1. INTRODUCTION. These Master Terms and Conditions (the “Agreement”) shall apply to any quote, invoice, Statement of Work, and Sales Order issued by Digital Fleet, LLC (“Digital Fleet”) and shall govern: (i) the provision of any Services by Digital Fleet to the Customer; (ii) the supply of any Hardware by Digital Fleet to Customer; (iii) the licensing of any Software by Digital Fleet to Customer; (iv) Customer’s payment obligations; (v) the use of any Hardware, Software, or Services by Customer; and (vi) all other terms and conditions applicable to the relationship between Digital Fleet and the Customer.
2. DEFINITIONS. For the purposes of this Agreement, the following words and phrases shall have the following meanings: (a) “Customer” has the meaning ascribed to it in the Statement of Work; (b) “Delivery Schedule” means the agreed upon delivery dates and associated delivery information set forth in the Statement of Work; (c) “Hardware” means the computer systems, tablets, modems, equipment and related accessories provided by Digital Fleet to Customer and each as described on the Statement of Work, to be purchased or leased in the quantities set out in the Statement of Work; (d) “Hosting Services” means the hosting of the Software, maintaining and storage of files and all data transmitted from the Hardware to Digital Fleet, including the display of the data, as selected by Customer, on the Platform; (e) “Invoice” means the itemized bill for the Hardware, Software, and/or Services provided by Digital Fleet in accordance with the Statement of Work; (f) “Platform” means Digital Fleet’s online internet based application that tracks, via Wireless Data Network Providers, the movement and location of equipment upon which Hardware has been installed; (g) “Sales Order” means the document issued to Customer by Digital Fleet, from time to time in conjunction with this Agreement, at the time Digital Fleet delivers the requested Hardware, Software, or Services to Customer. Each Sales Order shall be in writing and shall act as an official receipt for Customer, detailing the: (i) quantity and type of Hardware delivered; (ii) Services ordered; (iii) Service Plan ordered; (iv) price; (vi) applicable Statement of Work; and/or (vii) lease term length, for leased Hardware (“Lease Term”); (h) “Services” means the Platform, the Service Plan any ancillary services (i.e. testing and commissioning, wireless cellular service, satellite service, installation, training, and maintenance) that may be provided by Digital Fleet in conjunction with the provision of any Hardware hereunder, including any Hosting Services; (i) “Service Plan” means the cellular airtime data plan or satellite data plan from a Wireless Data Network Provider, selected by Digital Fleet, for use in connection with the Hardware; (j) “Software” means the Platform, the Firmware and any other similar software or services Digital Fleet may offer to Customer from time to time; (k) “Firmware” means the software installed on the Hardware which will communicate with the Platform; (l) “Wireless Data Network Provider” means: (i) a cellular data network provider used to send current position and other data associated with the Hardware, including without limitation, GPRS/GSM, CDMA, 3G, 4G LTE, and 5G networks; and/or (ii) a satellite data network provider used to send current position and other data associated with the Hardware; (m) “Statement of Work” means the document, in a format provided by Digital Fleet, detailing the business relationship between Digital Fleet and Customer, including, but not limited to, the Hardware, Software, and Services requested by Customer, and the agreed-upon pricing schedule for same; (n) “Term” means the period of time commencing on the effective date of the Statement of Work and ending on the expiration or termination of such Statement of Work.
3. PREVAILING TERMS. Each Statement of Work and Sales Order shall be governed by the terms and conditions of this Agreement. A Statement of Work may be amended, from time to time, when agreed to in writing by Digital Fleet and Customer. Furthermore, in the event of a conflict between the terms or conditions of the various agreements, the following order of authority shall apply for determining which agreement’s term or condition supersedes and governs: (1) Sales Order, (2) Statement of Work, and (3) this Agreement. Furthermore, without exception, each Statement of Work is subject to acceptance by Digital Fleet and shall not be binding upon Digital Fleet unless and until Digital Fleet has signed same.
