End User License Agreement for Fleet Complete™
PLEASE READ THE FOLLOWING LICENSE AGREEMENT BEFORE ACCESSING AND USING THE COMPLETE INNOVATIONS SOFTWARE AS A SERVICE OFFERING (THE “SERVICE”) ASSOCIATED WITH THIS AGREEMENT.
BY CLICKING ON THE “ACCEPT” OR “YES” BUTTON IN RESPONSE TO THE ENQUIRY AS TO ACCEPTANCE OF THE TERMS OF THIS LICENSE AGREEMENT, OR BY LOGGING IN AND ACCESSING THE SERVICE, YOU ARE ACCEPTIN
G AND AGREEING TO, AND LEGALLY BINDING YOU AND YOUR EMPLOYER (COLLECTIVELY THE “YOU” OR “CLIENT”) TO, THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) AND THIS AGREEMENT SHALL BE A LEGALLY BINDING AGREEMENT BY AND BETWEEN THE CLIENT AND COMPLETE INNOVATIONS USA INC., ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATE, COMPLETE INNOVATION INC. (COLLECTIVELY “CI”). IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT THEN EITHER DO NOT ACCESS OR OTHERWISE USE THE SERVICE.
THE RIGHT TO USE THE SERVICE IS CONDITIONAL UPON ACCEPTANCE OF THIS AGREEMENT, UNLESS YOU HAVE ENTERED INTO A WRITTEN AND DULY SIGNED LICENSE AGREEMENT WITH CI, IN WHICH CASE SUCH SIGNED LICENSE AGREEMENT WILL GOVERN THE CLIENT’S USE OF THE SERVICE.
1. SCOPE AND LEGAL EFFECT
This is a legal agreement concerning your use of the Service described below. The rights granted to the Service are expressly conditioned upon acceptance of the terms and conditions contained herein by the legal entity or person acquiring the license and, if applicable, responsible for payment. If You are using the Service as an employee, the legal entity that employs you is the licensee of the Service and is referred to herein as the “Client”. Your employer may have already accepted a version of this Agreement by signing an Order referencing this Agreement. In all other circumstances, you are binding your employer, and yourself personally as an employee, to this Agreement by installing and using the Service. References below to “You” or “Your” refer to the licensee of the Service.
2.1 In this Agreement or in any Order relating to the Service governed by this Agreement, the following terms shall have the following meanings respectively:
“CI Server” means a CI computer server located at CI’s premises, or a third party provider of hosting and/or network services, that hosts the Software.
“Data” means any and all data, information, records or files that are collected, created or generated by the Service and transmitted to, uploaded to and/or stored on servers provided by CI for use with the Service.
“Data Locations” means the location of CI’s secure server and data facility, back-up facility, back-up storage facility and any other location where Data will be stored, or such other location as may be determined by CI from time to time.
“Documentation” means the explanatory user materials supplied by CI with the Service in electronic form.
“Effective Date” has the meaning ascribed thereto in Section 4.1 hereof.
“Hardware” means any mobile electronic device, mobile phone, mobile data terminal, or mobile asset (including vehicles, trailers or containers), installed modem, related sensors and other equipment or accessories onto which a mobile application has been embedded, installed or which is used to access a mobile application and which is required to use the Service as intended as described in the Documentation.
“Location Data” means Data that is about or relates to the geographical location, heading, speed or similar information relating to Hardware.
“Order” means CI’s invoice or Client’s purchase order, provided that it has been accepted by CI or one of its authorized resellers or distributors.
“Service” means the provision of Subscribers, location and data communications services, the Software and Documentation for which Client is granted rights of access and use under this Agreement, which resides on one or more CI Servers and which will be remotely accessible over the Internet by Client and its Users, including Support Services and any other ancillary services available in connection therewith, as such Service may be updated from time to time by CI in its sole discretion.
“Software” means CI’s proprietary Fleet Complete™ software application and the software installed on the Subscribers and other Hardware.
