BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.0 Master Service Agreement
This Master Service Agreement (the “Agreement”) is between Smith System Driver Improvement Institute, Inc., a Delaware corporation located at 2301 E Lamar Blvd., Suite 250, Arlington, TX 76006 (“Smith”) and Customer. This Agreement and any Order Form(s) govern(s) your acquisition and use of our products and services (the “Services”). If you register for a trial or pilot for our Services, this Agreement will also govern that trial period. By accepting this Agreement and executing an Order Form that references this Agreement, you agree to the terms of the Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use our Services. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. The Effective Date of this Agreement between You and Us is the date You sign or accept this Agreement and is identified above.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Service Agreement.
“Content” means information or electronic media owned or obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via drivedifferent.com or login to the applicable Service.
“GPS” means Global Positioning System which uses satellite technology to receive geolocation and other information.
“HMD” means Our decal-based monitoring service “How’s My Driving?”, “1-800 How’s My Driving?”, “How Is My Driving?”, or “SmartWatch®”.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, malware, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, https://www.drivedifferent.com, and any successor websites.
“Non-Smith Applications” means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You or Your organization.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Our”, “Us”, or “We” means Smith and Our Affiliates and partners.
“Purchased Services” or “Services” means the products and services that are ordered by You under an Order Form and made available online by Us, including associated offline components and equipment, as described in the Order Form or Documentation. “Services” exclude Non-Smith Applications.
“User” means an individual who is authorized by You to use Services, for whom You have ordered the Services, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business. Users may not include our direct competitors.
“Vehicle” means any self-propelled motor vehicle capable of transporting a person or persons or any materials used by You and Your organization for which You have ordered Services.
“You” or “Your” means the Customer company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Non-Smith Applications.
3.0 Our Responsibilities
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-Smith Applications, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures, storage, archive, and retrieval for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
4.0 Use of Services and Content
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased or licensed as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions unless otherwise specified in the applicable Order Form.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, Vehicles, and trailers pulled by Vehicles and the Service or Content may not be accessed by more than that number of Users or Vehicles, (b) a User’s password may not be shared with any other individual, (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content, and (d) a Vehicle is specified by the Vehicle Identification Number (“VIN”) and/or decal number and is unique for each Vehicle and trailer specified in an Order Form. If You exceed a contractual usage limit, We may notify You that Your usage exceeded that limit. Notwithstanding Our efforts, You agree to promptly pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the data entry, accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-Smith Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
4.5. Removal of Content and Non-Smith Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Smith Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Smith Application or modify the Non-Smith Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Services and/or Non-Smith Application until the potential violation is resolved.
5.0 Non-Smith Providers
5.1. Acquisition of Non-Smith Products and Services. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Smith Applications and implementation and other consulting services. Any acquisition by You of such Non-Smith products or services, and any exchange of data between You and any Non-Smith provider, is solely between You and the applicable Non-Smith provider. We do not warrant or support Non-Smith Applications or other Non-Smith products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
5.2. Non-Smith Applications and Your Data. If You install or enable a Non-Smith Application for use with a Service, You grant Us permission to allow the provider of that Non-Smith Application to access Your Data as required for the interoperation of that Non-Smith Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Smith Application.
5.3. Integration with Non-Smith Applications. The Services may contain features designed to interoperate with Non-Smith Applications. To use such features, You may be required to obtain access to Non-Smith Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Smith Applications. If the provider of a Non-Smith Application ceases to make the Non-Smith Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
6.0 Fees and Payment for Purchased Services
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased or licensed and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payments. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If We continue to receive calls for Your Vehicles under Our HMD program after termination, You will be invoiced and pay $49.95 for each validated call.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may 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, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement or Order Form for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6 (Taxes), We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.6. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7.0 Proprietary Rights and Licenses
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation. The use of Content is limited to Your internal use only.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non-Smith Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-Smith Application or program code.
