BSM TECHNOLOGIES LTD. TERMS AND CONDITIONS

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BSM TECHNOLOGIES LTD. TERMS AND CONDITIONS


  1. These master terms and conditions (the “T&Cs”) apply to the purchase and sale of all products and services under all order forms, quotations or any other similar document (collectively, “Orders”) agreed between BSM Technologies Ltd. (“BSM”) and the customer named in such Order (“Customer”). Together, these T&Cs, the Order and all exhibits or schedules for the agreement between BSM and Customer with respect to such products and services. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, BSM and Customer agree as follows:
  2. Definitions. For the purposes of these T&Cs, except as otherwise defined herein, the following words and phrases shall have the following meanings:
  • Affiliate” as to any Person means any other Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with” as used with respect to any Person) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities, by contract or otherwise.
  • Business Day” means any day of the year, other than a Saturday, Sunday or any other day on which Canadian chartered banks are required or authorized to close in Toronto, Ontario, Canada.
  • Claims” means all claims, suits, demands, judgments, losses, injuries, obligations, liabilities, costs, damages, and expenses of whatever form or nature, including, without limitation, attorneys’ fees, experts’ and consultants’ fees, and other costs of legal defense.
  • Customer’s Personnel” means Customer’s employees, contractors, officers, directors, agents or representatives.
  • Delivery Schedule” means the delivery date(s) and associated delivery information set forth in an Order, as may be updated by BSM from time to time.
  • Early Termination Fee” or “ETF” means a fee equivalent to the applicable aggregate Prices, as applicable, for the remainder of the Term or any Renewal Term (had the Order not been so terminated or cancelled), as applicable;
  • Hosting Services” means the hosting of the Software, maintaining and storage of files and all data transmitted from Units to BSM, including the display of the data, as selected by Customer, on the Sentinel FM Online Application Platform.
  • Improvements” means any modifications, enhancements, changes or new proprietary information that is developed in relation to Units or Services.
  • Object Code” means the Software in binary form that may be combined or embodied in any medium whatsoever, consisting of a set of logical instructions and information that guide the functioning of a computer processor to deliver output.
  • Orders” has the meaning ascribed in Section 1 above.
  • Person” means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, joint venture, body corporate, a government or any department or agency thereof, and a natural person in such person’s capacity as trustee, executor, administrator or other legal representative.
  • Platform” means BSM’s Sentinel FM online internet based application that tracks, via Wireless Data Network Providers, the movement and location of equipment upon which Units have been installed.
  • Proprietary Rights” means any patent rights, copyrights, trademarks, trade names, know-how, trade secrets and other intellectual property rights which are protected by domestic and international laws and regulations.
  • Services” means the Platform, the Service Plan, hours of service application and any ancillary services (such as for testing and commissioning, wireless cellular service, satellite service, installation, training, and maintenance) that may be provided by BSM in conjunction with the sale of any Units hereunder, including any Hosting Services.
  • Service Plan” means the cellular airtime data plan or satellite data plan from a Wireless Data Network Provider, selected by BSM, for use in connection with Units.
  • Software” means the Platform, the Unit Software and any other similar software or services BSM may offer to Customer from time to time.
  • Source Code” means the Software in human-readable language in such form that it can be compiled into equivalent Object Code form, together with all technical information necessary for use, reproduction, modification and enhancement of the foregoing including, without limitation, all program files, data files, interfaces, program modules, routines, subroutines, algorithms, program architecture, program structure, sequence and organization and screen displays, related documentation, manuals, training material, field and data descriptions, definitions and relationship, data definition specifications, data models, program and system logic, design concepts, system designs, general flow-charts, input and output layouts, volumes and sort sequence, file layouts, diagrams, processing requirements, calculation formula, programmers’ notes, and the details of all algorithms.
  • Taxes” means any consumption, excise, goods and services, harmonized sales, retail sales, social services, use, value added taxes and any other tax, duty, governmental fee or other like assessment or charge of any kind whatsoever imposed by any federal, provincial, state, territorial, municipal or other governmental authority in any jurisdiction.
  • Third Party Terms” means the third party terms and conditions attached hereto as Schedule “A”.
  • Units” means Sentinel FM kits, mobile data terminals (MDTS) and applicable accessories supplied by BSM to Customer, as described on an Order, to be purchased in the quantities set out in the applicable Order.
  • Unit Software” means the software installed in the Unit which will communicate with the Platform.
  • Wireless Data Network Provider” means (i) a cellular data network provider used to send current position and other data associated with Units, including without limitation, GPRS/GSM, CDMA, 3G, 4G and LTE networks; and/or (ii) a satellite data network provider used to send current position and other data associated with Units.
  1. Interpretations. Section headings in these T&Cs are included herein for convenience of reference only and shall not constitute a part of these T&Cs for any other purpose or be given any substantive effect. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. All currency or dollar references shall be in Canadian dollars.
  2. Conflicts of Terms. In the event of a conflict or any inconsistency between, or an omission or ambiguity with respect to following documents, the following documents shall apply and prevail in the following successive order of priority to the extent of such conflict, inconsistency, omission or ambiguity: (a) the Third Party Terms; (b) these T&Cs; and (c) an Order.
  3. Subcontractors. The parties hereto acknowledge that BSM shall have at any time the right to subcontract with any third party contractors for the performance of any or all of the Services to be provided to Customer hereunder without the consent of Customer.
  4. Supply of Units. BSM shall supply Units identified herein to Customer in accordance with the provisions of these T&Cs and any related Order.
  5. Delayed Delivery. BSM shall use reasonable efforts to fulfil an Order within the applicable time indicated, however BSM shall not be liable for any delays or any failure to fulfill an Order within the aforementioned time period.
  6. Quotes and Prices. Any written price quotation, either pursuant to an Order or any other form, shall become void unless accepted by Customer upon the later of: (i) within thirty (30) days of the issuance of an Order; or (ii) the offer expiry date indicated in an applicable Order, unless sooner revoked or rejected by BSM.
  7. Limited License. Subject to the provisions of these T&Cs, BSM hereby grants to Customer during the Term of the applicable Order a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to use the Unit Software to connect to and upload data collected by the Unit to the Platform and to permit Customer end-users to access the Object Code form of the Platform through the internet to acquire data with respect to Customer’s Units, and solely for Customer’s internal business purposes.
  8. Licence Restrictions. To the fullest extent permissible by applicable law, Customer agrees not to and will ensure that its users do not:
  • reverse engineer, decompile, translate, disassemble, or attempt to derive Source Code from Units, Software or any component thereof;
  • Customer shall not remove or attempt to remove any proprietary notices, including, but not limited to, marks, labels and legends from Units.
