ARTICLE 1 – DEFINITIONS, INTERPRETATION AND CHANGES
1.1 Defined Terms – capitalized terms used but not defined in these Additional Terms and Conditions shall have the meanings assigned thereto in the Quote to which these Additional Terms and Conditions are attached (the “Quote”).
1.2 References to ‘you’ or ‘your’ – any such reference in the Quote or in these Additional Terms and Conditions refers to the customer named in the Quote
1.3 References to ‘we’ or ‘our’ – any such reference in the Quote or in these Additional Terms and Conditions refers to Fleet.
1.4 Governing Law – the Agreement (including these Additional Terms and Conditions) shall be governed by and interpreted in accordance with the laws in force in the province of Manitoba, without regard to its conflict of law rules. For greater certainty, the United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement.
1.5 Entire Agreement – the Agreement (including these Additional Terms and Conditions) constitutes the entire agreement between Fleet and you with respect to the subject matter of this Agreement, and supersedes all prior formal and informal agreements, arrangements, understandings, discussions, correspondence, quotations, proposals, negotiations and inducements, whether oral or written. There are no representations, warranties, conditions or other agreements between the parties in connection with the subject matter hereof except as specifically set forth in this Agreement.
1.6 Headings – the headings of all Articles or Sections are inserted for convenience of reference only, and shall not affect the construction or interpretation of these Additional Terms and Conditions.
1.7 Changes to these Additional Terms and Conditions – Fleet may amend, add to or remove provisions from these Additional Terms and Conditions at any time and from time to time. Fleet will provide you with notice of any such change, which shall become effective 60 days after such notice is given to you.
ARTICLE 2 - HARDWARE
2.1 Fleet as an Authorized Reseller – all Hardware is sold to you by Fleet in its capacity as an authorized reseller of that Hardware.
2.2 Purchase and Transfer of Title – all Hardware is purchased by you, and becomes your property as soon as Fleet receives payment in full for that Hardware. Regardless of when title transfers, you are responsible for any loss of or damage to the Hardware after it leaves Fleet’s premises.
2.3 No Representations and Warranties by Fleet – no representation or warranty of any nature or kind whatsoever is provided to you by Fleet in respect of any of the Hardware. The only representations and warranties that relate to the Hardware are those of its manufacturer. In addition, you alone are responsible for satisfying yourself, prior to purchasing the Hardware, that the Hardware will satisfy your intended use of the Hardware.
2.4 Installation of Hardware – installation of the Hardware is your responsibility, and must be done in accordance with the installation instructions that will accompany the Ordered Items. Alternatively and only in those locations where it is feasible for Fleet to do so, Fleet can arrange for such installation, so long as you pay the installation charges to Fleet in advance and so long as you provide access to your vehicles and premises to Fleet’s installers.
2.5 Use of Hardware – your use of the Hardware (including use of the Hardware by any of your employees or other representatives) must be in accordance with the applicable instructions provided to you by the manufacturer of the Hardware. Fleet shall not be responsible or liable in any way for any use of the Hardware that is not in accordance with these instructions.
2.6 Loss of or Damage to the Hardware – you will promptly advise us of any loss of or damage to the Hardware.
2.7 Installation of the Hardware on a Different Vehicle – you will promptly advise us if the Hardware is removed from one vehicle and is installed on a different vehicle.
ARTICLE 3 – GEOTAB SPECIFIC TERMS AND CONDITIONS
3.1 End User Agreement – each of your employees or other representatives who wish to use any Hardware manufactured by Geotab must first agree to be bound by the provisions of Geotab’s End User Agreement, as well as all related Geotab agreements and policies referenced therein. https://docs.google.com/document/d/1MrR2mup5-fuAplaQmWdvE5EnCcBK_GLkwUtAHF_6kOw/edit#heading=h.gjdgxs
3.2 Geotab Warranty – without limiting the generality of Section 2.3, the only warranty provided to you in respect of the Geotab Hardware is the Geotab warranty.
3.3 Your Data – as indicated in the Geotab documentation, the data that is collected through your use of the Geotab Hardware is stored in the Geotab cloud. While the data that is so collected remains your data, your access to that data is subject to the provisions of the Geotab documentation.
ARTICLE 4 – OTHER THIRD PARTY HARDWARE
4.1 Disclosure in the Quote – as contemplated in Section 2.1, the Quote will indicate if any of the Hardware is manufactured by any company other than Geotab.