4. PAYMENT. Customer shall, without exception, pay to Digital Fleet the negotiated price for any Hardware, Services, licenses to use the Software, and such related expenses, as described in any Statement of Work. Prices listed in such Statement of Work exclude any applicable tax and it shall be Customer’s sole responsibility to pay any such applicable taxes. Digital Fleet shall provide an Invoice to Customer for Hardware purchased or leased, Services ordered, or licenses requested for use of the Software supplied to the Customer; all such Invoices shall be paid by Customer on or before the due date identified on the Invoice, or within fifteen (15) days of their issuance if no due date is identified. Any overdue amounts shall bear interest, from the date payment was due until such payment is made, at the rate of ten percent (10%) per annum, or at the highest rate permitted under applicable law. Customer may not withhold, set off, or reduce any payments due to Digital Fleet for any reason. At any time, Digital Fleet shall have the right to adjust the price for any Hardware, Services, licenses to use the Software, and such related expenses, as described in any Statement of Work, by providing the Customer with at least ninety (90) days’ advance written notice of same. During the ninety (90) day period following such notice (“Price Adjustment Period”), Customer shall have the right to accept or reject the adjusted price proposed by Digital Fleet by providing Digital Fleet with written notice of Customer’s acceptance or rejection. Should Customer not provide Digital Fleet with a written acceptance or rejection prior to the end of the Price Adjustment Period, same shall constitute acceptance of the adjusted price by Customer. Should Customer provide Digital Fleet with a written rejection prior to the end of the Price Adjustment Period, the applicable Statement of Work shall terminate and be of no further force or effect on the last day of the Price Adjustment Period.
5. HARDWARE. Digital Fleet shall supply any Hardware, identified in the Statement of Work, in accordance with the provisions of this Agreement. Customer will initiate each shipment of the Hardware by submitting a request to Digital Fleet in the format or manner required by Digital Fleet. Unless otherwise agreed to in writing by the parties, it shall be Customer’s sole responsibility to ensure the proper installation of the Hardware. Issues related to compatibility and/or connectivity between the Hardware and Customer’s vehicles shall remain Customer’s sole responsibility to resolve.
6. SOFTWARE. Digital Fleet may, in its sole discretion, provide periodic updates, upgrades, or enhancements to the Software (collectively, “Updates”), from time to time. To access certain Updates, including but not limited to Updates that add new features to the Software, Customer may be required, in Digital Fleet’s sole discretion, to pay an additional fee. Customer expressly acknowledges and agrees that all Software and any related or underlying code, data, results, findings, documents, developments, updates, upgrades, reports, or other original work developed, produced, or created by Digital Fleet (collectively, “Work Product”) is the sole and exclusive property of Digital Fleet. Except as otherwise provided herein, no right or license, whether express or implied, to any Work Product or any other intellectual property of Digital Fleet is granted to Customer. Should Customer acquire any right, title or interest in or to any Work Product or intellectual property of Digital Fleet, Customer hereby irrevocably assigns such right, title or interest to Digital Fleet without additional consideration.
7. DELIVERY. Digital Fleet shall provide for the delivery of Hardware in accordance with Delivery Schedule set forth on the applicable Statement of Work. Digital Fleet shall use reasonable efforts to fulfil a Sales Order within the applicable Delivery Schedule, however Digital Fleet shall not be liable for any delays or any failure to meet an applicable Delivery Schedule. Digital Fleet shall select the method of carriage for the Hardware, and all costs of shipping and handling shall be borne by Customer. Hardware may be delivered in one or more shipments.
8. TITLE AND RISK OF LOSS. If Customer is purchasing Hardware, title and risk of loss to such Hardware shall pass to Customer upon its delivery to the carrier selected by Digital Fleet to deliver the Hardware, as described herein. If Customer is leasing Hardware, title shall remain with Digital Fleet, however, risk of loss shall pass to Customer upon its delivery to the carrier selected by Digital Fleet to deliver such Hardware, as described herein.
9. LIMITED LICENSE. Digital Fleet shall grant to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license permitting Customer to use the Software, identified in the Statement of Work, exclusively for Customer’s internal business purposes (collectively, the “Limited License”). The term of the Limited License shall begin on the effective date listed in the Statement of Work and terminate on the date that the applicable Statement of Work expires or is terminated. The Customer’s Limited License is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Digital Fleet with respect to future functionality or features. All rights not expressly granted to Customer under this Agreement are reserved by Digital Fleet.
