FleetSeek Terms of Service (“TOS”)

Capitalized terms will have the meanings set forth in Section 1 or elsewhere in the body of this Terms of Service (the “TOS”), as applicable.

Each IO incorporates, and is subject to, all of the terms and conditions of this TOS, except for any provisions of this TOS which are specifically and expressly excluded or modified in a particular IO. The IO and this TOS (collectively, the “Agreement”) together constitute the entire agreement between you and us with respect to the matters covered by this Agreement. In the event of a specific conflict between any provision of this TOS and any provision of a particular IO, such IO provision will control.

  1. DEFINITIONS

“Authorized Users” refers to “Authorized Users” as set forth in the IO.

“Confidential Information” has the meaning set forth in Section 7.

“Content” has the meaning set forth in Section 2.2.1.

“Discloser” has the meaning set forth in Section 7.

“Effective Date” means the date set forth on the IO.

“Entity” means a corporation, partnership, limited liability company, sole proprietorship or other form of business entity.

“Extension Fee” has the meaning set forth in Section 11.

“Fees” means all fees and charges payable by you as set forth on the IO.

“FleetSeek” means FleetSeek or any other related brand, sub-brand or trade name.

“Indemnity Claim” has the meaning set forth in Section 5.

“IO” means the insertion order which you have signed on the Effective Date setting forth the Product(s) and Services purchased thereunder and to be made available to you, pursuant to the terms and provisions of such IO together with this TOS.

“Legal Purposes” has the meaning set forth in Section 7.

“Licensed Affiliate” means any Entity specifically referenced on the IO which now or, subject to Section 11, in the future directly or indirectly controls, is controlled by, or is under common control with you.

“Licensees” has the meaning set forth in Section 11.

“Logins” has the meaning set forth in Section 2.1.

“Our Parties” means us, our affiliates, and our and their respective officers, directors, employees, owners, consultants, agents, suppliers, licensors and assigns.

“Our Property” has the meaning set forth in Section 6.1.

“Parties” (and each, individually, a “Party”) means you and us.

“Product(s)” refers to the products as set forth on the IO.

“Recipient” has the meaning set forth in Section 7.

“Representatives” has the meaning set forth in Section 7.

“Services” means the Product(s), as well as any other content and services we provide via the pages of the websites located at the following URL(s) (or any of their subdomains), which are governed by such IO and this TOS: https://fleetseek.com.

“Services Feedback” has the meaning set forth in Section 6.3.

“Software” means any software we or any of our affiliates provide in connection with the Services, as specified on the IO or otherwise.

“Term” has the meaning set forth in Section 3.1.

“Test Services” has the meaning set forth in Section 12.1.

“Third Party Supplier” means any third party from time to time that provides data or services to us which in any way relate to the Services (or any portion thereof).

“Transfer” has the meaning set forth in Section 11.

  1. SERVICES

2.1 – License and Use of Services

Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, non-transferable license to use the Services solely for your internal business purposes. You will not make available, copy, reproduce, retransmit, disseminate, sell, license, distribute, publish or otherwise circulate the Services, or any portion thereof, without our prior written consent. You will not acquire any ownership or intellectual property rights in the Services, other than the limited use right expressly provided in this Section 2.1. You will not decipher, adapt, translate, disassemble, decompile, reverse engineer, reengineer, or otherwise seek to duplicate the performance or characteristics of, the Software, the other Services, or any portion of either thereof, or use any robot, spider, search/retrieval application or other manual or automatic device or technique to extract, “scrape,” collect, retrieve, index, “data mine,” copy, catalog, download or otherwise reproduce, store or distribute information or content available on the Services (including information about other individuals or companies using the Services or any portion thereof), or in any way reproduce or circumvent the navigational structure or presentation of the Services (or any portion thereof). Access to the Services is only available to Authorized Users and may not be otherwise shared internally or externally. You will comply with all laws and regulations (specifically including any data protection laws) applicable to your access to and use of the Services. You agree to direct, instruct and, where applicable, cause any Licensed Affiliate we grant permission to use the Services as set forth on the IO and any Authorized Users to comply fully with this Agreement. You will be fully responsible for the activities of each Licensed Affiliate and each Authorized User and liable under the Agreement for any and all acts or omissions of any such Licensed Affiliate or any such Authorized User which, if taken by you, would breach any provision of this Agreement. If applicable, only the number of Authorized Users indicated on the IO in connection with any reference to number of logins, accounts, users or any similar phrase (“Logins”) may access and use the Services hereunder. Each Login must be assigned to one (1) individual employee of yours and/or a Licensed Affiliate (if applicable) only.

