End User License Agreement (Canada and USA)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS END USER LICENSE AGREEMENT (“EULA“) BEFORE ACCESSING AND USING THE SERVICE (AS DEFINED IN SECTION 1).
BY CLICKING ON THE “ACCEPT” OR “YES” BUTTON IN RESPONSE TO THE ENQUIRY AS TO ACCEPTANCE OF THE TERMS OF THIS EULA, OR BY LOGGING IN AND ACCESSING THE SERVICE, OR BY SIGNING AN ORDER FROM WHICH INCORPORATES THIS EULA BY REFERENCE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA AND, IF ENTERING INTO THIS EULA FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND ENTERING INTO A LEGALLY BINDING AGREEMENT ON BEHALF OF YOURSELF AND YOUR EMPLOYER (COLLECTIVELY “YOU” OR “CLIENT“) WITH (i) WHERE THE CLIENT IS LOCATED IN THE UNITED STATES (WITH A BILLING ADDRESS IN THE UNITED STATES), COMPLETE INNOVATIONS USA INC., OR (ii) WHERE THE CLIENT IS LOCATED IN CANADA, (WITH A BILLING ADDRESS IN CANADA), COMPLETE INNOVATIONS INC.
(Complete Innovations Inc. or Complete Innovations USA Inc., as applicable, shall be referred to as “FLEET COMPLETE” OR “FC“)
IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS EULA THEN YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SERVICE.
In this EULA the following terms shall have the following meanings respectively:
“Agreement” has the meaning ascribed thereto in the Master Subscription Service Terms.
“Client” has the meaning ascribed thereto in the preamble .
“Client Data” means any data or information including (a) Personal Information (as hereinafter defined), (b) relating to an identifiable Vehicle or Vehicle Operator, (c) submitted to the Service by Client or Vehicle Operators, (d) otherwise collected, accessed, used, disclosed, created, generated or stored by, through or in connection with the Service and transmitted to, uploaded to and/or stored on FC servers for use with the Service, and/or (e) video data collected, stored and used through the use of FC Vision.
“Confidential Information” has the meaning ascribed thereto in Section 7.
“Contract Term” has the meaning ascribed thereto in the Master Subscription Service Terms.
“Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the processing of Personal Information.
“Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Information under the EULA.
“Data Subject” means the identified or identifiable person to whom Personal Information relates as defined in the Data Protection Laws.
“Derivative Data” has the meaning ascribed thereto in Section 5.5.
“Documentation” means the explanatory user materials supplied by FC with the Service in electronic form.
“EULA” has the meaning ascribed thereto in the preamble.
“Evaluation License” has the meaning ascribed thereto in Section 2.4.
“Feedback” has the meaning ascribed thereto in Section 16.11.
“FC Big Road” has the meaning ascribed thereto in the Third Party Terms.
“FC Group” has the meaning ascribed thereto in Section 4.3.
“FC Server” means a FC computer server located at FC’s premises, or a third party provider of hosting and/or network services, that hosts the Software.
“FC Vision” has the meaning ascribed thereto in the Third Party Terms.
“Fleet Complete” or “FC” has the meaning ascribed thereto in the preamble .
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Hardware” means any mobile electronic device, mobile phone, mobile data terminal, or mobile asset (including vehicles, trailers or containers), installed modem, related sensors and other equipment or accessories onto which a mobile application has been embedded, installed or which is used to access a mobile application and which is required to use the Service as intended as described in the Documentation.
“Infringement Claim Liabilities” has the meaning ascribed thereto in Section 10.1.
“Location Data” means data that is about or relates to the geographical location, heading, speed or similar information relating to Vehicles on which a Subscriber has been installed and activated on the Service.
“Master Subscription Service Terms” means Fleet Complete’s then-current Master Subscription Service Terms located at https://www.fleetcomplete.com/legal/na-master-subscription-service-terms/ as may be amended from time to time, which are incorporated herein by reference.
“Order” means an order for the Service on an Order Form signed by Client and accepted by Fleet Complete.
“Order Form” means Fleet Complete’s form of ordering document pursuant to which Client may order Subscriptions, Hardware and accessories and additional services.
“Parties” means Fleet Complete and Client collectively.
“Party” means Fleet Complete or Client individually.
“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Information, as defined in the Data Protection Laws, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Provisioning Date” has the meaning ascribed thereto in the Master Subscription Service Terms.