“Subscriber” means a Hardware device running embedded or installed software and connected to a communication network (including, but not limited to, Wi-Fi, cellular, Bluetooth and satellite networks) that transmits location information and other data to the CI Servers running the Service and which are provided by CI or a third party and installed on Client’s vehicles or assets to enable the provision of the Service.
“Subscription” means the right granted by CI to Client to access and use the Service in accordance with the terms of this Agreement and the applicable Order, for use in connection with the number of Subscribers and for the Subscription Term specified in the applicable Order.
“Subscription Fee” means the fee payable by Client for a Subscription as set out in the Order.
“Subscription Term” means the license term specified in the Order.
“Support Services” means the technical support services for the Service provided by CI as described in, and in accordance with, the CI Support Terms.
“Support Terms” means CI’s terms and conditions for the provision of Support Services to Client and its Users, a copy of which is available at www.completeinnovations.com/support.
“Telematics Data” means Data that is about or relates to a vehicle operator’s behaviour and a vehicle’s performance, such as acceleration, braking, turning and includes Location Data.
“User” means an employee or contractor of Client.
“Work Order Data” means Data that relates to an order for services or deliveries that was dispatched from or to a Subscriber using the Service.
3. LICENSE GRANTS
3.1 Service License. Subject to the terms and conditions of this Agreement and payment of the applicable Subscription Fees, CI hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Service, solely during the Subscription Term by an unlimited number of Users; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Client’s permitted use of the Service during the Subscription Term for the number of Subscribers for which Client has purchased Subscriptions and pays the applicable Subscription Fees (as specified in one or more Orders).
3.2 Restrictions. You may not:
(a) make copies of the Software and Documentation except as permitted in this Agreement;
(b) reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the object code for the Software in order to derive the source code form, or decode any passwords or encrypted license or installation keys that have been provided to You by CI in order to enable the execution of the Service on unauthorized equipment, or for any other reason do or attempt to do any of the foregoing, except to the extent the foregoing restriction is expressly prohibited by applicable law;
(c) use the Service in violation of applicable laws;
(d) assign (by operation of law or otherwise) or transfer this Agreement or Client’s interest in or rights under this Agreement, or attempt to do so or enter into any agreement to do so with any other party, without the prior written agreement of CI, and any such assignment or attempted assignment shall be null and void and shall result in the automatic and immediate termination of this Agreement;
(e) knowingly interfere with service to any of CI’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing;
(f) create any “links” to or “frame” or “mirror” of the Service or the Software, or any portion thereof, except when using CI provided APIs;
(g) make the Service, Software and/or Documentation available on a server that can be accessed via a public network, such as, for example and without limitation, the Internet, in a manner that allows the Service, Software, and/or Documentation to be copied by any third party;
(h) defeat, disable or circumvent any protection mechanism related to the Service;
(i) except as expressly provided herein, or unless expressly authorized by CI in writing, sublicense, distribute, transfer, loan, use, lease or otherwise make available the Service, Software and Documentation, or any part thereof, to any third party; or
(j) remove or obscure any copyright notices, trade-marks, or any other proprietary legends and/or logos of CI or its licensors appearing on the Software or the Documentation.
3.3 Documentation License. Client may, during the Subscription Term, use the Documentation provided by CI to assist Client with the operation and use of the Service solely to support Client’s use of the Service as permitted hereunder.
3.4 Evaluation License. If You are evaluating the Service, CI hereby grants to You, free of charge, a non-exclusive, non-transferable, limited-term license (the “Evaluation License”) to use the Service solely for internal testing and evaluation. You shall not publish any results of benchmark tests run on the Service or disclose its features, errors or bugs to a third party without CI’s prior written consent. During the term of the Evaluation License CI shall be under no obligation to provide any technical support; provided however, that CI may in its sole discretion fix reported errors and provide You with support and consultation concerning the Service.