10. LICENSE RESTRICTIONS. Customer shall not and will ensure that its users shall not: (i) rent, lease, license, sell, resell, assign, distribute, or otherwise disclose or transfer the Software to any third party; (ii) reverse engineer, decompile, translate, disassemble, or attempt to derive source code from the Hardware, Software or any component thereof; (iii) copy, reproduce, modify, sell, sublicense, market, translate, create derivative works based on or commercially exploit or make available the Hardware, including any Software or documentation, to any Person other than as expressly contemplated by this Agreement; (iv) remove any proprietary notices from the Hardware or Software; (v) publish or disclose to third parties any evaluation of the Software without Digital Fleet’s prior written consent; (vi) provide an access code for the Software to any unauthorized third party other than as contemplated by this Agreement; or (vii) use the Software for any purpose other than using Customer’s own data in connection with the Hardware and solely for Customer’s internal business purposes in accordance with this Agreement.
11. CUSTOMER DUTIES AND RESPONSIBILITIES. Except as otherwise agreed to in the Statement of Work, Customer shall be responsible for maintaining all computer hardware, software and communications equipment required on Customer’s end to internally access the Platform, and for paying all third party access charges (e.g., telecommunications, internet service providers, etc.) incurred by Customer while using the Software (to the extent not otherwise agreed, in writing, to be paid by Digital Fleet). Customer shall also be solely responsible for its actions, and the actions of its users, while using the Software, and the contents of its transmissions to the Platform. From time to time third-party vendors of Customer may make changes to their dispatch systems which may impact the functionality of the Software; Digital Fleet will work with Customer to resolve issues that may affect the functionality of the Software, however, Customer agrees to reimburse Digital Fleet for its time and materials when such functionality issues are caused by third-party vendors of Customer. Furthermore, Customer hereby agrees: (i) to abide by all laws and regulations applicable to Customer’s use of the Software and Hosting Services, including, but not limited to, any laws regulating the operation of motor vehicles; (ii) to comply with all regulations, policies and procedures of networks connected to the Hosting Services (iii) not to upload or distribute any files that contain viruses, trojan horses, spyware, malware, or any other similar software or programs that may damage the operation of the Software or the Hosting Services; (iv) not to disrupt or interfere with the networks connected to the Hosting Services; (v) to refrain from installing any third-party applications to any Hardware without Digital Fleet’s express permission (in the event such third-party applications are installed on any Hardware, Digital Fleet shall not be responsible for ensuring such applications are updated or are free from any security issues or other bugs); (vi) not to use the Hardware, Software or Hosting Services for any illegal or immoral purposes (vii) not to post, promote or transmit through the Software or Hosting Services any unlawful, libelous, abusive, harassing, vulgar, threatening, hateful, harmful, obscene, racially, ethnically or otherwise objectionable material of any kind or nature; and (viii) not to transmit/post material through the Software that encourages criminal conduct or conduct that could give rise to civil liability. Customer understands and agrees that the Hardware, Software and/or Services may be used as a tool to aid Customer in maintaining compliance with laws and regulations governing Customer, however, such Hardware, Software and Services do not guarantee Customer’s compliance with any laws and regulations governing Customer, and Digital Fleet shall not be responsible for monitoring or ensuring Customer’s compliance with any laws and regulations which govern Customer, including, but not limited to, any electronic logging device requirements.
12. HOSTING SERVICES. Customer acknowledges that additional terms and conditions may apply to any Hosting Services for the Platform provided by Digital Fleet or its third-party provider. Customer acknowledges that use of or connection to the internet provides the opportunity for unauthorized third parties to illegally gain access to the Software and data of Digital Fleet or Customer, despite any security precautions in place. Therefore, Digital Fleet does not guarantee the security, privacy, or authenticity of any information so transmitted over the internet.
13. DIGITAL MAPS. Customer acknowledges that map data, including speed limit data and routing directions, may contain inaccurate or incomplete information due to the sources used, passage of time, changing circumstances, and the nature of collecting comprehensive geographic data. Customer further acknowledges that satellite imagery, map data, and other information or content included as part of the Services are provided by Digital Fleet or its third-party provider, and additional terms and conditions may apply to such Services.