  • rent, lease, license, sell, resell, assign, distribute, or otherwise disclose or transfer the Software to any third party;
  • copy, reproduce, modify, sell, sublicense, market, translate, create derivative works based on or commercially exploit or make available the Units, including any Software or documentation, to any Person other than as expressly contemplated by these T&Cs;
  • use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
  • remove any proprietary notices from the Software;
  • publish or disclose to third parties any evaluation of the Software without BSM’s prior written consent;
  • will not use the Units and Services as part of a fail-safe design for dangerous or emergency applications or as part of control measures required for hazardous materials, life support systems, munitions or weapons;
  • will not engage in any activity that interferes or disrupts services or any computer, software, network or other device used to provide the Services; and
  • will not use the Units and Services in a manner that violates laws or rights of others.
  • provide an access code for the Software to any unauthorized third party other than as contemplated by these T&Cs; or
  • use the Software for any purpose other than using Customer’s own data in connection with the Units and solely for Customer’s internal business purposes in accordance with these T&Cs; or
  • attempt, or cause, permit or encourage any other person to do any of the foregoing.
  1. Customer shall comply with all applicable laws, including export control laws and regulations of the USA and Canada. Customer shall not export or re-export any Units or Services directly or indirectly in contravention of such laws and regulations. Customer further acknowledge that the Units and Services cannot be exported to, or used in, countries which are listed on Canada’s Area Control List, including, Belarus and North Korea.
  2. Customer is solely responsible for Customer’s failure to keep all user identifications and passwords (“Login Credentials”) secure. If Customer believes the security of its Login Credentials has been compromised, or Customer suspects unauthorized use, Customer will promptly notify BSM. BSM will be entitled to treat all communications, instructions and transactions as authorized by Customer if Customer’s Login Credentials are used unless Customer have notified BSM of compromise or unauthorized use of Customer’s Login Credentials. If BSM suspects, in BSM’s reasonable opinion, fraudulent or unauthorized activity on Customer’s account, BSM reserves the right to terminate or suspend Customer’s access to the Services and will use reasonable efforts to contact Customer.
  3. Customer Obligations. Customer hereby agrees as follows:
  • Hardware. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment required to internally access the Platform, and for paying all third party access charges (g., ISP, telecommunications) incurred while using the Software.
  • Conduct. Customer shall be solely responsible for its actions and the actions of its users while using the Software and the contents of its transmissions to the Platform, and Customer agrees:
    • to abide by all local and international laws and regulations applicable to Customer’s use of the Software and Hosting Services;
    • not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Software or the Hosting Services;
    • not to use the Software or Hosting Services for illegal purposes;
    • not to interfere or disrupt networks connected to the Hosting Services;
    • not to post, promote or transmit through the Software or Hosting Services any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
    • not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and,
    • to comply with all regulations, policies and procedures of networks connected to the Hosting Services.
  • Y-Cable. Customer shall be solely responsible for ensuring that before any maintenance is initiated on equipment with Units installed, that the maintenance provider removes the Y-Cable for the duration of the required maintenance.
  1. Hosting Services. Customer acknowledges that the Hosting Services for the Platform are provided by BSM or its third party provider, and additional terms and conditions may apply to such Hosting Services. Customer acknowledges that, notwithstanding any security precautions, use of or connection to the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Software and data of BSM or Customer. Accordingly, BSM cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the internet.
  2. Digital Maps. Customer acknowledges that map data, satellite imagery and other information or content that may be included as part of the Services are provided by BSM or its third party provider, and additional terms and conditions may apply to such Services. Customer acknowledges that map data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, any of which may lead to incorrect results.
  3. Customer Data.
  • As between BSM and Customer, Customer shall own all data or information collected and transmitted by Units to the Platform including all variations of such data (“Customer Data”). Except as permitted in these T&Cs, BSM will not edit, delete or disclose the contents of Customer Data unless authorized by Customer or unless BSM is required to do so by law or in the good faith belief that such action is necessary to:
    • conform to applicable laws or comply with legal process served on BSM;
    • protect and defend the rights or property of BSM; or
    • enforce these T&Cs.
  • Customer hereby grants to BSM a perpetual, irrevocable, non-exclusive, worldwide, royalty free right and licence to use, copy, display, perform, translate, incorporate into other works and make derivative works of any Customer Data, provided that any use of Customer Data other than in connection with the Services to be provided hereunder shall not include personally identifying information. Without limiting the foregoing BSM may provide user statistical information in an aggregated form to third parties. BSM assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Platform or Hosting Services to store any Customer Data.
  • BSM reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post or transmit on or through the Hosting Services to the Platform. Customer shall be responsible for maintaining an archive or back-up copy of all Customer Data, and BSM shall have no liability for any loss of Customer Data, whether caused by BSM or any third party service provider.
  • BSM shall retain Customer Data until the earlier of (i) thirty (30) days after the expiration or termination of an applicable Order; or (ii) seven (7) years from the date of the applicable Order (the “Customer Data Removal Date”). After the Customer Data Removal Date, BSM may delete and destroy all Customer Data without notice or further liability to Customer.
  • During the Term or an applicable Renewal Term (as defined below) up until the Customer Data Removal Date, Customer may request that BSM conduct a mass export of Customer Data from time to time, and BSM agrees to provide such services at its then current rates on a time and materials basis.
  • Notwithstanding the foregoing, BSM reserves the right to terminate Customer’s access to data if Customer fails to make payments due hereunder or is using the Units or Services for illegal purposes or otherwise in noncompliance these T&Cs.
  1. Installation of Units. If requested by Customer, the installation of Units shall be completed by BSM personnel or subcontractors. Customer shall, within five (5) Business Days after installation of a Unit, provide notice in writing to BSM confirming that a Unit is functioning appropriately (“Installation Notice”). If an Installation Notice is not received by BSM as set forth above, the Units shall be deemed fully compliant. If Customer elects to install units, the warranty set-forth in Section 35 of these T&Cs is void with respect to Units that are incorrectly installed by Customer and such warranty does not cover any damage that may occur during installation.
  2. Wireless Data Network Provider. Customer acknowledges that a Service Plan is required in order for the Units to function. Customer agrees to have BSM provide the Service Plan through a Wireless Data Network Provider selected by BSM and Customer shall pay for all costs with respect to such Service Plan, including all costs incurred by BSM.
