THESE TERMS CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU (“YOU” OR THE “CUSTOMER”) AND GREENROAD TECHNOLOGIES UK LTD. AND AFFILIATED COMPANIES (“GREENROAD”), WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THESE TERMS.
In this Agreement, capitalized terms shall have the meanings set out below and in the text of the Agreement:
“Customer Data” means the data transmitted by the Devices or through the Service and any other electronic data, information or material provided or submitted by Users to GreenRoad in connection with the Services, which may include Personal Information.
“Confidential Information” means any and all information disclosed by one party to the other party, whether furnished prior to, on or after the date.
“Device(s)” means any hardware, which was supplied to you by GreenRoad or its vendors, including, without limitation, OBDII- compatible (if applicable) in-vehicle device that monitors driving events and vehicle movement or vehicle state of health (the “V5”) and any associated sensors, communication elements, wiring harness, displays, fuel and engine components, cameras and other video processing elements, seatbelts sensors, audio components and any ID Tag(s) associated with such Device(s). If GreenRoad makes other versions of such device hardware generally commercially available, and the parties agree in writing on the pricing and other terms applicable to such other versions, then such other versions shall be considered “Devices”.
“Effective Date” means the date on which the first Devices are delivered to you.
“ID Tag” (if applicable) means an electronic key that is used to identify the then present User of a vehicle in which a Device is installed.
“Installation” means the proper placement and activation of Devices in vehicles.
“Service” means the online, web-based business application including the Devices, and any content and associated software, made available by GreenRoad to you.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied with user identifications and passwords by you (or by GreenRoad at your request).
- END USER RIGHTS AND USE
2.1. Subject to the terms and conditions of this Agreement and payment of all applicable fees and charges in connection therewith, GreenRoad grants you a non-exclusive, non-transferable, revocable, limited right and license during the Term (as defined below) to use the Service and Devices for your internal, in-house business use only within the territory in which you are domiciled. GreenRoad reserves all rights in the Service and Devices not expressly granted herein.
2.2. GreenRoad reserves the right to perform maintenance of the Service as needed and, except in the event of emergency maintenance, will provide reasonable notice to you of any unavailability and the reasons therefore. You acknowledge that GreenRoad shall not be responsible for providing internet access or any equipment or services necessary to utilize internet access.
2.3. A User account is required to access the Service, which may be used only by authorized Users. User accounts shall not be “shared” or used by more than one User.
2.4. You are responsible for any and all activities that occur under your User accounts, including without limitation any loss or damage which results from their misuse.
2.5. The V5 and ID Tags (collectively the “Equipment”) are being loaned to you by GreenRoad for the Term (as defined below). You shall, at your expense, keep the Equipment in perfect and undamaged condition and at expiration or termination of the Term, have such Equipment inspected and certified perfect and undamaged by GreenRoad. In the event that the Equipment, or any portion thereof, are lost, stolen, damaged, confiscated or destroyed, you shall be obligated to pay GreenRoad for any out-of-pocket expenses GreenRoad incurs in bringing such Equipment up to such status. Upon expiration or termination of the Term, you shall immediately return the Equipment to GreenRoad.
2.6. Where you report a failure in the Service, GreenRoad will handle such failure under the terms and conditions attached hereto as Exhibit A (the “SLA”).
2.7. You represent and warrant that: (i) you own or have obtained the rights to all of the Intellectual Property rights underlying the Customer Data, and you have the right and have obtained all rights required under any applicable laws (including but not limited to privacy laws) to provide GreenRoad the license granted in Section 5 below to use such Customer Data in accordance with the terms of this Agreement; (ii) the Customer Data does not infringe or violate any Intellectual Property rights, privacy or publicity rights of any rights of third parties; and (iii) you will receive any consent required by applicable laws. You shall remain solely responsible and liable for the Customer Data and expressly release GreenRoad from any and all liability arising from GreenRoad’s use of the Customer Data as permitted herein.
2.8. You hereby agree to comply with all applicable export laws and regulations of the territory in which you are domiciled.
- INSTALLATION; ID TAGS
3.1. GreenRoad shall either (i) provide for Installation; or (ii) provide sufficient instructions to you to enable you to perform Installation. You shall make the vehicles available for Installation in accordance with the date set forth on such order form.
