1.TERMS AND CONDITIONS OF SALE AND LICENSES
1.1. These Terms and Conditions (“T&Cs”) govern and are hereby incorporated in the Supplier’s Subscriber Agreement and/or Order Form signed by the Customer named in the Agreement(“Customer”) and are collectively, along with exhibits, schedules, invoices, addenda, or written and agreed upon amendments or modifications, referred to as “The Agreement”.
1.2. The Agreement constitutes the entire agreement and understanding between the parties and supersedes all previous communications, representations or agreements, written or oral relating to the Services. All other terms, or variations to the T&Cs, conditions, term sheets or purchase orders are excluded unless agreed explicitly in writing by Supplier through a Director, Chief Financial Officer, Vice President or Financial Controller. Placement of a purchase order by the Customer, whether in writing, on the internet, or by e-mail shall mean acceptance of these T&Cs that are deemed incorporated in any purchase order and shall form the contract between the parties. Digital and/or physical signature by Customer shall be proof of agreement and the signature of Supplier is not required.
1.3. These T&Cs shall apply to any additional orders from Customer accepted by Supplier for the same or materially similar Services.
1.4. Any waiver of a breach of the Agreement shall not be a continuing waiver and shall not prevent any claim of a breach of the same terms or any other term.
1.5. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (i) if given by personal delivery, upon such personal delivery, (ii) if given by nationally-recognized courier or mail service (in either case that has real-time or near-real-time tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service, or (iii) if given by fax, at the beginning of the next business day at the receiver’s location, provided that the sender’s fax device generates a confirmation that the fax arrived at the receiver’s device and that there is no indication in the course of the transmission that the notice did not arrive at the receiver’s fax device. The addresses for notice for each party are those in the Agreement or equivalent document. Either party may change its address for notice by notice to the other party.
1.6. The hardware (“Product”), software(embedded in Product, applications or otherwise accessed via the internet)(“Software”) and customer set-up, training and support services (“Support Services”) (together “Services”) provided by Supplier to Customer pursuant to this Agreement are solely for Customer’s internal use and the data or output from the Services may not be resold or otherwise offered to or used by third parties.
2.DELIVERY, SHIPPING & INSTALLATION
2.1. Shipping or delivery dates of Product are best estimates only. Supplier reserves the right to make deliveries of Product in installments and shall not be liable for any loss or damage arising from late delivery or installation.
2.2.In the event Customer, or its employees, representative or sub-contractors, perform installation, Supplier shall not be liable for any loss or damage, arising directly or indirectly, as a result of any negligence or failure to follow Supplier’s instructions or lack of due care and Customer shall indemnify, defend and hold harmless Supplier and its directors, officers, employees, agents and affiliates from and against any claim of any kind that arises out of, or relates to, Customer’s installation.
3.ACCESS RIGHTS, RISK OF LOSS, TITLE AND SECURITY INTEREST
3.1. Customer has the non-exclusive and non-transferable right to access and use the Software subject to the terms of this Agreement for the period from Customer’s signature of the Agreement to the end of the Billing Period in addition to any renewal periods. Customer grants Supplier a worldwide license to host, copy, transmit and display its data inputted into the Software and/or created by using the Services.
3.2. The Customer assumes the risk of any loss, fire, damage, and theft of Product upon shipment by Supplier to the Customer for use by Customer in accordance with this Agreement.
3.3. The Software includes software components, map data and related services licensed to Supplier by various entities (collectively, “Supplier’s Licensors”) . All right, title and interest in and to the Software and all copies and duplicates thereof, and all related copyrights, trademarks, trade names, trade secrets rights and other intellectual property and proprietary rights and interests, are vested and remain in Supplier and Supplier’s Licensors. Customer here by grants to Supplier and its 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 it relating to the operation of the Services. Comments or feedback submitted by Customer to Supplier about, through or in connection with the Services shall become the property of Supplier and by sending such feedback, Customer agrees to a no-charge assignment to Supplier of all right, title and interest in copyrights and other intellectual property rights on a worldwide basis in and to such feedback, and whether or not such assignments are effective, Customer agrees that Supplier is free to use any ideas, concepts, know-how or techniques that are sent to Supplier by Customer for any purpose on an unrestricted basis.