4.2 Third Party Terms and Conditions – if any of the Hardware is manufactured by any company other than Geotab, each of your employees or other representatives who wish to use that Hardware must first agree to be bound by the provisions of that manufacturer’s End User Agreement, as well as all related agreements and policies referenced therein.
ARTICLE 5 – FLEET SERVICES
5.1 Fleet will provide you the monthly services as indicated in the monthly fee section of the Quote.
You shall provide Fleet with such online access as we may require in order to provide these services to you.
5.2 Ongoing Support – if you experience any issues with your use of the Hardware, please contact Fleet using the contact information on our website. We will use reasonable efforts to assist you at no additional charge and in a timely manner, so long as your inquiry can be answered quickly and so long as our service personnel are not otherwise committed to other projects. Any request for service that our service personnel believe cannot be answered quickly will be subject to charge at our standard service rates. Our service personnel will advise you if this is the case, in which case we will not proceed to provide that service unless and until you agree to pay for that service. You shall provide Fleet with such online access as we may require in order to provide these services to you.
5.3 Services Warranty – any services provided to you by Fleet as contemplated in this Article 5 will be performed by Fleet personnel consistent with generally accepted industry standards. This warranty will be conclusively deemed to be satisfied unless you notify Fleet in writing of any warranty-related deficiencies within one week of the performance of the services. This warranty is exclusive and in lieu of all other warranties of any nature or kind whatsoever. Your exclusive remedy and Fleet’s sole obligation and liability for any alleged warranty-related deficiency will be re-performance of the subject services by Fleet.
5.4 Fleet’s Access to Your Data – pursuant to our Reseller Agreement with Geotab, we are obligated to advise you that you have the ability to preclude Fleet from having access to your data that is stored in the Geotab cloud. Whether or not you choose to do so is up to you. However, precluding Fleet from having such access might also preclude Fleet from providing services to you as contemplated in Section 5.2, or at least make our provision of such services much more difficult.
ARTICLE 6 – SOFTWARE
6.1 Fleet Software – any Software identified in the Quote as being owned and licensed by Fleet will be licensed to you pursuant to Fleet’s End User License Agreement. Each of your employees or other representatives who wish to use any such Fleet Software must first agree to be bound by the provisions of Fleet’s End User License Agreement, as well as all related Fleet agreements and policies referenced therein.
6.2 End User Agreement – each of your employees or other representatives who wish to use any Software identified in the Quote as being owned and licensed by Geotab must first agree to be bound by the provisions of Geotab’s End User Agreement, as well as all related Geotab agreements and policies referenced therein. https://docs.google.com/document/d/1MrR2mup5-fuAplaQmWdvE5EnCcBK_GLkwUtAHF_6kOw/edit#heading=h.gjdgxs
6.3 Third Party Software – any Software identified in the Quote as being owned and licensed by any third party will be licensed to you pursuant to that party’s End User License Agreement. Each of your employees or other representatives who wish to use any such third party Software must first agree to be bound by the provisions of that third party’s End User License Agreement, as well as all related agreements and policies referenced therein.
ARTICLE 7 – YOUR PAYMENT OBLIGATIONS
7.1 Initial Payment – required, as indicated in the Quote’s Terms and Conditions #1.
7.2 Monthly Fees – as of the date of the Quote, Fleet’s monthly fee(s) will be as outlined in the quote. At the end of the initial term, Fleet reserves the right to increase the monthly fees with at least 60 days’ notice to you. You shall be responsible for payment of any ELD monthly data overage fees.
7.3 Invoicing and Payments – will be invoiced and is required to be paid, as described in the Quote’s Terms and Conditions #2. Each such invoice is due and payable in full on receipt.
7.4 Other Invoicing and Payments – Fleet will invoice you for any services provided to you pursuant to Section 5.1 of these Additional Terms and Conditions. Each such invoice is due and payable in full on receipt.
7.5 Payment by Credit Card or Pre-Authorized Debit – in the event that you choose to pay Fleet invoices using either of these methods, you cannot cancel such payment arrangements unless you provide Fleet with at least 30 days’ notice of cancellation, so that Fleet can make other arrangements with you for the payment of invoices.
7.6 Taxes – you are required to pay all applicable taxes that relate to the products and/or services that are referred to in the Quote or in each invoice issued by Fleet to you.
