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Master Subscription Service Terms

This Agreement is made between the client identified in the Order Form (the “Client”) and the Fleet Complete entity defined within the Order Form executed by the Client (“Fleet Complete”) on the Effective Date (as defined below).

It shall apply exclusively. Terms and conditions of the Client that conflict with or deviate from this Agreement shall not be recognized by Fleet Complete, unless Fleet Complete has issued its express written consent to their application.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Fleet Complete and Client hereby agree as follows:

DEFINITIONS
All definitions in the Order Form are integrated herein. In addition, in this Agreement or in any Order relating to the Service governed by this Agreement, the following terms shall have the following meanings respectively:
„Client Data” means any data or information (a) including Personal Information (as hereinafter defined), (b) relating to an identifiable Vehicle or Vehicle Operator, (c) submitted to the Service by Client or Vehicle Operators, or (d) otherwise collected, accessed, used, disclosed, created, generated or stored by, through or in connection with the Service and transmitted to, uploaded to and/or stored on Fleet Complete Servers for use with the Service, but does not include Fleet Complete Vision Data.
„Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the processing of Personal Information.
„Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
„Data Protection Laws” means all laws and regulations, including the General Data Protection Regulation (GDPR) and any and all local laws and regulations applicable to the Processing of Personal Information under the Agreement.
„Documentation” means the explanatory user materials supplied by Fleet Complete with the Service in electronic form.
„Effective Date” has the meaning ascribed thereto in Section 4.1 hereof.
„Fleet Complete Vision Data” has the meaning ascribed thereto in Section 11.7 hereof.
„Fleet Complete Server” means a Fleet Complete computer server located at Fleet Complete’s premises, or a third-party provider of hosting and/or network services, that hosts the Software.
„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.
„Installation” shall mean the installation of Hardware (and accessories, as necessary) in the Clients vehicles or assets, the activation of Subscribers on the TSP’s network (“Activation”) and the provisioning of Subscribers (“Provisioning”).
„Location Data” means data that is about or relates to the geographical location, heading, speed or similar information relating to Hardware.
„Order” means an order for the Service on an Order Form signed by Client and accepted by Fleet Complete. All Orders placed by Client and accepted by Fleet Complete will be governed by the terms and conditions of this Agreement.
„Order Form” means Fleet Complete’s form of ordering pursuant to which Client may order Service Subscriptions, Hardware, Support Services and Installation services.
„Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws
„Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
„Provisioning Date” means the date the Software is enabled on the Fleet Complete Servers.
„Recurring Fee” means the fees payable by Client for Subscription and Hardware solutions, Hardware accessories or services in accordance with payment frequency all as specified in the applicable Order.
„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 Fleet Complete Servers and which will be remotely accessible over the Internet by Client and its Users, including Support Services, Third Party Services and any other ancillary services available in connection therewith, as such Service may be updated from time to time by Fleet Complete in its sole discretion.
„Software” means Fleet Complete’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 Fleet Complete Servers running the Service and which are provided by Fleet Complete or a third party and installed on Client’s Vehicles to enable the provision of the Service.
„Subscription” means the right granted by Fleet Complete 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 fees payable by Client for a Subscription as set out in the Order.
„Subscription Term” means the period commencing on the Provisioning Date and continuing for the Subscription Term specified in the applicable Order.
„Support Services” means the technical support services for the Service provided by Fleet Complete as described in, and in accordance with, the Fleet Complete Support Terms.
„Support Terms” means Fleet Complete’s terms and conditions for the provision of Support Services to Client and its Users, a copy of which is available at https://fleetcomplete.lt/legal/
„Telematics Data” means Client 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.
„Vehicle” means a vehicle or mobile asset that is connected to and activated on the Service.
„Vehicle Operator” means a natural person who uses or operates a Vehicle.
„Work Order Data” means Client Data that relates to an order for services or deliveries that was dispatched from or to a Subscriber using the Courier Complete® component of the Service.
LICENSE GRANTS
1. Service License. Subject to the terms and conditions of this Agreement and payment of the applicable Subscription Fees, Fleet Complete 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).
