Important service updates Learn more
For the purposes of this Exhibit A-1, references to: (A) "we" or "us" below mean Element; (B) "you" means the Customer; and (C) "Products" means the Products and Services.
A. WEBSITE USE AGREEMENT
1. "Services" shall mean vehicle tracking and monitoring (in conjunction with use of Products) and other services provided by us or our suppliers via the Website (defined below) provided with services for use by Customer in accordance with this Agreement from time to time.
2. "Website" shall mean the Azuga fleet website.
3. Customer shall bear full responsibility for the provision and maintenance of all required software and equipment (including portable or mobile devices, if applicable) and Internet connectivity at its location(s) and shall comply with all reasonable requests by us to provide access to such information, materials, personnel and equipment as we may deem necessary or advisable.
4. The information contained on the Website, including all images, designs, photographs, writings, data, information, and other materials ("Materials") are the property of us, our suppliers, authorized licensors, sponsored parties and/or content providers and are protected by copyrights, trademarks, trade secrets and other proprietary rights. Customer is granted permission to display, copy, distribute, download and print portions of the Website solely for the purposes of using the Services and other authorized uses described in this Agreement. All copyright laws worldwide apply to use of the Website and unauthorized use and/or copying of the Materials is strictly prohibited. Except as may be provided in this Agreement, we or our suppliers do not grant any express or implied right in or under any patents, trademarks, copyrights, or trade secret information whatsoever.
1. Except as set forth in this Agreement, Customer agrees: (a) not to alter, copy, modify, or re-transmit the Materials; (b) not to lease, license, rent or sell the Materials or the right to use and access the Website and/or the Services; (c) not to remove, obscure, or alter any text or proprietary notices on the Website or contained in the Materials; (d) not to copy or imitate part or all of the design, layout or look-and-feel of the Website or the Materials all of which are protected by intellectual property rights; and (e) that certain Services and Materials may be available only upon Customer having paid an additional subscription fee.
2. Customer expressly acknowledges and agrees that use of the Website and hyperlinks on the Website (if any) are at Customer’s sole risk and that neither Element, our suppliers, our affiliates, nor their respective officers, managers, directors, agents, employees, contractors or subcontractors warrant: (i) that the Website will be uninterrupted, error-free, free of software viruses or other harmful computer code, files or programs; (ii) that the Materials or other data or information obtained from use of the Website, are accurate, complete, secure, current or free of errors, omissions, inaccuracies or outdated information; and/or (iii) the reliability of any statement or other information displayed or distributed through the Website. Element and our suppliers reserve the right, in our sole discretion, to correct any errors or omissions and to make any other changes to the Website, the Materials, the Products and to the programs, services or prices (if any) described in the Website from time to time at any time with or without notice.
3. Customer warrants that it is author and sole owner of the intellectual property rights to any confidential, secret or proprietary information or other material, information or opinions uploaded to the Website or otherwise submitted to us (collectively, "Content"). Customer acknowledges that we and our suppliers do not pre-screen, monitor, review or edit Content and is not responsible for nor assumes any liability for inaccuracy or incompleteness or any other defect or deficiency related to any such Content.
4. Customer agrees not to use the Products, Website, Materials and Services to: (a) share or encourage or permit others to share any Content that is unlawful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, pornographic, lewd, profane, invasive of another’s privacy, hateful, racially, ethnically, or otherwise objectionable, or that Customer does not have a right to share under any law or contractual or fiduciary relationship or that infringes any intellectual property right or other proprietary right of any party, or that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (b) stalk, intimidate, and/or harass another or incite others to commit violence; (c) impersonate any person or entity or falsely states or otherwise misrepresents any affiliation with a person or entity, including use of the Services or Materials to mislead anyone into believing that they are interacting directly with us or suppliers or any of the Services; (d) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys, or other duplicative or unsolicited messages (commercial or otherwise); (e) use any domain name with our company or supplier’s brand name as a pseudonymous return email address; (f) access or use the Website or the Services in any manner that could damage, disable, overburden or impair any Element or supplier server or networks connected to any Element or supplier server; (g) intentionally or unintentionally interfere with or disrupt the Website or the Services or violate any laws related to the access to or use of the Website or the Services, violate any requirements, procedures, policies, or regulations of networks connected to the Website or the Services, or engage in any activity prohibited hereby; (h) disrupt or interfere with the security of, or otherwise cause harm to, or inhibit any other user from using, the Products, Website, Services, Materials, systems resources, accounts, passwords, servers or networks connected to or accessible through the Website or any affiliated or linked sites; (i) access or attempt to access any Material that Customer is not authorized to access or through any means not intentionally made available thereto; (j) market or promote any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by us or our suppliers; (k) use any data mining, robots or similar data gathering and extraction methods in connection with the Products, Website, Services or Materials; (l) defraud, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or (m) collect or store data about other users.
5. Our supplier will store Customer-transmitted information on its servers for a period of ninety (90) days during which Customer may access the information and generate reports in connection therewith so long as Customer is not in default of this Agreement.