3.4. Notwithstanding delivery to the Customer and possession by the Customer of Product and the provision of access to the Software, Supplier AND Supplier’s LICENSORS RETAIN THE LEGAL AND BENEFICIAL OWNERSHIP OF Product and the Software. Supplier is NOT transferring title or any ownership rights in Product or Software to the Customer and Supplier reserves all rights not expressly granted under these T&Cs.
3.5.The Customer shall not derive or attempt to derive the source code or structure of the Software by reverse engineering, disassembly, decompilation or other means. The Customer shall not decompile, disassemble, reverse engineer, port, translate, modify, copy, transfer, or make derivative works of the Software or attempt to gain unauthorized access to the Software or its related systems or networks. The Software and all materials and knowledge related there to is obtained by the Customer and its employees and representatives in confidence and shall not be duplicated or disclosed or published by any such persons in any form, or reproduced, transcribed, imitated or simulated. The Customer shall take all reasonable steps to ensure it does not transmit worms or viruses or any code of a destructive nature that may affect the Product, Software, or Support Services or use any of them for inappropriate and/or illegal purposes.
3.6.Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Supplier promptly of any such unauthorized access or use. Customer agrees not to give or make available its user names or passwords or other means to access the Services to any unauthorized individuals and remains responsible for all access to the Services via its user names and passwords, even if not authorized by Customer. If Customer believes that a password or other means to access Customer’s account has been lost or stolen or that an unauthorized person has or may attempt to use the Services, Customer must notify Supplier immediately.
4.1.Supplier warrants the Product there of shall for the Term of this Agreement conform with instruction manuals, user guides and other information provided by Supplier, or posted to its websites; provided, however, that such warranty is expressly limited as stated in this Agreement.
4.2.Supplier warrants that the Software will for the Term of this Agreement function materially in conformance with instruction manuals, user guides and other information provided by Supplier, or posted to its websites provided, however, that such warranty is expressly limited as stated in this Agreement;
4.3.All warranty claims asserted by Customer must be in writing to Supplier and delivered in accordance with the notice provisions of Paragraph 1.5.
4.4.Under no circumstances will Supplier be liable for any costs and expenses incurred by a Customer (through a third party or otherwise), such as repair costs to a Product and/or a vehicle, in the event that the Customer does not first comply with its obligations herein giving Supplier the opportunity to verify any claim.
4.5.Exceptas expressly set forth in this paragraph supplier makes and customer receives no other warranty with respect to services or any part of them, whether express or implied, without limitation all warranties of merchantability and fitness for any particular purpose, effectiveness, completeness and accuracy are expressly excluded, except where prohibited by law, and where prohibited, any such warranty is limited to the minimum warranty and period provided by law. No employee or agent of supplier has the authority to grant any other warranty to customer, written or oral.Supplier does not warrant that provision of services will be uninterrupted or error-free.
4.6.The above warranties shall be null and void in the event of(1) any alteration, modification, or special configuration made (or attempted to be made) by the Customer to Product or Software or de-installation or installation of Product by the Customer without following Supplier’s written instructions;(2) use of the Product or Software not in the ordinary course of business;(3) accidents, misuse, abuse, neglect, damage and tampering with Product or Software;(4)connection of Product to an improper voltage supply, or reception or transmission problems caused by inadequate or improper antenna (not provided by Supplier);(5)excessive water, weather or physical damage to Product; or (6) use of Product with accessories or devices not approved by Supplier.
4.7.Supplier may request that the Customer submit sufficient information to reproduce a Software defect.
4.8.The additional limited warranties stated in Schedule 1will apply to the extent stated and are incorporated herein.
