IntelliShift – Terms and Conditions of Service
Version Number 12.1 – September 2023 These Terms and Conditions of Service, including the exhibits attached hereto (collectively, these “Terms”), contain the terms and conditions upon which Vehicle Tracking Solutions, LLC, d/b/a IntelliShift (“IntelliShift”) grants to you (“Customer”) a limited license to use IntelliShift’s fleet management service (the “Service” or the “Services”) in accordance with the terms herein.
The Services, including the Attachments, shall collectively be referred to herein as the “IntelliShift Offering.”
Please read these Terms carefully. By signing the “IntelliShift Order Form”, you acknowledge that you have read and accept these Terms in their entirety.
Terms and Conditions
1. SERVICES/WORK ORDERS
The details of the IntelliShift Software System (as defined herein) subscription, including the fleet quantities, and price per unit shall be specified in the applicable Work Order(s). To the extent applicable, terms and conditions specific to each selected component of the IntelliShift Offering, and services provided with each such component, shall be set forth in these Terms and the Attachments. The IntelliShift Offerings shall also include any required, usual, appropriate, or acceptable methods to perform activities related to such, including without limitation (a) conducting analytics and other product improvement activities, (b) carrying out the IntelliShift Offering, (c) carrying out any benefits, rights and obligations related thereto, (d) maintaining records relating to the IntelliShift Offering, and (e) complying with any required legal or self-regulatory obligations.
If at any time during the Term (as defined herein), Customer either via email or through one or more Work Orders, delivery tickets, or other instruments, requests IntelliShift to supply or perform any services and, if IntelliShift agrees to perform such requested services, each such accepted request regardless of form shall be deemed a “Work Order” governed by and subject to these Terms. Only individuals authorized on behalf of Customer as an “Authorized Signatory” of any Work Orders shall be allowed to execute or enter a Work Order.
2. LIMITED SOFTWARE LICENSE; PROPRIETARY RIGHTS; EQUIPMENT
Grant of License. Subject to these Terms and the applicable Attachments, IntelliShift hereby grants to Customer, during the Term, a non-exclusive, nontransferable, revocable, limited license (hereinafter the “License”) to browse, access and make use of the services, information, data, software, files, and images contained in or generated by the software and accompanying data on the IntelliShift, which includes the IntelliShift (f/k/a Silent Passenger) and website (collectively, the “Software” or when used in conjunction with any Third Party Software as defined below, the “IntelliShift Software System”), strictly subject to and in accordance with these Terms. No other rights are granted.
B. Third Party Software. All software provided by a third party (“Third Party Software”) (including Google Maps) included with the IntelliShift Software System is licensed to Customer in accordance with terms of a separate license agreement(s) with such third party. Such Third-Party Software is subject to any such restrictions set forth therein. Customer agrees to abide by the terms and conditions of the Third-Party Software license agreements. IntelliShift will have no responsibility with respect to any Third-Party Software, and Customer will look solely to the licensor(s) of the Third-Party Software for any remedy. IntelliShift claims no right in the Third-Party Software, and the same is owned exclusively by the licensor(s) of the Third-Party Software. IntelliShift provides no warranty, express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non- infringement, with respect to any Third-Party Software.
C. Proprietary Rights. As between Customer and IntelliShift, Customer hereby acknowledges and agrees that IntelliShift owns all right, title and interest, including all copyrights and other intellectual property and proprietary rights, in and to the Software, and any custom developed documents, designs, computer programs, computer systems, computer documentation and other work product authored or prepared by IntelliShift upon the request or direction of Customer or otherwise arising out of or in connection with the Services (collectively, “IntelliShift IP”).
D. Equipment/Additional Equipment. All equipment provided by IntelliShift in connection with the Services (“Equipment” or “telematics gateway”) has been purchased by Customer, held as part of a trial by Customer, included as a component of the subscription, or otherwise deployed, as indicated in the applicable Work Order. Any Equipment ordered by Customer after the commencement of a Work Order which is included in the Services under any Work Order shall be covered pursuant to these Terms at the prices and for the Term as set forth herein or any Work Order. See also Exhibit A: Equipment.
