- In addition to the terms defined in the Agreement, the following capitalized terms when used herein will have the following meanings:
1.1. Addendum: The terms and conditions herein that supplement those in the Agreement and govern the purchase and use by Customer ("Customer" or "You") of products and services of Networkfleet, Inc., a subsidiary of Verizon Communications, Inc. ("Networkfleet") as set forth herein. In the event of any conflict between the terms and conditions in this Addendum and those in the Agreement, this Addendum shall control with respect to the underlying subject matter of this Addendum.
1.2. Addendum Term: The term of this Addendum.
1.3. Customer Website Pages: The web pages on the Networkfleet Website which are designated by Networkfleet for use by Customer.
1.4. Device Contract Term: The minimum length of time a Device is required to be active as identified on the applicable Service Offering.
1.5. Devices: The Networkfleet wireless device or devices identified on a Service Offering.
1.6. Fees: The Device and accessory purchase prices, Device and accessory shipping fees, Device installation fees, the Networkfleet Service fees and any other fees payable by Customer as set forth in a Service Offering.
1.7. Networkfleet Services: The services offered hereunder by Networkfleet, from time to time, including, but not limited to: (a) collection of diagnostic and/or location information from a Vehicle; (b) analysis, delivery and posting of Vehicle information to the Networkfleet Website; (c) notification to Customer and/or a designated third party by e-mail of certain events or Vehicle information; (d) Customer access and usage of Customer Website Pages; (e) Device installation services; but only to the extent such services are identified on a Service Offering; and (f) any proprietary data feed or elements thereof or any application programming interfaces (API's) provided by Networkfleet, ("Networkfleet Data Services") but only to the extent such services are identified on a Service Offering.
1.8. Networkfleet Website: The Networkfleet website currently located at www.networkfleet.com.
1.9. Service Partners: The companies that Networkfleet works with, from time to time, to provide the Networkfleet Services, including, but not limited to, wireless service carriers, installers, website operators, mapping data providers and licensors.
1.10. Vehicle: An on-road vehicle, off-road vehicle and/or stationary or movable equipment owned or under the control of Customer, which is equipped with a Device.
- NETWORKFLEET LICENSE
2.1. During the time that Customer is entitled to receive Networkfleet Services hereunder, Networkfleet grants to Customer a non-exclusive, non-transferable license to: (a) use the Networkfleet Services in the United States and such other countries as may be approved by Networkfleet in writing; (b) access and use the Customer Website Pages; and (c) use the firmware and the software included in the Devices, solely for use in connection with the Networkfleet Services, and as provided in this Addendum. Redistribution or resale of the Networkfleet Services by the Customer is prohibited without Networkfleet's prior written consent.
2.2. Networkfleet Data Services, if applicable, are subject to the then current "Networkfleet Data Services Use Policy and Procedure" which is located at http://info.networkfleet.com/rs/networkfleet/images/Data_Services_Use_Policy.pdf, and may be updated from time to time.
- INSTALLATION SERVICES
If Networkfleet accepts an order for Device installation services, Networkfleet or its contractors will install the Device in the applicable Vehicle at a mutually agreed location, in accordance with Networkfleet's Installation Policy, located at http://info.networkfleet.com/rs/networkfleet/images/Installation_Policy.pdf, as it may be amended from time to time, which is available at the Networkfleet Website. The parties hereto will use reasonable efforts to schedule and complete the installation during normal working hours within thirty (30) days of the date the order for installation services was accepted. Before proceeding with any installation that involves more work than is standard and customary, Networkfleet will advise and obtain Customer approval for the additional fees involved for such installation. Customer acknowledges and agrees that installation of the Device may involve drilling holes, rewiring and other similar alterations to the Vehicle and that Networkfleet has no obligation to restore the Vehicle after removal of the Device.
- TRAINING AND SUPPORT SERVICES
4.1. Customer will designate one or more employee(s) to act as the coordinator(s) for Customer's use of the Devices and the Networkfleet Services and will require such coordinator(s) to participate in the Device and Networkfleet Services training provided from time to time by Networkfleet.
4.2. During the time Customer is entitled to receive Networkfleet Services, and subject to Section 8 (Exclusions), Networkfleet or its designee will provide Customer with reasonable amounts of telephone or e-mail consultation and technical assistance regarding the Devices and Networkfleet Services during Networkfleet's regular working hours. Customer may call Networkfleet or its designee at (866) 227-7323 or e-mail inquiries to email@example.com for support services.
