For the purposes of this Attachment D, references to: (A) “we” or “us” below mean Gelco; (B) “you” means the Customer; and (C) “Products” means the Products and Services.
1. COMPLIANCE. You shall comply with all applicable laws, including export control laws and regulations of the USA and Canada. You shall not export or re-export any Product directly or indirectly in contravention of such laws and regulations. You further acknowledge that the Products cannot be exported to, or used in, countries listed on Canada’s Area Control List, including (as of the date of this Agreement) Belarus and North Korea.
2. CONFIDENTIALITY AND DATA TRANSFER. We and our suppliers will implement and maintain reasonable technical and organizational security and data storage policies and measures consistent with industry standards for facilities within our control and make these measures and policies available to you on request. You acknowledge and agree that data may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the internet, in the course of using Products. You shall not provide third parties with access to any software and non-public information in and regarding the Products and any other confidential information that we or our suppliers provide without our prior written consent, except to your own employees, subject to adequate confidentiality agreements.
3. YOUR VEHICLE DATA. In furtherance of such purposes, based on certain non-position data elements in your vehicle database (such as vehicle VIN), from time to time in certain jurisdictions we or our suppliers may query, on a confidential basis, databases maintained by reputable third party providers for additional information.
4. FEEDBACK. You understand and agree that any feedback, input, suggestions, recommendations, improvements, changes, specifications, test results, or other data or information that You provide or which is made available to or gathered by our supplier arising from or related to your use, testing, integration or evaluation of the Products, including our supplier’s website and including in the course of utilizing support, maintenance or other services (“Feedback”), shall be jointly owned by us and our suppliers as tenants in common (and for greater certainty, no party will have a duty to account to any other party and each party will be free to use, exploit, modify, transfer or sell Feedback or its rights therein or thereto without the consent of any other party). Without limiting the generality of the foregoing, Feedback may be used by us and our supplier to modify, enhance, maintain and improve our Products or otherwise without any obligation or payment to you or to any of your customers whatsoever.
5. INSTALLATION WARNING. Certain vehicles or installation configurations may require professional installation, additional equipment or modifications to your vehicles. If you are uncertain that you have the requisite skills and understanding to install Products, you must consult with an authorized reseller or installer. Improper installation can lead to short circuits and the risk of fire, leading to personal injury or significant damage to your vehicle. Installation or servicing may also require modifications to your vehicle. Failure to comply with procedures specified in the installation instructions for a Product, or attempting to install our Products without adequate knowledge of our Products, proper installation, configuration, servicing, repair or removal procedures, or your vehicle may result in damage to the
Product or your vehicle, which may cause malfunctions of vehicle controls or vehicular environmental systems and result in personal injury. You understand that any such activities not performed by an authorized reseller or installer will be at your sole risk. You hereby release and forever discharge, and will indemnify and hold harmless, us, our affiliates, resellers and agents and their directors, officers, employees and representatives from any and all losses, actions, causes of action, liability, claims, demands, penalties, costs, expenses (including legal fees and disbursements on a full indemnity basis), judgments and damages of any nature or kind whatsoever, whether under contract, tort, or any other theory of law or equity, which you or any other third party has or will have, arising or accruing from, as a result of, in relation to, or in connection with, the same.
6. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN GELCO’S EXPRESS WARRANTY AND THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY TERMS, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT OR QUIET POSSESSION AND THOSE ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR SUPPLIERS CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT: (a) ANY OF THE PRODUCTS WILL MEET YOUR BUSINESS OR OTHER REQUIREMENTS; (b) THE PRODUCTS WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION; (c) THE PRODUCTS WILL BE ERROR-FREE, VIRUSFREE OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE, RELIABLE OR CURRENT; (d) ANY ERRORS IN THE PRODUCTS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. MOREOVER, WE AND OUR SUPPLIERS DO NOT ENDORSE, AND MAKE NO REPRESENTATION, OR WARRANTY WITH RESPECT TO, AND ASSUME NO RESPONSIBILITY, OBLIGATION OR LIABILITY FOR, ANY THIRD PARTY PRODUCTS, SOFTWARE, DATA OR SERVICES, INCLUDING BUT NOT LIMITED TO WIRELESS SERVICES, MAPPING SERVICES, POSTED ROAD SPEED SERVICES, AND INTERNET BANDWIDTH AND STORAGE SERVICES.
7. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
(a) Geotab will, at its sole cost and expense, defend and indemnify or, at its option, settle, any claim, assertion or action brought against you or your affiliates, successors or assigns to the extent that it is based on a claim (an “Infringement Claim”) that any Geotab Products which we have supplied to you directly or through an authorized reseller infringes any copyright, patent, trade secret or trademark of any third party (excluding any of your affiliates) and indemnify you against damages awarded against you by a court of competent jurisdiction by final order from which no appeal is taken or after the time for appealing has expired, provided that you: (i) notify Geotab and us promptly in writing; and (ii) permit Geotab to defend, compromise or settle the claim or action and provide all available information, assistance and authority to enable Geotab to do so. Geotab shall not be liable to reimburse you for any compromise or settlement made by you without its prior written consent, or for any legal fees or expenses incurred by you in connection with such claim.
(b) Should any Geotab Products or any part thereof become, or in Geotab’s sole opinion are likely to become, the subject of an Infringement Claim, Geotab may, at its option and expense: (i) procure, at no cost to you, the right to continue to use such Geotab Products which are the subject of the Infringement Claim; (ii) replace or modify the Geotab Products or infringing part thereof with non-infringing equivalents, at no cost to you; or (iii) if none of the foregoing alternatives are reasonably practical in Geotab’s sole judgment, Geotab may: (A) in the case of software or services, terminate such services or the licenses for such software and refund or issue a credit for any prepaid but unused fees for such software or services, if any; and/or (B) in the case of Geotab devices, require you to return such devices and refund or issue a credit for the purchase price paid by you to Geotab for the devices returned, depreciated on a straightline basis over a 36 month period from the date of purchase.
(c) Geotab has no obligation or liability whatsoever in respect of any Infringement Claim that is based on any of the following (collectively, the “Excluded Claims”): (i) in the case of any software, the use of other than the latest release and version of such software; (ii) the use of any Geotab Products in breach of this Agreement; (iii) non-Geotab products, software, data or services, (iv) the use, association or combination of any Geotab Products with, or the incorporation or integration into Geotab Products of, any non-Geotab product, software, service, data, information or other material (including your own) that is not supplied by Geotab or expressly identified by Geotab in our written specifications or documentation as being required for the use and operation of the Geotab Products; (v) the use or operation of any Geotab Products, in any manner or for any purpose other than as expressly specified in our documentation for same; (vi) any modification, alteration, change, enhancement, customization or derivative work of the Geotab Products made by anyone other than Geotab or our agents; (vii) changes Geotab makes to Products to comply with your instructions or specifications; (viii) any use of data in accordance with this Agreement that is collected through the operation of or generated by Geotab Products; (ix) for insurance purposes, the use of the Geotab Products in association with driving, driver or vehicle activity or performance; or (x) any reselling or distribution of Geotab Products.
(d) If you believe you have a claim under this Section you must notify Element promptly in writing, who will review your claim and pass it on to Geotab if it is subject to this indemnity. This Section states Geotab’s entire liability and your sole and exclusive remedies with respect to any Infringement Claim.
8. INDEMNIFICATION. UNLESS PROHIBITED BY APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD HARMLESS US, OUR AGENTS, SUPPLIERS, LICENSORS, SERVICE PROVIDERS, DISTRIBUTORS, SUBDISTRIBUTORS, CONTRACTORS, SUCCESSORS OR ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY ARISING OUT OF OR INCIDENT TO: (A) YOUR ACTIONS OR FAILURE TO ACT UNDER OR RELATED TO THIS AGREEMENT, OR (B) YOUR BREACH OF ANY THIRD PARTY TERMS INCORPORATED HEREIN BY REFERENCE.