3. TERM AND TERMINATION.
A. Initial Term. The date that Customer executes a Work Order is the “Effective Date” for such Work Order. Promptly after the Effective Date, IntelliShift will begin processing Customer’s order. These Terms and the terms and conditions of any Work Order shall be in effect upon the Effective Date, provided that the initial term as specified in such Work Order (the “Initial Term”) shall not begin until the 1st of the following month of which all Products and/or Services in such Work Order have been “activated” by IntelliShift. A Product that is required to be shipped by IntelliShift shall be deemed to have been “activated” upon shipment and a Product or Service that is not required to be shipped (such as a software “app”) shall be deemed “activated” once it is live and is able to be used by the Customer. Following the Effective Date, IntelliShift shall bill the Customer for all Products and/or Services that have been activated in accordance with Section 7 herein even if the Initial Term has not yet commenced.
B. Renewals. These Terms shall remain in effect for so long as any Work Order remains in effect. Each Work Order shall be automatically renewed for successive one (1) year renewal periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless Customer notifies IntelliShift in writing at least ninety (90) days prior to any Renewal Term that such Work Order shall not be renewed.In the event Customer provides written notice not to renew but continues to log in and utilize services of IntelliShift beyond expiration of the Term (as noted in any applicable Work Order), and IntelliShift in its sole discretion does not terminate Services, then any applicable services shall be charged at the then-current list price, on a monthly basis, without regard to any previously enjoyed discounts.
C. Termination for Cause; Reasonable Opportunity to Cure Breach. If a party breaches any material provision of these Terms or a Work Order, the non-breaching party may terminate a Work Order by giving thirty (30) days’ notice to the other party, except that such a termination shall not take effect if the breaching party cures the breach before the end of such thirty (30) day period.
D. Return of Equipment. Following the conclusion of a Work Order, Customer shall have up to a thirty (30) day grace period to return all Equipment, after such time any equipment not returned shall be billable in full and can no longer be returned for credit.
E. Non-Cancelable Term. Unless specifically stated otherwise, Work Orders are non-cancellable for convenience, meaning once a Work Order is executed, it shall be enforced for the term of such Work Order. For clarity, if during the term of a Work Order, an asset (vehicle or otherwise) is removed by Customer from service, whether due to repair, replacement or other reason, such subscription shall remain in full force and effect, but may be transferred to another asset owned or in use by Customer. This provision shall be fully enforced during the term of the Subscription.
F. Pricing. In the event IntelliShift receives a non-standard increase from it’s suppliers, vendors, or partners, IntelliShift may increase the prices for the subscriptions purchased, provided that the prices shall not be increased by more than 5% in any year without first providing Customer three (3) months’ notice. Additionally, IntelliShift reserves the right at any time to adjust the prices for any Product not yet delivered outside the agreed upon terms of this agreement.
4. AVAILABILITY AND USE OF THE SERVICE/WARRANTIES
A. The Services may be temporarily refused, limited, or otherwise interrupted due to governmental regulations or orders, system capacity limitations, Customer’s, or common carrier’s interconnection capabilities, atmospheric or topographical conditions, equipment failure, modification, repair, upgrade or relocation.
B. Customer represents, warrants, and covenants that it will use the Services for lawful business purposes only and will not at any time resell, transfer, or assign the Services to any third party.
C. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under each Work Order; that the execution, delivery and performance of each Work Order has been duly authorized; that each Work Order is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under each Work Order.
D. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INTELLISHIFT DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, OTHER SERVICES OR ADD-ONS, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
5. CONFIDENTIAL INFORMATION
A. The parties acknowledge and agree that while fulfilling their obligations hereunder, or otherwise in connection with the activities contemplated herein, each party may receive or have access to information, data, or material of the other party that is commercially valuable to the other party and not generally known in the industry (as further described below, “Confidential Information”). During and after the Term, each party agrees not to: (a) disclose Confidential Information of the other party to any person other than its employees, agents or independent contractors, professional representatives or legal advisors who have a need to know the same in connection with performance in connection with a Work Order, and who are under written obligations of confidentiality substantially similar to this Section 5 or bound by law or professional ethics to safeguard such information; or (b) use the Confidential Information of the other party for any purpose other than as necessary to perform its obligations under a Work Order. The term “Confidential Information” means all proprietary information belonging to one of the parties hereto that is not generally known by the public and includes, but is not limited to: (i) any and all versions of proprietary computer software and any documentation related thereto; (ii) technical information concerning products and services, including product data and specifications including, but not limited to, the integration specifications, know-how, formulae, diagrams, flow charts, drawings, hardware configuration information, source code, object code, test results, processes, inventions, research projects and product development; (iii) any and all version of any designs, patents, trademarks, or copyrightable works, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, ideas, business plans; (iv) information concerning each party’s business plans or strategies, pricing or menu information, and marketing, advertising, and promotional programs; (v) information submitted by each party’s customers, suppliers, employees, or business partners for study, evaluation or use; or (vi) any other information not generally known to the public or by actual or potential competitors of either party.