  3. RMA. In order to return Units for maintenance, repair or replacement, Customer shall first submit a Return Material Authorization Request (“RMA Request”) to BSM. The RMA Request shall include all details required, including but not limited to a written description of the problem and the serial number of the Unit, for BSM to make a reasonable assessment of the request. If BSM accepts an RMA Request, shipping and handling shall be paid for by BSM. Units returned to BSM without an approved RMA Request will be returned at Customer’s expense. Other than matters which are covered by the express warranty set forth in Section 35 of these T&Cs, Customer shall be responsible for the cost of maintenance, repair or replacement of any Units.
  4. Customer shall pay to BSM the prices quoted (the “Prices”) for the Units and Services as set forth in applicable Orders. BSM may, with at least 30 days prior written notice to Customer, change any of the standard fees and charges.
  5. Unless otherwise stated, all Prices specified in applicable Orders are exclusive of any Taxes. In addition to the Prices, Customer shall be responsible for and pay any and all applicable Taxes.
  6. Invoice and Payment Terms. BSM shall invoice Customer for installation costs (if applicable), Units and Services provided under applicable Orders by issuing invoices to Customer, on the following intervals:
  • Unit Invoice and Payment. Invoices for Units shall be issued by BSM to Customer on the shipping date, as set forth on the shipping slip (the “Unit Invoice”). The Unit Invoice shall be paid within thirty (30) calendar days following the date of the Unit Invoice.
  • Services Invoice and Payment. The first Services invoice will be dated the earlier of (i) the first month following installation, or (ii) the first day of the second month following the date of shipment, as set forth on the shipping slip (the “Initial Service Invoice“). For greater certainty, if Units are shipped on October 5th and Units are installed in the month of October, the Initial Service Invoice will be dated as of November 1st. However, if Units are shipped on October 5th but installation is not completed until November, or a later date, the Initial Service Invoice will be dated as of December 1st. Subsequent Services invoices will be issued by BSM to Customer on the first day of each calendar month after the Initial Service Invoice (“Services Invoice”). All Services Invoices will be payable thirty (30) calendar days following the date of the Services Invoice, for the duration of the Term and Renewal Terms, as applicable.
  • Installation Invoice and Payment. If BSM is performing the installation of Units, installation costs shall be invoiced to Customer on the date installation is completed (the “Installation Invoice”). The Installation Invoice shall be paid within thirty (30) calendar days following the date of the Installation Invoice.
  • Deemed Acceptance of Invoices. Customer must notify BSM of any discrepancies regarding charges or billings within sixty (60) days of the date of the applicable invoice. If Customer fails to notify BSM of any discrepancies within the time periods, Customer shall be deemed to have accepted all such invoices.
  1. Overdue Amounts. Any amounts due shall bear interest from and including the date payment is due until payment at the lesser of a per annum rate of eighteen percent (18%) or at the highest rate permitted under applicable law. The payment of such interest shall not foreclose or limit BSM from exercising any other rights it may have as a consequence of the lateness of any payment. Such interest shall accrue on the unpaid balance owed by Customer for each month a balance remains unpaid and shall be prorated on a daily basis for each day the payment is overdue.
  2. Void Cheques. BSM may charge Customer a fee of $50.00 for any cheque returned due to insufficient funds.
  3. Credit Verification. BSM may perform credit verifications on Customer, as BSM deems necessary in its discretion, and Customer hereby authorizes BSM to obtain information about its credit history from credit reporting agencies and credit grantors. The provision of Units and Services shall be subject to BSM’s approval of Customer’s credit history, from time to time.
  4. Delivery and Shipment. BSM shall select the method of carriage for Units and all costs of shipping and handling shall be borne by Customer. Unless otherwise stated in an Order, BSM may deliver Units in one or more shipments. Delivery of Units shall be made EXW (Ex Works), as defined by Incoterms 2010, except as otherwise specified in an Order.
  5. Title. Title in Units and risk of loss shall pass to Customer upon delivery to the carrier selected pursuant to Section 26 of these T&Cs.
  6. Security Interest. BSM reserves, until full payment is received, a purchase money security interest in all Units and Customer hereby assigns and grants to BSM a security interest in all Units and any proceeds thereon (including insurance) to secure Customer’s obligations arising under any Order, including these T&Cs. Customer agrees to execute any document appropriate or necessary to perfect the security interest of BSM, or in the alternative, BSM may file applicable Orders and these T&Cs as a financing statement and/or chattel mortgage.
  7. Term of Orders. Unless otherwise stated on an applicable Order, each Order shall remain in effect for a period of thirty-six (36) months from the date of the Initial Invoice unless earlier terminated pursuant to the provisions herein (“Term”).
  8. Renewal Terms. Upon expiration of the Term, each applicable Order shall automatically renew for successive one-year renewal terms (each a “Renewal Term”) unless either party provides written notice of its intent not to renew such Order not less than thirty (30) days’ prior to the expiration of the Term or of a Renewal Term.
  9. Force Majeure. In the event that BSM is delayed in or prevented from performing its obligations under these T&Cs or applicable Orders due to a Force Majeure Event then, upon written notice to Customer: (a) the affected obligations under these T&Cs and applicable Orders will be suspended to the extent necessary during the period of the Force Majeure Event, and (b) BSM will not have any liability to Customer or any other person in connection with such suspended obligation. For purposes of these T&Cs, a “Force Majeure Event” means an event beyond its reasonable control, including an act of God, fire, flood, explosion, public health emergencies, communicable disease outbreak, general Internet outages, outages caused by the Wireless Network Data Provider, civil disorder, strike, lockout or other labour trouble, material shortages of utilities, delay in transportation, destruction or damage to production facilities breakdown or accident, any law, ruling, judgment, demand or requirement of any governmental authority, riot, war, or other cause beyond the reasonable control of BSM.
  10. Termination. These T&Cs or any Order may be terminated as follows:
    • by either party for material breach upon thirty (30) days’ written notice to the other party (the “Breaching Party”) specifying the nature of the breach (the “Breach Notice”) and if such breach has not been substantially cured within forty five (45) days after receipt of such Breach Notice by the Breaching Party. During the forty five (45)-days cure period, each party will continue to perform its obligations under these T&Cs;
    • by BSM immediately if BSM does not receive any payment hereunder when due and such non-payment continues for five (5) days following BSM’s demand for payment in writing;
    • by either party upon thirty (30) days prior written notice if the other Party becomes unable to pay its debts in the ordinary course of business; goes into liquidation (other than for the purpose of a genuine amalgamation or restructuring); has a receiver appointed over all or part of its assets; enters into a composition or voluntary arrangement with its creditors; or any similar event occurs in any jurisdiction, all to the extent permitted by law;
    • by BSM, by giving Customer written notice, if BSM is delayed in or prevented from performing an obligation under these T&Cs or applicable Orders for a period longer than two (2) months in duration due to a Force Majeure Event; or
    • by BSM, for convenience and without cause on thirty (30) days’ prior written notice to Customer.
