Fleetworthy’s Services & Software Terms and Conditions

Fleetworthy agrees to perform all of the Services set forth in the Order Form in accordance with written requirements included in the Order Form and all applicable laws, regulations, rules, ordinances, guidelines and professional standards, including those pertaining to the confidentiality and the use and disclosure of people’s health information. The Services will be performed in a timely and professional manner, and Customer agrees to supply Fleetworthy, in a timely manner, with all correct information required by Fleetworthy to perform the Services. Customer will not hold Fleetworthy responsible for, and agrees to pay, any additional costs, fines, or other issues created by Customer’s incorrect or incomplete information, insurance certificate errors, delays in State or federal processing time, or other matters not directly controlled by Fleetworthy. Fleetworthy may utilize outside contractors, subcontractors, contract consultants, representatives, or agents to perform the Services in Fleetworthy’s sole discretion. Fleetworthy may, from time to time, change the Services identified in Order Form without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates agreed upon.

1. Fleetworthy warrants (“Warranty”) that: (i) it will exercise due professional care and competence in the performance of the Services and (ii) it will comply with applicable laws, ordinances, rules and regulations pertaining to the Services or this Agreement which apply to performance of Services hereunder; provided, that, the parties acknowledge that Customer remains solely responsible for compliance with laws, ordinances, rules, regulations or orders issued by any public authority as such relate specifically to Customer’s industry or operation of its business.
2. Fleetworthy warrants to Customer that Fleetworthy has full authority and sufficient rights, except for rights respecting programs, data, and materials provided by Customer or identified by Fleetworthy as furnished to Customer by third-party vendors, to provide the Services under this Service Agreement.
3. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, FLEETWORTHY MAKES NO REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ACCURACY OF ANY INFORMATION OR DELIVERABLE REGARDING THE SERVICES PERFORMED UNDER THIS AGREEMENT.

1. EXCLUSION OF DAMAGES – NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL FLEETWORTHY OR ANY OF FLEETWORTHY LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, or (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF FLEETWORTHY ESSENTIAL PURPOSE.
2. EXCLUSION OF DAMAGES – DATA . EXCEPT AS PROVIDED IN SECTION 6.2, IN NO EVENT WILL FLEETWORTHY OR ANY OF FLEETWORTHY LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (a) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (b) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY AS DEFINED UNDER THE EULA.
3. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF FLEETWORTHY AND IT’S LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT, IT’S SUBJECT MATTER, OR PROVISIONS OF THE EULA, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, DEFENSE AND INDEMNIFICATION OBLIGATIONS AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO FLEETWORTHY PURSUANT TO THIS AGREEMENT, LESS PASS-THROUGH FEES PAID TO ANY THIRD PARTY, IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF FLEETWORTHY ESSENTIAL PURPOSE.

1. Customer Indemnification. Customer shall be solely liable for and expressly agrees to defend, indemnify and hold harmless Fleetworthy and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (“Fleetworthy Indemnitee”) from and against any and all liability, claims, loss, damage, costs, expenses, including attorneys’ fees and costs, (“Losses”) arising out of any third-party claim to the extent such Losses arise out of Customer’s negligent or wrongful acts or omissions, violation of applicable laws and regulations, or failure to comply with the requirements of this Agreement, or Customer’s or any other party’s reliance upon any Customer provided data or information, or errors or inaccuracies in any deliverable provided by Fleetworthy (including its employees, contractors, subcontractors, contract consultants, representatives and agents) if such errors or inaccuracies are solely due to the Customer provided information.
2. Fleetworthy Indemnification. Fleetworthy shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer its officers, directors, employees, agents, successors and assigns (“Customer Indemnitee”) to the extent that such Losses arise from: (i) errors or inaccuracies in any deliverable provided by Fleetworthy (including its employees, contractors, subcontractors, contract consultants, representatives and agents) unless such errors or inaccuracies are due to: (1) Customer provided information or, (2) information provided to Fleetworthy by third parties or government agencies; or ii) any gross negligence of Fleetworthy wherein such gross negligence results in: (1) impairment, inability to use or loss, interruption or delay of the Services outside of the Service Levels provided in Section 7.1 of the EULA solely due to such gross negligence, or (2) loss, damage, corruption or recovery of data, or breach of data or system security solely due to such gross negligence.
   
