1.2. Zubie shall provide Customer with OBD-II cellular-enabled vehicle tracking devices and other necessary hardware (collectively, “Hardware”) and access to the underlying software platform as described at https://zubie.com/zubie-rental-connect/ (“Zubie Rental Connect”) necessary to track vehicle location, driver behavior and vehicle health (together, the “Services”).
1.3. Customer agrees to be an advocate of Zubie and its solution and to provide occasional testimonials. Provided the Services are performing to Customer’s reasonable expectations, Customer permits Zubie to use Customer’s logo on Zubie’s website.
1.4. Zubie will provide email and phone support to Customer for all device, software, and technical issues as provided in the Order Form and at https://zubie.com/zubie-rental-connect/..
2.1. All Hardware defined in the Order Form shall be shipped within 10-business days after receiving the Customer’s billing information for the month/yearly Subscription Fee. For all subsequent orders, Zubie will shipped to a designated location as instructed by Customer within 10-business days upon written request of order through support at firstname.lastname@example.org.
2.2. OBD-II Devices. All OBD-II devices will be leased by Customer and owned by Zubie. If any OBD-II device is lost while in Customer’s control during the Term, Customer shall pay the per device replacement fee listed on the Order Form. All OBD-II devices will be installed by Customer.
2.3. Y-Cables. If required, any replacement Y-Cable will be bill at the Y-Cable per cable fee listed on the Order Form. All Y-Cable stealth installations will be arranged by the Customer at their own expense.
2.4. Hardware Warranty. Zubie represents and warrants that for a period of one (1) year from delivery, Hardware will be free from significant defects in material and workmanship. Such warranty shall be void for any Hardware damaged by Customer or its representatives. For any leased Hardware that does not comply with the warranties in this Agreement, including OBD-II devices, Customer’s exclusive remedy, and Zubie’s entire liability shall be the repair of the deficient Hardware, or if Zubie cannot substantially repair the Hardware in a commercially reasonable manner, Zubie may provide a replacement device at no-charge to Customer within ten (10) days.
3. Fees and Expenses
3.1. In consideration of the Services and the rights granted to Customer under this Agreement, Customer shall pay Zubie the Subscription Fees outlined in the Order Form and any additional fees listed at https://zubie.com/zubie-rental-connect/. Customer shall provide Zubie with a quarterly subscription forecast in a mutually agreed upon format. Customer is entitled to purchase additional subscriptions to the Services during the Initial Term at the agreed upon rate, plus all applicable shipping fees and taxes. At the completion of the Initial Term, all such subscriptions purchased will continue to renew on an annual basis unless Customer contacts Zubie through support at email@example.com to modify or discontinue Services.
3.2. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Zubie’s income, revenues, gross receipts, personnel or real or personal property or other assets. Sales tax exemption documentation must be provided in advance of invoice in order to exclude taxes
3.3. The payment method used by the Customer to make the first monthly payment of the Subscription Fees must be a current, valid and accepted form of payment method, such as a credit card, and shall be the payment method (“Payment Method”) to which Zubie will bill the Customer’s Subscription Fees. Customer may update their Payment Method from time to time upon written notice to Zubie.
4. Term and Termination.
4.1. Unless a different term is stated in the applicable Order Form, this Agreement shall commence upon the initial shipment of the Hardware under the Order Form, and shall continue for one (1) year (the “Initial Term”). The Agreement will automatically renew for successive one (1) year terms after the Initial Term, unless Customer contacts Zubie through support at firstname.lastname@example.org to modify or discontinue the Services sixty (60) days prior to expiration of the then-current term.
4.2. Either party may terminate this Agreement, on written notice, if the other party materially breaches any of its obligations hereunder and fails to cure such breach within thirty (30) days after receipt of written notice.
4.3. Upon termination, Customer shall return all leased Hardware in Customer’s possession to Zubie within thirty (30) business days. If not returned within thirty (30) business day, Customer will be charged an amount equal to the per device replacement fee listed on the Order Form per OBD-II device. If Customer terminates the Agreement prior to the expiration of the Initial Term, the Services will be terminated and the sum of all remaining Subscription Fees under the Initial Term, if any, shall be accelerated and automatically billed to the Customer’s Payment Method in one lump sum charge.