14. CUSTOMER DATA. Customer shall own all of Customer’s data or information, and all variations of such data, collected and transmitted by the Hardware to the Platform, including client lists and names (collectively “Customer Data”). Except as otherwise allowed herein, Digital Fleet will not disclose, edit, or delete the contents of Customer Data unless: (i) Digital Fleet receives Customer’s authorization; (ii) Digital Fleet is required to do so by law; (iii) it is necessary to protect and defend the rights or property of Digital Fleet; (iv) it is necessary to enforce this Agreement; or (v) the Customer Data is more than 1 year old, at which time it will automatically be deleted (except for daily vehicle inspection reports, or DVIR data, which shall be deleted every ninety (90) days). Notwithstanding same, Digital Fleet shall be permitted to use Customer Data in an aggregated form to improve Digital Fleet’s products and/or services. Digital Fleet assumes no responsibility for, nor shall Digital Fleet have any liability for, the deletion, correction, destruction, loss, infringement or failure of the Platform or Hosting Services to store any Customer Data, regardless of the cause. Customer shall be responsible for maintaining an archive or back-up copy of all Customer Data. Digital Fleet may establish a maximum amount of Customer Data that Customer may store, post or transmit on or through the Hosting Services to the Platform. Except as otherwise provided herein, Digital Fleet shall retain Customer Data until thirty (30) days after the expiration or termination of applicable Sales Orders or, in the case of client lists and names, when Customer transmits new client lists and names to Digital Fleet (the “Data Deletion Date”). After the Data Deletion Date, Digital Fleet may delete and destroy all Customer Data without notice or further liability to Customer. During the Term up until the Data Deletion Date, Customer may request that Digital Fleet conduct a mass export of Customer Data from time to time, and Digital Fleet agrees to provide such services at its then current rates on a time and materials basis. Notwithstanding the foregoing, Digital Fleet reserves the right to terminate Customer’s access to data if Customer breaches this Agreement.
15. CONFIDENTIAL INFORMATION. Confidential information means any information and data that is confidential by its nature including without limitation technical, commercial, financial, marketing, operational or strategic information related to the business of a party, on any verbal, visual or written medium, whether it is marked confidential or restricted or not (“Confidential Information”), that is communicated by a party (the “Disclosing Party”) to the other party (the “Recipient”) during the Term or a Renewal Term, and that the Disclosing Party desires for the Recipient to keep confidential and use only for the purpose of applicable Sales Orders. The Confidential Information shall at all times remain the property of the Disclosing Party. The Recipient shall keep the Confidential Information confidential using the same level of care that Recipient affords its own confidential information and, in any case, no less than a reasonable standard of care. The Recipient shall confine distribution of the Confidential Information within its organization to those individuals who have a need to know. No restrictions apply to any information that is independently developed or acquired by the Recipient without breach of this Agreement; was already known to the Recipient on a non-confidential basis; is lawfully received from another source without breach of any confidentiality obligation; becomes a matter of public knowledge without breach of this Agreement; or is required to be disclosed by operation of law or by order of any court or governmental authority. The obligations contained in this Agreement shall continue for a period of two (2) years following the expiration of the Term or a Renewal Term whichever occurs later, provided that with respect to any matter that is a trade secret, such information shall remain confidential information and subject to the obligations herein for so long as such information remains a trade secret.
16. SERVICE PLAN. Customer understands that the Hardware will not operate without a Service Plan. When specified by the Statement of Work, Digital Fleet shall provide the Service Plan through a Wireless Data Network Provider selected by Digital Fleet. When specified by the Statement of Work, Customer shall pay for all costs with respect to such Service Plan, including all related costs incurred by Digital Fleet.
17. FORCE MAJURE. In the event that either party is delayed in or prevented from performing its obligations (except for Customer’s obligations to pay Digital Fleet) under the Statement of Work, due to a Force Majure Event then, upon written notice to the other party: (a) the affected obligations under the Statement of Work will be suspended to the extent necessary during the period of the Force Majure Event, and (b) the notifying party will not have any liability in connection with such suspended obligation. For purposes of this Agreement, a “Force Majure Event” means an event beyond its reasonable control, including an act of God, fire, flood, explosion, public health emergencies, communicable disease outbreak, general Internet outages, outages caused by the Wireless Network Data Provider or hosting provider, civil disorder, strike, lockout or other labor trouble, material shortages of utilities, delay in transportation, destruction or damage to production facilities breakdown or accident, any law, ruling, judgment, demand or requirement of any governmental authority, riot, war, or other cause beyond the reasonable control of the applicable party.