3.5 Reservation of Rights. This Agreement does not constitute a sale of the Software. Client is granted no title, ownership or intellectual property rights in or to the Service, Software or Documentation, in whole or part. All such rights shall remain in CI and/or in licensors to CI of programs provided within the Service.
4.1 Term. This Subscription license is effective upon the earlier of the date specified in the Order or upon the date on which CI makes the Service available to Client for access and use (hereinafter referred to as the “Effective Date”) and shall remain in effect for the Subscription Term or for as long as the Client continues to pay the applicable Subscription Fees to CI or its authorized reseller or distributor, or for such other term (and on such other terms and conditions relating thereto) as the Client and CI or its authorized reseller or distributor may agree upon in writing.
4.2 Suspension for Non-Payment. If payment is made directly to CI, then CI may immediately suspend Client’s license access to and use of the Service if Client fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the licensed rights hereunder by CI under the preceding sentence shall not excuse Client from its obligation to make all payment(s) under the Agreement.
4.3 Termination. If payment is made directly to CI, then CI may terminate this Agreement if (i) it has provided written notice to Client of the claimed breach and the Client fails to correct such breach to the reasonable satisfaction of CI within 30 days of receiving such notice, or (ii) proceedings under bankruptcy or similar insolvency laws are instituted by or against Client and are not dismissed within 60 days, Client makes an assignment for the benefit of its creditors, or a receiver, liquidator or similar officer is appointed for the business, property, affairs or revenues of Client and such proceedings continue for 30 days. If Client is paying CI directly and fails to pay the amounts invoiced in respect of the Product, Client shall be deemed to have materially breached this Agreement. If Client is paying CI directly and CI terminates this Agreement for Client’s non-payment, Client must pay within 30 days all amounts which have accrued prior to such termination, as well as all amounts payable by Client on account of the remainder of the then-current Subscription Term (even if earlier terminated) under this Agreement.
4.4 Obligations on Termination. Upon the termination of this Agreement, (a) CI shall, upon Client’s written request, return to Client all Work Order Data and will have the right to terminate Client’s access to and use of the Service; and (b) Client shall forthwith discontinue the use of the Service.
5. SUBSCRIPTION FEES
5.1 Unless otherwise agreed to in writing by CI, all Subscription Fees are based upon the number of Subscribers in use by Client and shall be determined in accordance with the then current CI price list, the authorized reseller’s or distributor’s price list or such other terms and conditions relating to Subscription Fees as may be agreed upon by the Client and CI or its authorized reseller or distributor.
5.2 All subscription fees are exclusive of all sales taxes, value-added taxes, goods and services taxes, and similar taxes, including withholding taxes, customs duties or similar charges. Such taxes and charges shall be incremental to the fees and shall be payable by Client in accordance with applicable law.
6. CLIENT REQUIREMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Desktop Requirements. Client agrees that desktop or laptop computers that run the Service will have the Windows 7 operating system, the latest .NET framework, a minimum of 4GB of RAM and Internet Explorer 9 or greater (the “Desktop Requirements”).
6.2 Client Equipment. Client is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Client to access and use the Service, and for all expenses relating thereto. Client agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures that may be issued by CI from time to time.
6.3 Client Representations and Warranties. Client hereby represents and warrants as of the Effective Date and throughout the term of this Agreement that Client will not upload or transmit any Data: (i) that Client does not have the lawful right to copy, transmit, distribute, and display; or (ii) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
7. CI RIGHTS AND RESPONSIBILITIES
7.1 Database Backup. A complete backup of the Client’s database compiled through the use of the Service will be stored to a file on the CI Servers every 24 hours. Once every 30 days a copy of the latest complete backup file will be transferred and stored in a fire retardant safe at a secondary site which is a different address from where the production version of Client’s database is located.