B. Each party agrees to treat the other party’s Confidential Information in the same manner as it treats its own Confidential Information (but in no case, less than reasonable care), to take reasonable security precautions to safeguard the other party’s Confidential Information from theft or from access by unauthorized persons, to not use the other party’s Confidential Information in any way detrimental to such party, and to not, directly or indirectly, disclose or divulge the other party’s Confidential Information to any third party without the prior written consent of the other party. In no event may a Work Order be reproduced, or copies shown to any third parties without the prior written consent of the other party, except as may be necessary by reason of legal, accounting, tax, or regulatory requirements, in which event IntelliShift and Customer agree to exercise reasonable diligence in limiting such disclosure to the minimum necessary under the circumstances. The parties further agree that where a Work Order or its contents must be disclosed to any regulatory or statutory body, then the parties shall use their commercially reasonable efforts to seek undertakings from such regulatory or statutory body to prevent the disclosure of a Work Order or its contents into the public domain.
C. The receiving party shall have no obligation with respect to Confidential Information of the other party that: (a) is or becomes publicly known through no wrongful act, fault, or negligence of the receiving party; (b) was disclosed to the receiving party by a third party who was free of obligations of confidentiality to the party providing the information; or (c) is approved by disclosing party for release by the receiving party by express prior written authorization.
D. Notwithstanding the above, the receiving party may disclose certain Confidential Information of the disclosing party, without violating the obligations of these Terms, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the receiving party provides the disclosing party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the disclosing party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued. In addition, each party shall give notice to the other party of any demands to disclose or provide Confidential Information received from any third party under lawful process prior to disclosing or furnishing Confidential Information and shall cooperate in seeking reasonable protective arrangements requested by the other party. Either party may disclose or provide Confidential Information of the other party requested by a government agency having jurisdiction over the party; provided that the party uses its commercially reasonable efforts to obtain protective arrangements satisfactory to the party owning the Confidential Information. The party owning the Confidential Information may not unreasonably withhold approval of protective arrangements.
E. The receiving party shall notify the disclosing party as soon as is commercially reasonable upon becoming aware of any actual unauthorized access to or acquisition of disclosing party’s Confidential Information that materially compromises the confidentiality or security of the information.
F. If a party uses or discloses or attempts to use or disclose any of the Confidential Information in contravention of these Terms, then in addition to other available remedies, the party who owns the Confidential Information shall have the right to injunctive relief enjoining any such use, disclosure or attempt to use or disclose without the requirement to post any bond or other security in connection therewith, it being acknowledged that legal remedies are inadequate.
6. CUSTOMER DATA.
A. Ownership and Usage. Data of Customer (“Customer Data”) is accessible via the IntelliShift Software. Customer owns all Customer Data, and IntelliShift will keep Customer Data confidential. Customer hereby grants to IntelliShift a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating and providing the Services. IntelliShift will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. IntelliShift will not share Customer Data without Customer consent, except when the release of data is compelled by law or permitted herein. IntelliShift may collect and use analytics, statistics or other data related to the Customer Data and Customer’s use of the IntelliShift Software (i) to provide the IntelliShift Software to Customer; (ii) for statistical reporting and use (provided that such data is not personally identifiable); (iii) to monitor, analyze, develop upon, maintain, and improve the IntelliShift Software; or (iv) to anonymize such data for use by IntelliShift for marketing and or other commercial purposes. Such use shall survive the termination of these Terms, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally identifiable data. If these Terms terminate or expire and Customer does not renew, Customer Data may be deleted.
B.Customer Data Representation and Warranty. Customer represents and warrants that: (i) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for IntelliShift to collect, use, and share Customer Data in accordance with these Terms and (ii) no Customer Data infringes upon or violates any other party’s intellectual property rights, privacy, publicity, or other proprietary rights. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS INTELLISHIFT AND, IF RELEVANT, ITS SUBPROCESSORS, AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF CUSTOMER IN RELATION TO CUSTOMER INSTRUCTIONS OR FROM CUSTOMER’S BREACH OF THIS SECTION. It is Customer’s sole responsibility for the accuracy, quality, and legality of the Customer Data. Customer shall ensure that its acts or omissions, including its instructions, do not put IntelliShift in breach of any applicable laws or regulations. To the extent not provided, IntelliShift shall be entitled to suspend performance of such instruction until Customer confirms or modifies such instruction.