  11. Effect of Termination.
  • Payment Obligations. If any Order is terminated or cancelled by Customer, Customer agrees to pay BSM an Early Termination Fee or ETF, if applicable, as liquidated damages and not as a penalty. Customer shall reimburse BSM for all costs and expenses incurred in providing those Units and Services, including all costs and expenses incurred prior to termination but paid after the termination date. Customer shall pay for all actual costs, including time spent by personnel of BSM and any BSM Affiliate incurred to complete activities associated with the termination and close-out of affected Units or Services, including the fulfillment of any regulatory requirements.
  • Destruction of Confidential Information. Upon any termination of an applicable Order each party shall promptly return to the other party or, at the other party’s request, destroy any Confidential Information (as defined below) of the other party (except data on tape backups which need to be destroyed in accordance with a Parties document retention policies), in all forms and types of media. If so requested by BSM so requested by us, Customer shall certify in writing that all such copies of Software in your possession or control have been destroyed.
  1. Customer Representation and Warranties. Customer represents and warrants to BSM that:
  • Customer is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation and has full corporate or other power and authority and the legal right to (i) own and operate its property and assets, (ii) carry on its business as it is now being conducted and as contemplated in these T&Cs and applicable Orders, and (iii) enter into applicable Orders governed by these T&Cs and to carry out the provisions hereof;
  • Customer is duly authorized to execute and deliver applicable Orders and to perform its obligations hereunder, and the person or persons executing applicable Orders on its behalf has or have been duly authorized to do so by all requisite corporate action;
  • (i) applicable Orders and these T&Cs are legally binding upon it and enforceable in accordance with their terms, and (ii) the execution, delivery and performance of applicable Orders and these T&Cs by Customer does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, or violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it;
  • in connection with the installation and maintenance of Units, installers may modify or alter, including without limitation drill holes, cut panels and body or rewire the equipment; and BSM will not be responsible for, nor make any assurances regarding, the possibility of ever restoring equipment to its unmodified or unaltered condition once Units are installed;
  • data collected by Units while out of coverage or without calling connectivity may not be stored and retrieved by Customer when within coverage or calling area until connectivity is restored with the Wireless Data Network Provider;
  • data collected by Units is not provided in real time and delays in receipt of data are normal;
  • the antennae on Units should have an unobstructed view of the sky;
  • Units may not operate in enclosed spaces, in buildings, between tall buildings, underground or in canyons; and
  • Units will go into a “sleep” mode and Units in sleep mode will not operate until the equipment in which Units are installed is subsequently started.
  1. Limited Warranty. Units are sold with a one (1) year limited warranty, from the date of the applicable Order, against material defects or malfunctions in the normal course of use for which the Units were intended. In the event of a claim for warranty service, Customer shall advise BSM of the warranty claim with a written description of the problem and the serial number of the Unit and shall return the Unit, at Customer’s expense, to the address specified by BSM for repair or replacement. Warranty claims must be submitted within 10 days if the date when Customer did notice or could reasonably have noticed the defect. This warranty shall be void if it is reasonably determined by BSM that the Unit has been subject to abuse, used in an environment beyond BSM’s specifications, or if the material defect or malfunction is due to incorrect installation by Customer. BSM’s entire liability and Customer’s exclusive remedy shall be the repair or replacement of the Unit in accordance with this Section.
  2. No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, bsm, its agents, directors, officers, employees and affiliates make no representations OR warranties of any kind. the limited REPRESENTATIONS AND warrantIES EXPRESSLY set forth in THESE TERMS AND CONDITIONS aRE provided in lieu of any other REPRESENTATIONS OR warranties, express or implied, created by any documentation, packaging or written or oral representation and to the maximum extent permitted by law, BSM, its agents, directors, officers, employees, investors/assignors and affiliates provide the Units and all Software AS IS AND WITH ALL FAULTS, and hereby disclaim all other REPRESENTATIONS, warranties and conditions, either express, implied or statutory, including but not lIMITED to, any (if any) implied warranties or conditions of (i) merchantability, (ii) fitness for a particular purpose, (iii) lack of viruses, (iv) accuracy or completeness of responses or results, (v) durability, (vi) meeting any of Customer’s needs, (vii) operating error free, and (viii) lack of negligence or lack of workmanlike effort, all with regards to BSM Units supplied and the software.
  3. No Wireless Network Data Provider Warranties. CUSTOMER UNDERSTANDS AND AGREES THAT IT: (1) HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS NETWORK DATA PROVIDER, (2) IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN BSM AND THE UNDERLYING WIRELESS NETWORK DATA PROVIDER, (3) THAT THE UNDERLYING WIRELESS NETWORK DATA PROVIDER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) THAT MESSAGES MAY BE DELAYED, DELETED OR NOT DELIVERED, AND (5) THE UNDERLYING WIRELESS NETWORK DATA PROVIDER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
  4. Exclusion of Damages. To the maximum extent permitted by applicable law, in no circumstances shall BSM be liable to Customer or any third party for lost profits (whether direct or indirect) or loss of use of data, costs of substitute goods, or for incidental, consequential, punitive, special or exemplary damages (including damage to business, reputation or goodwill), or indirect damages of any type however caused, whether by breach of representation or warranty, breach of contract, in tort, negligence or any other legal or equitable cause of action even if bsm has been advised of such damages in advance or if such damages were foreseeable.
  5. Confidential Information. Confidential information means any information and data that is confidential by its nature including without limitation technical, commercial, financial, marketing, operational or strategic information related to the business of a party, on any verbal, visual or written medium, whether it is marked confidential or restricted or not (“Confidential Information”), that is communicated by a party (the “Disclosing Party”) to the other party (the “Recipient”) during the Term or a Renewal Term, and that the Disclosing Party desires for the Recipient to keep confidential and use only for the purpose of applicable Orders. The Confidential Information shall at all times remain the property of the Disclosing Party. The Recipient shall keep the Confidential Information confidential using the same level of care that Recipient affords its own confidential information and in any case no less than a reasonable standard of care. The Recipient shall confine distribution of the Confidential Information within its organization to those individuals who have a need to know and who have a written obligation to keep such information confidential and the Recipient shall ensure that those individuals are aware of Recipient’s obligations under these T&Cs. No restrictions apply to any information that is independently developed or acquired by the Recipient without breach of these T&Cs; was already known to the Recipient on a non-confidential basis; is lawfully received from another source without breach of any confidentiality obligation; becomes a matter of public knowledge without breach of these T&Cs; or is required to be disclosed by operation of law or by order of any court or governmental authority. The obligations contained in these T&Cs shall continue for a period of ten (10) years from the date of end of the Term or a Renewal Term, or the termination of the last applicable Order, whichever occurs later, provided that with respect to any matter that is a trade secret, such information shall remain confidential information and subject to the obligations herein for so long as such information remains a trade secret.