“Recurring Fees” has the meaning ascribed thereto in the Master Subscription Service Terms.
“Retention Period” has the meaning ascribed thereto in Section 5.4.
“Security Incident” has the meaning ascribed thereto in Section 6.4.
“Service” means the provision of Subscribers, location and data communications services, the Software and Documentation for which Client is granted rights of access and use under this EULA, which resides on one or more FC Servers and which will be remotely accessible over the Internet by Client and its Users, including where applicable FC Big Road and/or FC Vision, Support Services, Third Party Services and any other ancillary services available in connection therewith, as such Service may be updated from time to time by FC in its sole discretion.
“Software” means FC’s proprietary Fleet Complete® software application and the software installed on the Subscribers and other Hardware and, where activated by Client, FC Vision and FC Big Road.
“Subscriber” means a Hardware device running embedded or installed software and connected to a communication network (including, but not limited to, Wi-Fi, cellular, Bluetooth and satellite networks) that transmits location information and other data to the FC Servers running the Service and which are provided by FC or a third party and installed on Client’s Vehicles to enable the provision of the Service.
“Subscription” means the right granted by FC to Client to access and use the Service or part in accordance with the terms of this EULA and the applicable Order, for use in connection with the number of Subscribers and for the Contract Term specified in the applicable Order.
“Support Services” means the technical support services for the Service provided by FC as described in, and in accordance with, the Support Terms.
“Support Terms” means FC’s then-current terms and conditions for the provision of Support Services to Client and its Users as follows: if the Client is located in the USA, the US Support and Maintenance Service Terms apply and if the Client is located in Canada the Canada Support and Maintenance Service Terms apply, a copy of each is available at https://www.fleetcomplete.com/legal/, as may be amended from time to time, and which are incorporated herein by reference.
“Telematics Data” means Client Data that is about or relates to a Vehicle Operator’s behaviour and a Vehicle’s performance, such as acceleration, braking, turning and includes Location Data.
“Third Party Services” has the meaning ascribed thereto in Section 2.3.
“Third Party Sites” has the meaning ascribed thereto in Section 16.10.
“Third Party Terms” means the then-current terms specific to one or more Third Party Services as stated at https://www.fleetcomplete.com/legal/third-party-terms/, as may be amended from time to time, and which are incorporated herein by reference.
“User” means an employee or contractor of Client.
“Vehicle” means a vehicle or mobile asset that is connected to and activated on the Service.
“Vehicle Operator” means a natural person who uses or operates a Vehicle.
“Work Order Data” means Client Data that relates to an order for services or deliveries that was dispatched from or to a Subscriber using the Courier Complete® component of the Service.
“You”, “Your” has the meaning ascribed thereto in the preamble.
2. LICENSE GRANTS
2.1 Service License. Subject to the terms and conditions of this EULA and payment of the applicable fees, during the Contract Term, FC hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to access and use (and to permit Users to access and use) (a) the Service and (b) the Documentation as reasonably necessary to support the Client’s permitted use of the Service for the number of Subscribers for which Client has purchased Subscriptions for ,as specified in one or more Order Form(s).
