“Customer” as used herein refers to the individual or entity that entered into this Agreement and all individual(s) and/or entities listed by that Customer who are accessing the Site by virtue of this Agreement. In addition, Customer refers to Users and to any individual and/or entity accessing the Site for any reason.
“Device” as used herein refers to the specific dongle, black box or other apparatus that is sent to Customer by FleetDaddy and is installed in Customer’s vehicle for the purposes of transmitting Electronic Communication.
“Electronic Communication” means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted or received in whole or part electronically through the Site.
“Site” shall mean the FleetDaddy website located at www.fleetdaddy.com.
“Software Application” refers to FleetDaddy’s integrated software and hardware solution that includes proprietary software, software program(s), code, intellectual property, and software development whether currently in use, developed in the past and retired, licensed from a third party or yet to be developed, databases, backup systems and integrated hardware devices that are connected to the software systems via mobile network systems of third party providers.
“Users” refers to any person(s) activating a Device, causing a Device to transmit an Electrical
Communication or accessing the Site under the Customer’s account.
Access to the Site is provided solely for the purposes of this Agreement and not for any other purpose unless expressly agreed to in writing. The site is owned and maintained by FleetDaddy, Inc. (FleetDaddy) which is a registered trade name of NavSeeker, Inc., a Delaware corporation. By accessing and/or continuing to use the Site, Customer is indicating their continued acceptance to be bound by the terms and conditions of this Agreement. If Customer does not accept the terms and conditions stated herein, then FleetDaddy will not permit Customer to use the Site and related features and Customer must immediately cease using the Site.
Scope of Use
FleetDaddy hereby grants to Customer a non-exclusive, non-transferable license (“License”) to access the Site and use the Software Application, including user manuals and training materials, documentation, updates, customizations, add-ons, new products and interfaces subject to this Agreement and the terms and conditions set forth in any other agreement that customer entered into with FleetDaddy. This License also allows registered users employed or contracted by Customer as identified by Customer pursuant to a Service Order, to use the Site, the Software Application, and related modules and documentation. Customer shall ensure that all access to and use of the Site and Software Application by Customer, and any user accessing the Site and Software Application by or through Customer, is in accordance with the terms and conditions of this Agreement. Any action or breach by any such user shall be deemed an action or breach by Customer and as such Customer assumes all liability for such users’ acts,omissions and noncompliance with this Agreement.
Term of Service --- Renewal --- Termination --- Termination Notice
The subscription term for the Customer’s service is set out in the Service Order or other written document whereby Customer ordered or subscribed to services.All subscriptions will automatically be renewed at the end of their subscription term for a one-year termunless cancelled by Customer upon sixty (60) days’ notice prior to the end of the existing term. Subscriptions will renew at the then prevailing one-year renewal subscription rate.
This Agreement may be terminated immediately by FleetDaddy in the event of a material breach by the Customer. Notwithstanding the foregoing, in the event a material breach is due to Customer’s failure to pay outstanding amounts due under this Agreement by their due date, Customer understands and agrees that its access to FleetDaddy system and Customer related data may be disabled without any prior notice and may remain disabled until all outstanding amounts due hereunder are fully paid.
Upon termination of this Agreement, FleetDaddy shall make available online to the Customer for a period of 30 days all Customer related data in its possession in a readily accessible format. Customer shall be responsible for all labor charges and cash disbursements in connection with transitioning to a new service provider obtaining such data, including without limitation, the labor costs and expenses associated with requests for customized de-conversion of the Customer related records of each Customer from FleetDaddy’s computer systems.
Termination notices shall be sent to FleetDaddy 20645 N Pima Rd., Suite 130 Scottsdale, AZ. 85255 or email@example.com
During the term of this Agreement and any renewal period thereof, Customer shall pay FleetDaddy in U.S. funds the stated fees in the amount and frequency specified in the Service Order, or other written document whereby Customer ordered or subscribed to services. Amounts owed by Customer are due without regard to set-offs, claims or disputes Customer may have against FleetDaddy. Fees for services will not be increased during the subscription term, but may be increased upon renewal. All fees paid to FleetDaddy by Customer under this Agreement are non-refundable.
Fees quoted or accepted are exclusive of federal, state, municipal or other government sales, excise, use, occupational or like taxes, tariffs, customs, and all export duties and other fees and export costs (collectively “Taxes”). These Taxes are solely Customer’s responsibility. Fees are subject to increase by the amount of any of these Taxes that FleetDaddy pays or is required to pay or collect on sale or delivery of a product. FleetDaddy will normally identify these Taxes as separate additional items on the invoice but FleetDaddy’s failure to do so does not shift responsibility away from Customer. Any tax exemption certificate or similar document or proceeding required to exempt the sale of products from any tax, tariff, duty fee or the like, shall be obtained by Customer and provided to FleetDaddy before delivery, all at Customer’s expense.