18. TERMINATION. Except as otherwise specified in the Statement of Work, a Lease Term (or, as applicable, Renewal Term) will automatically renew for additional periods equal to the expiring Lease Term/Renewal Term (each, a “Renewal Term”), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Lease Term/Renewal Term. Except as otherwise provided herein, this Agreement, or the Statement of Work, may be terminated as follows: (a) by either party for material breach upon thirty (30) days’ written notice to the other party (the “Breaching Party”) specifying the nature of the breach (the “Breach Notice”) and if such breach has not been substantially cured within forty five (45) days after receipt of such Breach Notice by the Breaching Party. During the forty five (45)-days cure period, each party will continue to perform its obligations under this Agreement; (b) by Digital Fleet immediately if Digital Fleet does not receive any payment hereunder when due and such non-payment continues for sixty (60) days following Digital Fleet’s demand for payment in writing; (c) by either party upon thirty (30) days prior written notice if the other Party becomes unable to pay its debts in the ordinary course of business; goes into liquidation (other than for the purpose of a genuine amalgamation or restructuring); has a receiver appointed over all or part of its assets; enters into a composition or voluntary arrangement with its creditors; or any similar event occurs in any jurisdiction, all to the extent permitted by law; (d) by Digital Fleet, by giving Customer written notice, if Digital Fleet is delayed in or prevented from performing an obligation under this Agreement or applicable Sales Orders for a period longer than two (2) months in duration due to a Force Majeure Event; or (e) during any Renewal Term, by Digital Fleet, for convenience and without cause on ninety (90) days’ prior written notice to the Customer.
19. BREACH AND TERMINATION. In the event of a breach of this Agreement by Customer: (a) Digital Fleet may immediately terminate this Agreement (and any related Statement of Work) and declare the entire balance of all money due to Digital Fleet, including any money due to Digital Fleet for the remainder of the current Lease Term/Renewal Term, immediately due and payable; (b) Customer shall reimburse Digital Fleet for all costs and expenses incurred in providing Hardware and Services, including all costs and expenses incurred prior to termination but paid after the termination date and promptly return to Digital Fleet any leased Hardware; and (c) with respect to leased Hardware not promptly returned, Digital Fleet may enter upon any premises where the Hardware is located, and without notice or demand, remove such Hardware, whether with or without process of law. Customer understands that the foregoing is not to be considered liquidated damages, but the reasonable costs owed to Digital Fleet in the event of a breach. In the event the Statement of Work is terminated in accordance with this Agreement for a reason other than a breach, Customer shall pay for all Hardware and Services performed or delivered up to the date of termination. Regardless of the reason for termination, Customer shall pay for all actual costs, including time spent by personnel of Digital Fleet and any Digital Fleet affiliate incurred to complete activities associated with the termination and close-out of affected Hardware or Services, including the fulfillment of any applicable regulatory requirements. Upon termination of the Statement of Work, each party shall promptly return to the other or, at the other party’s request, destroy any Confidential Information of the other party (except data on tape backups which need to be destroyed in accordance with a Parties document retention policies), in all forms and types of media.
20. LIMITATION ON DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO CIRCUMSTANCES SHALL DIGITAL FLEET BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OF DATA, COSTS OF SUBSTITUTE GOODS, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF REPRESENTATION OR WARRANTY, BREACH OF CONTRACT, IN TORT, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF DIGITAL FLEET HAS BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE. DIGITAL FLEET’S TOTAL LIABILITY ARISING IN ANY WAY FROM THIS AGREEMENT OR STATEMENT OF WORK SHALL NOT EXCEED THE AMOUNT PAID TO DIGITAL FLEET BY CUSTOMER IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
21. DIGITAL FLEET REPRESENTATIONS. Digital Fleet represents and warrants to Customer that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and has full corporate or other power and authority and the legal right to (i) own and operate its property and assets, (ii) carry on its business as it is now being conducted and as contemplated in this Agreement and the Statement of Work, and (iii) enter into the Statement of Work governed by this Agreement and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver the Statement of Work and to perform its obligations hereunder, and the person or persons executing the Statement of Work on its behalf has or have been duly authorized to do so by all requisite corporate action; and (c) (i) this Agreement and the Statement of Work are legally binding upon it and enforceable in accordance with their terms, and (ii) the execution, delivery and performance of this Agreement and the Statement of Work by Customer does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, or violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