2. Restrictions. Client 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 Client by Fleet Complete 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, including Data Protection 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 Fleet Complete, and any such assignment or attempted assignment shall be null and void and shall result in Fleet Complete’s right to immediately terminate this Agreement for good cause;
  (e) knowingly interfere with service to any of Fleet Complete’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 Fleet Complete 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 Fleet Complete 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 Fleet Complete or its licensors appearing on the Services, the Software or the Documentation.
3. Third Party Services.
  (a) The Service includes code, content, features, functionality, components and services that are provided by third parties (“Third Party Services”). Unless Client is required to accept and agree to an end user license agreement or terms of service for a Third Party Service in order to access and use such Third Party Service, Fleet Complete hereby grants a fully paid, royalty free sublicense to Client to use each such Third Party Service in connection with its use of the applicable Fleet Complete Service. The Client’s use of a Third Party Service in conjunction with the Service in a manner consistent with the terms of this Agreement is permitted and the license grant, proprietary rights, warranty, indemnity and limitation of liability provisions in this Agreement will apply to Third Party Services.
  (b) Client hereby accepts and agrees to be bound by the following Third Party Services terms and conditions: (i) the Google Terms of Service, (ii) the Google Maps/Google Earth Additional Terms of Service, (iii) the Google Maps/Google Earth Legal Notices, and (iv) the Google Privacy Policy. These Third Party Services terms and conditions are subject to change from time to time.
4. Documentation License. Client may, during the Subscription Term, use the Documentation provided by Fleet Complete to assist Client with the operation and use of the Service solely to support Client’s use of the Service as permitted hereunder.
5. Evaluation License. If Client is evaluating the Service, Fleet Complete hereby grants to Client, free of charge, a non-exclusive, non-transferable, limited-term license (the “Evaluation License”) to use the Service solely for internal testing and evaluation. Client shall not publish any results of benchmark tests run on the Service or disclose its features, errors or bugs to a third party without Fleet Complete’s prior written consent. During the term of the Evaluation License Fleet Complete shall be under no obligation to provide any technical support; provided however, that Fleet Complete may in its sole discretion fix reported errors and provide Client with support and consultation concerning the Service.
6. 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 Fleet Complete and/or in licensors to Fleet Complete of programs provided within the Service.
HARDWARE SHIPMENT AND INSTALLATION.
1. Shipping and Ownership. Ownership of the Hardware, and risk of loss or damage, will pass to Client when Fleet Complete delivers such material to the shipping carrier. Fleet Complete’s title and rights to the embedded or installed software and all associated intellectual property rights therein remain with Fleet Complete and do not transfer to Client. Unless otherwise agreed, Fleet Complete will deliver the Hardware being shipped, freight prepaid; provided Client has fully paid the Total Upfront Fee (as specified on the Order Form).
2. Hardware Installation and Provisioning. Client shall be solely responsible for (i) Installation, unless Installation is purchased from Fleet Complete and included in the Order; and (ii) integration of the Subscriber with any other hardware and software applications not purchased from Fleet Complete, any such integration being at Client’s sole risk and cost.
3. Installers. If an Installation service is purchased from Fleet Complete, it will be performed by Fleet Complete’s authorized contractor (“Installer”) subject to Client’s compliance with the requirements of Section 3.4 below. Client acknowledges that the Installation services purchased from Fleet Complete are performed by independent contractors and not Fleet Complete employees. Such contractors are not contracted by Fleet Complete to perform any additional services for Client during the course of Installation. Any additional services or equipment purchased from such contractors will be at the sole additional expense and risk of Client.
4. Installation Process.
  (a) Standard Installation hours are between 7:00 a.m. and 6:00 p.m., Monday through Friday, Client’s local time. Fleet Complete or its Installer will contact the Client to schedule the Installation date once the Order is processed by Fleet Complete.
  (b) Hardware will be shipped to the Client’s designated location in advance of the Installation date. Client will be required to receive and securely store the Hardware, and then make it available to the Installer at the scheduled location on the Installation date.
  (c) All vehicles or assets must be placed in a single designated location and access provided to the Installer. Vehicles or assets must be free of any mechanical, electrical or other problems (“Asset Faults”) that would prevent or materially hamper or delay performance of Installation. If any Asset Fault prevents Installation at the scheduled time and location, the Installer will not complete Installation.