   The defense and indemnification obligations under this Section 6.2 are expressly limited in the amount of monetary liability that Fleetworthy will provide and/or incur for both its defense and indemnification obligations (in aggregate) by the amount set forth in the Cap on Monetary Liability provision in Section 5.3.
3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 6.1 or Section 6.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor may assume, at its sole option, control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. If the Indemnitor decides not to take control of the defense it will provide prompt written notice to the Indemnitee. If Indemnitee assumes control of the defense after the Indemnitor provides written notice that it will not control the defense, the Indemnitor will reimburse the Indemnitee promptly and periodically for the reasonable costs properly incurred in defending against the indemnified claim (including reasonable attorneys’ fees and expenses); and remain responsible to Indemnitee for any Losses indemnified. The Indemnitee’s failure to perform any obligations under this Section 6 will not relieve the Indemnitor of its obligations under this Section 6 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. If the Indemnitor controls the defense, the Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

1. No Breach or Default. In no event will Fleetworthy be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Fleetworthy’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Fleetworthy may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
2. Affected Obligations. In the event of any failure or delay caused by a Force Majeure Event, Fleetworthy shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable/diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

1. Non-Disclosure/Proprietary/Confidential Information. Except as specifically permitted in writing or as required to perform the Services or as permitted under the EULA, neither of the Parties will disclose to any third persons any unpublished information or knowledge it acquires about the other Party’s business, products, employees, or methods, unless such disclosure is required by law.
2. Relationship of the Parties. Each Party to this Agreement shall be an independent contractor and not as an agent, employee, servant, or representative of the other Party. Accordingly, the employee(s) of one Party shall not be considered to be employee(s) of the other Party, and neither Party shall enter into any contract or service agreement with a third party which purports to obligate or bind the other Party or make any representations regarding the other Party without the prior written authorization of the other Party. Nothing in this Agreement shall be construed as creating a partnership, joint venture, principal and agent, or employment arrangement between the Customer and Fleetworthy or its employees and agents for any purpose, including but not limited to, the application of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, and any state statutes, including but not limited to, workers’ compensation and unemployment insurance laws. Nothing contained in this Service Agreement confers on a Party any right, power, or authority to bind, transact any business in its name, make any promises or representations on its behalf, or otherwise obligate the other Party with respect to any matter, whether arising under this Agreement or otherwise.
3. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Fleetworthy’s prior written consent, which consent shall not unreasonably be withheld. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Fleetworthy’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this paragraph is void. This Agreement is assignable by Fleetworthy. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
4. Notice. Notices sent in accordance with this Section 8.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email to the other Party at its address as follows, or to such other address(es) as either Party may, by written notice, designate to the other from time to time.
   
   If to Customer, at the address set forth on the Order Form

   
   If to Fleetworthy:

   Fleetworthy Solutions, Inc.5301 Buttonwood Drive, Madison, WI 53718

   Attn: Chief Financial Officer

5. Entire Agreement. The Order Form, its included Supplements. the EULA and these Terms constitutes the entire understanding and agreement between the Parties, and supersedes all prior agreements, including without limitation representations, proposals, discussions, arrangements, or communications, whether oral or in writing, in relation to the subject matter of this Agreement. In the event of any inconsistency between the statements made in these Terms, and the Order Form and its Supplement or the EULA, the following order of precedence governs: (a) first, the Order Form, (b) second, these Terms; (c) third, the EULA, (d) fourth the Supplements of the Order Form, and (e) fifth, any other documents incorporated herein by reference.
6. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement, and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
7. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
8. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the city of Madison and County of Dane, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
9. No Third Party Beneficiaries. Unless otherwise stated in this Agreement, this Agreement is for the benefit of the Parties and their successors and are not intended to confer any rights or benefits to any third party, including any employee or Customer of either Party.