. This Section states our entire liability and Purchaser’s sole and exclusive remedies with respect to any Infringement Claim.

  1. INDEMNIFICATION. UNLESS PROHIBITED BY APPLICABLE LAW, PURCHASER SHALL INDEMNIFY AND HOLD HARMLESS GEOTAB, ITS AGENTS, SUPPLIERS, LICENSORS, SERVICE PROVIDERS, DISTRIBUTORS, SUB-DISTRIBUTORS, CONTRACTORS, SUCCESSORS OR ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY ARISING OUT OF OR INCIDENT TO: (A) PURCHASER’S ACTIONS OR FAILURE TO ACT UNDER OR RELATED TO THIS AGREEMENT; OR (B)PURCHASER’S BREACH OF ANY THIRD PARTY TERMS INCORPORATED HEREIN BY REFERENCE.
  2. LIMITATIONS OF LIABILITY. PURCHASER AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF ALL INDEMNIFIED PARTIES TO PURCHASER HEREUNDER OR OTHERWISE IN RESPECT OF THE PRODUCTS EXCEED THE AMOUNT PURCHASER HAVE PAID FOR THE PRODUCTS OR SERVICES OR THE RIGHTS TO USE THE SOFTWARE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THE CAUSE OF ACTION AROSE, SUBJECT TO ANY LESSER LIMITATION OF LIABILITY IN ANY TERMS INCORPORATED HEREIN BY REFERENCE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY TERMS) IF APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, LOSS OF DATA, BUSINESS INFORMATION OR LOSS OF USE THEREOF, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL OR ANY OTHER NON-DIRECT, PECUNIARY, COMMERCIAL OR ECONOMIC LOSS OR DAMAGE OF ANY KIND WHETHER FORESEEN OR UNFORESEEN ARISING FROM OR INCIDENTAL TO THIS AGREEMENT. FOR GREATER CERTAINTY, THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL NOT APPLY TO (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (B) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
  3. APPLICABILITY. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OR FORM OF THE CLAIM, CAUSE OF ACTION, DEMAND, OR ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN.
  4. TERMINATION. We reserve the right to terminate this Agreement in whole or in part with or without notice if: (a) Purchaser materially breach or otherwise materially fail to comply with any provision of this Agreement; (b) we determine that any registration information Purchaser submit or any update thereof is not true, accurate, complete or current; (c) Purchaser become insolvent or bankrupt; (d) Purchaser reorganize Purchaser’s business, make an assignment under or otherwise take advantage as a debtor of, bankruptcy or insolvency laws, including having a trustee or receiver appointed; (e) any steps are taken to wind up or otherwise terminate Purchaser’s existence as a legal entity; or (f) Purchaser cease operating Purchaser’s business. Purchaser may terminate the grant of rights to use the software or the provision of services by ceasing use of same. Upon any termination of this Agreement: (i) any and all rights granted to Purchaser under this Agreement shall immediately cease; (ii) Purchaser shall destroy, to the extent practicable, all copies of the software in Purchaser’s possession or control; (iii) if so requested by us, Purchaser shall certify in writing that all such copies of the software in Purchaser’s possession or control have been destroyed; and (iv) Purchaser shall cease all usage of the services. We have no obligation to safeguard or transmit to Purchaser any data that Purchaser may have stored through the use of the services. It is Purchaser’s sole responsibility to retrieve any such data.
  5. ASSIGNMENT. This Agreement and any rights granted to Purchaser under this Agreement may not be transferred or assigned by Purchaser, in whole or in part, whether voluntarily, by operation of law, or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void, except that Purchaser may assign this Agreement in its entirety to a purchaser of all or substantially all of Purchaser’s assets or business or in connection with a merger, amalgamation, reorganization or similar transaction without consent and upon written notice to us. Subject to the foregoing, this Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of Purchaser and us. This Agreement may be assigned or novated by us in our sole discretion by way of written notice to Purchaser.
  6. CHOICE OF LAW. If Purchaser’s headquarters are located in: (a) the United States of America, then this Agreement will be governed by and construed under the laws of the State of New York without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the courts of the State of New York and the U.S. federal courts located in the City of New York for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts; or (b) anywhere else in the world, then this Agreement will be governed by and construed under the laws of the Province of Ontario without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the provincial and federal courts of the Province of Ontario for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts.
  7. ELATED THIRD PARTY PROVIDER TERMS. Our related third party providers require us to obtain Purchaser’s agreement to certain terms and conditions prescribed by them. The Wireless Provider Terms and the Other Provider Terms (including cloud storage, mapping and posted road speed provider terms) are set out at the Geotab website. These third party terms are hereby incorporated by reference into and form part of this Agreement and contain license and use limitations; limitations of liability; disclaimers; choice of law, arbitration and forum selection clauses; and other important terms and conditions that affect Purchaser’s rights and obligations. Geotab accepts no responsibility or liability for the services of such providers. By signifying Purchaser’s agreement to this Purchaser is also signifying Purchaser’s agreement to these third party terms.
  8. ENTIRE AGREEMENT. This Agreement constitutes the entire and exclusive agreement between Purchaser and us with respect to the subject matter of this Agreement and cancels and supersedes any prior and contemporaneous understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between Purchaser and us, oral or written other than as expressly set forth in this Agreement and any terms expressly incorporated herein by reference. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
  9. SEVERABILITY. To the extent that any provision of this Agreement is declared by a court or other lawful authority of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and Purchaser and we will use our respective best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreement shall continue in full force and effect with respect to all other provisions.
  10. AMENDMENTS AND WAIVERS. Purchaser agrees that we may change the terms of this Agreement from time to time by notifying Purchaser via our website, email or other means. Purchaser agrees to accept, and Purchaser hereby accepts, any changes in Third Party Terms and other terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on Purchaser. If a change imposes commercially unreasonable disadvantages on Purchaser and we receive a written objection from Purchaser within 30 days of the date when Purchaser received notice or Purchaser should have noticed the change, we may, at our sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Agreement shall continue to apply to Purchaser, or (b) terminate this Agreement and Purchaser’s use of the Products and refund to Purchaser, upon receipt of all devices, documentation and deliverables, in good working condition, subject to ordinary wear and tear, in Purchaser’s possession (aa) the purchase price for any devices and software, depreciated on a 36 months straight line basis, accounting for Purchaser’s use, and (bb) any prepaid services fees for time periods after the effective date of the change to which Purchaser objected in accordance with this Agreement. No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.