7.2 Data Storage and Retention. CI will retain the Data during the term of this Agreement in accordance with the terms of this Agreement. The Data will be located at the Data Locations. As of the Effective Date, CI does not store Data at any locations other than the Data Locations. CI shall retain: (a) Location Data for at least one (1) year from the date that Location Data is submitted to a CI Server by the Client or the Service; and (b) Client’s Work Order Data for at least seven (7) years from the date that Work Order Data is submitted to CI by the Client (each such period is hereinafter referred to as the “Retention Period”). Upon Client’s request, which may be made at any time and from time to time during the applicable Retention Period, CI will make available for secure retrieval by Client all Data then in CI’s possession at CI’s then current rate for data retrieval.
7.3 Rights in Data. To the extent necessary to fulfill the purposes of this Agreement, including this section 7.3, Client hereby grants to CI a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to use and to allow CI and third parties to use aggregated Data and de-identified Data, including information relating to service or delivery orders, Telematics Data, time, speed and other information generated by the Service for traffic information, journey data analysis, mapping, fleet and industry benchmarking, or any other purpose. CI shall own all aggregated Data or de-identified Data, modifications to such Data and all derivatives thereof (collectively, “Derivative Data”) and shall have the right to use such Derivative Data for any purpose, including commercial purposes, without compensation to or the approval or consent of the Client. CI may transfer or assign any of its rights in the Derivative Data to any third party. Client acquires no rights in any research or the development of any commercial products or uses of the Derivative Data by CI or any third party.
7.4 Suspension of Access. In addition to any termination rights of CI pursuant to this Agreement, extraordinary circumstances may require CI to suspend or terminate (where appropriate), as determined in CI’s reasonable discretion, Client’s access to and/or use of, or otherwise modify, the Service and/or any component thereof in order to: (a) prevent material damages to, or material degradation of the integrity of, CI’s network; or (b) comply with any law, regulation, court order, or other governmental order. CI will notify Client of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, CI will limit such suspension to that which is minimally required and will promptly restore Client’s access to the Service as soon as the event giving rise to the suspension has been reasonably addressed (including by Client agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Client (including any action taken by an Affiliate of Client or any User that would constitute a breach of this Agreement by Client): (i) all fees related to the Service Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived fees which have been pre-paid shall be refunded to Client; and (ii) in the event of a termination in connection with this section 7.2, Client shall receive a refund of any and all prepaid fees.
8. CLIENT CONFIDENTIALITY OBLIGATIONS
The Service, in particular the Software, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of CI and/or its licensors (the “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to CI. Client shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. Client shall not use, reproduce or distribute the Confidential Information other than for the purposes authorized by this Agreement. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Client prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Client by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Client shall give all reasonable prior notice to CI to allow it to seek protective or other court orders.
9. LIMITED WARRANTY
9.1 Service Warranty. CI warrants that the Service will perform substantially in accordance with the Documentation or other specifications published by CI during the Subscription Term. CI does not warrant, however, that Client’s use of the Service will be uninterrupted, that the operation of the Service will be error-free, that the Service will meet Client’s requirements or that all errors will be corrected.
9.2 Warranty Exclusions. This warranty shall not apply if the Service is used on or in conjunction with hardware or programs other than the unmodified version of the hardware and programs with which the Service is designed to be used as described in the Documentation.
9.3 Hardware Warranty. CI warrants the Subscribers in accordance with CI’s Hardware Warranty, a copy of which is available at www.completeinnovations.com/hardwarewarranty.
9.4 No Warranty for Evaluations. IF CLIENT IS EVALUATING THE SERVICE THEN THE SERVICE AND DOCUMENTATION IS PROVIDED TO CLIENT BY CI ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND.
9.5 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 9, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, USAGE OF TRADE OR COURSE OF DEALING. CI DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE PROGRAM AND THE ACCOMPANYING DOCUMENTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE. CI DOES NOT OTHERWISE WARRANT THAT THE PROGRAM WILL MEET CLIENT’S REQUIREMENTS THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED.