2.2 Restrictions; Client’s Representations, Warranties and Further Obligations.
You covenant, represent and warrant that you will not:
(a) make copies of the Service, Software and/or Documentation except as permitted in this EULA;
(b) reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the object code for the Service and/or Software in order to derive the source code from, or decode any passwords or encrypted license or installation keys that have been provided to You by FC in order to enable the execution of the Service and/or Software on unauthorized equipment, or for any other reason do or attempt to do any of the foregoing, except to the extent the foregoing restriction is expressly prohibited by applicable law;
(c) use the Service in violation of applicable laws, including Data Protection Laws;
(d) assign (by operation of law or otherwise) or transfer this EULA or Client’s interest in or rights under this EULA, or attempt to do so or enter into any agreement to do so with any other party, without the prior written agreement of FC, and any such assignment or attempted assignment shall be null and void and shall result in the automatic and immediate termination of this EULA;
(e) knowingly interfere with service to any of FC’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing;
(f) create any “links” to or “frame” or “mirror” of the Service and/or the Software, or any portion thereof, except when using FC provided APIs;
(g) make the Service, Software and/or Documentation available on a server that can be accessed via a public network, such as, for example and without limitation, the Internet, in a manner that allows the Service, Software, and/or Documentation to be copied by any third party;
(h) defeat, disable or circumvent any protection mechanism related to the Service;
(i) except as expressly provided herein, or unless expressly authorized by FC in writing, sublicense, distribute, transfer, loan, use, lease or otherwise make available the Service, Software and Documentation, or any part thereof, to any third party;
(j) remove or obscure any copyright notices, trade-marks, or any other proprietary legends and/or logos of FC or its licensors appearing on the Service, Software and/or the Documentation;
(k) upload or transmit any Client Data that: (i) Client does not have the lawful right to copy, transmit, distribute, and display; or (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
2.3 Third Party Services. The Service includes code, content, features, functionality, components, software, products, services or other materials that are owned or provided by third parties and are incorporated into or accessible through the Service (“Third Party Services”). Unless Client is required to accept and agree to an end user license agreement or terms of service for a Third Party Service in order to access and use such Third Party Service or the Third Party Services are subject to the applicable provisions of the Third Party Terms, FC hereby grants a fully paid, royalty free sublicense to Client to use each such Third Party Service solely in connection with its use of the applicable FC Service. If such Third Party Services are subject to their own terms and conditions presented to You for acceptance within the Services by website link or otherwise and if You do not agree to abide by such applicable terms for any, then you should not install, access, or use such Third Party Services.
2.4 Evaluation License. If You are evaluating the Service, FC hereby grants to You, free of charge, a non-exclusive, non-transferable, limited-term license (the “Evaluation License”) to use the Service solely for internal testing and evaluation. You shall not publish any results of benchmark tests run on the Service or disclose its features, errors or bugs to a third party without FC’s prior written consent. During the term of the Evaluation License FC shall be under no obligation to provide any technical support; provided however, that FC may in its sole discretion fix reported errors and provide You with support and consultation concerning the Service.
2.5 Reservation of Rights. This EULA does not constitute a sale of the Software. Client is granted no title, ownership or intellectual property rights in or to the Service, Software or Documentation, in whole or in part. FC reserves all rights not expressly granted to Client in this EULA. Except for the limited rights and licences expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Service, Software or Documentation and all such rights shall remain in FC and/or in licensors.
2.6 Employees and Others. Client shall use commercially reasonable efforts to ensure, through contractual or other means, that any and all its employees, or other persons who use the Service, comply with the terms and conditions of this EULA, including but not limited, with obligations and restrictions stated in Section 2.2 above. Client is and shall remain fully liable for any breach of this EULA due to any actions or inactions, by the employees or other persons using the Service on behalf of Client.
3.1 Term. This Subscription license is effective upon the Provisioning Date as defined in the applicable Master Subscription Service Terms and shall remain in effect for the Contract Term.
3.2 Termination. Termination rights are as outlined in the applicable Master Subscription Service Terms located at: https://www.fleetcomplete.com/legal/na-master-subscription-service-terms/.
3.3 Obligations on Termination. Upon the termination of this EULA and/or the Agreement, (a) FC shall, upon Client’s written request, return to Client all Work Order Data and will have the right to terminate Client’s access to and use of the Service without any liability to Client; and (b) Client shall forthwith discontinue the use of the Service.
4. CLIENT REQUIREMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Desktop Requirements. Client agrees that desktop or laptop computers that run the Service will have the Windows 7 operating system, the latest .NET framework, a minimum of 4GB of RAM and Internet Explorer 9 or greater.
4.2 Client Equipment. Client is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Client to access and use the Service, and for all expenses relating thereto. Client agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures that may be issued by FC from time to time.
4.3 Client Indemnity. Client shall defend, indemnify and hold FC and its directors, officers, shareholders, partners, employees, related parties, representatives and successors and FC’s affiliates and their respective directors, officers, shareholders, partners, employees, related parties, representatives and successors (“FC Group”) harmless from and against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against the FC Group by a third party based on, relating to or caused by: (a) a breach of its representations, warranties and obligations in Sections 2.2, 5.2, 6 and/or 7, or (b) a breach of any Data Protection Laws by Client in relation to the collection of Personal Information by Client from Vehicle Operators.