5.TELECOMMUNICATION CARRIERS & GPS
5.1.Communication used in the Services are provided by third party telecommunication providers (“TCs”) and the Customer understands and agrees that: (1) Customer has no contractual relationship with any TC, (2) Customer is not a third party beneficiary of any agreement between Supplier and a TC, (3) TC’s have no liability of any kind to Customer, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, (4) that messages may be delayed, deleted or not delivered, and (5) that TC’s cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Services;
5.2.In the event that the Customer’s use of Services results in excessive communications usage, Supplier shall be at liberty to suspend Services in relation to the relevant vehicle or asset, for a reasonable amount of time, on notice to the Customer, until Supplier is able to assess the cause and implement a solution.
6.1.The term of the Agreement is from signature of the SkyLab Solutions Sales Agreement by the Customer to end of Billing Period and any renewal period there after(‘Term’).
6.2.A party may terminate the Agreement immediately if the other party is in breach of any of the material terms of the Agreement, and such breach is not cured within90-days of being served a notice requiring the breach to be remedied.
6.3.Upon termination, the Customer shall not use the Services for any purpose.
6.4.Customer may terminate this Agreement before the end of the Term provided Customer pays Supplier (1) all unpaid fees for Services provided up to the date of termination, in full; and (2) all fees for Services that would have become due during the Term had the Customer not terminated early, discounted by three per cent (3%) to reflect net present value.
7.CUSTOMER DEFAULT AND SUPPLIER REMEDIES
7.1.In addition to Paragraph 6.3above Customer shall be in material default in the event of any of the following (“Event of Default”):(1) Customer does not pay any amount due within 10 days of when it first becomes due; (2) Customer’s failure to designate a bank account in accordance with Paragraph 8.6of this Agreement (3)Customer is unable to pay its debts as they fall due or a petition in bankruptcy is filed or (4) Customer subjects Supplier staff to excessive abuse.
7.2.In the event of an Event of Default Supplier may, in addition to the other rights set forth elsewhere in the Agreement, do any of the following:(1) Suspend Services(and charge the Customer a re-activation fee should Services subsequently be re-activated);(2) Charge interest on fees that are due and payable at the rate of the greater of 1.5%per month or the highest rate permitted by law;(3) Terminate the Agreement and accelerate all sums due or to become due in connection with the Agreement as a fee for early termination;or4) Demand that Customer return Product to Supplier or at Supplier’s election charge Customer the fair market value of the Product.
8.1.Prices for the Services are only valid if set out in writing by Supplier and only for the period stated in any quotation or Agreement (or 30 days if not stated).
8.2.Unless otherwise stated on the Agreement, payment of all invoices shall be made within 30 days of the date of invoice or before any due date for payment detailed on the invoice.
8.3.All payments due to Supplier do not include taxes unless specifically stated. The Customer is responsible for payment of all applicable taxes, however designated or incurred in connection with the transactions under this Agreement.
8.4.Any advance payments for Services will be set off against invoices rendered.
8.5.Unless otherwise detailed in the Agreement, all payments by Customer shall be made electronically through Customer’s bank account designated in writing provided to Supplier in connection with this Agreement. Customer hereby authorizes Supplier to electronically withdraw the requisite cleared funds from Customer’s designated bank account or otherwise debit Customer’s designated bank account as payment for periodic charges for Services or other amounts due and owing to Supplier when such charges or amounts become due. Customer agrees to and will execute any further documentation that may be required to permit Supplier to make such electronic debits or withdrawals from said bank account. During the Term, Customer may change its bank account designation in writing to Supplier delivered in accordance with Paragraph 1.5In the event that Supplier agrees to payment by check it reserves the right to electronically deposit any check from a copy of the check.
8.6.Customer acknowledges and agrees that Supplier may delegate administrative tasks, including without limitation invoicing, billing, collection, and receipt and application of payments, to a third-party service provideror affiliate. Customer agrees that such delegation by Supplier shall not affect, waive, release, or otherwise modify or amend Customer’s payment obligations owed to Supplier under this Agreement, and Customer shall remain bound by the terms of this Agreement. Customer shall timely remit payment for Product, Software, and Services in the manner directed by Supplier.