  6. BSM Indemnification.
  • BSM shall indemnify, hold harmless, and defend Customer from and against any claim brought by a third party against Customer to the extent that the claim is based on a claim that a Unit or the Software, when used for its intended purpose and within the scope of these T&Cs, directly infringes any Canadian patent or copyright. Subject to the limitations set forth in these T&Cs, BSM’s liability with respect to the foregoing shall be limited to paying those amounts required to be paid to the third party whose rights have been infringed.
  • BSM’s obligations under the preceding paragraph with respect to a claim are conditional upon:
    • Customer notifying BSM promptly in writing within five Business Days of any such claim or threatened claim, including any communication received from a third party that could develop into a potential claim;
    • Customer giving BSM sole control of the defence of all such claims and any related settlement negotiations; and
    • Customer cooperating with BSM in such defence (including, without limitation, by making available to BSM all documents and information in Customer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Customer’s personnel available to testify or consult with BSM or its legal advisers in connection with such defence).
    • If Customer settles any such claim without BSM’s prior written approval, BSM shall be relieved of all liability with respect to such claim.
  • Notwithstanding the foregoing, BSM shall have no liability or obligation with respect to any infringement or misappropriation claim based upon:
    • any use of a Unit or the Software not in accordance with these T&Cs or for purposes not intended by BSM;
    • any modification of a Unit or the Software made by any person other than BSM where such modification is not authorized in writing by BSM; or
    • any use of a Unit or Software in combination with any product or component not supplied by BSM, where such combination is the basis for the claim.
  • If a Unit, the Software or any portion thereof becomes, or in BSM’s opinion is likely to become, the subject of an infringement or misappropriation claim, BSM may, at its sole option and expense, either:
    • procure for Customer the right to continue to use the Unit or Software as applicable pursuant to these T&Cs;
    • replace or modify the Unit and/or Software to make it non-infringing; or
    • terminate the Order and Customer’s right to use the Unit and Software and refund to Customer any unused pre-paid fees as of the date of termination.
  1. Customer Indemnification. Customer shall indemnify, defend and hold harmless BSM, BSM’s Affiliates and its directors, officers, stockholders, employees, and agents from and against any and all Claims arising in whole or in part from: (a) the negligent acts or omissions or willful misconduct of Customer or Customer’s Personnel; (b) Customer or Customer’s Personnel use of Units or Services, BSM’s Confidential Information, or any Proprietary Rights therein, or failure to use Units or Services, BSM’s Confidential Information, or any Proprietary Rights therein, in accordance with the terms and conditions of these T&Cs; (c) Customer or Customer Personnel’s violation of the rights of any third parties; or (d) any other breach of these T&Cs by Customer or Customer Personnel; provided, however, that the foregoing indemnity shall not apply to the extent that any Claims that are determined by a court of competent jurisdiction in a final judgment not subject to appeal to be caused by the gross negligence or willful misconduct of BSM.
  2. Limitation of Liability. To the extent permitted by law, the total, cumulative liability of BSM arising out of or related to applicable Orders or these T&Cs, whether based on contract, in tort or any other legal or equitable theory, shall be limited in the aggregate to the amounts actually paid to BSM hereunder during the twelve (12) month period preceding the first event giving rise to liability. The existence of more than one claim shall not enlarge this limit.
  3. Ownership of Intellectual Property. Customer acknowledges and agrees that all Units and Software and any Proprietary Rights, results, data, findings, documentation, updates, upgrades, reports or other original work produced, developed, including any Improvements, by BSM under Orders (collectively “Work Product”) and all intellectual property and other rights therein are the sole and exclusive property of BSM. Except as expressly provided herein, no right, title, or license to any Work Product or any BSM Proprietary (express or implied) is granted to Customer by an Order or these T&Cs. To the extent any Improvements do not immediately vest in BSM, Customer hereby assigns all right, title and interest in and to such Improvements to BSM and waives, for the benefit of BSM and its successors, assigns, licensees and contractors, its moral rights (and any similar rights to the extent that such rights exist and may be waived in each and any jurisdiction in the world) in and to the Improvements. Customer covenants and agrees to do all such other things and to execute, or have executed, without further consideration, such documents as may be required for assigning, transferring, conveying and securing to BSM the exclusive right, title, property, benefit and interest in and to the Proprietary Rights in Units, Services and all Improvements. Customer grants to BSM and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Units or the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer Personnel relating to Units or the Services.
  4. Software Upgrades. BSM may provide periodic upgrades, enhancements and improvements to the Software from time to time in its sole discretion. Customer hereby consents to such periodic upgrades, enhancements and improvements and agree to use only the updated version once it has been installed.
  5. Response to Court Orders: Notwithstanding any other provision herein, Customer hereby consents to BSM providing any information relating to Customer, its vehicles, its use of Units and Services, and any other information related thereto, as may be requested at any time by way of subpoena or other court order, and agrees to indemnify and hold harmless BSM from all costs, liabilities, losses, or expenses arising in connection therewith.
  6. Anti-Corruption. Neither Customer nor Customer Personnel have received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from a BSM employee or agent in connection with an Order or these T&Cs. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify BSM.
  7. Independent Status. Neither party is an agent, employee or representative of the other. Neither party shall have authority to make any statements, representations or commitments of any kind, nor to take any action, which shall be binding on the other party. These T&Cs or applicable Orders shall not constitute, create or in any way be interpreted as a joint venture, partnership or formal business organization of any kind.
  8. Assignment; No Third Party Beneficiaries. Customer shall not transfer or assign any of its rights or obligations under applicable Orders without the express written consent of BSM. For purposes of the foregoing, a transfer or assignment includes any change in the de facto control of Customer, whether by transfer, issue, sale, assignment, bequest or other disposition of shares in, or merger or amalgamation of, Customer or any parent of Customer, or by any other means.
  9. Any notice required or otherwise given pursuant to these T&Cs shall be in writing and emailed, faxed, mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to the address set forth in applicable Orders. Any such notice, if delivered or sent by electronic transmission, shall be deemed to have been given or received on the day on which it was transmitted, if sent by postage prepaid or delivered by overnight delivery service, shall be deemed to have been given or received on the second Business Day following the day on which it is sent. The address at which notice may be given to a party may be changed by the giving of notice of such change by that party to the other party as provided for in this Section.