9.6 Internet Connectivity Disclaimer. CI makes the Service available for access via the Internet. Client shall provide, at Client’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Client acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to the Service or performance hereunder. Except as expressly set forth herein, Client agrees that CI is not responsible for any interference with Client’s use of or access to the Service to the extent caused by, arising from or attributable to the Internet.
10. TELECOMMUNICATIONS CARRIERS AND GPS
10.1 The Client acknowledges that communication services used in the provision of the Service are provided by third parties and the Client specifically acknowledges and agrees to the following:
(a) Client acknowledges that the Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission networks. Client agrees that CI shall not be responsible for such interruptions of Service or the inability to use the Service.
(b) CI may temporarily suspend or permanently terminate the provision of some or all of the Service upon little or no notice in the event that Client violates a telecommunications carrier’s acceptable use policy or other network rules and policies.
(c) There must be a relatively clear “line of sight” between the GPS antenna and 4 or more satellites. Objects, such as buildings, overpasses, and other obstructions (such as parking in garages or underground structures) that shield the antenna from a satellite can potentially weaken a satellite’s signal such that it becomes too difficult to ensure reliable and/or accurate positioning. These difficulties are particularly prevalent in densely urban areas.
11. IP INFRINGEMENT INDEMNIFICATION
11.1 CI Indemnity. CI will defend and indemnify Client (including its employees, contractors, officers and directors) against fines, penalties, losses, costs, damages, injuries, claims, liabilities, settlements and expenses (including reasonable legal fees and expenses) arising from third party claims that the exercise of the rights granted hereunder infringes any third party patent, copyright, or trade secret (“Infringement Claim Liabilities”).
11.2 Conditions to Indemnity. As a condition of such obligation to defend and indemnify the Client pursuant to Section 11.1 hereof, Client shall give CI prompt written notice of any such claim, and cooperate and provide, at CI’s expense, reasonable information and assistance in connection with the defense and settlement of such claims. CI shall have sole control of the settlement or defense of all infringement claims.
11.3 Exceptions. CI shall not be responsible for indemnifying Client to the extent that the infringement claim liability results from (i) compliance with Client’s designs, specifications, or written instructions as requested and provided by Client to CI; (ii) modification by Client of the Product if such infringement would have been avoided but for such modification; (iii) the combination of Product with equipment or software not authorized or provided by CI or otherwise approved by CI in the Product documentation, if such infringement would have been avoided but for such combination; or (iv) the failure by Client to use an updated or current version of the Product provided by CI following notice by CI that the previous version of the Product infringes any third party intellectual property right.
11.4 Other Remedies. Without limiting the provisions of Section 11.1 above, and in addition thereto, when notified of an action or motion that seeks to restrict the exercise of any of the rights granted herein, CI may, (and in the case of a judgment, order or injunction that restricts the exercise of any of the rights granted herein, shall), in good faith, at its option and expense, (a) obtain the right for Client to exercise their rights in accordance with this Agreement, (b) substitute other non-infringing software with equivalent functional capabilities, (c) modify the Service while retaining equivalent functional capabilities, so that it no longer infringes, or (d) if none of the foregoing are commercially feasible, as determined by CI in its sole discretion, terminate the license(s) for such Service and refund to Client that portion of any prepaid subscription Fees that is applicable to the period following the termination of the license pursuant to this Section 11.4.
11.5 Exclusive Remedies. SECTION 11 HEREOF CONTAINS CI’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIM LIABILITIES.
12. LIMITATION OF LIABILITY
12.1 Indirect Damages. EXCEPT FOR A BREACH OF SECTION 8 HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
12.2 Direct Damages. EXCEPT FOR CLAIMS MADE UNDER SECTION 11 OF THIS AGREEMENT, THE TOTAL LIABILITY OF CI FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT CI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY THE CLIENT TO CI FOR THE SERVICE HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
13. U.S. GOVERNMENT END-USERS
The Software and Documentation is a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Service, Plug-in(s) and Documentation consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Service and related Documentation is further restricted by the terms and conditions of this Agreement. Manufacturer is Complete Innovations Inc., 475 Cochrane Dr, Unionville, ON L3R 9R5, Ontario, Canada.