Customer acknowledges that the fees charged by FleetDaddy are for access to the Site and/or the reporting of vehicle telematics information. Whether or not the customer accesses the Site, uses the information, or otherwise avails itself of the use and benefits of the Site is of no consequence to the agreed upon fee.
FleetDaddy may provide additional products, support, and services. These may be provided as a part of the initial set up and implementation or they may be provided over time. Upon request by Customer, and upon agreement by FleetDaddy, additional services may include: data preparation / data conversion, consulting, data interfaces to insurance companies, changes required to data interfaces because of insurance carrier changes, initial and/or on-going user training, setup of new custom reports and forms, modifications of existing reports, programming and customizations unique to the Customer’s requirements or setup or support of Customer’s hardware, workstations, printers. Additional Services shall be provided via a separate agreement (example: FleetDaddy Work Orders) which specifies the additional Customer fee amount and payment terms; or, in absence of such an agreements, at FleetDaddy’s standard fee rates in effect at the time and for the type of service provided.
All payments are due on the first day of each month of the Subscription period. The first payment shall include the first month’s payment and a pro-rated monthly payment for the period of time from the installation date through the end of the month. Any past due balance is subject to a monthly service charge computed at a periodic rate of one-and-one-half percent (1.5%) per month (18% per year) but not to exceed the highest rate allowed by law, on the past due amount.
Additions, Reductions & Modifications
Additional device(s) can be added to an existing subscription at the same monthly subscription rate, plus applicable deposit. Device and installation (if applicable) cost will vary depending upon length of term left on the subscription. Reductions to an existing subscription will be handled pursuant to the Cancellation provisions stated herein.
Modifications to an existing subscription, usually involving moving a device from one vehicle to another vehicle, will result in a charge of $25 per device, plus installation. Any equipment which is determined unusable due to accident, theft etc. will be replaced at a cost of $100 per device, plus installation.
If Customer cancels or modifies their two or three year subscription and subscription service prior to the end of their subscription period, then the Customer agrees to promptly pay (and authorize) an early termination fee of $350 per vehicle during the first year of the subscription period. Thereafter, and for one year subscriptions, the cancellation fee is $200 per vehicle or length of term whichever is lower. Upon cancellation of any length of subscription service, the Customer agrees to promptly uninstall all leased Device(s) and return it (them) to FleetDaddy. If not promptly returned to FleetDaddy, then Customer shall pay and hereby authorizes the charge of $100 per device for every unreturned Device.
Except for the limited warranty provided herein, Customer has no right to return a product during the subscription term. FleetDaddy is not required to accept any return unless Customer requests a return in writing and FleetDaddy consents to the return and provides a Return Authorization (RA) number.
Shipment to a continental U.S. destination will be FOB FleetDaddy. FleetDaddy may elect to ship by the method FleetDaddy deems most economical or convenient. FleetDaddy may elect to ship in standard commercial packaging. When Customer requests or FleetDaddy elects to ship by other method or in special or export packaging, then FleetDaddy will separately invoice Customer for additional cost.
· Customer agrees that the exclusive right, title and interest in and to the Software Applications and related documentation made available for use by Customer pursuant to this Agreement as well as any modifications thereto made at Customer’s request shall at all times remain the exclusive property of FleetDaddy. Customer understands and agrees that the Software Applications and related documentation is proprietary information and a trade secret of FleetDaddy whether or not any portion thereof is or may be validly registered, trademarked, copyrighted or patented. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software Applications and related documentation and modifications thereto made at Customer’s request shall remain the exclusive property of FleetDaddy.
· Customer agrees that it will not at any time do or cause to be done any act or thing impairing or tending to impair any part of such rights, title and interest.
· Customer agrees that its use of the Software Applications and related documentation as well as any modifications thereto made at Customer’s request shall not create in Customer’s favor any right, title or interest in the Software Applications and related documentation as well as any modifications thereto made at Customer’s request, unless Customer and FleetDaddy have entered into a separate written agreement to develop custom works-for-hire which outlines the specific work tasks and ownership of the products created by said work tasks..
· Customer agrees that while performing its obligations hereunder, FleetDaddy may develop inventions, technologies, methods, techniques, trade secrets, know-how and other intellectual property concerning, without limitation, the provision of remote computer services, information technology services, telecommunications, data networks and data center management. Ownership of all such intellectual property rights shall automatically vest in and remain the exclusive property of FleetDaddy.