  10. Independent Legal Advice. The parties acknowledge that they have had the opportunity to consult with legal counsel to the fullest extent it deems appropriate and necessary prior to signing applicable Orders.
  11. Waiver. No party is to be deemed to have waived the exercise of any right that it holds under these T&Cs unless such waiver is made in writing. No waiver made with respect to any instance involving the exercise of any such right is to be deemed to be a waiver with respect to any other instance involving the exercise of the right or with respect to any other such right. Forbearance or indulgence by BSM in any regard whatsoever does not constitute a waiver of the covenant or condition to be performed by Customer and until complete performance of Customer of the covenant or condition, BSM is entitled to invoke any remedy available under these T&Cs or by law, despite the forbearance or indulgence.
  12. Severability. If any part or parts of these T&Cs shall be held unenforceable for any reason, the remainder of these T&Cs shall continue in full force and effect. If any provision of these T&Cs is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
  13. Governing Law. The laws of the Province of Ontario shall govern the validity and construction of these T&Cs and applicable Orders, and the enforcement of any arbitration awards sought during the arbitration process shall attorn to the exclusive jurisdiction of the courts of Ontario, without regard to any principle of conflict of laws that would result in the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to applicable Orders and these T&Cs and its application is strictly excluded.
  14. Amendments. Customer agrees that BSM may change the terms of these T&Cs from time to time by notifying Customer via BSM’s website, email or other means. Customer agrees to accept, and Customer hereby accepts, any changes in the Third Party Terms and other terms of these T&Cs, unless the changes impose commercially unreasonable disadvantages on Customer. If a change imposes commercially unreasonable disadvantages on Customer and BSM receives a written objection from Customer within 30 days of the date when Customer received notice or Customer should have noticed the change, BSM may, at BSM’s sole option and discretion, (a) reverse such change with the effect that the immediately prior version of these T&Cs shall continue to apply to Customer, or (b) terminate these T&Cs and any Order and Customer’s use of Units and Services and refund to Customer, upon receipt of all Units, documentation and deliverables, in good working condition, subject to ordinary wear and tear, in Customer’s possession (aa) the purchase price for any Units, depreciated on a 36 months straight line basis, accounting for Customer’s use, and (bb) any prepaid services fees for time periods after the effective date of the change to which Customer objected in accordance with these T&Cs. No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.
  15. Dispute Resolution. The parties agree that any and all disputes arising out of, or connected with, these T&Cs or applicable Orders, including any question regarding their existence, validity or termination, will be resolved as follows:
    • Informal Dispute Resolution. The parties will first attempt to resolve any dispute directly through good faith negotiations. Either party may deliver to the other a written notice requiring negotiation of a dispute (“Notice to Negotiate”).
    • Arbitration. If any dispute remains unresolved fourteen (14) days after the delivery of a Notice to Negotiate, either party may by notice in writing require the other to arbitrate the dispute (“Notice to Arbitrate”). The arbitration shall be final and binding from which there shall be no appeal. Unless the parties agree otherwise, the arbitration will be held in Toronto, Ontario and shall adopt the rules of the Arbitration Act (Ontario) where such rules do not conflict with the dispute resolution provisions of these T&Cs. Judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof. No party will unreasonably withhold acceptance of an arbitrator, and the selection of an arbitrator will be made within fourteen (14) days of a party receiving a Notice to Arbitrate. If the parties do not agree on an arbitrator within the above time frame, then each party shall select an arbitrator within ten (10) days of the end of the period in the preceding sentence, and those two (2) arbitrators shall have ten (10) days after appointment to select a third arbitrator and the arbitration shall be heard by the three (3) arbitrator panel. The parties shall each pay one-half of the arbitrator(s)’ fees and any other costs or fees associated with the arbitration. Each party shall bear its own legal fees and expenses.
  16. Successors and Assigns. Subject as aforesaid, the provisions of these T&Cs shall inure to the benefit of and shall be binding upon the parties hereto and their respective legal personal representatives, heirs, successors and assigns.
  17. Counterparts. Orders may be executed in any number of counterparts (including counterparts by facsimile or other electronic means) and all such counterparts taken together shall be deemed to constitute one and the same instrument. The execution and delivery of a facsimile or other electronic transmission of Orders shall constitute delivery of an executed original and shall be binding upon the person whose signature appears on the transmitted copy.
  18. Drafting. These T&Cs have been considered and negotiated between the parties in an arm’s length transaction, and shall not be construed against either party by reason of the drafting or preparation hereof.
  19. Related Third Party Provider Terms. BSM’s related third party providers require BSM to obtain Customer’s agreement to the Third Party Terms. These Third Party Terms are hereby incorporated by reference into and form part of these T&Cs and contain license and use limitations; limitations of liability; disclaimers; choice of law, arbitration and forum selection clauses; and other important terms and conditions that affect Customer’s rights and obligations. BSM accepts no responsibility or liability for the services of such providers. By signifying Customer’s agreement to these T&Cs, Customer is also signifying Customer’s agreement to the Third Party Terms.
  20. Entire Agreement. In addition to the Third Party Terms, these T&Cs and applicable Orders contains the whole agreement between the parties relating to the subject matter of herein and supersedes any and all promises, representations, warranties, undertakings or other statements whether written or oral made by or on behalf of the one party to the other of any nature whatsoever or contained in any document given by one party to the other (other than a document to be executed pursuant hereto as aforesaid). Without prejudice to the generality of the foregoing, save as expressly provided in these T&Cs or applicable Orders, BSM gives no promise, representation, warranty or undertaking to Customer, and is under no liability in respect of the transactions contemplated by, and the subject matter of, these T&Cs and applicable Orders and all other warranties expressed or implied by law, legislation or otherwise howsoever are hereby expressly excluded.

 

BY SIGNING APPLICABLE ORDERS, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND CONDITIONS, UNDERSTANDS THESE TERMS AND CONDITIONS, AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.

 

SCHEDULE A

THIRD PARTY TERMS

By placing an Order, you also accept these Third Party Terms. Our Units and Services (collectively, “Products”) contain or function in connection with various devices, software, services and other products (collectively “Third Party Products”) made or offered by companies that are not affiliated with BSM (“Third Parties”), many of which require BSM to pass through their terms to you and/or require you to accept their terms as a condition to your use of their Third Party Product(s). These Third Party Terms contain license and use limitations; limitations of liability; disclaimers; choice of law, arbitration and forum selection clauses; and other important terms and conditions that affect your rights and obligations. Some of the Third Parties reserve the right to amend their terms from time to time, as specified in the applicable Third Party Terms and by accepting such Third Party Terms as part of the Order, you agree to accept amended versions of such Third Party Terms.