2.2 – Provision of Services

2.2.1 – We reserve the right, in our absolute discretion, to change, add, delete or modify all or any portion of the Services or the content, format, medium or means of access to or delivery thereof. If any such change is material, we will provide you with at least thirty (30) days’ prior written notice of such change. You agree that such notice may be made by email. If the scope or quality of the information made available from our Services (the “Content”) materially diminishes due to any such change, you may terminate the affected portion of the Services as set forth in Section 3.1.

2.2.2– You will not, directly or indirectly use, or permit any third party to use, the Services in any way that infringes any intellectual property rights in the Services.

2.2.3 –If applicable, you will be solely liable for the security of any Logins we issue to you in order for you and your Authorized Users to access the Services.

2.2.4 – You will promptly notify us of any suspected unauthorized access to or distribution of the Services by you, your Licensed Affiliates or your Authorized Users.

  1. TERM AND TERMINATION

3.1 – The term of this Agreement is the same as the “License Term” set forth in the IO (the “Term”), unless earlier terminated as provided herein, and will automatically renew for successive periods of one (1) year each unless either Party provides written notice to the other Party of its intention not to renew at least thirty (30) days prior to expiration of the Term. Such renewal will be on the same terms and conditions provided herein, except that the Fees for the renewal period may be increased by up to 10% annually during the Term or the then-current renewal period, as applicable, upon each anniversary of the start date of the Term. We may, upon written notice, immediately terminate this Agreement if you breach this Agreement and do not cure such breach within fifteen (15) days after receipt of our notice. We will not refund any Fees due to such termination. You may, upon written notice, terminate (i) this Agreement if we materially fail to provide access to the Services and do not cure such failure and/or deficiency within fifteen (15) days after receipt of your notice regarding such failure and/or deficiency; or (ii) the affected portion of the Services if the Content materially diminishes due to changes made in the Services and we do not cure such failure and/or deficiency within fifteen (15) days after receipt of your notice regarding such failure and/or deficiency. In either instance, you will receive a refund of a pro rata portion of the Fees due to such termination (which pro rata refund is our sole liability due to such purported failure and/or deficiency). Within ten (10) days after expiration or termination of this Agreement, you will, subject to the last sentence of Section 7, permanently delete the Services and/or any Content from your information technology systems and provide us with written confirmation of your compliance with such obligation.

3.2 – Termination of any IO(s), however arising, will not affect (i) any then-existing rights accrued or obligations arising on or before the date of termination; (ii) the continuing operation of all Sections of this Agreement which expressly survive termination; or (iii) any IO(s) (and the application of this TOS thereto) which have not been terminated.