- CUSTOMER OBLIGATIONS
- LIMITED WARRANTY
6.1. Networkfleet warrants to Customer that Devices (other than an Asset Tracker device) which were purchased new from Networkfleet by Customer on or after April 1, 2013 will be free from defects in material and workmanship that prevent the Device from functioning in accordance with its specifications for the entire period of your ownership of such Device, provided however, Networkfleet will have no obligation with respect to such warranty at any time Customer has a past due balance for unpaid Fees.
6.2. Networkfleet warrants to Customer that Asset Tracker devices (excluding the battery) which have been purchased new from Networkfleet by Customer will be free from defects in material and workmanship that prevent the device from functioning in accordance with its specifications for a period of three (3) years following the initial activation of such device.
6.3. Networkfleet warrants to Customer that all accessories which are purchased new from Networkfleet by Customer will be free from defects in material and workmanship that prevent them from functioning in accordance with their specifications for a period of one (1) year from the date of shipment.
6.4. Networkfleet warrants to Customer that installation services provided by Networkfleet or its authorized subcontractors will be free from defects in workmanship for a period of one (1) year following completion of such installation services. To the extent Customer purchases an extended installation warranty, Networkfleet warrants to Customer that any extended warranty installation services shall be free from defects in workmanship for the entire period of your uninterrupted use of the Device pursuant to this Agreement subject to such installation service, provided however, Networkfleet will have no obligation with respect to such extended installation warranty at any time Customer has a past due balance for unpaid Fees.
6.5. Warranty claims must be made by notifying Networkfleet in writing promptly after Customer learns of the facts supporting a warranty claim, as specified in Networkfleet's then-current applicable warranty policy. The policy is located at http://info.networkfleet.com/rs/networkfleet/images/Warranty.pdf. Subject to Section 8 (Exclusions) and the provisions of Networkfleet's then-current applicable warranty policy, Networkfleet will, at its discretion, either repair or replace any non-complying Device with a Device of equivalent functionality, and, if applicable, remedy any defects in the installation of the Device.
6.6. THE REMEDIES IN THIS SECTION ARE NETWORKFLEET'S ONLY OBLIGATION AND CUSTOMER’S ONLY REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER.
The Limited Warranty and Support Services provided by Networkfleet do not include repair, replacement or correction of any defect, damage or malfunctions caused by: (a) for installation not performed by Networkfleet or its authorized subcontractors, failure to properly install the Devices as described in the Networkfleet installation guides; (b) accident, negligence, theft, vandalism, operator error, misuse or acts of God; (c) failure of the facilities Customer uses to access the Networkfleet Website or failure to conform to Networkfleet specifications; (d) modifications, attachments, repairs or unauthorized parts replacements performed by Customer or any third party not authorized by Networkfleet; or (e) use by Customer of hardware or software not provided or approved by Networkfleet. Customer will be responsible for the cost of Support Services provided by Networkfleet caused by any of the foregoing.
- DISCLAIMER OF WARRANTIES
EXCEPT FOR THE LIMITED DEVICE AND INSTALLATION WARRANTY SET FORTH IN SECTION 7, NETWORKFLEET MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE DEVICES AND THE NETWORKFLEET SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NETWORKFLEET DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NETWORKFLEET DOES NOT WARRANT THAT THE RECEIPT OF DATA, MAPPING INFORMATION, AND OTHER CONTENT FROM THE DEVICES WILL BE AVAILABLE AT ALL TIMES, AT ALL GEOGRAPHIC LOCATIONS, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TRANSMISSION OF DATA, MAPPING INFORMATION, AND OTHER CONTENT FROM NETWORKFLEET TO CUSTOMER OR TO THE CUSTOMER WEBSITE PAGES WILL ALWAYS BE ACCURATE, TIMELY OR COMPLETE.
9.1. Customer will defend, indemnify and hold Networkfleet and the Service Partners, and their respective affiliates, officers, employees and agents, harmless from and against any and all third party claims and all associated damages, suits, proceedings, liens, penalties, liabilities, awards or expenses (including reasonable attorneys' fees) resulting from: (a) Customer breach of its obligations under a Service Offering or this Addendum; (b) a claim that Customer or its personnel violated applicable state or federal laws or regulations in its possession, distribution, installation or use of the Devices, the Networkfleet Services or the Networkfleet Website; or (c) a claim for any property damage, personal injury or death arising in any way from, directly or indirectly, Customer's use, failure to use, or inability to use the Devices, the Networkfleet Services or the Networkfleet Website except to the extent such claim was caused by Networkfleet's gross negligence or willful misconduct. Customer must consult with and obtain Networkfleet's prior written consent prior to settling any such claim which would bind Networkfleet to pay unreimbursed monies, admit guilt or wrongdoing on the part of Networkfleet, or which would otherwise materially prejudice Networkfleet. Networkfleet shall also have the right to participate in the investigation, defense and settlement negotiations of any such claim with separate counsel chosen and paid for Networkfleet.