  1. Wireless Terms.  

The following terms apply if you have subscribed for wireless communication services through BSM Technologies Ltd. “You” means the legal entity that you represent that has subscribed for wireless communication services to be used in connection with the services provided by BSM Technologies Ltd. (“us” or “we”). References to the “underlying carrier” refer to the provider of the wireless communication services and references to “reseller” refer to any reseller of services provided by an underlying carrier from whom we procure wireless communication services.

  1. You acknowledge that the services provided by the underlying carrier are made available only when the Products are in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of: (a) limitations to facilities or services of the underlying carrier or its vendors; (b) transmission limitations caused by atmospheric, topographical, terrain, other natural or artificial conditions or other factors or causes outside of the underlying carrier’s reasonable control; or (c) usage concentrations, capacity constraints, modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to us by the underlying carrier. Individual data transmissions may be involuntarily disconnected or delayed for a variety of reasons, including without limitation atmospheric conditions, topography, weak batteries, system overcapacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations. None of us, an underlying carrier or a reseller shall be responsible or incur any liability for the failure to provide adequate services, including any coverage gaps, or any damages resulting therefrom. You acknowledge that services may be temporarily suspended or permanently terminated upon little or no notice in the event that our agreement with the reseller or the underlying carrier is suspended or terminated or in the event of any violation of the underlying carrier’s acceptable use policy or other rules or policies. You waive any and all claims against us, the reseller and the underlying carrier for such suspension or termination.
  2. You acknowledge that: (a) it is possible for third parties to monitor wireless transmissions and data traffic over the facilities of the underlying carrier and neither privacy nor security can be guaranteed; (b) transmissions to an internet address or through the internet or other use of the internet may result in the transmission of your number or other information over the internet; (c) if you desire to secure transmission of data, you must provide for your own means of doing so; and (d) you assume full responsibility for the establishment of appropriate security measures to control access to your own respective equipment and YOU UNDERSTAND THAT WE, THE RESELLER AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT NONE OF US, THE RESELLER OR THE UNDERLYING CARRIER WILL BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
  3. You understand and acknowledge that we are bound by certain additional obligations under a written agreement with the underlying carrier and that the underlying carrier has also established rules, policies and procedures governing the provision of the wireless communication services and may, from time to time, develop and adopt new rules, policies and procedures. You agree to comply with all such obligations, rules, policies and procedures, new or otherwise, related to the T&Cs and the provision of wireless services, as we request from time to time.
  4. You will be fully responsible for all SIM Cards purchased from us. You agree not to remove such SIM Cards from the Products or use such SIM Cards in connection with any services other than the wireless communication services provided by us and the reseller and/or underlying carrier from whom such SIM Card is procured. You understand that the reseller or the underlying carrier retains ownership of the SIM Cards. You must not insert a SIM Card into any device other than the Product for which it has been designated. You must not provide, sell or transfer in any manner any SIM Card, whether separately or together with any device, to any individual or entity or program, reprogram, or tamper with any SIM Card in any manner. You will be responsible for any and all charges and other fees incurred with respect to the SIM Cards supplied to you by us, including fees for unauthorized services.
  5. Subject to the number portability rules under applicable law, you have no property right in any code or identifier (including any number, phone number, IMEI, IMSI, unique network identifier, internet protocol (IP) addresses, personal identification number or email address) issued to, assigned to or associated with you or any product used by you in connection with the services provided to us by the underlying carrier (each an “Identifier”). You acknowledge that the underlying carrier may change any identifier at such time or times as the underlying carrier considers necessary without any liability whatsoever, whether on our part or the part of the underlying carrier. You further acknowledge and agree that dynamic IP addresses may be used with respect to the products, which IP addresses will change whenever a product is disconnected from and then reconnected to the facilities of the underlying carrier or after an elapsed period of time. You and your customers acknowledge that the assignment of numbering resources is subject at all times to availability from applicable numbering authorities.
  6. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING CARRIER OR THE RESELLER OF ANY UNDERLYING CARRIER OR ANY AFFILIATES OR CONTRACTORS THEREOF, AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND THE UNDERLYING CARRIER, BETWEEN US AND ANY RESELLER OF ANY UNDERLYING CARRIER, OR BETWEEN ANY RESELLER AND ANY UNDERLYING CARRIER. YOU ALSO UNDERSTAND AND AGREE THAT ANY AGREEMENT BETWEEN US AND A RESELLER DOES NOT CREATE A CONTRACTUAL RELATIONSHIP BETWEEN US AND THE UNDERLYING CARRIER OF SUCH RESELLER. IN ADDITION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER, ANY RESELLER OF ANY UNDERLYING CARRIER OR ANY AFFILIATES OR CONTRACTORS THEREOF MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES: (a) REGARDING THE PROVIDER, SCOPE OR NATURE OF CONTENT OR SERVICES THAT WILL BE AVAILABLE BY DEFAULT TO YOU FROM THIRD PARTIES THROUGH THE SERVICES; (b) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE OR NONINFRINGEMENT) OR (c) REGARDING RESULTS TO BE OBTAINED BY YOU IN CONNECTION WITH THE USE OF THE WIRELESS COMMUNICATION SERVICES OR THAT ACCESS TO OR USE OF THE WIRELESS COMMUNICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. THE UNDERLYING CARRIER IS NOT LIABLE TO YOU FOR ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH ANY COVERAGE MAP INFORMATION, INCLUDING THE ACCURACY THEREOF.
  7. You expressly understand and agree that the liability and obligations of us or the underlying carrier to you are strictly controlled and limited by the underlying carrier’s tariff, if any, and the laws, rules and regulations of the governmental authorities which from time to time have jurisdiction.
  8. YOU ACKNOWLEDGE AND AGREE THAT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AGAINST US, AND OUR EXCLUSIVE REMEDY AGAINST AN UNDERLYING CARRIER OR A RESELLER THEREOF, AND THE TOTAL LIABILITY OF US, ANY RESELLER, THE UNDERLYING CARRIER OR ANY SUPPLIER OF SERVICES TO YOU FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES, IN CONNECTION WITH OUR AGREEMENT WITH AN UNDERLYING CARRIER OR A RESELLER THEREOF, OR ANY FAILURE OR DISRUPTION OF SERVICES, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU TO US FOR THE SERVICES DURING THE ONE (1) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. IN NO EVENT SHALL WE, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY COST, DELAY, FAILURE OR DISRUPTION OF SERVICE, LOST PROFITS (DIRECT OR INDIRECT) OR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL IN NO EVENT SHALL WE, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE FAILURE OR INCOMPATIBILITY OF EQUIPMENT UTILIZED BY YOU IN CONNECTION WITH THE SERVICES.