driveTIME/ Lone Worker/VisTracks Services EULA Addendum

driveTIME SERVICES UTILIZE VISTRACKS SOFTWARE. ANY PURCHASE OR USE OF driveTIME SERVICES OR OTHER VISTRACKS SERVICES IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED.

Purchaser affirms that it has read and agrees to this driveTIME/Lone Worker/VisTracks Services EULA Addendum as follows. In the event of conflict between these terms and those in the body of the agreement, the addendum controls:

1. DEFINITIONS. In addition to the terms defined in the body of this Appendix, the following terms have the following meanings:

“App” means the Android Hours of Service/DVIR tablet and smartphone application.

“Confidential Information” means non-public information that a party provides and reasonably considers to be of a confidential, proprietary or trade secret nature, including but not limited to marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures, and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing.

“Device” means a mobile Device purchased from or distributed by Geoforce or VISTRACKS intended to be used by Purchaser to track and/or monitor Monitored Users.

“Internet” means the global computer network comprised of interconnected networks using standard protocols including HTTP, UDP and TCP/IP.

“Purchaser” or “You” or “Your” means the account holder who purchases or otherwise uses the Services in accordance with the terms and conditions set forth in this Agreement.

“Location Data” means location history and transaction activity generated by use of App.

“Non-Confidential Information” means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving party; (ii) can be demonstrated by credible evidence: (a) as rightfully known to the receiving party prior to the time of its disclosure, or (b) to have been independently developed by the receiving party; (iii) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party; or, (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt written notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.

“VISTRACKS Trademarks” means any name, logo and trademark of VISTRACKS used by VISTRACKS to identify itself or any VISTRACKS products or services that VISTRACKS licenses to You under this Agreement.

“Personal Information” means any information that can be used to identify an individual and is not otherwise publicly available. Such information may include, for example, an individual’s first and last name combined with his or her email address, mobile telephone number or credit card account information.
“Server” means the server or servers as designated by Geoforce or VISTRACKS from time to time through which Geoforce or VISTRACKS provides the Services in accordance with this Agreement.