Wireless Provider Terms and Conditions in GEOTAB End User Agreement
By accepting the above terms, you also accept these Wireless Provider Terms, which relate to the wireless services used to transmit vehicle data generated by and associated with devices installed in your vehicles from the device to our servers. Our wireless providers require us to pass certain terms and restrictions through to you. These Wireless Provider Terms contain important terms and conditions that affect your rights and obligations. Some of the wireless carriers reserve the right to amend their terms from time to time, as specified below and by accepting such Wireless Provider Terms as part of the above terms, you agree to accept amended versions of such Wireless Provider Terms. The following terms apply if you have subscribed for wireless communication services through us. “You” means the legal entity that you represent that has subscribed for wireless communication services to be used in connection with the services provided by Gelco (“us” or “we”). References to the “underlying carrier” refer to the provider of the wireless communication services, references to “supplier” refer to Geotab Inc., and references to “reseller” refer to any reseller of services provided by an underlying carrier from whom we procure wireless communication services.
1. You acknowledge that the services provided by the underlying carrier are made available only when the Products are in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of: (a) limitations to facilities or services of the underlying carrier or its vendors; (b) transmission limitations caused by atmospheric, topographical, terrain, other natural or artificial conditions or other factors or causes outside of the underlying carrier’s reasonable control; or (c) usage concentrations, capacity constraints, modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to us by the underlying carrier. Individual data transmissions may be involuntarily disconnected or delayed for a variety of reasons, including without limitation atmospheric conditions, topography, weak batteries, system over-capacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations. None of us, our supplier, an underlying carrier or a reseller shall be responsible or incur any liability for the failure to provide adequate services, including any coverage gaps, or any damages resulting therefrom. You acknowledge that services may be temporarily suspended or permanently terminated upon little or no notice in the event that our agreement with the reseller or the underlying carrier is suspended or terminated or in the event of any violation of the underlying carrier’s acceptable use policy or other rules or policies. You waive any and all claims against us, our supplier, the reseller and the underlying carrier for such suspension or termination.
2. You acknowledge that: (a) it is possible for third parties to monitor wireless transmissions and data traffic over the facilities of the underlying carrier and neither privacy nor security can be guaranteed; (b) transmissions to an internet address or through the internet or other use of the internet may result in the transmission of your number or other information over the internet; (c) if you desire to secure transmission of data, you must provide for your own means of doing so; and (d) you assume full responsibility for the establishment of appropriate security measures to control access to your own respective equipment and information. YOU UNDERSTAND THAT WE, OUR SUPPLIER, THE RESELLER AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT NONE OF US, OUR SUPPLIER, THE RESELLER OR THE UNDERLYING CARRIER WILL BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
3. You understand and acknowledge that we and/or our supplier are bound by certain additional obligations under a written agreement with the underlying carrier and that the underlying carrier has also established rules, policies and procedures governing the provision of the wireless communication services and may, from time to time, develop and adopt new rules, policies and procedures. You agree to comply with all such obligations, rules, policies and procedures, new or otherwise, related to the foregoing and the provision of wireless services, as we request from time to time.
4. You will be fully responsible for all SIM Cards purchased from us. You agree not to remove such SIM Cards from the Products or use such SIM Cards in connection with any services other than the wireless communication services provided by us and the reseller and/or underlying carrier from whom such SIM Card is procured. You understand that the reseller or the underlying carrier retains ownership of the SIM Cards. You must not insert a SIM Card into any device other than the Product for which it has been designated. You must not provide, sell or transfer in any manner any SIM Card, whether separately or together with any device, to any individual or entity or program, reprogram, or tamper with any SIM Card in any manner. You will be responsible for any and all charges and other fees incurred with respect to the SIM Cards supplied to you by us, including fees for unauthorized services.