3.2. You hereby undertake to install Devices only in stationary, parked vehicles.
3.3. Device(s) may not be compatible with all types of vehicles and as such, Installation of a Device in a non-compatible vehicle may result in unexpected interaction with your vehicle. You agree not to remove a Device and/or Install such Device in another vehicle without GreenRoad’s prior written consent.
3.4. You must regularly inspect the Device(s) following any service call to the vehicle or any physical interaction with the Device or OBDII port to ensure that all Devices are securely installed, including, without limiting the generality of the foregoing, Device(s) that are connected to the vehicle’s OBDII port. You must instruct your Users to do the same. Inappropriate or improper installation of Device(s) to the vehicle may affect the use of vehicle controls, and may result in unanticipated vehicle behavior.
3.5. You hereby acknowledge and agree to inform your Users that in the event that a warning light illuminates, or the vehicle performance drops, the User must immediately shut off the engine, remove the Device and contact GreenRoad.
3.6. You acknowledge that the identification of the driver of a vehicle is dependent on the correct use of ID Tags.
3.7. Without prejudice to the your obligation in Section 3.1, should you cancel a scheduled Installation or repair with less than 48 hours notice, or if the relevant vehicles are not available for Installation or repair on the scheduled day or remain unscheduled for more than 10 days after the initially scheduled Installation date, then GreenRoad reserves the right to charge for the Installation at its then current list price plus related travel expense (in addition to any subsequent Installation costs that may be required).
3.8. Notwithstanding any of the foregoing, GreenRoad may charge additional rates for: (i) installation for replacement vehicles, made during the term of this Agreement; (ii) de-installations made by GreenRoad’s engineers and the refurbishment of a unit; and (iii) de-installation and re-installation of a unit into a second vehicle, assuming that both vehicles are available at the same time and in the same location.
- LIMITATIONS AND RESTRICTIONS
4.1. Except as expressly set forth herein, you shall not (nor shall you permit others to) (a) copy, market, license, sublicense, sell, resell, transfer, assign, reproduce, distribute or otherwise make available to any third party the Service, (b) modify, adapt or make derivative works based upon any software used in the Service; (c) retransmit or link the Service (including “framing” or “mirroring” any content contained in, or accessible from the Service) to any other server, wireless or internet-based device. You shall ensure that the Users comply with the terms of this Agreement applicable to Users and you shall be solely responsible for any breach of this Agreement by a User.
4.2. To the extent that access to any software is provided to you by GreenRoad, you agree that you will use such software solely for your own internal processing operations under this Agreement, and that you will not directly or indirectly disassemble, reverse engineer, or decompile, modify, create derivative works based upon, or translate the Services or any software included therein, or transfer or otherwise grant any rights in or access to such software (including associated Intellectual Property rights) in any form to any other party.
- PROPERTY RIGHTS
You shall remain the sole and exclusive owner of the Customer Data. GreenRoad is and shall remain the sole and exclusive owner of the Devices (unless specified otherwise), the Service (including any software therein) and all documentation provided by GreenRoad. You acknowledge and agree that the Service and all copyrights, patents and patent applications, trademarks, trade names, domain names, copyrightable materials, graphics, text, designs (including the “look and feel”), specifications, methods, procedures, algorithms, directories, queries, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, and other intellectual property rights associated therewith (whether or not registered, or capable of being registered) (collectively, “Intellectual Property”) are owned by and/or licensed to GreenRoad, and, subject to copyright and other applicable intellectual property rights under U.S. laws, foreign laws and international conventions, shall remain, the sole and exclusive property of GreenRoad and its affiliates, licensors and suppliers (as applicable). Any ideas, know-how, techniques or other Intellectual Property developed by GreenRoad, including any modifications or enhancements made to the Service or the content shall be the property of GreenRoad. You hereby grant to GreenRoad an irrevocable, perpetual, royalty-free, worldwide, assignable right and license to use, sublicense, reproduce, maintain, modify, display, create derivative works of, and otherwise fully exploit and commercialize the Customer Data; provided, however, that GreenRoad may not disclose to third parties the Personal Information (defined below) of the Users contained in the Customer Data except as may be provided in this Agreement including, and without limiting the foregoing, (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; and (b) when GreenRoad is undergoing any change in control, including by means of merger, acquisition or purchase of all or substantially all of its assets.