  (d) Client shall be charged an additional EURO 120 per vehicle (“No Show Fee”) for (i) each vehicle/asset that was scheduled for Installation but was not made available (including delivery of vehicle keys) within fifteen (15) minutes of the scheduled Installation time at the scheduled location, unless the scheduled time or location was changed by Client with at least twenty-four (24) hours prior notice, and (ii) each vehicle/asset on which Installation could not be completed due to an Asset Fault.
  (e) Client shall provide a safe, secure, and dry work environment with protection from inclement weather at the installation site and access to adequate power source. Client shall not in any manner interfere with the Installer performing the Installation.
  (f) Client shall provide an on-site contact, who upon completion of installation shall confirm in writing that the Installation has been performed.
  (g) Client acknowledges that the Installer may modify or alter Client’s vehicles/assets, including without limitation drill holes, cut panels and body, or perform rewiring. Fleet Complete will not be responsible for subsequent restoration of Client’s vehicles to their unmodified or unaltered condition. Legacy equipment that is uninstalled from vehicles in order to enable Installation is not included in the Installation fee(s) quoted to Client, and Client will be responsible for all such additional fees. Neither Fleet Complete nor the Installer will have any responsibility for legacy equipment which will be delivered to Client’s on-site contact during the scheduled Installation.
  (h) Client will additionally be responsible to pay for all travel related expenses including overnight accommodations, incurred by Installer in conjunction with Installation, in accordance with Installer’s or Fleet Complete’s travel and expense reimbursement policies.
TERM
1. Term. The term of this Agreement will commence on the Effective Date set out within the Order Form and shall continue for the duration of the Subscription Term (including renewals or extensions, as applicable) of the last Order by Client.
2. Termination. Fleet Complete 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 Fleet Complete 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 fails to pay the amounts invoiced in respect of the Service, Client shall be deemed to have materially breached this Agreement. If Fleet Complete 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) for all Orders under this Agreement.
3. Obligations on Termination. Upon the termination of this Agreement, (a) Fleet Complete 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.
FEES AND PAYMENT
1. Fees. The fees set out in the Order Form must be paid according to the schedule defined in the Order unless otherwise set out herein. The License shall continue so long as each installment or Recurring Fee or Subscription Fee is paid on or before its due date. If an installment payment or Recurring Fee or Subscription Fee is not available or not paid on the due date, then Fleet Complete may terminate this Agreement pursuant to section 4.2. ANY AND ALL PAYMENTS RECEIVED BY Fleet Complete ARE FINAL AND NON-REFUNDABLE.
2. Invoices. The Total Upfront Fee will be invoiced upon acceptance of the executed Order Form by Fleet Complete. All amounts due will be paid concurrent with the invoice by SEPA payment or credit card authorization provided by Client. Fleet Complete shall send all invoices to Client at the email address provided on the Order Form within 15 business days of remittance of funds through SEPA/credit card.
3. SEPA. If Client choses for SEPA payment, Client shall complete and return a SEPA authorization in the form provided at https://fleetcomplete.lt/legal/ together with the first order form. Client represents, warrants and guarantees that all persons whose signatures are required to authorize withdrawals from the Client’s account have signed the SEPA authorization and that all persons signing this SEPA authorization are empowered to enter into such SEPA authorization. Client acknowledges that the information contained in the SEPA authorization may be disclosed to Fleet Complete’s bank as required to complete any SEPA payment transaction. Client will inform Fleet Complete in writing in a timely manner of any change in the information provided in this SEPA authorization. Client may cancel the SEPA authorization at any time upon providing 60 days written notice to Fleet Complete. Revocation of the SEPA authorization does not terminate any order or agreement that exists between Fleet Complete and Client.
4. Suspension for Non-Payment. If payment is overdue by more than 15 days, then Fleet Complete 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 Fleet Complete under the preceding sentence shall not excuse Client from its obligation to make all payment(s) under the Agreement.
5. Vacation Disconnect. Client may request a vacation disconnect for the Service which will automatically extend the Subscription Term by the same duration. Such vacation disconnects are possible for a minimum of one (1) month and for a maximum of six (6) months for every year for the duration of the Subscription Term and shall entail a penalty of Euro 10 per month per Subscriber.