“Services” shall mean all services associated with DOT Hours of Service (E-Logs), Mobile Work Orders, Devices including all hosting and maintenance of the Hours of Service application on Geoforce, VISTRACKS or VISTRACKS designated service provider Servers pursuant to the terms and conditions of this Agreement and any additional services or add-on options You choose. As used in this addendum, Geoforce and VISTRACKS includes Geoforce, VISTRACKS and all of Geoforce’s and VISTRACKS’ designated service providers.

“Sub-Account Holder(s)” means the individual(s) properly and validly authorized by a Purchaser to use the Services ordered by the Purchaser to track or monitor a user in accordance with the terms and conditions set forth in this Agreement.

“Territory” means the United States of America, or such other designated area approved by VISTRACKS applicable to your Services.

2. ORDERS

The terms and conditions of this addendum will control all orders of services. Subject to the terms and conditions of this addendum Geoforce and VISTRACKS agree to provide access to the App in accordance with the first order you submit.

3. ACCESS TO APP RESTRICTIONS ON USE & LICENSES

(a) Access to the App. During the term of this addendum and subject to the terms and conditions herein, Geoforce and VISTRACKS hereby grant You a limited, non-exclusive, non-transferable, royalty-bearing license solely to access the App.

(b) Use by Sub-Account Holders. Purchaser may authorize other individuals (“Sub-Account Holders”) to use the Devices and Services ordered by the Purchaser under this Agreement. In such cases, Purchaser shall ensure that such Sub-Account Holders use the Devices and Services in a manner that complies with all applicable laws and this Agreement. Purchaser is solely responsible for such Sub-Account Holders’ usage of the Devices and Services. Purchaser agrees to require each Sub-Account Holder using Purchaser’s account to comply with the obligations set forth in this addendum, including, without limitation, the restrictions contained in Section 3.3.

Restrictions on Use; No Modification. You, your Sub-Account Holders and Monitored Users shall not engage in any of the following acts (individually, a “Prohibited Act”, and collectively, “Prohibited Acts”): (i) willfully tamper with the security of any Geoforce’s or VISTRACKS’ Devices or Services; (ii) access data not associated with your account via Geoforce’s or VISTRACKS’ Devices or Services; (iii) log into an unauthorized server or another non-Licensee VISTRACKS account without authorization; (iv) attempt to probe, scan or test the vulnerability of any Services or to breach VISTRACKS security or authentication measures without proper authorization; (v) willfully render any part of VISTRACKS’ Services unusable; (vi) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any VISTRACKS’ Services; (vii) modify, translate, or create derivative works based on any VISTRACKS’ Services; (viii) rent, (vii) modify, translate, or create derivative works based on any VISTRACKS’ Services; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any VISTRACKS’ Services or make any VISTRACKS’ Services available to a third-party other than as contemplated in this Agreement; (ix) use any VISTRACKS’ Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (x) publish or disclose to third parties any evaluation of VISTRACKS’ Services without VISTRACKS’ prior written consent; (xi) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on any VISTRACKS’ website(s) or in association with its Services; (xii) create any link to VISTRACKS’ website(s) or frame or mirror any content contained or accessible from VISTRACKS’ website(s); or (xiii) use any data or information obtained through the use of the VISTRACKS’ Devices for any unlawful purpose or in violation of any applicable law (including, without limitation, data protection and privacy laws). Except as expressly provided in this Agreement, no right or license is granted hereunder, by implication, estoppel or otherwise.

(c) Firmware License. Each Device provided by Geoforce or VISTRACKS may contain firmware developed and owned, or otherwise authorized to be used by Geoforce or VISTRACKS. For firmware developed and owned, or otherwise authorized to be used by Geoforce or VISTRACKS, Geoforce and VISTRACKS hereby grant You a limited, non-exclusive, non-transferable, royalty-free license, for the Term, to use the firmware on each Device. VISTRACKS shall retain all rights to the firmware contained on each Device. The license granted herein shall be deemed to be in effect upon delivery of each Device.

(d) Ownership. You acknowledge that, as between You, your Sub-Account Holders, Geoforce and VISTRACKS, all right, title and interest in any software, Devices, or firmware provided under this Agreement, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to VISTRACKS or Geoforce. This Agreement does not provide You with title or ownership of any Services, any software, Devices, or firmware provided under this Agreement, but only the rights specified in this Agreement.