7. BILLING, TAXES, AND AUTHORIZATIONS
A. Invoice. IntelliShift provides a secure portal for viewing and payment of its invoices. Customer can view and analyze monthly data, with additional access to IntelliShift’s client success team, as needed. Customer shall pay each invoice within thirty (30) days from invoice date. Customer shall pay all invoices in full by check, credit card, or via Electronic Funds Transfer (“EFT”) on or before the due date shown on each invoice. All amounts are invoiced in U.S. Dollars ($).
B. Initial Invoice. IntelliShift shall provide an initial invoice within 10 days of the Effective Date of a Work Order, which shall be based on the information provided in the applicable Work Order. The initial Invoice shall include a deposit equal to the aggregate monthly subscription fee for the entire contracted fleet indicated under the “quantity” column of the applicable Work Order and shall be applied against the last monthly subscription invoice. The monthly subscription fee for units will commence on the 1st of the month following Activation.
C. Taxes and Additional Charges. Any applicable taxes paid or to be paid by IntelliShift because of providing Services to Customer will be invoiced to and paid by Customer. If Customer is exempt from payment of any such taxes, Customer must provide IntelliShift with documentation sufficient to verify Customer’s tax-exempt status prior to invoice.
D. EFT. If utilizing EFT, Customer authorizes IntelliShift to electronically deduct all payments and related fees incurred under each Work Order, including regular recurring payments and/or one-time payments.
E. Late Payment Penalty. IntelliShift reserves the right to impose a late payment penalty charge of one and a half percent (1.5%) per month for each invoice not paid within thirty (30) days from such invoice date.
F. Bounced Check and Credit Card Chargebacks. Each occurrence of a bounced/dishonored check, ACH debit or Customer-initiated credit card chargeback will result in a twenty-five dollar ($25.00) administrative fee assessed to Customer’s account.
G. Notice of Disputes. Customer shall provide Notice of any dispute in writing no later than fifteen (15) days following the date of the invoice or Customer’s right to object shall be deemed waived and the invoice shall be deemed accepted by Customer. The written Notice must include a detailed statement specifying the disputed amount and the reason for the dispute.
H. Credit Card Disputes. If Customer has notified its credit card issuing financial institution of a payment dispute, Customer agrees that proof of Service usage by Customer constitutes Customer authorization to submit payment request to credit card issuing financial institution.
I. Collection. In the event collection efforts are required by IntelliShift to obtain any payment from Customer, Customer agrees to pay all reasonable fees and expenses incurred by IntelliShift incurred in the course of collecting any amounts owed by Customer, including without limitation collection agency fees, court costs and attorneys’ fees, to the fullest extent permitted by law. IntelliShift reserves the right, based on payment history, to verify Customers credit throughout the Term.
J. Equipment. All fees for Equipment, if purchased separately, shall be paid in the amount and on the dates set forth on the applicable Work Order upon the first Activation as per the terms set forth in any Work Order.
K. Default. In the event Customer fails to pay any amount when due hereunder or fails to perform any other of Customer’s obligations, Customer will be in default. In such circumstances, IntelliShift may, in its sole discretion, (a) require Customer to pay all amounts then due and owing under all Work Orders; (b) suspend Customer’s account and deny Customer’s and its users’ access to and use of the Service or Additional Services until Customer’s account is in good standing, and/or (c) terminate each Work Order and Customer’s and its users’ access to and the use of the Service.
L. Required EFT. For any Work Orders covering fleets (including any assets being subscribed to the IntelliShift Services) of 50 or less, Customer shall be required to provide automatic payment of all contracted services via EFT, and related electronic autopay.
8. NON-SOLICITATION
Each party agrees that, without the prior consent of the other party, neither party, nor any of its respective Representatives, will for twelve (12) months following the date hereof, directly or indirectly, solicit for employment or hire (as an employee, consultant or otherwise) any employees of the other party; provided, however, that the foregoing shall not prohibit the use of advertisements in the media that are not targeted at employees of the other party.