5. Subject to the number portability rules under applicable law, you have no property right in any code or identifier (including any number, phone number, IMEI, IMSI, unique network identifier, internet protocol (IP) addresses, personal identification number or e-mail address) issued to, assigned to or associated with you or any product used by you in connection with the services provided to us by the underlying carrier (each an “Identifier”). You acknowledge that the underlying carrier may change any identifier at such time or times as the underlying carrier considers necessary without any liability whatsoever, whether on our part or the part of the underlying carrier. You further acknowledge and agree that dynamic IP addresses may be used with respect to the products, which IP addresses will change whenever a product is disconnected from and then reconnected to the facilities of the underlying carrier or after an elapsed period of time. You and your customers acknowledge that the assignment of numbering resources is subject at all times to availability from applicable numbering authorities.
6. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH OUR SUPPLIER, THE UNDERLYING CARRIER OR THE RESELLER OF ANY UNDERLYING CARRIER OR ANY AFFILIATES OR CONTRACTORS THEREOF, AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US OR OUR SUPPLIER AND THE UNDERLYING CARRIER, BETWEEN US OR OUR SUPPLIER AND ANY RESELLER OF ANY UNDERLYING CARRIER, OR BETWEEN ANY RESELLER AND ANY UNDERLYING CARRIER. YOU ALSO UNDERSTAND AND AGREE THAT ANY AGREEMENT BETWEEN US OR OUR SUPPLIER AND A RESELLER DOES NOT CREATE A CONTRACTUAL RELATIONSHIP BETWEEN US OR OUR SUPPLIER AND THE UNDERLYING CARRIER OF SUCH RESELLER. IN ADDITION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT OUR SUPPLIER, THE UNDERLYING CARRIER, ANY RESELLER OF ANY UNDERLYING CARRIER OR ANY AFFILIATES OR CONTRACTORS THEREOF MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES: (a) REGARDING THE PROVIDER, SCOPE OR NATURE OF CONTENT OR SERVICES THAT WILL BE AVAILABLE BY DEFAULT TO YOU FROM THIRD PARTIES THROUGH THE SERVICES; (b) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE OR NONINFRINGEMENT, OR (c) REGARDING RESULTS TO BE OBTAINED BY YOU IN CONNECTION WITH THE USE OF THE WIRELESS COMMUNICATION SERVICES OR THAT ACCESS TO OR USE OF THE WIRELESS COMMUNICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE) AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. THE UNDERLYING CARRIER IS NOT LIABLE TO YOU FOR ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH ANY COVERAGE MAP INFORMATION, INCLUDING THE ACCURACY THEREOF.
7. You expressly understand and agree that the liability and obligations of us, our supplier, or the underlying carrier to you are strictly controlled and limited by the underlying carrier’s tariff, if any, and the laws, rules and regulations of the governmental authorities which from time to time have jurisdiction.
8. YOU ACKNOWLEDGE AND AGREE THAT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AGAINST US, AND OUR EXCLUSIVE REMEDY AGAINST OUR SUPPLIER, AN UNDERLYING CARRIER OR A RESELLER THEREOF, AND THE TOTAL LIABILITY OF US, OUR SUPPLIER, ANY RESELLER, THE UNDERLYING CARRIER OR ANY SUPPLIER OF SERVICES TO YOU FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE ARISING IN ANY WAY IN CONNECTION WITH THE WIRELESS SERVICES, IN CONNECTION WITH OUR AGREEMENT WITH AN UNDERLYING CARRIER OR A RESELLER THEREOF, OR ANY FAILURE OR DISRUPTION OF SERVICES, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU TO US FOR THE SERVICES DURING THE ONE (1) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. IN NO EVENT SHALL WE, OUR SUPPLIER, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY COST, DELAY, FAILURE OR DISRUPTION OF SERVICE, LOST PROFITS (DIRECT OR INDIRECT) OR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE, OUR SUPPLIER, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE FAILURE OR INCOMPATIBILITY OF EQUIPMENT UTILIZED BY YOU IN CONNECTION WITH THE SERVICES.