14. EXPORT RESTRICTIONS
The Service and related information are subject to export and import restrictions. By downloading, installing, accessing or using the Service, You are representing and warranting that You are not located in, under the control of, and are not a national or resident of, any country to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You are also representing and warranting that You are not an individual to whom the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Service and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Service or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Service shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service or related information.
15.1 Support Terms. Support is included in the license fees and is provided by CI in accordance with its then-current Support Terms. CI’s Support Terms are subject to change from time to time in CI’s sole discretion.
15.2 Exclusions. CI will only provide technical support for the Product and not in relation to any other supporting hardware or software. CI may assist Client in getting technical support and warranty service for hardware sold by CI or its partners.
16. CLIENT’S PURCHASE ORDER
Unless otherwise agreed to in writing by Client and CI or its authorized reseller or distributor, the acceptance of any Order placed by Client for the Service is expressly made conditional upon Client’s acceptance of and agreement to the terms and conditions contained herein and in the Order relating to the Service and CI agrees to furnish the Service only upon these terms and conditions and not on the terms and conditions contained in Client’s Order. Any terms and conditions contained in Client’s Order or other document issued by Client relating to this Agreement that are inconsistent with the terms and conditions hereof are hereby rejected.
17. GENERAL PROVISIONS
17.1 Non-Disparagement. Client shall not indirectly or directly, disparage CI or any affiliated company, including after termination of this Agreement.
17.2 Amendments. No amendment to any portion of this Agreement shall be binding upon the Parties unless in writing signed by both Parties. Except to the extent that CI is expressly precluded by applicable law, CI further reserves the right to, within its sole discretion, make changes to this Agreement on a prospective basis, including to reflect changes in or required by law (including, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing the Client with reasonable notice of the change either electronically by posting notice of the change at http://www.fleetcomplete.com/legal and You should regularly review that site for changes. If You continue to use the Service more than sixty (60) days after notice of the change has been given, then Client shall be deemed to have accepted those changes. If You have a concern about the change(s) please contact firstname.lastname@example.org within sixty (60) days after notice of the change(s) has been given to inquire as to Your options.
17.3 Assignment. Neither party may assign the whole or any part of this Agreement without prior written consent by both parties. Notwithstanding the foregoing, either party may assign this Agreement or any of its rights or obligations hereunder to an affiliated entity or to a third party in connection with the sale of all or substantially all of the assigning party’s business or assets relating to this Agreement, whether by merger, sale of stock or shares, sale of assets, or otherwise, without the prior written consent of the other party, provided that the assignee agrees to assume all of the assignor’s obligations under this Agreement.
17.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes and replaces any prior verbal agreements or other understandings, whether written or oral between the parties.
17.5 Further Assurances. The parties agree to execute such further documents and to perform such further acts, from time to time, as may be necessary or desirable to give full effect to the letter and spirit of this Agreement. Any changes to this Agreement must be authorized and agreed upon by both Parties and documented as amendments to this Agreement.
17.6 Governing Law. If the Client is located in Canada, then this Agreement is to be governed by and construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be governed by and construed in accordance with the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions contemplated hereunder.
17.7 No Waiver. Any failure by any Party to exercise its rights, powers or remedies hereunder or any delay by such Party in the exercise of any of its rights and remedies hereunder shall not, to the extent permitted by law, operate as a waiver or variation of such or any other right or remedy hereunder.
17.8 Enurement. This Agreement shall be binding upon and enure to the benefit of the respective Parties hereto, their heirs or legal representatives, successors and permitted assignees.