Title to Data
Transmission of Data.
Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to the use of the Site and the Software Application. Customer expressly consents to FleetDaddy’s interception and storage of Customer’s Electronic Communications and/or Customer’s data using a Device installed in Customer’s vehicle. Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by FleetDaddy. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone or other electronic means. FleetDaddy is not responsible for any Electronic Communications and/or Customer data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by FleetDaddy, including, but not limited to, the internet and Customer’s local network.
Wireless Phone Alert/Text Service
Depending upon the product and service ordered, Customer may have the option to receive alerts and texts that can be sent to their wireless phone. Should Customer’s wireless number change or if Customer change wireless providers while Customer is subscribing to the Software Application, then Customer will be responsible to update FleetDaddy with the new wireless information. Customer may update this information by logging into their personal account on the Site and changing their wireless contact information. Customer acknowledges that some wireless service providers may charge additional fees for sending and receiving text messages.
Customer is responsible for any charges or fees that your wireless provider my charge.
Customer may change its participation in the wireless phone alert/text service by logging in to the Site and modifying their preferences.
FleetDaddy warrants that the Device, when delivered and installed (a) conforms to FleetDaddy’s material written specifications for the Device; and (b) is free from material defects in material and workmanship. Incorrect: (i) storage; (ii) installation; (iii) use; (iv) maintenance, (v) service; or (vi) repair by Customer, or any form of alteration, misuse, abuse or accident affecting the
Device, may interfere with the original condition and therefore void the warranty.
Disclaimer of Other Warranties
OTHER THAN THE LIMITED WARRANTY STATED ABOVE, THE CUSTOMER IS
PURCHASING THE DEVICE AND THE SOFTWARE APPLICATION “AS-IS”. FLEETDADDY
HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ALL EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY.
FleetDaddy further disclaims any warranty, express or implied, that the Device and the Software Applications will meet all or any of Customer's requirements, even if the Customer identifies or discloses those requirements to FleetDaddy. In addition, FleetDaddy disclaims any warranty, express or implied that the use of the Device and the Software Applications will be uninterrupted or error-free, or that patches or workarounds will be provided.
Disclaimer of Damages and Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, FLEETDADDY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR OTHER LOSSES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, USE, DATA OR OTHER INTANGIBLE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), UNDER ANY CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL THEORY, HOWSOEVER CAUSED, ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE APPLICATIONS AND/OR ANY INFORMATION CONTAINED ON THE SOFTWARE APPLICATIONS, OR ANY ERRORS OR OMISSIONS THEREIN, OR CUSTOMER’S USE OF, OR INABILITY TO USE, OR RELIANCE ON, THE SOFTWARE APPLICATIONS . CUSTOMER’S SOLE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE APPLICATIONS AND/OR INFORMATION CONTAINED ON THE SOFTWARE APPLICATIONS IS TO STOP USING THE SOFTWARE APPLICATIONS. IN THE EVENT THAT THE FOREGOING DISCLAIMER OF LIABILITY IS HELD TO BE INVALID OR UNENFORCEABLE, CUSTOMER AGREES THAT THE MAXIMUM CUMULATIVE AGGREGATE LIABILITY OF FLEETDADDY PARTIES TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE) AT ANY TIME SHALL BE THE AGGREGATE AMOUNT PAID BY CUSTOMER TO FLEETDADDY AT SUCH TIME, IF ANY, TO ACCESS THE SOFTWARE APPLICATIONS.
CUSTOMER AGREES THAT FLEETDADDY’S LIABLILITY FOR DAMAGES CAUSED BY THE DEVICE SHALL BE STRICTLY LIMITED TO THE COST OF THE DEVICE. IN NO EVENT SHALL FLEETDADDY BE LIABLE FOR DAMAGES OR PERFORMANCE ISSUES CAUSED TO THE VEHICLE IN WHICH THE DEVICE IS INSTALLED. FURTHER FLEETDADDY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIONAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR BODILY INJURY OR DAMAGE TO OTHER VEHICLES OR PROPERTY CAUSED BY INSTALLATION OF THE DEVICE.
Delay in Delivery and Force Majeure
FleetDaddy shall not be liable to Customer for any delay in shipment, failure to meet quoted delivery date(s) or delay in performance. FleetDaddy shall have the right to indefinitely postpone delivery due to unforeseen circumstances or a cause beyond FleetDaddy’s control. Examples include act of God, terror, war, riot, embargo, act of civil or military authority, fire, flood, hurricane, accident, strike, transportation delay, shortage or disruption in material or supply, excessive demand for product over available supply, interruption for any reason in manufacture of product by FleetDaddy’s supplier, or other cause not within FleetDaddy’s control, whether of the class described above or not. Where only part of FleetDaddy’s capacity to perform is excused, FleetDaddy may elect to allocate deliveries among customers in a manner FleetDaddy subjectively considers commercially reasonable.