WARRANTIES, REMEDIES, LIMITATIONS OF LIABILITY, AND INDEMNIFICATION
5.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GREENROAD, ITS SUPPLIERS AND VENDORS EXCLUDE ALL WARRANTIES OF ANY KIND. GREENROAD AND ITS SUPPLIERS AND VENDORS SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICE, SOFTWARE OR DEVICES WILL MEET ALL OF YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS FREE, OR ERROR-FREE. NOR DOES GREENROAD (OR ITS VENDORS OR SUPPLIERS) MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED.
5.2. GREENROAD SHALL NOT BE LIABLE FOR ANY DAMAGES FOR BODILY INJURY OR DAMAGE TO THE VEHICLE OR OTHER VEHICLES OR PROPERTY, CAUSED BY OR RESULTING FROM THE DEVICE HAVING BEEN PLUGGED INTO THE VEHICLE.
5.3. GREENROAD, ITS VENDORS AND SUPPLIERS’ ENTIRE LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) FOR ALL CLAIMS RELATING TO THIS AGREEMENT AND ITS PERFORMANCE, SHALL BE LIMITED IN AGGREGATE TO THE HIGHER OF: (A) THE FEES ACTUALLY RECEIVED BY GREENROAD PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIMS; OR (B) $100,000.
5.4. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES.
5.5. GreenRoad shall indemnify you from and against any third party liabilities, losses, damages, claims, suits, and expenses, including reasonable legal expenses, of whatever kind and nature (“Losses”), imposed upon, incurred by or asserted against you relating to or arising out of any third party claim brought against you alleging that the Service used as contemplated by this Agreement violates any proprietary rights of any third person. This Section states GreenRoad’s entire obligations regarding infringement of a third party’s intellectual property rights with respect to the use of the Devices, the Service and any software included therein. If the Service is held to infringe any intellectual property right, GreenRoad may, at its sole discretion and at its own expense, either procure a license that will protect you against such claim without cost to you or replace or modify the Service to eliminate the infringement claim, provided that the functionality of the Service remains substantially equivalent. If neither of these remedies are reasonably available, GreenRoad may terminate this Agreement and you shall have no remedy against GreenRoad, except that you may receive a prorated refund of the fees paid for but not used as of the date of termination. GreenRoad shall have no obligation to defend and shall not be liable for any infringement claim to the extent caused by (a) a modification to the Service (including any software therein) by any third party, other than GreenRoad and its suppliers and vendors; (b) use of the Service (including any software therein) or Devices in combination with other products not provided by or through GreenRoad; (c) your failure to use updated or modified Service or Devices provided by GreenRoad to avoid infringement; or (d) unauthorized use of the Service (including any software therein) or, Devices by you or by any third party on your behalf in violation of the terms of this Agreement.
5.6. You shall indemnify GreenRoad, its suppliers and vendors from and against any and all Losses imposed upon, incurred by or asserted against GreenRoad relating to or arising out of a claim alleging that GreenRoad’s use of the Customer Data, violates the intellectual property rights, privacy or publicity rights of, or has caused harm to, any third party (including, without limitation, any User).
5.7. The indemnity obligations set forth in this Section 6 are contingent upon (a) the indemnified party giving prompt written notice of any claim subject to indemnification under this Agreement, (b) the indemnified party allowing the indemnifying party the sole control of the defense and related settlement negotiations for such claim; and (c) the indemnified party providing reasonable assistance and cooperating in the defense and settlement negotiations as requested by the indemnifying party and at the indemnifying party’s expense.
- DELIVERY AND PAYMENT; INSALLATIONS; TAXES
6.1. You shall pay the fees set forth in the order form (or quote attached thereto). The first invoice shall be submitted to you upon the execution of this Agreement and payment shall be due within thirty days of Your receipt of such invoice. Unless specified otherwise in the quote, all payments shall be due within thirty days of Your receipt of an invoice from GreenRoad. In the event of any conflict between the quote and this Agreement, this Agreement shall govern.
6.2. Except as provided in this Agreement, fees are non-refundable and non-cancelable. Payments which are not received when due shall bear interest on the outstanding amount at the lower of the maximum rate permitted by law or 1½% per month commencing with the date the payment was due.
6.3. All fees and expenses are payable in the currency set forth in the order form and You shall be responsible for paying all applicable sales, use, excise, withholding, import or export, value added or similar tax or duty, and any other tax not based on the income received by GreenRoad.
6.4. Devices will be shipped by GreenRoad to the Customer Ex Works GreenRoad’s designated shipping point.
6.5. GreenRoad shall either (i) provide for Installation; or (ii) provide sufficient instructions to you to enable you to perform Installation, as specified in the applicable order form.