9. YOU SHALL INDEMNIFY, DEFEND (IF REQUIRED BY US, OUR SUPPLIER OR THE UNDERLYING CARRIER) AND HOLD HARMLESS US, OUR SUPPLIER, THE RESELLER AND THE UNDERLYING CARRIER, AND THE OFFICERS, EMPLOYEES, AND AGENTS OF EACH OF THEM FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, EXPENSES, LIABILITY OR DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH ANY AGREEMENT BETWEEN US OR OUR SUPPLIER AND THE RESELLER OR THE UNDERLYING CARRIER OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES OR ANY IDENTIFIER OR THE UNLAWFUL USE OF THE WIRELESS COMMUNICATION SERVICES. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. THIS PROVISION WILL SURVIVE THE TERMINATION OF ANY SERVICES PROVIDED TO YOU AND ANY RELATED AGREEMENT FOR SAME. YOU ACKNOWLEDGE THAT SUCH AGREEMENT IS ASSIGNABLE BY US.
10. Subject to the terms of the Agreement, unless you provide express consent or disclosure is pursuant to a legal power, all information kept by us, our supplier, the reseller or the underlying carrier regarding you, other than your name, address and listed telephone number, is confidential and may not be disclosed by us, our supplier, the reseller or the underlying carrier to anyone other than: (a) you; (b) the underlying carrier or the reseller; (c) a person who, in our reasonable judgment or that of the underlying carrier or the reseller, is seeking the information as your agent; (d) another telecommunications carrier, telephone company or other person providing services to a telecommunications carrier, provided the information is required for establishment of, or the efficient and cost-effective provision of services and disclosure is made on a confidential basis with the information to be used only for that purpose; (e) a company involved in supplying you with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; (f) an agent retained by us, our supplier, the reseller or the underlying carrier in the collection of your account, or to perform other administrative functions for us, the reseller or the underlying carrier, provided the information is required for and is to be used only for that purpose; (g) to a law enforcement agency whenever we or the underlying carrier has reasonable grounds to believe that you have knowingly supplied us or the underlying carrier with false or misleading information or you are otherwise involved in unlawful activities; or (h) a public authority or agent of a public authority, if in our reasonable judgment or that of our supplier or the underlying carrier, it appears that there is imminent danger to life and property which could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by you where you provide: (i) written consent; (ii) oral confirmation by an independent third party; (iii) electronic confirmation through the use of a toll-free number; (iv) electronic confirmation via the internet; (v) oral consent, where an audio recording of the consent is retained by us; or (vi) consent through other methods, as long as an objective documented record of customer consent is created by us or by an independent third party.
11. You may only roam incidentally to your use of the services in your country of residence. The underlying carrier may, at its discretion, and to the extent permitted under its agreements with its vendors, provide certain roaming services to you in other territories that the underlying carrier has made available to us. The foregoing may not apply for residents of certain countries. Any such roaming shall be subject to the restrictions that may exist in the respective agreements between such persons and applicable law or regulation. The underlying carrier or its vendors may in their sole discretion suspend roaming privileges to you if they discover or suspect that the services are being used in a fraudulent manner. The underlying carrier shall be entitled from time to time and at any time, at its sole discretion, to: (a) add, modify or remove territories where roaming shall be available to you; (b) substitute roaming partners; and/or (c) pass through any applicable increases in the costs of the wireless communication services in respect of such changes. You acknowledge that not all wireless communication services are available in each territory where roaming is available and roaming in certain territories is only available for use with products using certain forms of technology. None of us, our supplier, an underlying carrier or a reseller thereof makes any warranties or representations as to the availability or quality of roaming service provided by other wireless carriers, where available, and none of us, our supplier, an underlying carrier or a reseller thereof shall have any liability whatsoever for any errors, outages, failures, suspension or termination of roaming services or any increases to the charges as a result of any of the foregoing. You acknowledge that not all features and/or functionalities are available in each territory where roaming is available and roaming in certain territories is only available for use with products using certain forms of technology. You understand and acknowledge that the services may not be used for devices to be permanently deployed outside your country of residence.