9. INDEMNIFICATION
Customer agrees to indemnify, defend and hold harmless IntelliShift and its affiliates and its and their officers, directors, employees, agents, representatives and insurers (each, an “Indemnitee”), from and against any and all claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) incurred by an Indemnitee arising from, in connection with or due to (a) any negligent or wrongful act or omission by Customer; (b) Customer’s transfer, use or sale of any Service or Product; (c) Customer’s possession, operation, maintenance, delivery or return of any Product; and/or (d) Customer’s breach of these Terms or any Work Order. Such indemnification shall include, without limitation, claims for personal injury or death or property damage arising out of any act or omission of Customer or its customers. This Section 9 shall survive the termination or expiration of these Conditions.
10. LIMITATION OF LIABILITY
IntelliShift is not liable for any act or omission of any common carrier or other service provider, interconnection service provider, and/or any equipment failure or modification, acts of God, strikes, fire, war, riot, government actions, or other causes. IntelliShift is not liable for service outages or other service failures. IntelliShift is not liable for injuries to persons or property arising from the use of Customer’s equipment or the Service.CUSTOMER AGREES THAT EXCEPT DUE TO INTELLISHIFT’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, INTELLISHIFT’S LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, IN LAW, EQUITY, OR OTHERWISE, IS SOLELY LIMITED TO THE AMOUNT CUSTOMER PAID TO INTELLISHIFT PURSUANT TO ALL ACTIVE WORK ORDER’S DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LOSS OR DAMAGE, OR IN THE EVENT THAT CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO INTELLISHIFT (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).IN NO EVENT, SHALL INTELLISHIFT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE (WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE). TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, INTELLISHIFT’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATE.
11. ASSIGNMENT
IntelliShift is entitled to assign and transfer, in whole or in part, its rights and obligations under these Terms and any Work Order to a third party. Customer may not assign or transfer its rights and obligations hereunder without the prior written consent of IntelliShift.
12. MISCELLANEOUS
A. Notices. All notices and other communications sent under these Terms will be in writing and (i) hand delivered, (ii) delivered by overnight courier, or (iii) via email to the CEO or CFO. Communications will be sent to the persons at the addresses set forth on the signature page hereof or such other persons/addresses as the parties may subsequently specify in writing.
B.Governing Law; Venue; Waiver of Jury Trial. These Terms will be governed by the laws of the State of New York, without regard to conflict of laws principles. Each of the parties hereto submits to the exclusive jurisdiction of the courts of the State of New York located in Suffolk County, New York in any claim, action or proceeding arising out of or relating to these Terms or any Work Order and agrees that all claims in respect of an act or proceeding may be heard and determined in such court. Each party hereto also agrees not to bring any claim, action or proceeding arising out of or relating to these Terms or any Work Order in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any claim, action or proceeding so brought and waives any bond, surety or other security that might be required of any other party hereto with respect thereto. Each of the parties hereto agrees that a final judgment in any claim, action or proceeding so brought (subject to any rights of appeal) shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER.
C. Severability. If any one or more provisions of these Terms shall be held to be illegal, invalid, unenforceable, or void, the remainder of these Terms shall remain in full force to the extent the economic benefit conferred upon the parties by these Terms remain substantially unimpaired.
D. Relationship of Parties. The parties acknowledge that IntelliShift is an independent contractor of Customer, and IntelliShift’s employees are not employees of Customer. Nothing in these Terms nor in any exhibit will be construed as creating a partnership, joint venture, agency, or fiduciary relationship between the parties, or as authorizing either party to act as agent for the other or to enter contracts on behalf of the other party.
E. Force Majeure. IntelliShift will not be deemed to be in default of or to have breached any provision of these Terms because of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, fires, state-sponsored cyber terrorism, cyber-attacks or brute force attacks, espionage, sabotage, other catastrophes, and other causes beyond its reasonable control.
F. Entire Agreement. Each Work Order (each of which is incorporated herein by reference) and these Terms (including each of the applicable Attachments), constitute the entire agreement between the parties and supersedes any prior oral or written agreements between the parties concerning the subject matter hereof.