7.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
7.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.0 Representations, Warranties, Exclusive Remedies and Disclaimers
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.3 (Integration with Non-Smith Applications), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment Upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.0 Mutual Indemnification
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Smith Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.0 Limitation of Liability
11.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.0 Term and Termination
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions for the Services hereunder and as specified in any applicable Order Forms have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment Upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. If We continue to receive calls on Your Vehicles after termination of Our HMD program, You will be billed at the current rate as specified in Section 6.2 (Invoicing and Payments). If You desire to transfer Your Geotab GPS services to another Geotab reseller after this Agreement is terminated, You agree to pay a $50.00 per unit transfer fee.
12.5. Portability and Deletion of Your Data. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
12.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.
13.0 Notices, Governing Law and Jurisdiction
13.1. DISPUTE RESOLUTION, Party Arbitration and Governing Law. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, provided, however, that any such arbitration shall be held in Broward County, Florida and the arbitrator shall apply Florida law.
13.2 Manner of Giving Notice. Any and all notices, and other documents and communications, permitted or required to be given pursuant to this Agreement shall be deemed duly given: (1) upon actual delivery, if delivery is by hand or courier service; or (2) upon receipt by the transmitting party of confirmation or answer back if delivery is by facsimile or electronic means; or (3) upon the third day following delivery into the U.S. mail if delivery is by registered or certified return receipt requested mail. Each such notice shall be sent to the respective party at the address indicated below or at any other address as the respective party may designate by notice delivered pursuant hereto:
Smith System, 2301 E Lamar Blvd., Suite 250, Arlington, TX 76006.
Attn: Tony Douglas, CEO
14.0 General Provisions
14.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify our company.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Headings. The Section headings in this Agreement are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this Agreement.
14.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.10. Interpretation; Construction. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “but not limited to,” and (v) references to “hereunder” or “herein” relate to this Agreement. The parties agree that this Agreement is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of Law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
15.0 Product Specific Disclaimers – Only Applicable for Purchased Products and Services
15.1 Motor Vehicle Record. Our Motor Vehicle Record (“MVR”) product integrates the data from various suppliers and jurisdictions creating reports that simplify the task of reviewing and monitoring driver’s license status for Our customers. Smith makes certain Consumer Report Information (“CRI”) available to its customers who have a permissible purpose for receiving such information in accordance with the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.; the (“FCRA”)). As a data integrator, Smith does not create nor edit MVR data or CRI. All MVR content is created by clerks of the court and Departments of Motor Vehicles of the various jurisdictions. Any and all questions regarding the content of MVR reporting should be directed to the jurisdiction where the data originated. In some states and provinces, not all counties or jurisdictions participate in electronic driver record reporting. Smith is not responsible for the content or accuracy of MVRs and is not liable for any adverse actions or consequences which may occur based on the content supplied by MVR reporting. Customer certifies that they shall comply with the provisions of all applicable federal, state/provincial, and local laws, ordinances, regulations and codes including but not limited to the FCRA, the federal Driver’s Privacy Protection Act (18 U.S.C. §2721 et. seq.; the (“DPPA”)), and that Customer is using the CRI and MVR data to perform driver monitoring/employee screening which is a legitimate business purpose. Customer certifies that they are authorized to perform MVR screening on its employees, agents and affiliates and take action based on the same. THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
15.2 GPS Device Limited Product Warranty. We warrant that during the Warranty Period each Product (excluding beta, test or demonstration products or product versions) will perform substantially 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 the one year period commencing on the activation date. Provided You properly complete and We receive from You, directly or through an authorized reseller, a substantiated and justified written warranty claim and, if applicable, all affected devices (returned at Your expense to the reseller from whom You purchased the devices or as otherwise specified by us), prior to the expiration of the Warranty Period in accordance with our applicable return policies and procedures, We will make commercially reasonable efforts to repair or replace such device or 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 in our sole discretion or refurbished device units. We also reserve the right to charge You return shipping and a service fee if We determine that Your 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. To the maximum extent permitted by applicable law, the foregoing constitutes Your sole and exclusive remedy and Our sole and exclusive obligation for any breach of the foregoing warranty and no person will have any other entitlement, remedy or recourse, whether in contract, tort or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by You to the fullest extent permitted by law..