No Waiver Failure by FleetDaddy to enforce at any time any provision of these terms, or to exercise any election or option, shall not be a waiver and shall not be construed as a waiver of the provision or option, nor be construed to affect validity of these terms or any part, or FleetDaddy’s right to enforce each and every such provision
Links to Other Websites
The Site and Software Applications may contain links to third-party internet websites or resources. These links are provided solely as a convenience to you and not an endorsement by FleetDaddy of the contents of such third-party websites. FleetDaddy neither controls, nor endorses any other websites, nor has it reviewed or approved any content that appears on other websites. Customer acknowledges and agrees that FleetDaddy shall not be held responsible for the legality, timeliness, accuracy, completeness or appropriate nature of any information, data or other content, advertising, products, or services located on or through any other third-party websites, nor for any loss or damages caused or alleged to have been caused by Customer’s use of, inability to use, or reliance on, any such content, information or data. If Customer decides to access a linked website, Customer does so at Customer’s own risk.
Attorneys’ Fees Reasonable attorneys’ fees and costs shall be awarded to the prevailing party in litigation involving breach, compliance, enforcement or interpretation of this Agreement.
Indemnity Customer will indemnify, defend and hold harmless FleetDaddy from any third party claim(s), and will pay all damages, including attorney fees, finally awarded against FleetDaddy in such claim(s). Such claims include amounts agreed to by FleetDaddy in settlement of claims arising out of Customer use or misuse of the Software Applications, any use or alleged use or misuse of Customer accounts or Customer passwords by any person, whether or not authorized by Customer, the content, the quality, or the performance of content that Customer submit to the Software Application or Customer violation of this Agreement.
Confidentiality During the term of this Agreement, FleetDaddy or Customer (“Disclosing Party”) may provide the other party (“Receiving Party”) with certain confidential and proprietary information (“Confidential Information”). Confidential Information includes FleetDaddy software, intellectual property of any kind, trade secrets, documentation, information imparted during training provided by FleetDaddy, and any other information relating to Customer’s or FleetDaddy’s
operations, customers, partners, services, products, research or development which is identified by the Disclosing Party at the time of disclosure as confidential or which could be reasonably construed to be confidential.
“Confidential Information” will not include information that (i) is publicly known at the time of its disclosure; (ii) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party; (iii) is published or otherwise made known to the public by the Disclosing Party; or (iv) was generated independently by the Receiving Party before disclosure by the Disclosing Party.
The Receiving Party will refrain from using the Disclosing Party’s Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. The Receiving Party will likewise restrict its disclosure of the Disclosing Party’s Confidential Information to those who have a need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement. Such persons will be informed of and will agree to the provisions of this Section, and the Receiving Party will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them. The Receiving Party may also disclose Confidential Information of the Disclosing Party pursuant to the requirement or request of a governmental agency, a court or administrative subpoena, an order or other legal process or requirement of law, or in order to defend its rights hereunder, so long as it shall (i) first notify the Disclosing Party of such request, requirement or proposal for use in defense; (ii) in the case of a required disclosure, furnish only such portion of the Confidential Information as it is advised in writing by counsel that it is legally required to disclose; and (iii) cooperate with the Disclosing Party in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed. Upon termination of this Agreement, each party shall return to the other party (or destroy, if requested to do so by the other party) any documents or other information or materials in its possession or under its control, which constitute Confidential Information.
Entire Agreement This Agreement and all applicable Service Orders, subscription agreements or work orders contain the entire agreement of the parties with respect to the subject matter hereof and shall supersede and replace any and all other prior or contemporaneous discussions, negotiations, agreements or understandings between the parties, whether written or oral, regarding the subject matter hereof. The terms and provisions of any Service Order, subscription agreement, work order, or other agreement which conflicts with or is in addition to the terms and provisions of this Agreement shall control. No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No consent by either party to, or waiver of, a breach by either party shall constitute a consent to or waiver of any other different or subsequent breach by either party.
Severability If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intent of the provision. Where a court is unable to construe any unenforceable or invalid provision to make it binding, then the court will severe and delete the provision. In any event, all other terms which remain valid and enforceable will survive and remain in full force and effect.
The Site is solely to be used by individuals residing in the United States of America. This Agreement will be construed in accordance with the laws of the State of Arizona, excluding its conflicts of law principles, and the federal laws of the United States.
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