9.1.Each party must treat all information received from the other which is marked ‘Confidential’ or which would by its nature reasonably be expected to be confidential, as it would treat its own confidential information. Information that is to be considered confidential may include, without limitation, operational and technical data. This provision shall survive the termination or expiry of this Agreement by 2 years.
9.2.The Customer warrants that it will advise any user of a vehicle that the vehicle may be tracked and that the Customer will be able to produce historical reporting on the vehicle.
9.3.The Customer acknowledges that for quality control, security reasons and training, telephone calls between Supplier and the Customer may be recorded.
9.4.The data produced by use of the Services is the property of the Customer however, Customer grants Supplier the right (at no cost to Supplier) to use and to allow third parties to use anonymized location, time, speed and other information obtained from vehicles for traffic information, journey data analysis, mapping, fleet bench marking or other related purposes. Customers who have OEM (‘Original Equipment Manufacturer’) lease and maintenance and/or insurance or leasing related services detailed in the Agreement consent to the provision by Supplier of data produced by the Services identified as the Customer’s data, to the designated party.
9.5.Supplier and its business partners and/or carefully selected companies may use the Customer’s information to keep the Customer informed about Supplier or 3rdparty products and services .If the Customer does not wish to receive marketing information, the Customer must confirm this in writing to Supplier.
9.6.Customer authorizes and gives Supplier its consent to: (i)collect personal information (being consumer credit information and any other relevant information) about Customer (“Customer Information”) from any person, institution or agency (including Customer’s introducer, legal advisers, and referees),(ii) to provide Information (now or in the future) to credit reporting agencies, and(iii) to seek and obtain consumer credit references and reports to allow Supplier to assess any Customer application, manage Customer’s account, recover any money that Customer owes to Supplier.
9.7.Customer will, to the extent that the Customer Information contains personal information and/or sensitive personal information about an individual (including an employee or contractor of Customer), procure from that individual all necessary consents required by law to enable that information to be used by Supplier and its agents. Supplier shall not be obligated to obtain any such consent and shall not be liable to any individual for Customer’s failure to obtain any such consent as required by law.
10.1.In no event shall Supplier be liable (whether in contract, tort, including negligence, or otherwise) for any indirect, incidental, consequential, general or exemplary damages, pure economic loss (whether direct or indirect), increased costs, lost revenues, profits, goodwill or data, or damage to property, whether suffered by the Customer or any other person, arising from or related to any act or omission of Supplier (whether in connection with this Agreement or otherwise).
10.2.Not withstanding anything in this Paragraph 10, Customer’s sole remedy, and Supplier’s total liability to Customer, in respect of any defect or failure in any Product shall be limited, at Supplier’s option, to the repair or replacement of the affected Product.
10.3.Supplier’s liability (whether in contract, tort (including negligence) or otherwise) in respect of all claims for loss, damages or liability, including (but not limited to) claims in connection with this Agreement, will not in any circumstances whatsoever exceed: (1) in respect of Products, the liability specified in Paragraph 10.2; and (2) in respect of Services (other than Products) an amount equal to the fees paid to Supplier by Customer for the affected Services in the 12 month period immediately prior to the date liability first arose.
10.4. In no event will any measure of damages awarded in relation to this Agreement include, nor will Supplier be liable for, any loss or damage suffered by the Customer to the extent caused by: (1) any delay or failure by the Customer to perform its obligations under this Agreement; (2) any accidental, negligent or willful act of the Customer, its agents or employees; and (3) defects in any products and/or services provided to Customer by a third party.
10.5.Customer’s right to bring any claim or proceedings against Supplier in respect of any defect in, or failure of, the Services (or any part of them) is conditional upon the Customer promptly notifying the Supplier in writing of the defect or failure and giving Supplier a reasonable opportunity to investigate and remedy any defect or failure relating to the Services.
10.6. Not with standing anything in this Paragraph 10, Supplier shall have no liability whatsoever for (1) any single isolated failure of any Product or the Software; or (2) any delay in the provision of the Services that does not exceed 48 hours.