  1. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY

4.1 – WE, AND OUR PARTIES, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT SUCH PURPOSE OR USE HAS BEEN DISCLOSED) AS TO THE SERVICES OR ANY COMPONENT THEREOF, INCLUDING THE INFORMATION, DATA, SOFTWARE, APPLICATIONS OR PRODUCTS CONTAINED THEREIN OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. WE, AND OUR PARTIES, CANNOT, DO NOT AND WILL NOT GUARANTEE (AND YOU MAY NOT RELY UPON) THE ADEQUACY, ACCURACY, TIMELINESS, CORRECTNESS, COMPLETENESS, RELIABILITY OR SECURITY OF THE SERVICES OR ANY COMPONENT THEREOF, OR THAT THE SOFTWARE OR THE SERVER(S) ON WHICH THEY ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, WILL MEET YOUR REQUIREMENTS, OR CAN BE RELIED UPON IN ANY RESPECT. WE AND OUR PARTIES WILL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY OF ANY KIND FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, MALFUNCTIONS, DELAYS OR FAILURES TO PROVIDE UPDATES IN OR WITH RESPECT TO THE SERVICES, THE COMPONENTS THEREOF OR ANY RESULTS OBTAINED THEREFROM. THE SERVICES (AND ALL COMPONENTS THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE THEREOF AT ALL TIMES IS AND WILL BE AT YOUR OWN RISK. IF YOU HAVE ORDERED CERTAIN PRODUCT(S), WE MAY PROVIDE YOU WITH CERTAIN DATA POINTS (“CUSTOMER-BASED DATA POINTS”) BASED ON CERTAIN INPUTS AND PARAMETERS YOU PROVIDE US. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE USE OF SUCH PRODUCT(S) AND/OR ANY INFORMATION MADE AVAILABLE THEREFROM, INCLUDING ANY CUSTOMER-BASED DATA POINTS, AND ANY DECISIONS MADE IN RELIANCE ON THE PRODUCT(S) AND THE CUSTOMER-BASED DATA POINTS ARE AT YOUR OWN RISK.

4.2 – Except (i) in the case of fraud or intentional breach; or (ii) with respect to a Party’s indemnification obligations set forth in Section 5, in no event will either Party be liable for any (a) special, indirect, incidental, consequential or punitive damages; or (b) losses or damages for any loss of data, profit, goodwill, anticipated savings, revenue or business, in each case, whether based on contract, tort or other legal theory, relating to this Agreement, the Services and/or your use of or inability to use the Services. Except for claims relating to your misuse of the Services, no action, claim or lawsuit relating to this Agreement may be filed later than two (2) years from the date this Agreement expires or terminates. Our aggregate liability to you for all claims relating to this Agreement, the Services and/or your use of or inability to use the Services, whether based on contract, tort or other legal theory, will not exceed the amount you paid us in the twelve- (12) month period preceding the date on which the claim arose.

4.3 – YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE ANY FORM OF BUSINESS, FINANCIAL, LEGAL, REGULATORY OR OTHER ADVICE OF ANY KIND. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY AND FULLY RESPONSIBLE FOR ALL BUSINESS DECISIONS THAT YOU MAKE AND THAT THE USE OF THE SERVICES, AND ANY DECISIONS MADE IN RELIANCE UPON THE SERVICES, AT ALL TIMES ARE AND WILL BE MADE ENTIRELY AT YOUR OWN RISK. WE WILL NOT BE LIABLE FOR ANY ADVERSE CONSEQUENCES RESULTING FROM THE INACCURACY OR INCOMPLETENESS OF THE CONTENT, NOR ANY TRADING, INVESTMENT, COMMERCIAL OR OTHER DECISIONS TAKEN BY YOU OR ANY OTHER THIRD PARTY BASED ON OR MADE IN RELIANCE ON THE CONTENT. IF THE IO PERMITS YOU TO SHARE THE CONTENT AND/OR INFORMATION DERIVED THEREFROM WITH THIRD PARTIES, YOU WILL ADVISE SUCH THIRD PARTIES IN WRITING OF THESE DISCLAIMERS.