4. SERVICES

(a) Availability of Services. Subject to the terms and conditions of this addendum, VISTRACKS shall use commercially reasonable efforts to make the Services available for twenty-four (24) hours a day, seven (7) days a week. You agree that from time to time the Services may be inaccessible or inoperable for reasons beyond the control of VISTRACKS including, but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which VISTRACKS may undertake; or, (iii) interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You shall not be entitled to any setoff, discount, refund or other credit as a result of unavailability of the Services. You agree that neither Geoforce nor VISTRACKS has control of availability of Services on a continuous or uninterrupted basis. Neither Geoforce nor VISTRACKS guarantees any specific response rate (bandwidth). Any unavailability of the Services will be relayed to you as soon as possible.

(b) Security. VISTRACKS shall use commercially reasonable efforts to prevent unauthorized access to restricted areas of the App and any databases or other sensitive material; and, either Geoforce or VISTRACKS shall notify You of any known security breaches to its systems that are reasonably likely to adversely affect You or your account, in accordance with applicable law.

(c) VISTRACKS APP Support. Purchaser technical support for problems with the App, as well as billing and any other general questions, will be provided by VISTRACKS or Geoforce during reasonable and designated business hours Monday-Friday (excluding U.S. federal holidays). Support hours and contact numbers are listed in your product user manual.

5. PURCHASER DATA

(a) VISTRACKS’s Use of Customer Data. VISTRACKS collects Personal Information and non-personal information about its Purchasers and Sub-Account Holders (collectively, “Customer Data”) in order to: (i) provide the Services; (ii) provide customer and technical support; and, (iii) for other business-related purposes, such as billing, marketing, and new service offerings, introductions and sales. VISTRACKS may remove from your data any personal or location-based information and combine such anonymous data with that of others in order to create “Aggregate Information.” VISTRACKS may use and sell Aggregate Data, including analyzing how Customers use the Services and determining ways in which VISTRACKS can improve the Services. If You have provided your contact information, VISTRACKS may contact You for marketing purposes by various means, including but not limited to regular mail, email or telephone. When You activate a Geoforce or VISTRACKS account, You expressly consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. You may opt out of receiving one or more of these types of marketing communications at any time by contacting customer service.

(b) Retention of Customer Data. Customer Data will be retained as long as there exists a legitimate business need to do so. For example, VISTRACKS may retain Customer Data for the duration of a dispute with VISTRACKS. Location Data will be retained for each Purchaser for a period that VISTRACKS will decide in its sole discretion and shall be made available to law enforcement and other government agencies pursuant to legally valid requests for such information.

6. PURCHASER RESPONSIBILITIES

(a) Use of Services. You acknowledge and agree that You will not use the Services to: (i) track and/or monitor any individual in violation of applicable laws; (ii) send spam or otherwise unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send messages to any email lists, distribution lists, newsgroups, or spam email addresses; or, (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree to report immediately to Geoforce and VISTRACKS, and to use Your best efforts to stop immediately, any violation of the terms and conditions set forth in this Section or any of VISTRACKS’s other published policies, including but not limited to any privacy policies (collectively, “Policies”) that may be issued from time to time, all of which are incorporated herein by reference. In the event of any suspected violation of the terms, conditions and restrictions set forth in this Section or any VISTRACKS Policies, Geoforce or VISTRACKS may immediately disable your access to App and suspend its provision of such Services.

(b) Consents. You are responsible for obtaining the necessary legal consent(s) from those Monitored Users who are being tracked and/or Monitored by Your use and Your Sub-Account Holders’ uses of the Device(s) and shall authorize the tracking and/or monitoring of such Device(s) by Geoforce, VISTRACKS or any of its subcontractors. If a Monitored User is a minor, You acknowledge that You and/or Your Sub-Account Holder have lawful guardianship over such minor and You further acknowledge that You and/or Your Sub-Account Holder have the legal right to lawfully monitor a user in the location or locations where the Device(s) is used. The service is not intended to track minor nor to collect information about minor to avoid being in violation of COPPA regulation. You agree to indemnify and hold VISTRACKS its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized tracking and/or monitoring of the Device(s) by you or your Sub-Account Holders.

7. DISCLAIMER

VISTRACKS may change the products and other materials mentioned at any time without notice. Mention of non-VISTRACKS products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.