22. CUSTOMER REPRESENTATIONS. Customer represents and warrants to Digital Fleet that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and has full corporate or other power and authority and the legal right to (i) own and operate its property and assets, (ii) carry on its business as it is now being conducted and as contemplated in this Agreement and the Statement of Work, and (iii) enter into the Statement of Work governed by this Agreement and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver the Statement of Work and to perform its obligations hereunder, and the person or persons executing the Statement of Work on its behalf has or have been duly authorized to do so by all requisite corporate action; (c) (i) this Agreement and the Statement of Work are legally binding upon it and enforceable in accordance with their terms, and (ii) the execution, delivery and performance of this Agreement and the Statement of Work by Customer does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, or violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; (d) in connection with the installation and maintenance of the Hardware, installers may modify or alter, including without limitation drill holes, cut panels and body or rewire the equipment; and Digital Fleet will not be responsible for, nor make any assurances regarding, the possibility of ever restoring equipment to its unmodified or unaltered condition once Hardware is installed; (e) data collected by Hardware while out of cellular coverage may not be retrieved by Customer until connectivity is restored with the Wireless Data Network Provider and data is sent; (f) data collected by Hardware is not provided in real time and delays in receipt of data are normal; (g) Hardware should have an unobstructed view of the sky unless instructed otherwise by Digital Fleet; (h) Hardware may not operate in enclosed spaces, in buildings, between tall buildings, underground or in canyons; (i) as with any maps or driving directions, the Software will only be as up-to-date as provided by commercially available map data. For example, street addresses may be amended or updated and these items may not be included in the Software; (j) Hardware is not fault tolerant and are not designed, manufactured or intended for use in life support, emergency, mission critical or other hazardous activities (“High Risk Activities”); and (k) it will not use, or permit to be used, the Hardware for such High Risk Activities.
23. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold harmless Digital Fleet, its parents, subsidiaries, affiliates, officers, agents, owners, managers, and employees (collectively, the “Digital Fleet Family”) from any and all liability, claims, demands, actions, causes of action, loss, liability, property damage, injury or death to any person, damage or cost, including court costs and attorney fees, in any way arising out of or due to: (i) the Customer’s use of the Hardware and/or Software; (ii) any negligent act, intentional act, or omission of Customer, its directors, officers, employees, or agents; or (iii) any breach of this Agreement by Customer.
24. WARRANTY. All Hardware sold to Customer shall have a forty-five (45) day limited warranty, beginning on the date of the applicable Sales Order, against material defects found in the normal course of use for which the Hardware was intended. All Hardware leased to Customer shall have a limited warranty, beginning on the date of the applicable Sales Order until the end of the Lease Term (or, as applicable, Renewal Term), against material defects found in the normal course of use for which the Hardware was intended. In the event of a service claim for warranty work, Customer must provide Digital Fleet with a written description of the problem and the affected Hardware’s serial number (if applicable). If the described problem is covered by this warranty, as determined in Digital Fleet’s sole discretion, Customer shall send the Hardware, at Customer’s expense, to the address specified by Digital Fleet for repair or replacement, if ultimately found to be defective by Digital Fleet; if, however, upon receipt of the allegedly defective Hardware, it is determined by Digital Fleet, in its sole discretion, that the Hardware is not actually defective, such Hardware will be returned to the Customer, at the Customer’s expense. This warranty shall be null and void if it has been determined, in Digital Fleet’s reasonable discretion, that: (i) the defect was caused by incorrect installation by Customer; (ii) the Hardware was abused or tampered with; (iii) the Hardware was used in an environment that it was not designed for; or (iv) the Hardware was lost or stolen. Customer shall be liable to Digital Fleet for the cost of any damaged, lost, or stolen leased Hardware, to the extent not covered by the limited warranty described herein, in addition to the monthly hardware fee described in the applicable Statement of Work. The extent of Digital Fleet’s liability, and Customer’s exclusive remedy, shall be strictly limited to the repair or replacement of the affected Hardware in accordance with this Section. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DIGITAL FLEET FAMILY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, CREATED BY ANY DOCUMENTATION, PACKAGING OR WRITTEN OR ORAL REPRESENTATION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE DIGITAL FLEET FAMILY PROVIDES THE HARDWARE AND ALL SOFTWARE AS-IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
25. RELATIONSHIP OF THE PARTIES. There is no agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between Customer and Digital Fleet. Customer has no express or implied right or authority to assume or create any obligations on behalf of or in the name of Owner or to bind Owner to any contract, agreement, or undertaking with any third party.