12. As a condition of your use of any HSPA wireless communication services provided by Telus or any of its affiliates, you represent, warrant and covenant that: (a) your billing address is and will remain in Canada; (b) your billing address is not outside of Telus’ wireless service area in or around Winnipeg in the province of Manitoba (as documented at http://www.telusmobility.com/en/MB/hspa/canada3gmaps.shtml as such webpage may change or move from time to time); (c) you are not a wireless operating company and do not, directly or indirectly, own all or part of a wireless operating company, which includes, but is not limited to, any person or entity in the business of operating and offering PCS, cellular communication, iDen, GSM, CDMA, HSPA, LTE, WiMax or satellite networks; and (d) you are not person or entity that, in the reasonable opinion of Telus, will, directly or indirectly, re-sell such wireless communication services.
13. The underlying carrier collects information about the approximate location of equipment in relation to its cell towers and the Global Positioning System (“GPS”). The underlying carrier uses that information, as well as other usage and performance information also obtained from its network and the equipment, to provide the services and to maintain and improve its network and the quality of the wireless experience. The underlying carrier may also use location information to create aggregate data from which your personally identifiable information has been removed or obscured. Such aggregate data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring. You understand and agree that the underlying carrier may collect and use location information from your equipment.
15. We or our supplier may terminate the provision of wireless communication services to you without notice or any further obligation or liability if the agreement with the underlying carrier governing the provision thereof expires or terminates.
16. If the agreement with an underlying carrier or a reseller thereof is terminated, you may be able to continue the provision of services, provided however that such continued provision may be subject to such underlying carrier’s or reseller’s then-current terms and conditions.
17. Our supplier, the underlying carrier and/or its reseller are each a third party beneficiary of these terms, and may take any equitable or legal action required to enforce same.
18. We may change, modify or amend these terms at any time in accordance with the terms of the Agreement, provided however the notice period applicable will be 15 days.
Other Provider Terms and Conditions in GEOTAB End User Agreement
By accepting the above terms, you also accept these Other Provider Terms. Our Products contain or function in connection with software, services and other products made or offered by companies that are not affiliated with us or our supplier, many of which require us to pass through their terms to you and/or require you to accept their terms as a condition to your use of our Products. These Other Provider Terms contain important terms and conditions that affect your rights and obligations. Some of the providers detailed below reserve the right to amend their terms from time to time, as specified below, and by accepting such Other Provider Terms as part of the above terms, you agree to accept amended versions of such Other Provider Terms. You agree that it is your responsibility to review, determine applicability and comply with the terms set forth below as well as to check for updates and changed URLs.
A. DATA STORAGE
We use more than one provider for data storage services. Currently we use a third party co-location facility in Canada to house our data storage servers, and we use Google Cloud Platform as our primary cloud data storage provider. As such, your data will be stored either on our servers at the Canadian colocation facilities or on Google’s servers in various locations. The following terms are applicable to data storage services. If you have any questions about where your Individual Vehicle Data is stored, please contact us.
1. Internet Bandwidth Services - Acceptable Use Policy
With respect to any Internet Bandwidth Services, you shall not use and shall not permit such Internet Bandwidth Services or any related Services to be used, including any use by your employees, agents, representatives, clients, contractors, end-users and any third parties who use or access such Services (collectively, “Users”), in any manner which: (i) could cause loss or degradation of our service or our service providers’ service to any of other of our or their customers or Internet users; (ii) could compromise the security or integrity of others’ computer systems or software; (iii) creates, collects, transmits, stores or exchanges any material in violation of any applicable laws; or (iv) would be reasonably expected to constitute grounds for our or our service providers’ exposure to civil or criminal liability.