4.4 – THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4 ARE A MATERIAL PART OF THE BARGAIN. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS. EACH PARTY ACKNOWLEDGES AND AGREES THAT THESE PROVISIONS WILL APPLY WHETHER OR NOT THE REMEDIES ALLOWED UNDER THIS AGREEMENT ARE DEEMED ADEQUATE AND WHETHER OR NOT SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

  1. INDEMNIFICATION

We will indemnify you against all claims, causes of action, judgments, damages, fines or expenses (including reasonable attorneys’ fees) arising from a third-party claim that your use of the Services as permitted by this Agreement infringes upon such third party’s intellectual property rights. You will indemnify us against all claims, causes of actions, judgments, damages, fines or expenses (including reasonable attorneys’ fees) arising from a third-party claim relating to your use of the Services in violation of this Agreement and/or applicable law. These indemnification obligations are contingent on a Party giving written notice to the other Party promptly upon becoming aware of any claim for which it seeks indemnification (an “Indemnity Claim”). The non-indemnifying party will provide the indemnifying party with reasonable, non-monetary assistance in the defense of an Indemnity Claim. The indemnifying party may assume the defense of an Indemnity Claim with counsel of its choice, so long as such counsel is competent, established and reputable. No indemnity obligation will exist for an Indemnity Claim that arises from a non-indemnifying party’s gross negligence, willful misconduct or breach of this Agreement.

  1. OWNERSHIP; PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS

6.1 – You acknowledge and agree that, as between you and us, all right, title and interest in and to the Services, all intellectual property rights therein and any and all derivations therefrom and improvements and enhancements thereto (all of the foregoing, collectively, “Our Property”) are and at all times our sole and exclusive property. Except and to the extent expressly and specifically granted to you herein, any and all rights with respect to any of Our Property are entirely and expressly reserved by us. There are no implied licenses of any kind with respect to any of Our Property.

6.2 – You will not divulge or disclose any aspect of Our Property except as expressly permitted in the Agreement.

6.3 – We welcome ideas, suggestions and feedback related to the Services (including, without limitation, the Test Services) (“Services Feedback”). Your provision of Services Feedback is entirely voluntary. You hereby assign to us all right, title and interest, including all intellectual property rights, in and to such Services Feedback, any and all of which we may use for our own business purposes in our sole and absolute discretion, without any payment or accounting to you. Such Services Feedback is deemed part of our Confidential Information hereunder. In addition, all content, data and/or information submitted or otherwise communicated or made available to us by or on behalf of you in connection with the Services will not constitute your Confidential Information.

6.4 – You will not delete or alter in any manner any of the proprietary information, copyright, trademark or other attribution notices or legal disclaimer notices, if any, appearing on or with respect to any of the Services or Our Property.

6.5 – You acknowledge and agree that we will suffer irreparable injury and damage and cannot be reasonably or adequately compensated in monetary damages for our loss of our benefits or rights under this Agreement as the result of your breach, default or violation of your obligations under this Agreement. Accordingly, we will be entitled, in addition to all other remedies which may be available to us (including monetary damages), to injunctive and other available equitable relief, without surety or bond, in any court of competent jurisdiction to prevent or otherwise restrain or terminate any actual or threatened breach, default or violation by you of any provisions of the Agreement or to enforce any such provisions.

  1. CONFIDENTIAL INFORMATION

Confidential Information” means information that one Party (“Discloser”) discloses to the other Party (“Recipient”) on or after the Effective Date in connection with this Agreement; provided, that such information is marked as confidential or would normally be considered as confidential given the nature of such information or circumstances of disclosure. It does not include information that Recipient already knew, becomes publicly available through no fault of Recipient, was independently developed by Recipient or was lawfully given to Recipient by a third party. Recipient will not disclose any of Discloser’s Confidential Information, except to its affiliates and its and their respective employees, agents or professional advisors (to the extent the foregoing receive Discloser’s Confidential Information, “Representatives”) who need to know it in order to perform under this Agreement and have written confidentiality obligations in place at least as protective as those hereunder that cover Discloser’s Confidential Information. Recipient will (i) ensure that its Representatives do not make any unauthorized use of Discloser’s Confidential Information and (ii) be liable for any actions or omissions of its Representatives which, if taken by Recipient, would constitute a breach by Recipient of this Agreement. Recipient may disclose Discloser’s Confidential Information if required by law or legal process after giving reasonable notice to Discloser (if such notice is permitted by law). Upon expiration or termination of this Agreement or written request by Discloser, Recipient will destroy all written material in any form whatsoever to the extent they contain Discloser’s Confidential Information. Notwithstanding the foregoing sentence, Recipient may retain physical and electronic copies of any materials containing Discloser’s Confidential Information if necessary to comply with applicable laws, regulations and bona fide internal document retention policies (“Legal Purposes”); provided, that (a) the use of any such Confidential Information will be limited to Legal Purposes and Recipient will not, for the avoidance of doubt, have any right to make any commercial use of such Confidential Information and (b) such Confidential Information is only accessed by legal, compliance and information technology personnel.