5. CLIENT DATA
5.1 Ownership. As between FC and Client, Client exclusively owns all rights, title and interest in and to all Client Data. FC does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client Data; provided that Client hereby instructs FC and grants to FC the right and license to use, process and transmit Client Data as reasonably required by FC, FC’s licensor’s and/or Client’s reseller for the purposes of providing the Service, including the provision, administration, troubleshooting and improvement of the Service or as required by applicable law.
5.2 Vehicle Operator Notice and Consent. Client shall, prior to each Vehicle Operator’s use of a Vehicle connected to and activated with the Service: (a) inform such Vehicle Operator of Client’s use of the Service and any Third Party Services and related Third Party Terms, including the resulting collection, use and disclosure to FC and any reseller by Client and/or Third Party Service providers of any and all Client Data, including Telematics Data and Personal Information relating to such Vehicle Operator and the Vehicle; (b) obtain such Vehicle Operator’s express consent (or ensure the existence and applicability of any other valid legal ground as appropriate under the Data Protection Laws) to such use of the Service, Third Party Services and related Third Party Terms, Client Data, Telematics Data and Vehicle Operator Personal Information, in accordance with applicable Data Protection Laws; (c) if consent is used as a legal basis under the Data Protection Laws, create employment conditions whereby consent is provided freely and not under any fear of reprisals or disadvantage for not consenting; and, (d) ensure that the use of a Service by a Vehicle Operator complies with all applicable laws including relating to employee surveillance, including any notification requirements, and the Client shall be permitted to affix any appropriate notice to the exterior of the Hardware and within view of Vehicle Operator’s and any passengers to the extent that such notice is required by law.
5.3 Database Backup. A complete backup of the Client’s database of Client Data compiled through the use of the Service will be stored to a file on the FC Servers every twenty-four (24) hours. Once every thirty (30) days a copy of the latest complete backup file will be transferred and stored in a fire retardant safe at a secondary site which is a different address from where the production version of Client’s database is located.
5.4 Data Storage and Retention. FC will retain the Client Data during the term of this EULA in accordance with the terms of this EULA. If and to the extent that Fleet Complete retains Client Data, such data shall be retained in accordance with applicable Data Protection Laws (“Retention Period”). Upon Client’s request, which may be made at any time and from time to time during the applicable Retention Period, FC will make available for secure retrieval by Client all Client Data then in FC’s possession at FC’s then current rate for data retrieval. In the event that Fleet Complete is required, by law or in a judicial or other governmental investigation or proceeding, to disclose Client Data, Fleet Complete may, to the extent reasonably possible, provide Client with written notice of the compelled disclosure and shall be entitled to recover from Client any and all costs and expenses related to the disclosure or disclosure process, which shall be due and payable by Client within thirty (30) days of the issuance of the invoice for same by Fleet Complete.
5.5 Rights in Derivative Data. Client acknowledges and agrees that the Service generates, compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Service, assist in the delivery of Support Services, and for the creation of new products and services. Client hereby grants to FC a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license (with the right to sub-license) to collect, process and aggregate Client Data, including Telematics Data and other such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto (other than re-identification) and derivatives (“Derivative Data”) for traffic information, journey data analysis, mapping, fleet and industry benchmarking, to understand usage, improve the Service and Support Services, develop new products and services, and for any other business purpose. This Derivative Data is no longer associated with Client, Client Vehicles or Vehicle Operators and as such is not Client Data. FC may transfer, license or assign any of its rights in the Derivative Data to any third party.
5.6 Suspension of Access. In addition to any termination rights of FC pursuant to this EULA and/or the Agreement, extraordinary circumstances may require FC to suspend or terminate (where appropriate), as determined in FC’s reasonable discretion, Client’s access to and/or use of, or otherwise modify, the Service and/or any component thereof in order to: (a) prevent material damages to, or material degradation of the integrity of, FC’s network; or (b) comply with any law, regulation, court order, or other governmental order. FC will notify Client of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, FC will limit such suspension to that which is minimally required and will promptly restore Client’s access to the Service as soon as the event giving rise to the suspension has been reasonably addressed (including by Client agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this EULA and/or the Agreement by Client (including any action taken by an affiliate of Client or any User that would constitute a breach of this EULA and/or the Agreement by Client): (i) all fees related to the Service Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived fees which have been pre-paid shall be refunded to Client; and (ii) in the event of a termination in connection with this section 5.4, Client shall receive a refund of any and all prepaid fees.