TAXES
All prices and rates on an Order, or for any additional charges due or for the Service or other services to be provided, do not include present and future service charge, value-added, franchise, license, gross receipts or other foreign, federal, state, provincial or local fees, taxes, duties or similar taxes or charges (collectively “Taxes”), which shall be paid by Client (except for taxes based on the net income of Fleet Complete). Client will indemnify and hold Fleet Complete harmless from all claims, liability and expense arising from Client’s failure to pay any such Taxes, including interest, penalties and similar fees.
CLIENT REQUIREMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS
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”).
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 Fleet Complete from time to time.
3. Vehicle Operator Notice and Consent. Client shall, prior to each Vehicle Operator’s use of a Vehicle connected to and activated with the Service, (a) inform such Vehicle Operator of Client’s use of the Service, or any similar Third Party Services, including the resulting collection, use and sharing by Client of any and all Client Data, including Telematics Data and Personal Information relating to such Vehicle Operator and the Vehicle, (b) obtain such Vehicle Operator’s express consent to such use of the Service, Third Party Services, Client Data, Telematics Data and Vehicle Operator Personal Information, in accordance with applicable Data Protection Laws, and (c) create employment conditions whereby consent is provided freely and not under any fear of reprisals or disadvantage for not consenting.
4. 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. Client hereby also represents and warrants that Client will inform all its employees and associates about any relevant obligations, including the Client’s End User License Agreement, and all employees or other associates of the Client are bound to and accept the Client’s End User License Agreement.
5. Client Indemnity. Client shall defend, indemnify and hold Fleet Complete, Complete Innovations Inc. and each of its and their directors, officers, shareholders, partners, employees, related parties, representatives and successors (the “Fleet Complete Group”) harmless from and against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Fleet Complete Group by a third party based on, relating to or caused by: (a) a breach of its obligations in Section 7.3 hereof, (b) a breach of its warranties in Sections 7.4 or 8.1, or (c) a breach of any Data Protection Laws by Client in relation to the collection of Personal Information by Client from Vehicle Operators.
CLIENT DATA
1. Ownership. As between Fleet Complete and Client, Client exclusively owns all rights, title and interest in and to all Client Data. Fleet Complete does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client Data; provided that Client hereby instructs Fleet Complete and grants to Fleet Complete the right and license to use, process and transmit Client Data as reasonably required for the purposes of providing the Service, including the provision, administration, troubleshooting and improvement of the Service or as required by applicable law.
2. Database Backup. A complete backup of the Client’s database of Client Data compiled through the use of the Service will be stored to a file on the Fleet Complete 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.
3. Data Storage and Retention. Fleet Complete will retain the Client Data during the term of this Agreement in accordance with the terms of this Agreement. If and to the extent that Fleet Complete retains Client Data, such data shall be stored in accordance with applicable Data Protection Laws (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, Fleet Complete will make available for secure retrieval by Client all Client Data then in Fleet Complete’s possession at Fleet Complete’s then current rate for data retrieval. In the event that Fleet Complete is required, by law or in a judicial or other governmental investigation or proceeding, to disclose Client Data, Fleet Complete may, to the extent reasonably possible, provide Client with written notice of the compelled disclosure and shall be entitled to recover from Client any and all costs and expenses related to the disclosure or disclosure process, which shall be due and payable by Client within 30 days of the issuance of the invoice for same by Fleet Complete…
4. Rights in Derivative Data. Client acknowledges and agrees that the Service generates, compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Service, assist in the delivery of Support Services, and for the creation of new products and services. Client hereby grants to Fleet Complete a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate Client Data, including Telematics Data and other such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) for traffic information, journey data analysis, mapping, fleet and industry benchmarking, to understand usage, improve the Service and Support Services, develop new products and services, and for any other business purpose. This Derivative Data is no longer associated with Client, Client Vehicles or Vehicle Operators and as such is not Client Data. Fleet Complete may transfer or assign any of its rights in the Derivative Data to any third party.
5. Suspension of Access. In addition to any termination rights of Fleet Complete pursuant to this Agreement, extraordinary circumstances may require Fleet Complete to suspend or terminate (where appropriate), as determined in Fleet Complete’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, Fleet Complete’s network; or (b) comply with any law, regulation, court order, or other governmental order. Fleet Complete 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, Fleet Complete 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 8.5, Client shall receive a refund of any and all prepaid fees.