ALL INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE DEVICE, VISTRACK’S WEBSITE OR THROUGH VISTRACK’S SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CARTASITE AND VISTRACKS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

NEITHER GEOFORCE NOR VISTRACKS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE DEVICE, VISTRACK’S WEBSITE OR THROUGH VISTRACK’S SOFTWARE, OR DAMAGES RESULTING FROM USE OR RELIANCE ON THE INFORMATION PRESENT, EVEN IF GEOFORCE OR VISTRACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. SLIDINGMENU

Additionally, this Android App makes use of a feature known as “SlidingMenu”. By using driveTIME you are also accepting the SlidingMenu license as follows:

Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at

http://www.apache.org/licenses/LICENSE-2.0

Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS.

Lone Worker Services EULA Addendum

The Lone Worker product UTILIZEs VISTRACKS SOFTWARE. ANY PURCHASE OR USE OF THE LONE WORKER PRODUCT IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED.

Purchaser affirms that it has read and agrees to this Lone Worker Services EULA Addendum as follows. In the event of conflict between these terms and those in the body of the agreement, the addendum controls:

The Lone Worker product is meant to assist with safety of lone individuals working in the field. However, the ability of the device to convey timely and accurate information is affected by the capacity and proper functioning of the satellite or cellular systems, terrain, capacity on the transmission systems, disruptions caused by atmospheric condition, limits on roaming, and other factors outside of the control of Geoforce. Accordingly, Purchaser may not use the Lone Worker product for life support, emergency situations, or other hazardous activities (aka high risk activities) AND NO WARRANTY IS OFFERED THAT the PRODUCT IS EFFECTIVE FOR SUCH PURPOSES.

Geoforce Customer GDPR Notice

NOTICE TO CLIENT

Geoforce may receive and process personal data from you in the course of providing our products and services. If that occurs, Geoforce will qualify as a “controller” of the personal data under the EU General Data Protection Regulation (GDPR). Accordingly, we provide you this notice pursuant to Article 13 of the GDPR. This notice supplements and does not supersede our website Privacy Policy.

  1. Data Controller. The Data Controller is Geoforce with offices in 5830 Granite Pkwy, Suite 1200, Plano, Texas 75024.
  2. Purposes of Data Processing and Legal Basis. The purpose for processing your Personal Data is the performance of our contract with your, billing and payment processing, provide you with products and services purchased from us, and to manage your use and our support of purchased products and services. The legal basis for our processing is the performance of legal services pursuant to the terms of our contractual engagement, and for some data, in pursuit of our legitimate business interests.
  3. Contractual requirement. You may be required to provide Personal Data in order to allow us to provide the products and services you have requested. If you fail to provide essential Personal Data, Geoforce may be unable to provide the requested products and services.
  4. Recipients. Your Personal Data may be provided to Geoforce’s staff members, external consultants, courts and other dispute resolution tribunals and their staffs, counterparties and their counsel, and to any other person or entity in order to provide the requested products and services, and operate our business.
  5. International Data Transfers. Your Personal Data may be transferred to any country within or outside the European Union (EU) in connection with the performance of the requested products and services or the operation of our business. Geoforce will comply with applicable international data transfer requirements for transfers from the EU to third countries or international organizations outside the EU to ensure adequate safeguards required under Article 46(1) of the GDPR. For instance, Geoforce has implemented international data transfer agreements based on the EU Standard Contractual Clauses to cover any internal data transfers.
  6. Data Retention. Your Personal Data will be stored for the duration of the client relationship and may be retained by Geoforce beyond the termination of the client relationship in accordance with our retention policy and engagement, and in accordance with statutory retention obligations.
  7. Data Subject Rights. Individual customer contacts, as a data subject, have the right to information and to request access to or rectification or restriction of the processing of their Personal Data or to object to the processing as well as the right to data portability, under certain circumstances.
  8. Right to lodge a Complaint. Furthermore, individuals have the right to lodge a complaint with the relevant supervisory authority in case that the processing of Personal Data infringes applicable Data Protection laws.
  9. Privacy Inquiries. You can send a request to privacyquestions@geoforce.com or contact your Geoforce customer relationship contact if you have any questions concerning this notice, want to exercise data subject rights, or want to request a copy of international data transfer arrangements.