6. Protection of Personal Information
6.1 Client is Data Controller. In relation to all Personal Information provided by or through Client to FC under this EULA, Client will at all times remain the Data Controller and will be responsible for compliance with all applicable Data Protection Laws. Client warrants that it collects Personal Information lawfully, including with express, unambiguous and informed consent, or pursuant to another legal basis for the collection of Personal Information, as allowed under the Data Protection Laws. To the extent that FC processes Personal Information in the course of providing the Service and related services under this EULA, it will do so only as a Data Processor acting on behalf of the Client (as Data Controller) and in accordance with the requirements of this EULA.
6.2 FC’s Processing of Personal Information. FC shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. FC shall only Process Personal Information on behalf of and in accordance with Client’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the EULA; (ii) Processing initiated by Client, and its Users and Vehicle Operators in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Client where such instructions are consistent with the terms of the EULA.
6.4 Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident“) and where required by applicable law FC will (a) promptly notify Client of the Security Incident; (b) investigate or perform required assistance in the investigation of the Security Incident and provide Client with detailed information about the Security Incident; (c) take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Client in doing so; and, (d) provide prior notice to Client of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Client’s prior written approval, not to be unreasonably withheld, conditioned or delayed, except where such communications is required by law (including Data Protection Laws), in which case FC will where permitted by applicable law notify Client promptly following communication to any government agency, body or authority. FC will comply with this Section 6.4 at FC’s cost unless the Security Incident arose from Client’s negligent or willful acts or FC’s compliance with Client’s express written instructions.
6.5 Data Processing EULA. Where required by applicable law or Fleet Complete, Fleet Complete and Client will enter into a separate data processing agreement governing the processing and protection of Personal Information by Fleet Complete during the provision of the Service to the Client.
7. CLIENT CONFIDENTIALITY OBLIGATIONS
The Service, in particular the Software, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of FC and/or its licensors (the “Confidential Information“), the unauthorized disclosure of which would cause irreparable harm to FC and/or its licensors. Client shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. Client shall not use, reproduce or distribute the Confidential Information other than for the purposes authorized by this EULA. This confidentiality obligation shall continue to apply to the Confidential Information following the termination of this EULA, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which: (i) was known by Client prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Client by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Client shall give all reasonable prior notice to FC to allow it to seek protective or other court orders.
8. LIMITED WARRANTY
8.1 Service Warranty. FC warrants that the Service will perform substantially in accordance with the Documentation or other specifications published by FC during the Contract Term. FC does not warrant, however, that Client’s use of the Service will be uninterrupted, that the operation of the Service will be error-free, that the Service will meet Client’s requirements or that all errors will be corrected.
8.2 Warranty Exclusions. To the full extent permitted by applicable law, this warranty shall not apply if the Service is used on or in conjunction with hardware or programs other than the unmodified version of the hardware and programs with which the Service is designed to be used as described in the Documentation.
8.3 No Warranty for Evaluations. IF CLIENT IS EVALUATING THE SERVICE THEN THE SERVICE AND DOCUMENTATION IS PROVIDED TO CLIENT BY FC ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND.
8.4 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 8, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, USAGE OF TRADE OR COURSE OF DEALING. FC DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE. FC DOES NOT OTHERWISE WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8.5 Internet Connectivity Disclaimer. FC makes the Service available for access via the Internet. Client shall provide, at Client’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Client acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to the Service or performance hereunder. Except as expressly set forth herein, Client agrees that FC is not responsible for any interference with Client’s use of or access to the Service to the extent caused by, arising from or attributable to the Internet.
9. TELECOMMUNICATIONS CARRIERS AND GPS
9.1 The Client acknowledges that communication services used in the provision of the Service are provided by third parties and the Client specifically acknowledges and agrees to the following:
(a) Client acknowledges that the Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission networks. Client agrees that FC shall not be responsible for such interruptions of Service or the inability to use the Service.
(b) FC may temporarily suspend or permanently terminate the provision of some or all of the Service upon little or no notice in the event that Client violates a telecommunications carrier’s acceptable use policy or other network rules and policies.
(c) There must be a relatively clear “line of sight” between the GPS antenna and four (4) or more satellites. Objects, such as buildings, overpasses, and other obstructions (such as parking in garages or underground structures) that shield the antenna from a satellite can potentially weaken a satellite’s signal such that it becomes too difficult to ensure reliable and/or accurate positioning. These difficulties are particularly prevalent in densely urban areas.