10.7.Customer agrees to indemnify, defend and hold Supplier harmless from and against any liability, loss, injury, demand, action, cost, expense or claim arising out of or in connection with any use or possession by Customer of the data produced by the Services and/or the improper or unauthorized use of the Services.
10.8.Supplier indemnifies the Customer from all costs and liabilities from any claim that the Services infringe any 3rd party intellectual property. Supplier may recall, exchange or modify Services or refund the Customer for any fees paid for Services, less pro rata usage cost. No refund shall be made for Services already paid for.
10.9.If the Customer becomes aware of any matter which might give rise to a claim against Supplier or the Customer concerning the potential infringement by Supplier, and/or the Services of any intellectual property rights of a third party the Customer shall immediately give written notice to Supplier of the matter and in connection with any proceedings related to the matter (other than against Supplier) allow Supplier the exclusive conduct of the proceedings and not admit liability in respect of or settle any matter without the prior written consent of Supplier, such consent not to be unreasonably withheld or delayed.
11.1. The Customer and users of vehicles remain at all times responsible for observing all relevant laws and regulations in addition to codes of safe driving and Supplier will not in any event be liable for any fine, penalty, or punishment imposed. The Customer agrees to observe and abide by all applicable laws, ordinances, rules and regulations of the federal, state or local government and any agency or public authority thereof, and to hold Supplier harmless from liability or loss by reason of any asserted or established violation by Customer, its employees, agents or representatives. The Customer acknowledges and agrees that the Services must not be used in any way which would or may affect the ability of any driver of any vehicle to drive safely and in accordance with applicable laws and regulations. The Customer and users of vehicles are ultimately responsible for the vehicle and they should be aware of their surroundings at all times. In certain geographic areas one-way streets, turn restrictions and entry prohibitions (e.g. pedestrian zones) are not recorded or displayed. Supplier is not liable for any loss or damage caused by the acts or omissions of users of vehicles.
11.2. Customer acknowledges that it has not been offered any illegal or improper bribe, kickback, payment, gift, or other thing of value from and of Supplier’s employees or agents in connection with this Agreement. Reasonable gifts or entertainment provided in the ordinary course of business do not violate the above restriction. In the event that Customer learns of any such violations, Customer will give notice of such violation to Supplier.
11.3.Supplier shall have no liability for a failure to provide or for delay in providing Services due directly or indirectly to causes beyond the control of Supplier or its subcontractors, including, without limitation, acts of God, or governmental entities, or of the public enemy, dismantling of the GPS network, termination of Services due to actions or omissions of a TC, including, but not limited to, deactivation/dismantling of a TC’s networks, acts of the Customer, strikes, unusually severe weather conditions, interruptions of transportation or inability to obtain necessary labor, materials or facilities, default of any supplier, or delays in Federal Communications Commission (“FCC”) frequency authorization or license grant. If Supplier is unable to wholly or partially perform the Services for more than 30 days because of any cause beyond its control, Supplier may terminate the Agreement without any liability to Customer, other than refund of any amounts paid for Services which have not been provided.
11.4. If any provision of the Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed limited to the extent required to make it enforceable, or, if necessary, severed from the Agreement without affecting the validity and enforceability of the remaining provisions of the Agreement.
11.5.If the Services are being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government use, duplication, or disclosure by that party is subject to restrictions in subparagraph (b)of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software–Restricted Rights at48 CFR 52.227-19.
11.6. The Agreement is fully assignable and transferable by Supplier to any person or entity and shall inure to the benefit of such assignee or successor. Customer may not assign the Agreement without the prior written consent of Supplier.
11.7. This Agreement is governed by and shall be construed in accordance with the laws of The United States of America
11.8. Each party waives its respective rights to a trial by jury of all claims or causes of action (including counterclaims) related to or arising out of this agreement brought byany party. This waiver applies to all subsequent amendments of this agreement.
11.9 Paragraphs 4, 7, 10.1to 10.7, 11.1and 11.3shall survive any expiration or limitation of this Agreement or its T&Cs.