7.7 Interest – any invoice that is not paid in full within 30 days from the date thereof shall bear interest at the rate of 10%, compounded annually, from the date of the invoice to the date of payment. Fleet reserves the right to increase the interest rate on at least 60 days’ notice to you.
7.8 Currency – all amounts referred to in the Quote, in any invoice or in any estimate of fees and/or expenses issued to you by Fleet are expressed in Canadian/United States currency, and all payments that you make to Fleet shall be in the same currency.
ARTICLE 8 – INDEMNIFICATION
8.1 Indemnification – you shall defend and indemnify Fleet, together with its directors, officers, shareholders, employees and contractors (collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses or expenses (including, without limitation, legal fees and costs) incurred by any of the Indemnified Parties in connection with any and all claims, suits, judgements and causes of action that relate, directly or indirectly, to your use of any of the Hardware, any of the Software and/or any of the Services (or any other services) that you acquire from Fleet.
ARTICLE 9 – LIMITATION OF LIABILITY
9.1 Fundamental Understanding re Risk Allocation – you acknowledge and agree that the amounts payable by you to Fleet pursuant to this Agreement are based upon a specific risk allocation between Fleet and you, and that Fleet would not have entered into this Agreement but for the specific understanding reached with you as to certain risks, as set forth in this Article 9.
9.2 No Liability for Indirect Damages – FLEET SHALL NOT BE LIABLE, REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT UNDER THIS AGREEMENT OR IN TORT, INCLUDING NEGLIGENCE OR PRODUCTS LIABILITY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM ANY OF THE HARDWARE, SOFTWARE OR SERVICES; USE, LOSS OR DELAY OF USE OF ANY OF THE HARDWARE, SOFTWARE OR SERVICES; LOST OR CORRUPTED DATA OF YOU OR ANY THIRD PARTY; LOST PROFITS OR LOST GOODWILL; FAILURE TO REALIZE SAVINGS; OR FOR ANY CLAIM OR DEMAND AGAINST YOU BY ANY THIRD PARTY, EVEN IF FLEET MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IF SUCH LOSSES OR DAMAGES WERE REASONABLY FORSEEABLE.
9.3 Limited Liability for Direct Damages – REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT UNDER THIS AGREEMENT OR IN TORT, INCLUDING NEGLIGENCE OR PRODUCTS LIABILITY, FLEET’S CUMULATIVE LIABILITY FOR YOUR DIRECT DAMAGES ARISING OUT OF OR RESULTING IN ANY MANNER WHATSOEVER FROM ANY OF THE HARDWARE, SOFTWARE OR SERVICES; ANY USE, LOSS OR DELAY OF USE OF ANY OF THE HARDWARE, SOFTWARE OR SERVICES; OR OTHERWISE FROM THIS AGREEMENT; INCLUDING WITHOUT LIMITATION ANY UNCURED MATERIAL DEFAULT, BREACH OR FAILURE ON THE PART OF FLEET UNDER THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE LESSER OF $100 OR 10% OF THE MONTHLY FEE FOR THE SERVICES PERFORMED BY FLEET WHICH ARE IN QUESTION, AS THE CASE MAY BE.
10.1 Collection of Information regarding Use of your Vehicles – Fleet recommends that you confirm what, if any, information you need to provide to drivers of your vehicles upon which the Hardware is installed, so that you comply with any and all privacy legislation applicable to the collection of information by the Hardware and/or to your use or disclosure of that information.
ARTICLE 11 – TERM AND TERMINATION
11.1 Term; Initial Term; Renewals. This Agreement shall become effective as of the Effective Date and shall continue in full force and effect for an initial term as outlined in the quote (the “Initial Term”) with no early termination clause. Upon the expiration of the Initial Term, this Agreement shall automatically renew monthly for a term of one (1) month (each, a “Renewal Term”), unless earlier terminated in accordance with the provisions of this Agreement. The Initial Term, together with any and all Renewal Terms, up to and including the date of any termination of this Agreement, is collectively referred to herein as the “Term.”
11.2 Termination by Fleet – Fleet may terminate this Agreement immediately upon notice to you in the event: (a) of any material breach by you of any of your obligations under this Agreement, if such material breach is not cured within 30 days after receipt of written notice thereof from Fleet; or (b) of substantial evidence that you have committed acts or omissions constituting fraud or dishonesty; (or) you become insolvent or a petition is filed or a proceeding is commenced by or against you under any law relating to bankruptcy, liquidation, administration, arrangement, reorganization, receivership or assignment for the benefit of creditors.