5.1. Confidential Information means with respect to a party hereto, all information or material which: (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage by virtue of not being known in that party’s industry; and (ii) which is (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment. The Confidential Information of Zubie includes the pricing for the Services, information about Hardware and Zubie Rental Connect, and the terms of this Agreement. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Agreement; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder as evidenced by its written records; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
5.2. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
5.3. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
5.4. For purposes of this Section 5 only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, attorneys, accountants, and financial advisors.
6.1. Indemnity. Customer hereby agrees to defend, indemnify, and hold Zubie and its affiliates and their respective officers, directors, employees, subcontractors and agents harmless from and against any and all costs, damages, claims, suits, actions, liabilities, and judgments (collectively “Damages”) arising from (i) this Agreement or any Order Form and the use of the Services, except in connection with the gross-negligence or intentional misconduct of Zubie or its employees or agents; (ii) infringement of any third-party patent, copyright, trade secret, or other intellectual property right due to the use by Zubie of materials provided to Zubie by Customer or any other information disclosed by Customer to Zubie hereunder during the use of the Services; and (iii) Customer’s violation of any laws, ordinances, codes, regulations, or guidelines.
6.2. Obligations. If a claim is made against Zubie for which Customer is obligated to indemnify Zubie, and if Zubie intends to seek indemnity with respect to such claim, Zubie shall promptly notify Customer in writing of such claim. Customer shall have twenty (20) days after receipt of the above-mentioned notice to notify Zubie in writing of its intent undertake, conduct and control, through counsel of Customer’s own choosing (subject to the consent of Zubie, such consent not to be unreasonably withheld) and at Customer’s expense, the settlement or defense, or both, of such claim, and Zubie shall cooperate with Customer in connection with such efforts; provided that: (i) Customer shall permit Zubie to participate in such settlement or defense through counsel chosen by Zubie, provided that the fees and expenses of any such counsel so chosen by Zubie shall be borne by Zubie, and (ii) Customer shall promptly reimburse Zubie for the full amount of any loss resulting from such claim and all related expense incurred by Zubie. If Customer does not notify Zubie within twenty (20) days after receipt of Zubie’s notice of a claim of indemnity under this Agreement that Customer elects to undertake the defense of such claim, Zubie shall have the right to contest, settle or compromise the claim in the exercise of Zubie’s exclusive discretion, which shall be at the expense of Customer.
7. Remedies and Limitations.
7.1. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL ZUBIE HAVE ANY LIABILITY HEREUNDER FOR LOST PROFITS OR OTHER FINANCIAL LOSS OF ANY TYPE OR DESCRIPTION INCLUDING ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE STATEMENT OF WORK OR THE PERFORMANCE OF SERVICES HEREUNDER OR ANY BREACH, EVEN IF ZUBIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
7.2. Aggregate Liability. Notwithstanding anything to the contrary, in no event shall Zubie’s total aggregate liability under this Agreement for damages, towards the Customer, however characterized, exceed the amounts (excluding reimbursable expenses and taxes, if any) actually paid by Customer to Zubie pursuant to the applicable Order Form in last six (6) months from the date when the liability arises.
7.3. Liability for Certain Matters. Notwithstanding anything to the contrary contained herein, under no circumstances shall Zubie be liable for any losses, claims, demands, penalties, actions, causes of action, suits, obligations, liabilities, damages, delays, costs or expenses, including reasonable attorney’s fees (collectively, “Losses”) to the extent caused by: (i) Customer in violation of this Agreement; (ii) a third party, other than Zubie’s authorized subcontractors, agents, or affiliates ; (iii) use of attachments, features, or devices not authorized in an Order Form; (iv) equipment changes, reconfigurations, upgrades or relocations performed of third party hardware or software; (v) abuse, misuse, alteration or use by Customer that is inconsistent with the terms of the Agreement or an Order Form; (vi) incorrect or incomplete data supplied by Customer or its agents; (vii) software, hardware, or systems not supplied by Zubie; (viii) a data breach or security incident; or (ix) a Force Majeure Event.
8. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Zubie. Any purported assignment or delegation in violation of this Section 13 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Zubie may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider’s assets without Customer’s consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
Force Majeure. Zubie shall not be liable or responsible to Customer for damages, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Zubie including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (“Force Majeure Event”).