PROTECTION OF PERSONAL INFORMATION
Data Processing Addendum. The Data Processing Addendum (“DPA”) can be found at https://fleetcomplete.lt/legal/ and the terms and conditions of the DPA shall govern the processing and protection of Personal Information by Fleet Complete as the data processor during the provision of the Service to the Client as data controller (as defined under applicable Data Protections Law).
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 Fleet Complete Group and/or its licensors (the „Confidential Information„), the unauthorized disclosure of which would cause irreparable harm to Fleet Complete Group. Client shall use the same degree of care and means that it uses to protect its own information of a similar nature, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties and take reasonable steps under the circumstances in accordance with Article 2 section 1 (c) Directive (EU) 2016/943 of June 8th, 2016 on the protection of trade secrets as implemented in the relevant EU Member State to protect the secrecy of Fleet Complete Group’s Confidential Information. 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 Fleet Complete to allow it to seek protective or other court orders.
LIMITED WARRANTY
1. Service Warranty. Fleet Complete warrants that the Service will perform substantially in accordance with the Documentation or other specifications published by Fleet Complete during the Subscription Term. Fleet Complete 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.
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.
3. Hardware Warranty. Fleet Complete warrants the Subscribers in accordance with Fleet Complete’s Hardware Warranty, a copy of which is available at https://fleetcomplete.lt/legal/
4. No Warranty for Evaluations. IF CLIENT IS EVALUATING THE SERVICE THEN THE SERVICE AND DOCUMENTATION IS PROVIDED TO CLIENT BY FLEET COMPLETE ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND. 11.5 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 11, THE SERVICE 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. Fleet Complete DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE. FLEET COMPLETE DOES NOT OTHERWISE WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
5. Internet Connectivity Disclaimer. Fleet Complete 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 Fleet Complete 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.
6. Fleet Complete Vision™ Consent, Disclaimer and Limitation of Liability. The Service includes a Third Party Service known as Fleet Complete Vision™ (“Fleet Complete Vision”). If Fleet Complete Vision is activated by Client then Client hereby consents to the collection, storage and use of the video data collected through the use of Fleet Complete Vision as described in the Documentation (the “Fleet Complete Vision Data”) by LightMetrics, Inc. (“LightMetrics”), Fleet Complete’s licensor of the Fleet Complete Vision software. With respect to Fleet Complete Vision Data, Fleet Complete is the Data Processor and LightMetrics is the sub-processor and Fleet Complete shall cause LightMetrics to collect, store and use Client’s Fleet Complete Vision Data in accordance with Client’s instructions. In addition, the following disclaimers and limitations on Fleet Complete and its licensor’s liability apply. Fleet Complete Vision is only meant to aid and augment the Vehicle Operator’s own skill and attention when driving a Vehicle. Fleet Complete Vision’s primary function is to alert the Vehicle Operator to certain events described in the Documentation and accordingly, does not replace the Vehicle Operator’s requirement to be attentive to the surrounding traffic conditions, and drive in a legal and responsible manner without any distraction of any sort. It is expected that the Vehicle Operators do not rely on the Fleet Complete Vision warnings as a substitute for their own judgement and attention. Certain features may not work in situations such as: (a) where visibility is challenging due to prevailing weather conditions; (b) lanes not being clearly marked or visible; (c) when the Vehicle is following a vehicle other than cars, buses or trucks; (d) when the camera’s field of view is occluded; (e) degradation of WiFi connection between camera and mobile device; and/or (f) changes in camera orientation post-installation. Save as otherwise expressly provided herein or to the extent prohibited by law, under no circumstances will Fleet Complete or its licensors (including LightMetrics) be responsible for any damages or liabilities WHATSOEVER that arise on account of A VEHICLE OPERATOR’S USE OF Fleet Complete VISION.
TELECOMMUNICATIONS CARRIERS AND GPS
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 Fleet Complete shall not be responsible for such interruptions of Service or the inability to use the Service.
(b) Fleet Complete 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.
IP INFRINGEMENT INDEMNIFICATION
1. Fleet Complete Indemnity. Fleet Complete 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”).
2. Conditions to Indemnity. As a condition of such obligation to defend and indemnify the Client pursuant to Section 13.1 hereof, Client shall give Fleet Complete prompt written notice of any such claim, and cooperate and provide, at Fleet Complete’s expense, reasonable information and assistance in connection with the defense and settlement of such claims. Fleet Complete shall have sole control of the settlement or defense of all infringement claims.
3. Exceptions. Fleet Complete 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 Fleet Complete; (ii) modification by Client of the Software if such infringement would have been avoided but for such modification; (iii) the combination of Software or Service with equipment or software not authorized or provided by Fleet Complete or otherwise approved by Fleet Complete in the 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 Service provided by Fleet Complete following notice by Fleet Complete that the previous version of the Service infringes any third party intellectual property right.
4. Other Remedies. Without limiting the provisions of Section 13.1 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, Fleet Complete 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 Fleet Complete 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 13.4.
5. Exclusive Remedies. EXCEPT TO THE EXTENT THAT FLEET COMPLETE IS EXPRESSLY PRECLUDED BY APPLICABLE LAW, SECTION 13 HEREOF CONTAINS FLEET COMPLETE’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIM LIABILITIES.
LIMITATION OF LIABILITY
1. Indirect Damages. EXCEPT FOR A BREACH OF SECTION 10 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.
2. Direct Damages. THE TOTAL LIABILITY OF FLEET COMPLETE 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 FLEET COMPLETE 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 FLEET COMPLETE FOR THE SERVICE HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
3. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN SECTION 14 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW, BUT SHALL NOT EXCLUDE OR LIMIT ANY LIABILITY FOR INTENTIONAL OR GROSS NEGLIGENT CONDUCT OR FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
SUPPORT
1. SUPPORT TERMS. SUPPORT IS INCLUDED IN THE LICENSE FEES AND IS PROVIDED BY FLEET COMPLETE IN ACCORDANCE WITH ITS THEN-CURRENT SUPPORT TERMS. FLEET COMPLETE’S SUPPORT TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME IN FLEET COMPLETE’S SOLE DISCRETION.
2. EXCLUSIONS. FLEET COMPLETE WILL ONLY PROVIDE TECHNICAL SUPPORT FOR THE SERVICE AND NOT IN RELATION TO ANY OTHER SUPPORTING HARDWARE OR SOFTWARE. FLEET COMPLETE MAY ASSIST CLIENT IN GETTING TECHNICAL SUPPORT AND WARRANTY SERVICE FOR HARDWARE SOLD BY Fleet Complete or its partners.
EXPORT RESTRICTIONS.
The Service and related information may be subject to export and import restrictions. By downloading, installing, accessing or using the Service, Client is representing and warranting that it is not located in, under the control of, and is 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 within its jurisdiction. Client also represents and warrants that it is not an entity to which the export of the Service or related information would be prohibited by the laws and/or regulations within its jurisdiction. Client shall comply with the export laws and regulations within its jurisdiction that are applicable to the Service and related information and Client shall comply with any local laws and/or regulations within its jurisdiction that may impact its right to export, import, or use the Service or related information, and Client represents and warrants that it has 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. Client shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service or related information.
GENERAL PROVISIONS
1. Non-Disparagement. Client shall not indirectly or directly, disparage Fleet Complete or any affiliated company, including after termination of this Agreement.
2. Orders and Conflicts. In case of conflict between these Master Subscription Service Terms and an Order Form, the terms and conditions contained in the Order Form shall prevail.
3. 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 Fleet Complete is expressly precluded by applicable law, Fleet Complete 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 electronically by posting notice of the change at https://fleetcomplete.lt/legal/ and Client should regularly review that site for changes. If Client continues 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 Client has a concern about the change(s) please contact legal@fleetcomplete.com within sixty (60) days after notice of the change(s) has been given to inquire as to Client’s options.
4. 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.
5. 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.
6. 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.
7. Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with, the laws of the Netherlands. Each Party irrevocably submits to the exclusive jurisdiction and venue of the courts of the Utrecht District Court (the Netherlands), in any legal suit, action or proceeding arising out of or based upon this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions contemplated hereunder.
8. 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.
9. 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. The provisions contained in this Agreement shall also inure to the benefit of Complete Innovations Inc. as third party beneficiary acquiring independent rights hereunder.

Last updated: August 5, 2021