10. IP INFRINGEMENT INDEMNIFICATION
10.1 FC Indemnity. FC will defend and indemnify Client (including its employees, contractors, officers and directors) against fines, penalties, losses, costs, damages, injuries, claims, liabilities, settlements and expenses (including reasonable legal fees and expenses) arising from third party claims that the exercise of the rights granted hereunder infringes any third party patent, copyright, or trade secret (“Infringement Claim Liabilities”).
10.2 Conditions to Indemnity. As a condition of such obligation to defend and indemnify the Client pursuant to Section 10.1 , Client shall give FC prompt written notice of any such claim, and cooperate and provide, at FC’s expense, reasonable information and assistance in connection with the defense and settlement of such claims. FC shall have sole control of the settlement or defense of all infringement claims.
10.3 Exceptions. FC shall not be responsible for indemnifying Client to the extent that the infringement claim liability results from: (i) compliance with Client’s designs, specifications, or written instructions as requested and provided by Client to FC; (ii) modification by Client of the Software if such infringement would have been avoided but for such modification; (iii) the combination of Software or Service with equipment or software not authorized or provided by FC or otherwise approved by FC in the Documentation, if such infringement would have been avoided but for such combination; or (iv) the failure by Client to use an updated or current version of the Service provided by FC following notice by FC that the previous version of the Service infringes any third party intellectual property right.
10.4 Other Remedies. Without limiting the provisions of Section 10.1 above, and in addition thereto, when notified of an action or motion that seeks to restrict the exercise of any of the rights granted herein, FC may, (and in the case of a judgment, order or injunction that restricts the exercise of any of the rights granted herein, shall), in good faith, at its option and expense: (a) obtain the right for Client to exercise their rights in accordance with this EULA; (b) substitute other non-infringing software with equivalent functional capabilities; (c) modify the Service while retaining equivalent functional capabilities, so that it no longer infringes; or (d) if none of the foregoing are commercially feasible, as determined by FC in its sole discretion, terminate the license(s) for such Service and refund to Client that portion of any prepaid f fees that are applicable to the period following the termination of the license pursuant to this Section 10.4.
10.5 Exclusive Remedies. SECTION 10 CONTAINS FC’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIM LIABILITIES.
11. LIMITATION OF LIABILITY
11.1 Indirect Damages. EXCEPT FOR A THE OBLIGATIONS IN SECTION 4.3 OR CLIENT’S BREACH OF SECTION 5.2, 6 OR SECTION 7, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS EULA AND/OR THE AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
11.2 Direct Damages. THE TOTAL LIABILITY OF FC FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS EULA AND/OR THE AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT FC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, SHALL NOT EXCEED THE FEES PAID BY THE CLIENT TO FC FOR THE SERVICE HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
12. U.S. Government End-Users
The Software and Documentation is a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this EULA for the Service, Plug-in(s) and Documentation consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Service and related Documentation is further restricted by the terms and conditions of this EULA. Manufacturer is Complete Innovations Inc., 88 Queens Quay W #200, Toronto, Ontario, Canada, M5J 0B8.
13. Export Restrictions
The Service and related information are subject to export and import restrictions. By downloading, installing, accessing or using the Service, You are representing and warranting that You are not located in, under the control of, and are not a national or resident of, any country to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You are also representing and warranting that You are not an individual to whom the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Service and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Service or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Service shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service or related information.
14.1 Support Terms. Standard support is included in the Recurring Fees and is provided by FC in accordance with its then-current Support Terms. FC’s Support Terms are subject to change from time to time in FC’s sole discretion.
14.2 Exclusions. FC will only provide technical support for the Service and not in relation to any other supporting hardware or software. FC may assist Client in getting technical support and warranty service for hardware sold by FC or its partners.
15. CLIENT’S PURCHASE ORDER
Unless otherwise agreed to in writing by Client and FC or its authorized reseller or distributor, the acceptance of any Order placed by Client for the Service is expressly made conditional upon Client’s acceptance of and agreement to the terms and conditions contained in this EULA and the Agreement relating to the Service and FC agrees to furnish the Service only upon these terms and conditions and not on the terms and conditions contained in Client’s own order documents and/or terms and conditions. Any terms and conditions contained in Client’s order or other document issued by Client relating to this EULA and the Agreement that are inconsistent with the terms and conditions within this EULA and the Agreement are hereby rejected.