6.6. You shall reimburse GreenRoad for all reasonable pre-approved travel and out-of-pocket expenses incurred in connection with this Agreement including, but not limited to, the installation of the Devices, as set forth in the order form.
6.7. GreenRoad will invoice the standard shipping and handling charges for orders that involve shipping to You.
- CONFIDENTIALITY AND DATA PROTECTION
7.1. By virtue of this Agreement, each party may have access to the Confidential Information of the other party. The parties expressly acknowledge that the Customer Data shall be governed by Section 5. Each party agrees to keep confidential all Confidential Information disclosed to it by the other party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). This Section 8 shall not apply to anything which: (i) is or becomes (through no improper action or inaction by the receiving party) generally available to the public; or (ii) was in the receiving party’s possession or known to it prior to receipt from the disclosing party; or (iii) was rightfully disclosed to the receiving party by a third party; or (iv) is required to be disclosed by a subpoena, request for documents, or other validly issued judicial or administrative process, provided that the party so required promptly notifies the other party of the receipt of process and permits the other party a reasonable opportunity to respond to such process; or (v) is necessary to be disclosed by the receiving party in order to meet its obligations under this Agreement. If a party wishes to rely on one of these exclusions it shall give prompt written notice to the other party detailing the relevant information and the reason for disclosure.
7.2. You acknowledge that you are aware that the Customer Data, in whole or in part, may include or be deemed as personally identifiable information or data which is protected by applicable law (collectively, “Personal Information”). You undertake to implement reasonable measures to protect the Personal Information against loss and unauthorized access or use. You undertake to treat the Personal Information in accordance with the provisions of any applicable law, and undertake not to make any use of the Personal Information except in accordance therewith.
7.3. Without derogating from the aforementioned, you hereby agree and warrant that prior to installing and operating a Device in a vehicle, and requiring the User to apply their ID Tag to activate the Device you shall: (i) inform such User of, among others, (a) the purpose for and the manner in which the Service and Device operate and the Personal Information that may be created, monitored or collected by the Service; (b) how the Personal Information will be used (c) whether Personal Information will be shared with third parties and if so, with whom, and how; and (d) whether the User has any choice with regard to the collection, use and sharing of their Personal Information and (ii) receive (a) the consent of the User, as required by applicable law for monitoring, collecting and sharing the Personal Information, including the sharing with GreenRoad, for the purposes and uses thereof, and (b) an acknowledgment and commitment by of the User that no other person may drive the vehicle. GreenRoad undertakes to use the Customer Data and the Personal Information contained therein, in accordance with your instructions and to use the Personal Information for the purposes set for herein only. Notwithstanding the foregoing, it is hereby clarified that GreenRoad may de-identify the Personal Information collected by the Service and use such de-identified information for any purpose, including, and without limiting the foregoing, in an aggregated form for security and statistical purposes. GreenRoad may transfer and disclose such de-identified information to third parties at its own discretion.
- TERM AND TERMINATION
8.1. This Agreement shall commence on the Effective Date and shall remain in effect through the initial term set forth on the order form (the “Initial Term”) unless earlier terminated as set forth below. This Agreement shall renew automatically for successive one-year periods at the Service fees in effect at the time of each such renewal, until terminated upon one party giving the other at least ninety (90) days written notice prior to the expiry of the renewal period then in effect, to become effective at the end of the then current term (collectively, the Initial Term and all renewal periods shall be the “Term”). Either party may terminate this Agreement upon notice to the other party if the other party materially breaches this Agreement and such breach is not remedied within thirty (30) days of such notice (ten (10) days for non-payment). Either party may terminate this Agreement immediately upon notice if the other party becomes subject to any proceeding under any statute of any governing authority relating to insolvency or the rights to creditors which is not dismissed within sixty (60) days, or the equivalent occurs in any jurisdiction. Upon termination of this Agreement for any reason, all accrued rights to payment shall become due, all licenses shall immediately terminate and each party shall promptly return (or, if requested by the other party, destroy) all Confidential Information of the other party in its possession. Upon termination, GreenRoad may immediately terminate your access to the GreenRoad Service and within thirty (30) days thereafter delete Customer Data and any related data. You shall make Devices available for collection at a time or times and locations reasonably chosen by GreenRoad. Any and all expenses related to the uninstallation and removal of the Devices from Customer vehicles, whether such uninstallation is performed by Customer, GreenRoad or otherwise, shall be borne solely by Customer. The decision to uninstall and remove Devices from vehicles shall be at GreenRoad’s sole discretion. Upon request, you shall within three (3) days certify destruction of all full or partial copies of the Service, documentation and related materials provided by GreenRoad.