26. GOVERNING LAW AND VENUE. Customer agrees that this Agreement and the Statement of work shall be construed in accordance with the laws of the State of Illinois without regard to its conflicts of laws principles. The sole and exclusive venue for any proceeding or action arising out of, or relating to, this Agreement or the Statement of Work shall be the state or federal courts located in Cook County, Illinois. Customer hereby irrevocably consents to the jurisdiction of the state or federal courts located in Cook County, Illinois.
27. WAIVER OF JURY TRIAL. Customer and Digital Fleet acknowledges and agrees that any controversy that may arise under this Agreement or the Statement of Work is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury with respect to any legal action arising out of or relating to this Agreement or the Statement of Work. Each Party certifies and acknowledges that: (i) no representative of the other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (ii) such Party has considered the implications of this waiver, (iii) such Party makes this waiver voluntarily, and (iv) such Party has been induced to enter into this Agreement or the Statement of Work by, among other things, the mutual waivers and certifications in this Section.
28. SEVERABILITY. In the event that any provision of this Agreement or the application of any such provision is held by a court or other tribunal to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
29. WAIVER. No waiver under this Agreement shall be effective unless it is in writing and signed by an authorized representative of the party making the waiver. Any waiver authorized on one occasion shall be effective only in that instance and only for the purpose stated, and shall not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between Customer and Digital Fleet.
30. ASSIGNMENT. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Digital Fleet, which consent may be given or withheld in Digital Fleet’s sole discretion. Digital Fleet may assign any of its rights or delegate any of its obligations to any person or entity. Notwithstanding same, this Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns. In the event Customer intends to sell all or substantially all of its assets or enter into a merger agreement with a third-party in which the ownership of Digital Fleet’s Software and/or Hardware is to be transferred or assigned to the third-party as part of an acquisition transaction, then 1) Customer shall provide written notice of the proposed transaction to Digital Fleet in accordance with paragraph 34, and 2) this Agreement and any and all Statement(s) of Work, together with all of their respective rights and obligations, shall be deemed transferred, assigned and assumed by the third-party upon the closing of the transaction. In the event Customer and the third-party do not desire to or otherwise do not transfer this Agreement and any and all Statement(s) of Work as part of the transaction, then Customer agrees to pay to Digital Fleet, not as a penalty but as liquidated damages, an amount of 70% of the contracted work remaining under any and all applicable Statement(s) of Work between Customer and Digital Fleet. Customer acknowledges that Digital Fleet would suffer significant monetary damages if any remaining Statement(s) of Work are terminated and not assigned to the acquiring third-party, that it is difficult to calculate and demonstrate the exact dollar value of monetary damages related to the termination of any and all remaining Statement(s) of Work, and that 70% of the amount of remaining work is a good faith and reasonable estimate of the damages that Digital Fleet would suffer from a termination of any remaining Statement(s) of Work.
31. NO THIRD-PARTY BENEFICIARIES. This Agreement benefits only the parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Customer understands and agrees that it has no contractual relationship with any underlying Wireless Network Data Provider.
32. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
33. AMENDMENTS AND MODIFICATIONS. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of Customer and Digital Fleet.
34. NOTICES. All notices given pursuant to this Agreement must be in writing and addressed or faxed to the other party as set forth in the Statement of Work (or to such other address or fax number that the receiving party may designate from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid), or by facsimile (with confirmation of transmission). Except as otherwise provided in this Agreement, a notice is effective only: (i) on receipt by the receiving party; and (ii) if the party giving the notice has complied with the requirements of this Section.
35. DRAFTING. Customer and Digital Fleet both acknowledge that they have had the opportunity to consult with independent legal counsel regarding this Agreement, prior to executing the Statement of Work. Therefore, this Agreement shall be considered to have been negotiated as part of an arm’s length transaction, and shall not be construed against either party by reason of the drafting or preparation hereof.
36. HEADINGS. The headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.
37. ENTIRE AGREEMENT. This Agreement, including and together with the Statement of Work, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, representations, warranties, and proposals, both written and oral, with respect to such subject matter.