The acts and omissions of Users shall be deemed to be your acts and omissions for the purposes hereof (including for purposes of liability) and you shall be held directly accountable for any actual or attempted contravention of this Acceptable Use Policy (“AUP”) by any User. If we or our service providers detect or becomes aware of any use of any Internet Bandwidth Services in contravention of this AUP, we and our service providers will favour responses that address the breach while minimizing any disruption of the Internet Bandwidth Services or other Services. For example, if the contravention is ongoing and the contravention puts the ongoing operation of our or our service providers’ data centres or our service providers to civil or criminal liability, we or our service providers may suspend the Internet Bandwidth Services and any related Services and inform you of the suspension. If the contravention does not put the ongoing operation of us or our service providers’ data centres or the provision of Services to us or our service providers’ other customers in jeopardy or expose us or our service providers to civil or criminal liability, we will inform you of the contravention. Once informed of any such contravention, you will take reasonable steps to promptly stop any ongoing contravention and mitigate the effect of the contravention.
We and our service providers reserve the right to change this AUP from time to time and will notify you by posting a revised copy of the AUP at our website or by such other method of communication as we or our service providers determine appropriate.
2. Google Cloud Platform Terms
- Consent. You consent to the transmission, storage, use and processing of your data by us, our supplier and/or Google according to this Agreement using Google’s Cloud Platform. Additionally, you consent to Google processing and storing your data anywhere Google or its agents and sub-processors maintain facilities for which we or our supplier has contracted, except if you are located in Europe, in which case we and our supplier have made arrangements to have your data stored on Google servers in Europe. By using the services, you consent to this processing and storage of your data. Under this Agreement, Google is merely a data processor.
- Google Cloud Platform Acceptable Use Policy. You agree to be bound by the Google Cloud Platform Acceptable Use Policy, available at: https://cloud.google.com/terms/aup. Violation of the Google Cloud Platform Acceptable Use Policy may result in immediate removal (and loss) of your data.
- U.S. Government Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.
B. POSTED SPEED LIMIT DATA
If you are using posted speed limit data provided by HERE, the following terms apply to you.
- Copyright. The posted speed limit data (“Speed Data”) is provided for your personal, internal use only and not for resale. It is protected by copyright, and is subject to the following terms and conditions which are agreed to by you, on the one hand, and us, our supplier, and our licensors (including their licensors and suppliers) on the other hand. © 20XX HERE. Copyright notices for specific countries can be found at: https://legal.here.com/terms/general-content-supplier/terms-and-notices/. All rights reserved.
- Internal Business Use Only. You agree to use this Speed Data together with our Products and services for the internal business purposes for which you were licensed, and not for service bureau, time-sharing or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy this Speed Data only as necessary for your internal business use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Speed Data in any way. You agree not to otherwise reproduce, copy, modify, decompile, disassemble, create any derivative works of, or reverse engineer any portion of this Speed Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws.
- Restrictions. Except where you have been specifically licensed to do so by us or our supplier, and without limiting the preceding paragraph, you may not (a) use this Speed Data with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, capable of vehicle navigation, positioning, dispatch, real time route guidance or similar applications; or (b) with or in communication with any positioning devices or any mobile or wireless-connected electronic or computer devices, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs.
- HERE End User Terms. Except for use as part of the Products, where you have been specifically licensed by us and/or our supplier, you agree that you are bound by the HERE End User Terms, available at: https://legal.here.com/en/terms/eula/us.
C. GOOGLE MAPS TERMS
If you are using map data provided by Google, the following terms apply to you.
- Google Universal Terms of Service. You agree to be bound by Google’s Universal Terms of Service, available at: https://www.google.com/intl/ALL/policies/terms/.
- Google Maps Terms. You agree to be bound by the Google Maps Terms, available at: https://www.google.com/help/terms_maps.html.
- Google Legal Notices. You agree to be bound by Google’s Legal Notices, available at: http://www.google.com/intl/en-us/help/legalnotices_maps.html.