16. GENERAL PROVISIONS
16.1 Non-Disparagement. Client shall not indirectly or directly, disparage FC or any affiliated company, including after termination of this EULA and the Agreement.
16.2 Amendments. Client acknowledges and agrees that FC has the right, in FC’s sole discretion, to modify this EULA from time to time, and that modified terms become effective upon posting. Client will be notified of modifications through notifications or posts on www.fleetcomplete.com or via direct email communication from FC. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. FC will provide at least thirty (30) days’ advance notice of changes to existing Fees or the introduction of any new fees.
16.3 Assignment. Neither Party may assign the whole or any part of this EULA without prior written consent by both Parties. Notwithstanding the foregoing, either Party may assign this EULA or any of its rights or obligations hereunder to an affiliated entity or to a third party in connection with the sale of all or substantially all of the assigning Party’s business or assets relating to this EULA, whether by merger, sale of stock or shares, sale of assets, or otherwise, without the prior written consent of the other Party, provided that the assignee agrees to assume all of the assignor’s obligations under this EULA.
16.4 Entire Agreement. This EULA and the Agreement constitutes the entire agreement between the Parties concerning the subject matter and supersedes and replaces any prior verbal agreements or other understandings, whether written or oral between the Parties.
16.5 Further Assurances. The Parties agree to execute such further documents and to perform such further acts, from time to time, as may be necessary or desirable to give full effect to the letter and spirit of this EULA. Any changes to this EULA must be authorized and agreed upon by both Parties and documented as amendments to this EULA.
16.6 Governing Law. If the Client is located in Canada, then this EULA is to be governed by and construed under the laws of the Province of Ontario. Otherwise, this EULA is to be governed by and construed in accordance with the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA or the transactions contemplated hereunder.
16.7 No Waiver. Any failure by any Party to exercise its rights, powers or remedies hereunder or any delay by such Party in the exercise of any of its rights and remedies hereunder shall not, to the extent permitted by law, operate as a waiver or variation of such or any other right or remedy hereunder.
16.8 Enurement. This EULA shall be binding upon and enure to the benefit of the respective Parties hereto, their heirs or legal representatives, successors and permitted assignees.
16.9 Language of the EULA. The Parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any translation has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the Parties.
16.10 Third Party Sites. The Service may contain links to other websites and applications provided by independent third parties (“Third Party Sites”). Where possible, FC will make clear where such links are being made, though Third Party Sites may be co-branded with FC and include the FC’s trademark(s). The Client acknowledges that FC has no authority or control whatsoever over Third Party Sites, and is not responsible for the availability or content of Third Party Sites and will not be a party to, or liable or responsible in any way for, any information, declaration, misrepresentations, errors, omissions or any transaction concerning goods or services available from such Third Party Sites, and Client’s rights and obligations will solely depend upon the terms and conditions stated in such Third Party Sites.
16.11 Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to FC by mail, email, telephone, or otherwise, suggesting or recommending changes to the FC intellectual property rights, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), FC is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to FC on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and FC is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback (and waives any moral rights thereto)for any purpose whatsoever, although FC is not required to use any Feedback.
16.12 Survival. Provisions of this EULA, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this EULA including, but not limited to, the following provisions: Sections 1, 2.5, 4.3, 5, 7, 8, 11 and 16.
16.13 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on in the Order document (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.14 Severability. If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.15 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this EULA shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16.16 Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under Section 2 or Section 7 or both would cause FC and its affiliates irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, FC will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16.17 Interpretation. In this EULA, unless a contrary intention appears: (i) the terms, “hereof”, “hereunder” and similar expressions refer to this EULA and not to any particular portion hereof and include any EULA supplemental hereto; (ii) words importing a singular number only shall include the plural and vice versa; (iii) the term “including” means “including without limitation”; (iv) other grammatical forms of defined words or expressions have corresponding meanings; (v) a reference to an article, section, document or EULA, including this EULA, includes a reference to that section, document or EULA as amended from time to time, as permitted hereunder; and, (vi) the division of this EULA into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this EULA. This EULA shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
[END OF EULA]
Last updated: April 20, 2022