  1. THIRD PARTY SUPPLIERS

In the event that our rights, titles, licenses, permissions or approvals from a Third Party Supplier pertaining to the Services are cancelled, terminated, rescinded or not renewed, we may, upon written notice to you, suspend or terminate your rights to use the affected portions of the Services within the timeframe required by such Third Party Supplier. Such suspension or termination will not constitute a breach by us of any of our obligations hereunder but we will refund to you a pro rata portion of any prepaid Fees for the affected Services for the period that such Services are not available or usable and will negotiate with you in good faith to determine whether an adjustment in future payments owed by you to us to reflect such suspension or termination is warranted.

  1. FEES/PAYMENTS

Unless otherwise stated on the applicable IO, you will pay all Fees within thirty (30) days of the date of our invoice to you for the applicable Services. We may charge interest at the rate of 1.5% per month on overdue Fees, accrued from the due date until the date payment is received. In addition, we may also suspend delivery of the Services (or any portion thereof) for as long as any Fees remain overdue. You will pay all sales and related taxes based on the Fees, exclusive of taxes based on our income. Except as otherwise expressly stated in this Agreement, the Fees are non-refundable.

  1. AUDIT RIGHTS

During the term of this Agreement and for a period of five (5) years thereafter, you agree to keep materially complete and accurate books, records and related documentation concerning the use of the Services for the most recently completed period of five (5) years. We are hereby granted the right, subject to the confidentiality provisions of this Agreement and not more than twice during any twelve- (12) month period during the term of this Agreement, to (i) audit and examine, upon reasonable prior written notice and during normal business hours, your books and records and any and all computer equipment, devices, components, transmission equipment and software you have used in connection with your installation, maintenance, accessing, delivery, transmission, reception, retrieval or use of the Services; and (ii) observe, upon reasonable prior written notice and during normal business hours, the operations you conduct relating to the use of the Services. All such audits pursuant to the foregoing clauses (i) and (ii) shall be conducted at our expense, unless such audit reveals an underpayment by you of more than three (3)% and/or a material variance in the use of the Services from the use contemplated by this Agreement, in which case you will be liable to us for all reasonable audit expenses we incurred and we will have the right to conduct another audit and review pursuant to this Section 10 during the same twelve- (12) month period. You will also be liable for any unauthorized use or distribution of the Services (or any portion thereof) discovered during such audit. You will promptly pay to us the amount of all underpayments of Fees identified in any audit, together with interest thereon in accordance with Section 9.

  1. MERGERS, ACQUISITIONS AND REORGANIZATIONS

If you or any Licensed Affiliate that benefits from this Agreement (together, the “Licensees”) merge with or acquire any interest or shares of a third party or any third party merges with or acquires such an interest in any Licensee (in each case, a “Transfer”), you will promptly notify us in writing of such Transfer and (i) this Agreement will remain in full force and effect following the Transfer; (ii) we may offer you revised Fees for the Services based on, amongst other things, the increased benefit you receive from the Services due to the enlarged size and nature of your business following the Transfer (“Extension Fee”); and (iii) unless and until you pay the Extension Fee, no employee, contractor or other personnel of the relevant third party will access, use or benefit in any way from the Services or will be deemed to be an Authorized User.