9.2. Networkfleet shall defend, indemnify and hold Customer harmless against any third party claims, and all associated damages, suits, proceedings, liens, penalties, liabilities, awards or expenses, to the extent that such claims allege that the Networkfleet Device or the Networkfleet Service infringes such third party's intellectual property rights; provided, however, that Networkfleet's obligations hereunder shall not apply if and to the extent that the infringement or alleged infringement is caused by or otherwise results from (a) the use of the Networkfleet Device or the Networkfleet Service other than as specifically authorized by Networkfleet; (b) the combination or use of the Networkfleet Device or the Networkfleet Service with non-Networkfleet products or services, including, but not limited to, Customer's products and services; or (c) any acts or omissions of Customer or any other third party.
- LIMITATION OF LIABILITY
10.1. NEITHER PARTY HERETO WILL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, EVEN IF THAT PARTY IS INFORMED THAT THOSE DAMAGES MAY OCCUR. NETWORKFLEET'S CUMULATIVE LIABILITY UNDER ANY LEGAL THEORY SHALL NOT EXCEED THE AMOUNT PAID TO NETWORKFLEET UNDER THIS ADDENDUM DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE LIABILITY ACCRUES FOR A CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY OF EITHER PARTY HERETO ARISING UNDER SECTION 12 (INDEMNIFICATION), SECTION 15 (CONFIDENTIALITY) AND/OR SECTION 16 (PROPRIETARY RIGHTS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THOSE PARTICULAR LIMITATIONS MAY NOT APPLY TO YOU.
10.2. WITHOUT LIMITING THE FOREGOING, NETWORKFLEET IS NOT RESPONSIBLE FOR LIABILITIES OF ANY KIND RESULTING FROM DELAYS IN DELIVERY, INSTALLATION OR PROVIDING NETWORKFLEET OR OTHER SERVICES, REGARDLESS OF THE CAUSE OF THE DELAY. CUSTOMER UNDERSTANDS AND AGREES THAT NETWORKFLEET CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT THEY SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM AN ALLEGED OR ACTUAL LACK OF SECURITY RELATING TO CUSTOMER'S USE OF THE NETWORKFLEET SERVICES.
10.3. CUSTOMER UNDERSTANDS AND AGREES THAT: (a) THE DEVICE IS A WIRELESS DEVICE AND THAT THE NETWORKFLEET SERVICES WORK BY USING WIRELESS COMMUNICATIONS NETWORKS TO CONNECT THE DEVICES WITH NETWORKFLEET'S DATA CENTER AND BY USING GPS (GLOBAL POSITIONING SYSTEM) TO DETERMINE A VEHICLE'S LOCATION; (b) THE NETWORKFLEET SERVICES WILL NOT OPERATE UNLESS A VEHICLE IS IN AN AREA THAT HAS ADEQUATE WIRELESS COMMUNICATIONS COVERAGE AND, EVEN IF A VEHICLE IS IN SUCH AREA, THE NETWORKFLEET SERVICE IS SUBJECT TO WIRELESS SERVICE NETWORK AND TRANSMISSION LIMITATIONS AND MAY BE ADVERSELY AFFECTED BY TERRAIN, SIGNAL STRENGTH, WEATHER AND ATMOSPHERIC CONDITIONS, OR OTHER THINGS THAT NETWORKFLEET DOES NOT CONTROL; AND (c) INFORMATION ABOUT A VEHICLE'S LOCATION WILL NOT BE AVAILABLE UNLESS THE DEVICE IN THE VEHICLE IS ABLE TO RECEIVE GPS SIGNALS.
The following is an exception to the Section 18 of the Agreement (Mandatory Arbitration): It is agreed that any controversy between the parties hereto related directly or indirectly to the Devices or the Networkfleet Services will be settled by binding arbitration under the commercial rules of the American Arbitration Association, regardless of whether the controversy is based on contract, tort, strict liability or other legal theory. This Addendum does not allow class or collective arbitrations even if the AAA or BBB procedures or rules would.