- Google Maps Acceptable Use Policy. You agree to be bound by the Google Maps Acceptable Use Policy, available at: https://www.google.com/work/earthmaps/legal/universal_aup.html.
- Export Laws. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
- Prohibited Territory. You agree to refrain from using Google maps in the “Prohibited Territory”, defined by Google as the countries listed at: http://www.google.com/enterprise/earthmaps/legal/us/maps_integrator_territory.html.
- Consent. You agree to consent - and to obtain the consent of every driver and other person whose location can be determined with the Product and Google services - to us and our supplier obtaining and caching location data, noting that such consent is revocable and that without such consent, services either cannot be provided or cannot be provided with the same functionality.
- US Government Users. The Google Services were developed solely at private expense and is commercial computer software and related documentation within the meaning of the applicable U.S. civilian and military Federal acquisition regulations and any supplements thereto. If the user of the Services is an agency, department, employee, or other entity of the United States Government, under FAR 12.212 and DFARS 227.7202, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, including technical data or manuals, is governed by the terms and conditions contained in Google's standard commercial license agreement.
Google does not accept government flow down provisions, including but not limited to, the United States Federal Acquisition Regulations (FARs) and its supplements, Defense FARs or NASA FARs. Government flow down provisions, if any, will be addressed with supplementary documentation and require Google's signed acceptance of any supplementary documentation.
The Universal Terms section entitled “Business uses of our Services” is replaced in its entirety with the following:
“If you are using our Services on behalf of a government entity, that entity accepts these terms. Solely to the extent permitted by applicable law, regulation, or privileges and immunities, that entity will hold harmless and indemnify Google and its affiliates, officers, agents and employees from any claim, action or proceedings arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, judgments, litigation costs and legal fees.”
For city or state government entities in the United States and European Union, the Universal Terms section regarding governing law and venue will not apply.
For United States federal government entities, the Universal Terms section regarding governing law and venue is replaced in its entirety with the following:
“This Agreement will be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. Solely to the extent permitted by federal law (A) the laws of the State of California (excluding California’s conflict of laws rules) will apply in the absence of applicable federal law; and (B) any dispute arising out of or relating to this Agreement or the Services will be litigated exclusively in the federal courts of Santa Clara county, California, and the parties consent to personal jurisdiction in those courts.”
All access of use of Google Maps/Google Earth by or for the United States federal government is subject to the “U.S. Government Restricted Rights” section in Legal Notices; set out here for convenience:
A. This computer software is submitted with restricted rights under the Google Terms of Service, the Google Maps/Google Earth Additional Terms, and the Google Maps/Google Earth APIs Terms of Service. It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice or as otherwise expressly stated in the contract.
B. This computer software may be:
- Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred;
- Used or copied for use with a backup computer if any computer for which it wasacquired is inoperative;
- Reproduced for safekeeping (archives) or backup purposes;
- Modified, adapted or combined with other computer software, provided that the modified, adapted or combined portions of the derivative software incorporating any of the delivered, restricted computer software will be subject to the same restricted rights;
- Disclosed to and reproduced for use by support service Contractors or their subcontractors in accordance with paragraphs (B)(a) through (d) of this notice; and
- Used or copied for use with a replacement computer.
C. Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (B) of this notice.
D. Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the contract.
E. This notice will be marked on any reproduction of this computer software, in whole or in part.
D. HERE MAPS TERMS
If you are using map data provided by HERE, the following terms apply to you.
HERE End-User Terms. You understand and acknowledge that map and related data or services provided
E. MAPBOX MAP TERMS
If you are using map data from Mapbox, the following terms apply to you.
License to Use Your Data. Limited to the purpose of hosting your content so that mapping services can be provided, you grant Mapbox a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works, and store such content and to allow others to do so. This right and license enables Mapbox to
host and mirror your content on its distributed platform. You warrant, represent, and agree that you have the right to grant Mapbox these rights.
US Government. If you are a US Government User there are modified/additional terms that apply to you; available at: https://www.mapbox.com/usg-tos/.