G. Update to Terms. From time to time, IntelliShift may update these Terms in its sole discretion. The most up to date version of these Terms are posted on the IntelliShift web site, located at https://vtscorporate.com/lf-IntelliShift-msa/. If IntelliShift does update these Terms, IntelliShift will inform Customer by posting the modified Terms to the Services at the link above or through other communications with Customer. It is important that Customer review the Terms whenever they are modified because if Customer continue to use the Products and/or Services after IntelliShift has posted or otherwise informed Customer of the modified Terms, Customer is indicating agreeing to be bound by the modified Terms. If Customer does not agree to be bound by the modified Terms, then Customer may not continue to use the Products and Services.
H. Inconsistencies. If there is an inconsistency between these Terms and the terms of a Work Order, the terms of the Work Order shall control.
I. Privacy Law Addendum. The Privacy Law Addendum attached as Exhibit D shall be applicable to Customers and their users who are California or Virginia residents.
EXHIBIT A: Equipment
A. During the Term, the Equipment provided as part of the Services (whether purchased, received as part of a trial or as part of a subscription) shall be covered by a warranty. If any Equipment does not function properly, Customer shall notify IntelliShift and must include the model number, IMEI/MEID number, and a description of the issue. IntelliShift shall, at its sole option, either repair, replace or correct any such confirmed issues with the Equipment. Field Services performed in relation to repair, or replacement work are not included in the hardware warranty, unless the last services performed on the equipment are within 90 days. The purchased equipment is covered by a one-year warranty. Equipment included under a subscription agreement is covered for the term of the subscription, including any renewal terms of at least one year. Notwithstanding the above, IntelliShift does not warranty the telematics gateway for any failure due to changes in wireless technology, or due to device tampering. Certain telematics hardware supplied includes replaceable batteries, these are not covered under the hardware warranty, these can be purchased and replaced by the customer as needed. Other than the telematics gateway and the Video device, no other equipment warranty is provided.
B. If any Equipment is deemed to have failed due to any damage to hardware caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation, or is lost, Customer must pay $299 for each telematics gateway, $599 for each Camera, and/or the replacement cost of any other item of Equipment for those damaged/lost/tampered devices, and IntelliShift will provide a replacement. For clarity, field service shall be an additional fee, at then current market rates.
C. For Equipment received under a Subscription (i.e., non-purchased), Customer must return all Equipment to the place and in the manner designated by IntelliShift at the end of the Term, but no later than 30 days after the conclusion of such, unless otherwise so notified by IntelliShift. Customer agrees to pay $299 for each telematics gateway, $599 for each Camera, and/or the replacement cost of any other item of Equipment installed as part of the subscribed services not in good working condition upon its return.
D. Customer is responsible for installation of the Equipment. Depending on Customer’s intended use of the Products, Customer may require professional installation of the Equipment. If Customer is unable to install the Equipment, or if Customer is uncertain that Customer has the requisite skills and understanding, Customer agrees to consult with a qualified installer or maintenance professional. Improper installation of the Equipment or maintenance of such can lead to damage or dangerous or life-threatening conditions, which can cause property damage, bodily injury, and/or death.
E. IntelliShift offers, through a separate agreement, Field Services, including installation, maintenance and warranty of any Equipment obtained as part of the Subscription.
F. Customer is responsible for any shipping costs for the Equipment to be installed, which will be invoiced separately. IntelliShift utilizes five (5) day ground services for all Equipment shipped unless otherwise agreed to by the parties.
EXHIBIT B: Insurance
IntelliShift shall maintain insurance coverage in accordance with and in amounts no less than as set forth below. Such insurance shall cover negligent acts, errors or omissions or lack of ordinary skill in providing the Services. If IntelliShift uses any subcontractor in the performance or provision of the Services, IntelliShift shall ensure that such subcontractor is covered by these Insurance limits or maintains its own insurance that meets such requirements. The Contractor and such subcontractors shall be responsible for and shall bear the risk of loss of or damage to their own property during the provision of Services including while such property is on Customer’s premises.
- Worker’s Compensation insurance in accordance with all applicable federal and state laws subject to statutory limits (US Only).
- Employer’s Liability insurance with limits of not less than $1,000,000 per accident for bodily injury and $1,000,000 per employee and policy limit for disease (US) or the local statutory limit, whichever is greater (however, this requirement is waived if Workers’ Compensation is not required according to applicable federal or state laws).
- Commercial General Liability (CGL) or Public Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate.
- Automobile Liability insurance, including coverage for owned, non-owned and hired autos, with a combined single limit not less than $1,000,000 per accident for hired/nonowner.