15.2.1 Conditions and Exclusions. You waive Your rights under our limited warranty set forth in Section 9 (Representations, Warranties, Exclusive Remedies and Disclaimers), any clause of this Agreement, tort, product liability, statute or other legal theory unless We receive Your written claim within 10 days of the date when You did notice or could reasonably have noticed the defect or other basis of Your claim. With respect to Products that were installed by anyone except a Geotab-certified installer (listed on Geotab website or confirmation available on request), You shall not have any warranty claims or other claims unless You prove that the installation did not cause the defects or failures of the Product to conform to the applicable specifications or otherwise to this Agreement. Third Party Products that are subject to the Third Party Terms and, more generally, any products 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 or items. You need to purchase, license or procure products, software, data or services from third parties to enable the full use or functionality of our Products. You are responsible for ensuring that all 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.
15.2.2 Installation warning. Most of our Products do not contain any user-serviceable parts. Installation, configuration, servicing, repairs and removals must only be made by an authorized Geotab reseller or installer, unless We expressly designate Products as suited for ‘plug and play’ self-installation in writing. Improper installation can lead to short circuits and the risk of fire, leading to personal injury or significant damage to Your vehicle. Installation or servicing may also require modifications to Your vehicle. Failure to comply with specified procedures or without adequate knowledge of our Products, proper installation, configuration, servicing, repair or removal procedures or Your vehicle may result in damage to the Product or Your vehicle, which may cause malfunctions of vehicle controls or vehicular environmental systems and result in personal injury. You understand that any such activities not performed by an authorized Geotab reseller or installer will be at Your sole risk. You hereby release and forever discharge, 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 You 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.
15.2.3 WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), YOU UNDERSTAND AND ACKNOWLEDGE THAT WE MAKE PRODUCTS AVAILABLE TO YOU ONLY ON AN “AS IS” BASIS, AND WE MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS WHATSOEVER REGARDING THE PRODUCTS OR YOUR USE OR INABILITY TO USE THE PRODUCTS. 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. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS REMAINS WITH YOU. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT: (a) ANY OF THE PRODUCTS WILL MEET YOUR 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. WE ACCEPT NO RESPONSIBILITY FOR, AND DO NOT WARRANT THE ACCURACY, CURRENCY OR RELIABILITY OF ANY REPORT, OUTPUT, DATA PREPARED BY OR WITH THE ASSISTANCE OF THE PRODUCTS OR ANY OTHER RESULTS OBTAINED FROM THE USE OF THE PRODUCTS. MOREOVER, WITHOUT LIMITING THE GENERALITY, We do not endorse, and make no representation, or warranty with respect to, and assume no responsibility, obligation or liability for, any third party products, software, data or services, or any failure, defect or inability to use any of the foregoing third party products, software, data or services that you may require to use any features or functions of the Software, Products or Services, or any third party websites or similar facilities which we may identify or link to from our website, including without limitation vehicles, other geographic positioning or navigation devices, other communication devices, mapping software and data, computers, operating system software, networking equipment, other hardware or software or systems, website or similar site, internet service, telecommunications service, wireless service or cellular service, whether or not supplied directly or indirectly by us.
15.2.4 No Reliance on Other Statements. None of Our directors, officers, agents, representatives, employees, resellers, distributors, sales representatives, intermediaries or anyone else has any authority, express or implied, to make any representations, warranties or agreements not expressly set forth in this Agreement. You acknowledge and agree that You are not relying upon, and that We specifically disclaim any statements, representations, terms, conditions and warranties except as set forth in writing in this Agreement. Without limiting the generality of the foregoing, We shall have no obligation or liability in respect of any warranty or extended warranty that a reseller may extend to You.
15.3 HMD Decal-Based Vehicle Monitoring Service. Our HMD decal-based Vehicle monitoring service is subscription based. Customer agrees that once a subscription has been terminated as per the provisions in Section 12 (Term and Termination) and a renewal is not forthcoming that all decals will be removed or covered on the Vehicles. Smith reserves the right to charge for each call received after the contract termination if the decals are not removed or covered.
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