  1. TEST SERVICES

12.1 – From time to time, you may desire to test and evaluate certain additional Services not already provided for in an existing IO. If we offer testing of the relevant Services, we are willing to provide a sample of such additional Services (the “Test Services”) to you at no charge for a limited period of time (not to exceed thirty (30) days), provided, that:

12.1.1 – You will use the Test Services in accordance with this TOS and furthermore solely for the purpose of evaluating the same, internally within your own organization and not for redistribution to or use by any third party. We, in our sole discretion and without further notice, may discontinue providing such Test Services at any time.

12.1.2 – The Test Services will constitute Our Property hereunder, and the provisions of Sections 1, 2.2, 4, 5, 6, 7, 8, 10, 11, 12 and 13 of this Agreement will apply to your use of the Test Services. Upon our request, and in any event after the expiration or termination of the test, you will cease all use of the Test Services, and purge the Test Services and any copies thereof from your computer system. You will return the Test Services (if delivered in a fixed medium), or supply a certificate of destruction thereof, within ten (10) days of our request. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, you may not use the results of any test based on the Test Services for redistribution to any third party, or for any actual use in any productive purpose.

12.2 – We will provide Test Services under cover of a letter referencing this Section 12. Any use of Services outside of the scope of this Section 12 or for a period beyond thirty (30) days must be set forth on an appropriate IO and is subject to incremental Fees as may be mutually agreed in writing by the Parties.

  1. GENERAL

This Agreement is governed by the laws of the State of New York. Any litigation relating to this Agreement must be brought in any state or federal court located in the Borough of Manhattan having appropriate subject-matter jurisdiction. Neither Party may assign this Agreement without the prior written consent of the other Party, except that we may, without your consent, assign this Agreement (i) to our affiliates; (ii) in connection with a merger or consolidation involving us or a sale of all or substantially all of our assets; or (iii) in connection with a divestiture of any portion of our business or any applicable division to which this Agreement relates. The waiver by either Party of a breach or violation of any provision of this Agreement will not constitute a waiver of any subsequent or other breach or violation. Any performance delay caused by conditions beyond the reasonable control of either Party will not constitute a breach hereof so long as the delaying Party takes reasonable measures to notify the affected Party in writing of the delay and uses commercially reasonable efforts to perform notwithstanding such conditions. This Agreement constitutes the entire agreement, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Amendments of or waivers relating to this Agreement must be in writing signed by the Parties; provided, that we may, in our sole discretion, change this TOS at any time, and you will be bound to such changes, subject only to the following requirements: (a) in the event of any material change to this TOS, we will provide you notice of such change, which notice obligation may be fulfilled by us posting a notice on our website for at least thirty (30) days, stating that this TOS has been updated (or words to a similar effect); and (b) if such change has a materially adverse effect on your rights and obligations under this Agreement, taken as a whole, you may, within thirty (30) days of the date such change became effective (as evidenced by the “Last updated” date at the end of this TOS), terminate the affected portion of this Agreement upon thirty (30) days’ prior written notice to us, in which case, you will receive a refund of a pro rata portion of the Fees due to such termination (which pro rata refund is our sole liability due to such change). Solely as an accommodation to your invoicing practices and procedures, we may, from time to time, accept or sign purchase orders and other similar documents provided by you to effectuate payment of Fees owed to us. You agree that no terms contained therein will be binding on us and we expressly reject all such terms. The provisions of Sections 1, 3.2, 4, 5, 6, 7, 9, 10 and 13 will survive any termination or expiration of the Agreement. We may use your name and/or your logo (in a form you previously approved), in each case, to identify you as our client or customer for our marketing and promotional purposes, including (a) in any list of clients and customers on our website(s); (b) at any exhibition, trade show or other event held by us; (c) in renewal forms to existing clients and customers; or (d) in presentations and marketing materials to potential or existing clients, customers or business partners.

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