- Professional or Errors and Omissions Liability insurance with a limit of not less than $5,000,000 per claim and annual aggregate.
- Cyber Liability insurance with a limit not less than $2,000,000 per claim and annual aggregate.
- Umbrella Liability Insurance with a limit not less than $5,000,000 per claim and annual aggregate
EXHIBIT C: Services Levels
SERVICE LEVELS
The Software has been designed to deliver fleet management telematics services. While IntelliShift strives to provide the best cellular coverage available, due to the inherent nature of cellular coverage, IntelliShift is not responsible for any cellular conditions impeding service. IntelliShift shall use commercially reasonable efforts to rectify any Customer issues in accordance with the below Service Levels. If IntelliShift cannot rectify Customer’s issues and IntelliShift determines, in its sole discretion, that such issue is a failure of the Service to work as designed, the affected vehicle(s) may be released from these Terms upon written request from Customer.
The following detailed service parameters are the responsibility of IntelliShift:
CUSTOMER SERVICES
IntelliShift will provide a dedicated Customer Success Team, with a lead advocate for Customer. These resources are highly trained on our services and will be dedicated to learning Customer’s business and its needs. They shall be dedicated to supporting Customer throughout their lifecycle with IntelliShift. Among other items, IntelliShift Software System training (via Zoom or similar) is offered at no additional charge. Typically, such training will be offered during IntelliShift’s normal business hours from Monday to Friday, though special accommodation is available, as requested. Customer must contact IntelliShift in advance at 1-800-671-5222 to schedule training.
1. Service Scope
The following Services are covered by these Terms:
- Staffed telephone support
- Monitored email support (Support@IntelliShift.com)
- Remote assistance using Remote Desktop and a Virtual Private Network (where available)
- Quarterly system health check
2. Service Availability
Coverage parameters specific to the service(s) covered in these Terms are as follows:
- .Telephone Support: 7:00 A.M. to 6:00 P.M. ET Monday – Friday
– Calls received out of office hours will be forwarded to a mobile phone and best efforts will be made to answer / action the call, however there will be a backup answer phone service. - Email support: Monitored 7:00 A.M. to 6:00 P.M. ET Monday – Friday
– Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day. - Emergency Telephone support: 24/7 for High Priority
– In the event of emergencies (High Priority only), please call +1 (631) 586-7400. - During normal business hours, Customer will be able to speak directly to a Support resource.
– Outside of normal business hours, [Option #1] will forward you to the on-call team, available 24/7/365.
3. Service Requests
In support of services outlined in these Terms, IntelliShift will respond to service-related incidents and/or requests submitted by Customer within the following time frames.
- 0-8 hours (during business hours) for issues classified as High.
- Within 48 hours for issues classified as Medium
- Within 5 working days for issues classified as Low
- Recommendations and agreement on Low/Medium/High priority will be established during the onboarding to ensure business needs are optimally aligned with Service Levels.
– Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.
4. IntelliShift Requirements
IntelliShift responsibilities and/or requirements in support of the Service Levels:
- Meeting response times associated with service-related incidents.
- Appropriate notification to Customer for all scheduled maintenance.
5. Customer Requirements
Customer responsibilities and/or requirements in support of the Service Levels:
- Payment for all support costs at the agreed interval.
- Reasonable availability of Customer representative(s) when resolving a service-related incident or request.
6. IntelliShift System Uptime
Outside of scheduled and communicated maintenance outages, IntelliShift downtime has not disrupted client operations during the last 12 months. We calculate uptime at 99.9%, excluding scheduled downtime.
EXHIBIT D: Privacy Law Addendum
This Privacy Law Addendum (the “Addendum”) shall be applicable to Customers and their users who are California or Virginia residents. This Addendum supplements the Terms and includes the terms required by the applicable Privacy Laws (defined below).
1. Definitions
1.“Consumer” means a natural person who is a resident of, as applicable: (1) California, however identified, including by any unique identifier; or (2) Virginia acting only in an individual or household context.
2. “Controller” means the natural or legal person that, alone or jointly with others, determines the purpose and means of Processing Personal Data. “Controller” includes a “Business” as defined by the CPRA.
3. “Personal Data” means any information that is linked or reasonably linkable to an identified or identifiable Consumer that is processed by Company on behalf of the Customer pursuant to the Agreement. “Personal Data” includes “Personal Information” as defined by the CPRA.