8.2. Sections 1, 2.4, 2.7, 4, 5, 6, 8, 9 and 10 and any other Sections that by their nature should survive termination, shall survive termination of this Agreement in accordance with their terms.
9.1. Neither party shall be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the party concerned. The Service may be subject to limitations, unavailability, delays and other problems inherent in the use of the internet, mobile telephone networks and electronic communications.
9.2. GreenRoad may reference your status as a user of the GreenRoad Service, in marketing materials and in sale presentations provided to potential customers and investors.
9.3. You may not assign or transfer any of your rights or obligations under this Agreement in whole or in part without GreenRoad’s prior written consent. GreenRoad may freely assign, transfer and sub-contract this Agreement and any or all of its obligations herein.
9.4. If any provision of this Agreement is held to be invalid or unenforceable, the parties shall substitute an enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of this Agreement will remain in full force and effect.
9.5. This Agreement forms the entire understanding between the parties in respect of the matters dealt within, and supersedes all previous agreements, understandings, proposals and negotiations between the parties.
9.6. This Agreement shall be governed by the laws of England and Wales, without regard to its conflicts of laws principles. Any dispute arising under this Agreement will be resolved in, and the parties submit to the exclusive jurisdiction of the appropriate courts in London, England.
- SERVICE LEVELS
The support calls shall be handled by GreenRoad during normal business hours. All support calls shall be submitted exclusively via the Customer Support Portal (CSP).
Capital terms not defined herein shall have the meaning ascribed to them in GreenRoad’s Terms and Conditions.
During the Term, GreenRoad shall ensure that the Service is available not less than ninety five percent (95%) of all GreenRoad’s then effective normal business hours in a month (the “Uptime Commitment”).
The Service shall only be considered as unavailable for the purposes of this service level if GreenRoad’s servers are not enabling the Customer to access all of its Users’ Customer Data, using a proper Device, for ninety (90) continuous minutes or more (“System Downtime”). Notwithstanding anything herein to the contrary, unavailability of the Service due to the following circumstances shall not be considered as a System Downtime: (a) maintenance and upgrades occurring during scheduled times, provided GreenRoad has provided Customer with prior written notice of the same; (b) limitations, unavailability, delays and other problems inherent in the use of the internet, mobile telephone networks and electronic communications or any other third party providers, to the extent not caused by GreenRoad; (c) in the event the Device has successfully stored and forwarded the Customer Data; and (d) availability outside of the environment (being the hardware and software products managed by or for GreenRoad in its hosting center).
If in a calendar month the Uptime Commitment is not met, for every incident of System Downtime during such calendar month, GreenRoad will credit Customer for one (1) day of Service operations (the “Service Credit”). Notwithstanding the foregoing, (a) only one Service Credit will be given for multiple System Downtimes in any single twenty four (24) hour period; and (b) Service Credits shall not exceed a maximum of seven (7) days of Service in any one calendar month. Service Credit will be returned to Customer by way of a credit against an invoice for future Service. In no case will refund be paid except if such Uptime Commitment is not met at a time where the remaining payments to be made by Customer are less than the amount to be credited.
Customer must notify GreenRoad of any eligibility for Service Credits within one (1) month from becoming eligible.
- RESPONSE TIMES
GreenRoad shall respond to all requests for assistance in accordance with the following times:
||An outage where the Service is unavailable with severe impact across Customer organization and a work-round is not available.
||Fix within one (1) business day.
||GreenRoad Service is severely degraded causing a major impact within the Customer organization and a work-round is not available.
||Fix within five (5) business days.
||GreenRoad Service is degraded with a moderate impact to parts of Customer organization. A work-round is available.
||Fix within twenty (20) business days.
||Degraded Service or feature unavailable causing a minor impact to some parts of Customer organization. A work-round is available.
||Fix within forty (40) business days.
||Device is deemed defective by one of GreenRoad’s experts.
||Fix within ten (10) business days.
Notwithstanding the above, in the event Customer does not respond to communication from GreenRoad support team/GreenRoad installer three (3) consecutive times (with respect to a specific case opened by a customer) the service shall be deemed resolved and GreenRoad shall have no further obligation towards Customer with respect to such service.