6. We and our suppliers use reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, there will be occasions when the Website and/or the Services will be interrupted for maintenance, upgrades and repairs, or because of failure of telecommunications links and equipment that are beyond its control. To the extent it is within its reasonable control,, we may, in our sole discretion, take reasonable steps to minimize such disruption but shall not be liable for its inability to prevent any such disruption or restore the Services to Customer or anyone else.
7. We, our suppliers and our affiliates, partners and licensors provide certain features or services that rely upon automotive sensor and GPS location to provide such features or services, where available. We, our suppliers, and our affiliates, partners and licensors may collect, use, transmit, process and maintain Customer information and Customer agrees that we and our suppliers may use and provide to our affiliates, partners, and licensors any aggregated information, including, but not limited to location coordinates of any device, sensor data and the time stamp when the information was received, for its bona fide business purposes so long as such aggregated information does not disclose any personally identifiable information of the Customer.
8. THE WEBSITE AND THE INFORMATION, CONTENT, AND MATERIALS ON THE WEBSITE ARE PROVIDED ON AN "AS IS," "WHERE IS," AND "WHERE AVAILABLE" BASIS. WE AND OUR SUPPLIER MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE CONTENT, INFORMATION OR MATERIALS ON THE WEBSITE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR SUPPLIERS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO ANY OF THE MATERIALS, CONTENT, OR INFORMATION ON THE WEBSITE OR ANY GOODS OR OTHER PRODUCTS OR SERVICES PROVIDED, OFFERED, SOLD, OR DISPLAYED ON THE WEBSITE OR USE OF THE WEBSITE GENERALLY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW APPLIES TO THIS AGREEMENT.
9. CUSTOMER AGREES THAT WE, OUR SUPPLIERS AND OUR PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM CUSTOMER’S ACCESS TO OR USE OF THE MATERIALS, CONTENT AND INFORMATION ON THE WEBSITE REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES SHALL WE OR OUR SUPPLIERS OR ANY OF OUR PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE MATERIALS, CONTENT OR INFORMATION ON THE WEBSITE OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION OFFERED, SOLD OR DISPLAYED ON THE WEBSITE, OR THE USE OF, OR INABILITY TO USE, THE WEBSITE GENERALLY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER WE OR OUR SUPPLIERS OR ANY OF OUR PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH. AS SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
10. Customer agrees not to access or attempt to access the Website or use the Services by any means other than the interface provided.
B. GENERAL TERMS
1. Customer acknowledges and agrees that it is Customer’s responsibility to secure and maintain all necessary and advisable insurance coverages related to the use of the Product.
2. Customer agrees that we and our suppliers may modify or discontinue, temporarily or permanently, the Products, Website, Materials or the Services, or any portion thereof, with or without notice. We may automatically download and install updates designed to improve, enhance and further develop the Products, Website, Materials or Services and may take the form of bug fixes, enhanced functions, modified or new software modules or completely new versions. Customer agrees to receive such updates and permits us to deliver these with or without notice as part of this Agreement.
3. Although we and our suppliers do not generally monitor Customer activity in connection with the Services, if we or our suppliers become aware of any possible violation of any provision of this Agreement, we and our suppliers reserve the right to investigate such violations, and we may, at our sole discretion, take any such action as it may deem necessary or advisable under the circumstances, including to discontinue, suspend, terminate or block Customer’s (or any user’s) use of Product and/or access to the Website and the Services, to change, alter, or remove Content or account information, in whole or in part, without prior notice. If, as a result of such investigation, we believe that criminal activity has occurred, we and our suppliers reserve the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities.
4. Without limiting its other remedies, we and our suppliers reserve the right to discontinue, suspend, terminate or block Customer’s (or any user’s) use of Product and/or access to the Website and the Services upon any breach of this Agreement by Customer at any time, in our sole discretion or in the event that Customer makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.
5. AZUGA’S TOTAL LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE SERVICE FEES CUSTOMER ACTUALLY PAID TO US DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY PUNITIVE, EXEMPLARY OR STATUTORY DAMAGES, DIMINUTION IN VALUE, OR ANY DAMAGES BASED ON ANY LEGAL THEORY (INCLUDING THEORIES OF TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE), INCLUDING DAMAGES FOR LOSS OF PROFITS, LOST REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF OUR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR WHETHER OR NOT THE SAME ARE FORESEEABLE. FURTHER, AS SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, THE LIMITATIONS AND EXCLUSIONS IN THIS AGREEMENT MAY NOT APPLY AND, IN SUCH EVENT, ARE INTENDED TO APPLY TO ONLY THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. Customer agrees to indemnify, defend and hold us, our suppliers, its officers, directors, employees, and agents harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to reasonable attorney’s fees, arising out of or related in any way to (i) Customer’s breach of this Agreement and (ii) acts or omissions of Customer or its employees within the scope of this Agreement, (iii) use or misuse of or inability to use the Website or violation of any law or regulation, proprietary or privacy right in connection therewith. We shall provide Customer with prompt written notice of any claims and provide Customer with reasonable assistance, at Customer’s expense, in the defense of said claims.
7. This Agreement shall not confer any rights or remedies upon any third party and shall inure to the benefit of, and be binding upon, the parties to this Agreement and their respective successors and assigns.