11.3 Cumulative Remedies - termination of this Agreement by Fleet shall be in addition and without prejudice to the exercise of any other right or remedy available to Fleet at law or in equity. In particular, FLEET MAY SUSPEND YOUR USE OF ANY HARDWARE OR SOFTWARE AND/OR MAY SUSPEND THE PROVISION OF SERVICES TO YOU IN THE EVENT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU, INCLUDING NON-PAYMENT OF ANY FEES AND/OR EXPENSES OWED TO FLEET; PROVIDED THAT FLEET PROVIDES AT LEAST 72 HOURS OF ADVANCE NOTICE TO YOU OF SUCH PENDING SUSPENSION.
11.4 Termination Related Obligations – in the event of the termination of this Agreement for any reason whatsoever: (a) Fleet will immediately cease providing any services to you; (b) you will immediately cease using any Fleet Software that has been supplied to you; (c) Fleet will invoice you for any amount that you owe to Fleet as of the effective date of termination and that has not already been invoiced to you, and you shall promptly pay to Fleet all amounts owing under all invoices issued to you by Fleet that have not already been paid in full; (d) Fleet may apply any deposit received from you against all amounts owing under all invoices issued to you by Fleet that have not already been paid in full and, following such payment in full, will refund any balance of the deposit to you; (e) Fleet will provide reasonable access to data for a period of 12 months after the effective termination date (e) Upon request we will transmit to you a copy of data stored on our systems as of the effective date of termination, and we may condition this assistance on payment of reasonable fees and cost reimbursements, based on the size of the database and complexity of the task.
11.5 Surviving Terms and Conditions – Articles 1, 8, 9 and 12, and Sections 2.2, 2.3, 2.5, 3.2, 5.4, 7.6, 7.7, 7.8, 11.3 and 11.4, of these Additional Terms and Conditions shall survive the termination of this Agreement for any reason whatsoever.
ARTICLE 12 – GENERAL TERMS AND CONDITIONS ADDITIONAL TERMS AND CONDITIONS
12.1 Compliance with Laws and Third Party Agreements – you shall comply with all laws and with all third party agreements that apply to the use of any of the Hardware, Software and/or Services that you have acquired from or through Fleet.
12.2 Time of the Essence – time shall in all respects be of the essence of the Agreement.
12.3 Notices – Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed delivered upon any of the following: (a) service, if served personally or by a recognized private courier service; or (b) facsimile receipt, if such receipt is electronically confirmed; or (c) 7 days after deposit in the mail if mailed by registered or certified mail with confirmation to sender, provided that if at the date of any mailing or within 3 days thereafter there is a general interruption in the operation of the postal service in Canada or the United States which does or is likely to delay the delivery by mail of such notice, such notice shall be delivered by service or facsimile only. Any notice required or permitted to be given under the Agreement shall be addressed to a party at the address set forth at the beginning of this Agreement or such other address as shall be specified pursuant to notice duly given as aforesaid.
12.4 Waiver – the failure of either Party to enforce any provision of the Agreement or to require performance by the other Party of any provision hereof shall not be construed to be a waiver of this Agreement or any part hereof or the right of either Party thereafter to enforce each and every provision in accordance with the terms of this Agreement.
12.5 Severability – in the event that any provision of the Agreement is determined to be invalid or unenforceable, the remainder of the Agreement shall remain valid and enforceable to the maximum extent so as to achieve, as closely as possible, the original intentions and purposes of the Parties.
12.6 Language – the Parties have required that the Agreement and all documents or notices resulting therefrom or ancillary thereto be drawn up in the English language. Les parties aux presentes ont demande que ce contrat et tous les documents ou avis en resultant ou y etant assujettis soient rediges en langue anglaise.
12.7 Force Majeure – other than with respect to the payment of amounts by you to Fleet, in no event shall either Party have any liability for failure to comply with the Agreement if such failure results from the occurrence of any contingency beyond the reasonable control of that Party.
12.8 No Third Party Beneficiaries – except as otherwise expressly stated in the Agreement, the provisions of the Agreement are for the benefit of the Parties and not for any other person.
12.9 Assignment, Enurement and Binding Effect – the Agreement is not assignable by you without Fleet’s prior written consent. The Agreement is assignable by Fleet without your consent. In light of the foregoing, the Agreement shall enure to the benefit of and be binding upon the Parties together with your successors and permitted assigns and Fleet’s successors and assigns.`