4. “Privacy Laws” means (i) the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 et seq.) as amended by the California Privacy Rights Act (“CPRA”), and (ii) the Virginia Consumer Data Protection Act (VA. Code §§ 59.1-575 et seq.) (“VCDPA”), in each case as updated, amended or replaced from time to time.
5. “Process” or “Processing” means any operation or set of operations that are performed on Personal Data or on sets of Personal Data, whether or not by automated means.
6. “Processor” means a natural or legal entity that Processes Personal Data on behalf of a Controller or a Business. “Processor” includes “Service Provider” as defined by the CPRA.
2. Relationship of the Parties; Processing of Data
The Parties acknowledge and agree that Customer is a Controller and Company is a Processor for purposes of the CPRA and the VCDPA, each to the extent applicable, and Company is receiving Personal Data from Customer in order to provide the Services pursuant to the Agreement. Company shall adhere to Customer’s lawful instructions with respect to the Processing of Personal Data to be performed by Company pursuant to the Agreement.
3.Nature and Purpose of Processing
1.Nature and Purpose of Processing: Company shall Process Personal Data provided by Customer under the Agreement as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this Addendum, and in accordance with Customer’s separate instructions, if any, as set forth in this Addendum.
2. Duration of Processing: Company shall Process Personal Data provided by Customer as long as required (i) to provide the Services to Customer under the Agreement, or (ii) by applicable law or regulation.
3. Categories of Consumers: The Company may Process the following categories of Personal Data provided by Customer: Customer end-users/customer AND/OR Customer employees AND/OR other.
4. Categories of Personal Data: Company may Process the following categories of Personal Data provided by Customer: name, location, email address, phone number, address, occupation, and title, and others if noted herein.
4. California-Specific Terms
1. Additional Definitions
For purposes of this Section 4, the terms “Business Purpose,” “Commercial Purpose,” “Personal Information,” “Sell,” “Service Provider,” and “Share” shall have the meanings set forth in the CPRA.
2. Obligations
1. Company shall not Sell or Share Personal Information provided by Customer under the Agreement.
2. Company shall not retain, use, or disclose Personal Information provided by Customer pursuant to the Agreement outside of the direct business relationship with Customer or for any purpose, including a Commercial Purpose, other than as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or as otherwise set forth in the Agreement or as permitted by the CPRA.
3. Company shall notify Customer if Company makes a determination that it can no longer meet its obligations under the CPRA.
4.Company shall comply with all obligations applicable to Service Providers under the CPRA, including by providing Personal Information provided by Customer under the Agreement the level of privacy protection required by the CPRA.
5. Company will not combine Personal Information received from, or on behalf of, Customer with other Personal Information except to the extent a Service Provider is permitted to do so under the CPRA.
6. Customer shall promptly notify Company upon receipt of any consumer request made pursuant to the CPRA that requires Company to take any action with respect to a consumer’s personal information.
7. Customer may, upon written notice to Company, (1) take such reasonable and appropriate steps as may be necessary to ensure that Company’s collection and use of Personal Information is consistent with requirements under the CPRA, and (2) take reasonable and appropriate steps to stop and remediate any unauthorized use of Personal Information by Company. Any measures implemented by Customer under this Section 4.2.7 shall be limited to Personal Information relevant to Customer.
5.Virginia-Specific Terms
1. Obligations
Company shall maintain the confidentiality of Personal Data provided by Customer under the Agreement and require that each person Processing such Personal Data be subject to a duty of confidentiality with respect to such Processing.
2. Upon Customer’s written request, Company shall delete or return all Personal Data provided by Customer under the Agreement, unless retention of such Personal Data is required or authorized by law or the Addendum and/or Agreement. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect such Personal Data remaining in its possession, custody, or control.
3. In the event that Company engages a new Processor to assist Company in providing the Services to Customer under the Agreement (“Sub-Processor”), Company shall enter into a written contract with the Sub-Processor requiring Sub-Processor to meet the obligations of a Processor with respect to the Personal Data.
4. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall either (1) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the Processing of Personal Data provided by Customer under the Agreement, or (2) if the provision of reports or certifications pursuant to (1) is not reasonably sufficient under the VCDPA, Company shall arrange for an independent third party to conduct an assessment of the Processor’s policies and technical and organizational measures using an appropriate and accepted control standard or framework and assessment procedure for such assessments. In such event, the report produced by the independent third party shall be provided to the controller upon request. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits.