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Service Agreement
ISE
Fleet Services Terms and Conditions
Thank you for purchasing ISE products and
services. These Terms and Conditions (the “Terms”) apply to both (a) the
sale of products, including without limitation hardware, parts and accessories (collectively,
“Products”), and provision to you, under license, of access to the eFleetSuite mobile application, host software,
online portal, and related services, including without limitation related
documentation and information (collectively, “the “eFleetSuite Services”
or the “Services”), through the ISE online store. These Terms form a binding contract between ISE Fleet Services, LLC, with its
principal place of business at 2850 Coral Court, Suite 100, Coralville, IA
52241 (“ISE FS,” “us,” “our” and “we”) and either
(i) you, if you are purchasing Products and licensing Services for your own
benefit, or (ii) the company or entity on whose behalf you are purchasing
Products and licensing Services through this online store (“Customer”). Please print a copy of these Terms and
Conditions for your records.
BY CHECKING “I AGREE TO THE TERMS AND
CONDITIONS” AND SUBMITTING THIS ORDER, THE PERSON SUBMITTING THIS ORDER
CONFIRMS (A) THAT HE/SHE IS THE END USER OF THE PRODUCTS AND SERVICES PURCHASED
AND LICENSED THROUGH THIS ORDER AND THAT HE/SHE HAS READ, AGREES TO ACCEPTS
THESE TERMS AS THE CUSTOMER, OR (B) IF HE/SHE IS SUBMITTING THIS ORDER ON
BEHALF OF A CUSTOMER OR OTHER ENTITY, THAT HE/SHE IS A REPRESENTATIVE OF
CUSTOMER DULY AUTHORIZED TO MAKE THIS PURCHASE AND THAT HE/SHE HAS READ, AGREES
TO AND ACCEPTS THESE TERMS ON CUSTOMER’S BEHALF. SUBMISSION OF AN ORDER
CONSTITUTES AN OFFER TO PURCHASE PRODUCTS AND LICENSE SERVICES. ISE FS’S
SHIPMENT OF PRODUCTS TO CUSTOMER, AND ITS GRANT OF ACCESS TO THE EFLEETSUITE SERVICES,
CONSTITUTES ITS ACCEPTANCE.
IN THESE TERMS, WHEN WE USE THE WORDS
"ISE DRIVER LOGS", “SYSTEM”, "EFLEETSUITE SERVICES" OR
"SERVICE(S)", WE MEAN ALL THE SERVICES WE PROVIDE TO CUSTOMER UNDER CUSTOMER’S
SERVICE PLAN ("SERVICE PLAN").
1.
Products.
a. Purchase
of Products. By
submitting this order, Customer is making an offer to purchase the Products at
the prices stated in the shopping cart. Customer’s order is subject to
acceptance by us, and we may accept or reject any order in whole or in part in
writing or by email. Customer’s order will be deemed accepted by us when both
(i) we receive payment for the order and (ii) the Products in this order have
been shipped. If an order is rejected and Customer has already paid amounts
toward the purchase of the Products in that order, such amounts will be
returned. We may fill Customer orders in
any sequence and are not liable for failure to deliver the Products by desired
delivery date. Prices do not include shipping and handling, expedited service,
or sales taxes, if applicable, which will be added to the total order price.
With respect to the software and firmware
contained on a Product which is purchased from ISE FS (“Product Software”),
ISE FS grants Customer a fully paid-up right and license to use such Product
Software solely as in connection with Customer’s use of the Product. The purchase price (plus all applicable taxes,
fees and surcharges which ISE FS is required to collect) will be charged to the
payment method specified (e.g., credit or debit card or e-check) prior to
shipment.
b. Shipping. Products are shipped FOB our shipping dock,
freight collect to the shipping address stated in the shopping cart. Title
and risk of loss for, and ownership of, Products will pass to Customer upon
delivery of the Products to the shipping carrier. Customer is responsible for
transportation of Products, has total responsibility over Products while in
shipment, and is responsible for insuring the Products during transit. 2.
eFleetSuite Services.
a. Scope of
Service. ISE FS established the
eFleetSuite Services in order to provide certain information and services to
Customer, including but not limited to: (1) providing electronic driver logs
designed for compliance with FMCSA and comparable Canadian regulations when used
correctly; (2) providing electronic driver vehicle inspection reports (DVIR) designed
for compliance with FMCSA and comparable Canadian regulations when used
correctly; (3) providing mapping services supporting web application, and (4)
storage of position data for assisting IFTA reporting services for use by third
party providers. Additional charges for fuel tax services apply; fuel tax
services are provided by third-party fuel tax reporting providers. Customer
acknowledges that ISE FS may add, change, or delete features or functionality
of the eFleetSuite Services. Customer also understands that the information
that it accesses through the eFleetSuite Services is one form of guidance in
operating Customer's business among others, and that ISE FS takes no responsibility
for the success of Customer's business operations.
b. Grant of
Rights. For the duration of the
Service Term, provided Customer is in compliance with these Terms ISE FS hereby
grants to Customer a non-exclusive, non-transferable (except as expressly
permitted in writing by ISE FS), non-sublicensable, non-assignable, revocable,
limited right and license to use the eFleetSuite Services for Customer’s own internal
business purposes. For the avoidance of
doubt, Customer will not use the eFleetSuite Services for any other purpose
without ISE FS’s express prior written consent. Customer and its personnel
shall keep all login credentials confidential, will not share login credentials
among employees or representatives, and will immediately notify ISE FS if it
believes its login credentials may have been disclosed or compromised.
c.
Service Term. The initial term during
which ISE FS will provide Customer with access to the eFleetSuite Services is two
(2) years from the date of original hardware purchase from ISE FS, which will
automatically renew thereafter on a month-to-month basis until cancelled by
either ISE FS or Customer effective as of the end of the initial two (2) year
period or a monthly renewal term by providing notice of cancellation as set
forth in section (e) below (the initial term and all monthly terms together,
the “Service Term”).
d. Service
Payment Terms. Customer
is responsible to pay for the eFleetSuite Services. The service fee for the eFleetSuite
Services (plus all applicable taxes, fees and surcharges which ISE FS is
required to collect) will be charged on a monthly basis to the payment method
specified by Customer (e.g., credit or debit card or e-check). Any applicable
taxes, fees and surcharges will be added to the cost of Customer’s Service
Plan. Customer authorizes ISE FS to automatically charge the payment method and
payment information provided by Customer for monthly recurring payments for the
eFleetSuite Services. Customer will
ensure ISE FS has current payment information on file for use in processing monthly
payments. This authorization will remain in effect for the duration of the
Service Term.
e.
Cancellation of Service. Customer can cancel its Service Plan by either
(a) calling ISE FS support using the contact information set forth below and
informing a Customer Care Agent of its decision to cancel, or (b) sending an
email to support@isefleetservices.com with “Cancellation” in the email subject and
Customer’s name and notice to ISE FS of its decision to cancel in the email
body. If Customer’s Service Plan is terminated before the expiration of the
Service Term, an Early Termination Fee of $150 per device or 50% of Customer’s remaining
Service Plan balance (whichever is less) shall be due to ISE FS and invoiced by
ISE FS. ISE FS reserves the right to cancel Customer’s Service Plan if Customer’s
account becomes more than 30 days past due and to assess the Early Termination
Fees, or if Customer is in material breach of these Terms.
f.
System and Hardware Limitations. The eFleetSuite Services and related hardware
have limitations including, but not limited to, the following:
i) ISE
FS GSM devices utilize AT&T’s 3G network.
AT&T has announced that its 3G network will be available until
December 31, 2021 or such other national 3G network retirement date that
AT&T provides to its customers. ISE FS GSM devices still in use when
AT&T completes the retirement of its 3G network (the “Sunset Date”) will no
longer be able to communicate using AT&T. AT&T’s 3G infrastructure
sunset plan may affect connectivity during the sunset period. Upon the Sunset Date, this Agreement will
automatically terminate with respect to eFleetSuite Services for ISE FS GSM
devices. ii) Customer’s
commercial vehicle must have a working electrical system, including adequate
battery power. iii) If
Global Positioning System (“GPS”) satellite signals are not working or
the signals are obstructed, the eFleetSuite Service and the Product may be
unable to determine your Commercial Vehicle's precise location. iv) ISE
FS uses commercial mobile wireless service purchased from a third party provider
(the “Underlying Wireless Carrier”). Services also will not work unless Customer
are in a place where the Underlying Wireless Carrier has coverage, network
capacity, and reception when the service is needed, and technology that is
compatible with the eFleetSuite Services. vi) The
eFleetSuite Services can fail or be delayed by force majeure events, acts of
nature, and other causes beyond our reasonable control, including but not
limited to weather conditions and the results thereof, public utility failure,
acts of war, government actions, terrorism, civil disturbances, or internet,
computer, telecommunication or other system failures (collectively, “Force
Majeure Events”). ISE FS is not responsible for any failure or delay of the
eFleetSuite Services due to Force Majeure Events.
3.
Support. ISE FS will provide support by telephone and e-mail with Customer,
as well as provide periodic enhancements, updates, upgrades or fixes to the
eFleetSuite Service. Customer can contact us by calling ISE FS
at 1-888-316-3533. Phone and
e-mail support is available from 8am to 5pm Central Time Monday through Friday
excluding holidays. Application training is available through web based video
training; additional training is available commercially at an additional
charge. Hardware installation is not provided as part of the services from ISE
FS but are available commercially.
If
Customer purchases Products and/or related software and accessories from a
vendor other than the one recommended by ISE FS, ISE FS has no obligation to
provide support. Customer will report any errors Customer finds or problems
Customer experiences in using the eFleetSuite Service. ISE FS will use
reasonable efforts to correct such errors or problems. ISE FS will make
reasonable efforts to communicate with Customer regarding planned system
downtime. 4. Restrictions.
It is Customer’s responsibility
to make sure its Commercial Vehicle and its Electronic Logging System is
working properly at all times. Further, when Customer uses the eFleetSuite Services,
Customer agrees as follows:
Customer’s use of Products and the eFleetSuite Service
must comply with all applicable laws, rules, regulations, codes and ordinances
of the country of use, including without limitation those relating to data
protection and data privacy (collectively, “Applicable Laws”). CUSTOMER IS FULLY AND SOLELY RESPONSIBLE FOR
EVALUATING THE SUITABILITY OF THE USE OF THE PRODUCTS AND THE EFLEETSUITE SERVICE
UNDER AND IN CONNECTION WITH APPLICABLE LAWS, AND SHALL HOLD ISE FS AND ITS
AFFILIATES HARMLESS FROM AND AGAINST ANY FINES, PENALTIES, OR OTHER DAMAGES,
EXPENSES, COSTS, OR OTHER LIABILITY ARISING FROM THE USE OF THE PRODUCTS AND EFLEETSUITE
SERVICE IN A MANNER NOT COMPLIANT WITH ALL APPLICABLE LAWS.
Customer shall indemnify, protect, defend, and
hold ISE FS and its affiliates harmless from and against any and all costs,
claims, losses, damages, liabilities, and expenses (including reasonable
attorneys’ fees) arising out of or resulting from (i) Customer’s breach of the
material terms of these Terms, (ii) Customer’s violation of the restrictions above
or its negligent, unauthorized or illegal use or modification of the Products
or Services, or (iii) any accident in which Customer’s vehicle is involved.
5.
Ownership.
For the avoidance of doubt, the eFleetSuite Services and the Product Software are
not sold to Customer, but are licensed to Customer by ISE FS pursuant to and
subject to these Terms. Customer does not acquire any ownership interest in or
to the eFleetSuite Services and the Product Software under these Terms or by
virtue of Customers’ purchase of Product. ISE FS, its affiliates, and their
licensors and service providers reserve and shall retain their entire right,
title and interest in and to the eFleetSuite Services and Product Software,
including without limitation all copyrights, trademarks and other intellectual
property rights and other proprietary rights therein or relating thereto,
except for the limited license granted to Customer under these Terms. Nothing
in these Terms grant any license to Customer to use ISE FS’s or its affiliates’
trademarks, logos, copyrights or any other intellectual or proprietary rights,
or any ownership or proprietary rights therein. Customer acknowledges ISE FS's copyrights in the eFleetSuite
Services and the Product Software regardless of whether a copyright notice
appears on the software or documentation. Notwithstanding
anything herein to the contrary, nothing in these Terms grant Customer any
license, privilege, or other right to use the name of or any trademark, logo,
or service mark of ISE FS without the express prior written consent of ISE FS.
6.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OR IN A SEPARATE
WRITTEN PRODUCT WARRANTY APPLICABLE TO A PRODUCT, ISE FS AND ITS SUPPLIERS, THIRD PARTY SERVICE PROVIDERS AND
SUBCONTRACTORS DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES,
EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND
SERVICES OFFERED OR PROVIDED BY ISE FS PURSUANT TO THESE TERMS,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, CORRESPONDENCE WITH DESCRIPTION AND NON‑INFRINGEMENT. THE EFLEETSUITE SERVICES ARE PROVIDED
BY ISE FS AND ITS SUPPLIERS, THIRD PARTY SERVICE PROVIDERS AND SUBCONTRACTORS
ON AN "AS IS" BASIS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, ISE FS DOES
NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET ALL OF CUSTOMER’S
REQUIREMENTS. ISE FS DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS AND
SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE,
COMPLETE OR ERROR-FREE, THAT CELLULAR SERVICE WILL BE AVAILABLE OR AVAILABLE IN
ALL LOCATIONS, OR THAT OUTAGES WILL NOT AFFECT SERVICE WITHIN CELLULAR SERVICE
AREAS FROM TIME TO TIME. CUSTOMER AGREES
AND ACKNOWLEDGES THAT EQUIPMENT, CABLES, ACCESSORIES AND PARTS SOURCED FROM
THIRD PARTIES MAY BE DISCONTINUED WITH OR WITHOUT WARNING AND THAT PRODUCTS MAY
NOT BE AVAILABLE IN QUANTITIES DESIRED OR ORDERED BY CUSTOMER, AND THAT FUTURE
VERSIONS OF PRODUCTS MAY NOT BE BACKWARDS COMPATIBLE WITH EXISTING CABLES,
MOUNTS AND OTHER ACCESSORIES. CUSTOMER
FURTHER ACKNOWLEDGES THAT PRODUCT MANUFACTURERS MAY DISCONTINUE PROVIDING
SOFTWARE OR FIRMWARE UPDATES AND THAT NEW EFLEETSUITE FEATURES AND
FUNCTIONALITY MAY NOT BE AVAILABLE THROUGH OR COMPATIBLE WITH DISCONTINUED
PRODUCTS OR PRODUCTS THAT ARE NOT RUNNING CURRENT SOFTWARE AND FIRMWARE. ISE FS
AND ITS SUPPLIERS, THIRD PARTY SERVICE PROVIDERS AND SUBCONTRACTORS MAKE NO
REPRESENTATION OR WARRANTY THAT ACCESS TO THE EFLEETSUITE SERVICES SHALL BE
UNINTERRUPTED, WITHOUT FAILURES OR ERRORS IN TRANSMISSION OR RECEPTION, OR THAT
SERVICE WILL BE PROVIDED TWENTY FOUR HOURS A DAY, SEVEN DAYS A WEEK, OR THAT
THERE WILL NEVER BE ERRORS OR OMISSIONS IN THE EFLEETSUITE SERVICES OR THOSE OF
ITS SUPPLIERS, THIRD PARTY SERVICE PROVIDERS AND SUBCONTRACTORS OR THAT THERE
WILL NEVER BE A LOSS OF FILES, DATA, INFORMATION OR OTHER MATERIAL. THE
FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THESE TERMS AND
FORMED THE BASIS FOR DETERMINING FEES CHARGED.
7.
Limitation of Liability. ISE FS AND ITS SUPPLIERS, THIRD PARTY SERVICE
PROVIDERS AND SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY PERSONAL INJURIES,
EQUIPMENT DAMAGE, ANY CONTENT OR DATA, LOSS OF PROFITS, LOSS OF USE, LOSS OF
BUSINESS. INTERRUPTION OF BUSINESS, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND THAT ARE INCURRED BY CUSTOMER OR BY
CUSTOMER'S CUSTOMERS RESULTING FROM THE EFLEETSUITE SERVICE, THE INSTALLATION
OR USE THEREOF, THE UNAVAILABILITY THEREOF, OR ARISING UNDER THESE TERMS OR THE
BREACH THEREOF, WHETHER THE CLAIM IS IN CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE.
8.
Wireless Service Disclosure. CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WITH
THE UNDERLYING WIRELESS CARRIER AND CUSTOMER IS NOT A THIRD PARTY BENEFICIARY
OF ANY AGREEMENT BETWEEN CUSTOMER AND UNDERLYING WIRELESS CARRIER. CUSTOMER
UNDERSTANDS AND AGREES THAT THE UNDERLYING WIRELESS CARRIER HAS NO LIABILITY OF
ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY IN TORT OR OTHERWISE. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS
THE UNDERLYING WIRELESS CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST
ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR
ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR
INDIRECTLY, IN CONNECTION WITH CUSTOMER’S USE, FAILURE TO USE, OR INABILITY TO
USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING
WIRELESS CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL
SURVIVE THE TERMINATION OF THESE TERMS. CUSTOMER HAS NO PROPERTY RIGHT IN ANY
NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED.
CUSTOMER UNDERSTANDS THAT CUSTOMER AND THE UNDERLYING WIRELESS CARRIER CANNOT
GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR
ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES. THE CUSTOMER MAY NOT
RESELL THE SERVICE TO ANY OTHER PARTY.
9.
Customers Operating Under FedEx Ground Package
System Authority. If Customer is operating under the authority
of FedEx Ground Package System, Inc., the terms of this Section apply to
Customer. Customer acknowledges that FedEx Ground Package
System, Inc. (“FedEx Ground”) has contracted with Lytx, Inc. (and its
subcontractors, if applicable) (“Lytx”) and/or with ISE FS to provide
services to FedEx Ground utilizing data (“Customer Data”) resulting from
performance of services by ISE FS.
Customer hereby appoints Lytx and ISE FS to act as Customer’s limited agent and
on Customer’s behalf to retrieve or otherwise utilize the Customer Data from
ISE FS. Lytx and ISE FS is further authorized to use Customer Data to perform
services for FedEx Ground pursuant to an agreement between Lytx and FedEx
Ground and between ISE FS or its affiliates and FedEx Ground, including,
without limitation, the authorization to share with FedEx Ground Customer Data
and the results of any analysis or other services performed using such Customer
Data and to use such Customer Data for such other purposes permitted in such
agreements with FedEx Ground. Customer authorizes ISE FS to utilize Customer
Data, and to provide Customer Data to Lytx, for the purposes set forth in this
authorization. Customer shall defend, indemnify and hold Lytx and its officers,
directors, employees, agents, suppliers, subcontractors, vendors and licensors
harmless from all third party losses, claims and costs, including reasonable
attorneys’ fees, arising from the use of Customer Data pursuant to this
authorization. Customer shall defend, indemnify and hold ISE FS, its officers,
directors, employees, agents, suppliers, subcontractors, vendors and licensors
harmless from all third party losses, claims and costs, including reasonable
attorneys’ fees, arising from the use of Customer Data pursuant to this
authorization. Customer hereby agrees to notify Lytx in the event Customer
revokes this authorization and Lytx is no longer authorized to receive Customer
Data. Customer hereby agrees to notify ISE FS in the event Customer revokes
this authorization and ISE FS is no longer authorized to receive Customer Data.
10. Other. These Terms may be amended by us, in our sole discretion, from time to time, and shall be binding on Customer as of the date Customer receives email or written notice of the revised terms. Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of Minnesota, without regard to or application of its choice of law rules or conflicts-of-laws principles. Customer agrees that any claim or dispute that has arisen or may arise between us and Customer must be resolved exclusively by a state or federal court located in Hennepin County, Minnesota, and both we and Customer agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota for the purpose of litigating all such claims or disputes. These Terms set forth the entire understanding between the parties with respect to the sale of Products and grant of license to Services through our online store. These Terms and the rights granted hereunder may not be assigned by Customer without our express prior written permission. These Terms prevail over any other terms or conditions implied by trade, custom or course of dealing, and any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. No waiver of any provision or breach of these Terms (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of these Terms are held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original intent of the parties, or if such construction cannot be made, such provision or portion thereof will be severable from these Terms, provided that the same will not affect in any respect whatsoever the remainder of these Terms. |