- PROPRIETARY RIGHTS
12.1. Customer acknowledges and agrees that the Devices, the Networkfleet Service and the Networkfleet Website may include patent, copyright, trademark, service mark, trade secrets, or other intellectual property rights (collectively "Proprietary Rights") of Networkfleet, its affiliates or the Service Partners (including, with respect to the Networkfleet Website, materials that may be proprietary to TeleAtlas or its suppliers), and that Networkfleet, its affiliates and/or the Service Partners retain title to and ownership of those Proprietary Rights and any and all improvements, modifications, fixes or enhancements made by or for Networkfleet, its affiliates and/or the Service Partners to the Devices, the Networkfleet Service or the Networkfleet Website, regardless of whether such items or services are created or suggested by Customer.
12.2. Customer will not copy, modify, reverse-engineer, disassemble, translate, convert or decompile any software or firmware included in any Device, the Networkfleet Website or Networkfleet Services, or otherwise provided to Customer by or on behalf of Networkfleet, and will not disclose such software or provide access to the Devices, such software or any Networkfleet Services to any third party for such a purpose.
12.3. Customer agrees that with respect to Networkfleet Services, it shall not, nor shall it permit any third party to: (a) assign, transfer, lease, rent, sell, distribute or import such Networkfleet Services to any third party; (b) except with the express written consent of Networkfleet, combine, embed or incorporate the Networkfleet Services into any other product or service other than any Customer-owned or developed interface for purposes of receiving the data feed delivered from the Networkfleet Devices; (c) remove or alter any proprietary notices in the Networkfleet Services; (d) use the Networkfleet Services in connection with the transmission, sale, license, or delivery of any infringing, defamatory, offensive, or illegal products, services, or materials; (e) use the Networkfleet Services in any manner that threatens the integrity, performance, or availability of the Networkfleet Service; or (f) use the Networkfleet Service in any manner that violates local, state or federal laws, regulations or orders.
- MODIFICATIONS; WEBSITE MAINTENANCE
Networkfleet may alter or modify all or part of the Devices, the Networkfleet Services or the Networkfleet Website from time to time; provided that Networkfleet shall not intend for such alterations or modifications to materially adversely affect Customer's use of the Networkfleet Services or Networkfleet Website. Subject to the foregoing, such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, information, products, services, software or changes in instructions. Networkfleet reserves the right to perform scheduled maintenance for the Networkfleet Services and Networkfleet Website from time to time. This may include application and database maintenance as well as general website maintenance and may or may not involve Networkfleet Website and Networkfleet Services unavailability.
Customer represents and warrants that it has all necessary rights and authority with respect to the data collected from Customer and its vehicles and transmitted through Customer's use of the Devices, the Networkfleet Services and the Networkfleet Website ("Business Data") and that Customer approves and grants to Networkfleet, its affiliates and the Service Partners the nonexclusive license and right to collect, access, copy and use the Business Data in the course of performing the Networkfleet Services. Customer further grants to Networkfleet and its affiliates the perpetual right and license to use such Business Data as needed to analyze, measure and optimize the performance of the Devices and the Networkfleet Services and to develop new offerings for Customer and others, including the development of data products provided, however, that such use of Business Data shall be in an anonymous form.
- SERVICE PARTNERS
15.1. Nothing set forth in a Service Offering or in this Addendum gives Customer any specific rights with respect to, nor does it create a contract between Customer and the Service Partners. The Service Partners have no legal, equitable or other liability of any kind to Customer, and Customer hereby waives any and all claims or demands therefor. Customer is not a third-party beneficiary of any agreement between or among Networkfleet and the Service Partners, but the Service Partners are intended third party beneficiaries of this Agreement, and the protections set forth in this Addendum, including, among other things, the disclaimers of warranties, limitations of liability, and indemnification provisions, do apply to the Service Partners.
15.3. In the event Customer acquires Compliance, E-Logs or any other services provided by J.J. Keller & Associates ("Keller Services") through Networkfleet, Customer acknowledges and expressly agrees that such Keller Services are subject to separate terms and conditions between Customer and J.J. Keller & Associates, and that Networkfleet will not accept any liability for Customer's use, inability to use, or any other matters arising from, or related to, the Keller Services. The current end user agreements for Keller Services can be found at: https://www.kellerencompass.com/app/login/termsofuse.aspx and www.kellerencompass.com/deviceapp.aspx.
16.1. The following is an exception to the Section 27 of the Agreement (Notices): Except as otherwise expressly permitted in this Addendum or the Agreement, each party hereto must deliver all notices or other communications required or permitted under an Service Offering or this Addendum to the other party, in the case of Networkfleet to Networkfleet, Inc. at 6363 Greenwich Drive, San Diego, California 92122, attention: Contract Compliance; e-mail: NWFContractCompliance@Networkfleet.com;, by courier, by certified or registered mail (postage prepaid and return receipt requested), electronically with proof of receipt, or by a nationally-recognized express mail service.