  9. YOU SHALL INDEMNIFY, DEFEND (IF REQUIRED BY US OR THE UNDERLYING CARRIER) AND HOLD HARMLESS US, THE RESELLER AND THE UNDERLYING CARRIER, AND THE OFFICERS, EMPLOYEES, AND AGENTS OF EACH OF THEM FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, EXPENSES, LIABILITY OR DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH ANY AGREEMENT BETWEEN US AND THE RESELLER OR THE UNDERLYING CARRIER OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES OR ANY IDENTIFIER OR THE UNLAWFUL USE OF THE WIRELESS COMMUNICATION SERVICES. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF AN ORDER. THIS PROVISION WILL SURVIVE THE TERMINATION OF ANY SERVICES PROVIDED TO YOU AND ANY RELATED AGREEMENT FOR SAME. YOU ACKNOWLEDGE THAT SUCH AGREEMENT IS ASSIGNABLE BY US.
  10. Subject to the terms of the T&Cs, unless you provide express consent or disclosure is pursuant to a legal power, all information kept by us, the reseller or the underlying carrier regarding you, other than your name, address and listed telephone number, is confidential and may not be disclosed by us, the reseller or the underlying carrier to anyone other than: (a) you; (b) the underlying carrier or the reseller; (c) a person who, in our reasonable judgement or that of the underlying carrier or the reseller, is seeking the information as your agent; (d) another telecommunications carrier, telephone company or other person providing services to a telecommunications carrier, provided the information is required for establishment of, or the efficient and cost effective provision of services and disclosure is made on a confidential basis with the information to be used only for that purpose; (e) a company involved in supplying you with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; (f) an agent retained by us, the reseller or the underlying carrier in the collection of your account, or to perform other administrative functions for us, the reseller or the underlying carrier, provided the information is required for and is to be used only for that purpose; (g) to a law enforcement agency whenever we or the underlying carrier has reasonable grounds to believe that you have knowingly supplied us or the underlying carrier with false or misleading information or you are otherwise involved in unlawful activities; or (h) a public authority or agent of a public authority, if in our reasonable judgment or that of the underlying carrier, it appears that there is imminent danger to life and property which could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by you where you provide: (i) written consent; (ii) oral confirmation by an independent third party; (iii) electronic confirmation through the use of a toll free number; (iv) electronic confirmation via the internet; (v) oral consent, where an audio recording of the consent is retained by us; or (vi) consent through other methods, as long as an objective documented record of customer consent is created by us or by an independent third party.
  11. You may only roam incidentally to your use of the services in your country of residence. The underlying carrier may, at its discretion, and to the extent permitted under its agreements with its vendors, provide certain roaming services to you in other territories that the underlying carrier has made available to The foregoing may not apply for residents of certain countries. Any such roaming shall be subject to the restrictions that may exist in the respective agreements between such persons and applicable law or regulation. The underlying carrier or its vendors may in their sole discretion suspend roaming privileges to you if they discover or suspect that the services are being used in a fraudulent manner. The underlying carrier shall be entitled from time to time and at any time, at its sole discretion, to: (a) add, modify or remove territories where roaming shall be available to you; (b) substitute roaming partners; and/or (c) pass through any applicable increases in the costs of the wireless communication services in respect of such changes. You acknowledge that not all wireless communication services are available in each territory where roaming is available and roaming in certain territories is only available for use with products using certain forms of technology. None of us, an underlying carrier or a reseller thereof makes any warranties or representations as to the availability or quality of roaming service provided by other wireless carriers, where available, and none of us, an underlying carrier or a reseller thereof shall have any liability whatsoever for any errors, outages, failures, suspension or termination of roaming services or any increases to the charges as a result of any of the foregoing. You acknowledge that not all features and/or functionalities are available in each territory where roaming is available and roaming in certain territories is only available for use with products using certain forms of technology. You understand and acknowledge that the services may not be used for devices to be permanently deployed outside your country of residence.
  12. As a condition of your use of any HSPA wireless communication services provided by Telus or any of its affiliates, you represent, warrant and covenant that: (a) your billing address is and will remain in Canada; (b) your billing address is not outside of Telus’ wireless service area in or around Winnipeg in the province of Manitoba (as documented at http://www.telusmobility.com/en/MB/hspa/canada3gmaps.shtml as such webpage may change or move from time to time); (c) you are not a wireless operating company and do not, directly or indirectly, own all or part of a wireless operating company, which includes, but is not limited to, any person or entity in the business of operating and offering PCS, cellular communication, iDen, GSM, CDMA, HSPA, LTE, WiMax or satellite networks; and (d) you are not person or entity that, in the reasonable opinion of Telus, will, directly or indirectly, resell such wireless communication services.
  13. The underlying carrier collects information about the approximate location of equipment in relation to its cell towers and the Global Positioning System (“GPS”). The underlying carrier uses that information, as well as other usage and performance information also obtained from its network and the equipment, to provide the services and to maintain and improve its network and the quality of the wireless experience. The underlying carrier may also use location information to create aggregate data from which your personally identifiable information has been removed or obscured. Such aggregate data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring. You understand and agree that the underlying carrier may collect and use location information from your
  14. You: (a) are fully responsible for any unauthorized collection, access, disclosure, and use (other than by us or the underlying carrier) of all information relating to your use of the products; (b) will implement administrative, physical, and technical safeguards to protect this information; (c) will maintain an up-to-date privacy policy that fully explains (i) what information you collect, (ii) how you use that information, (iii) how you secure that information, and (iv) to whom you disclose that information; and (d) will comply with all applicable laws, including without limitation data security, privacy, data protection, marketing, and consumer protection laws, including without limitation, any obligation regarding consent and opt-in/ opt-out We make no guarantees or warranties that our services which include specific solutions, including, by way of example and not limitation, medical/health alert solutions, burglar/security alarm solutions or people tracking solutions, will detect, avert or prevent occurrences of the type for which they are designed.
  15. We may terminate the provision of wireless communication services to you without notice or any further obligation or liability if the agreement with our underlying carrier governing the provision thereof expires or terminates.
  16. If our agreement with an underlying carrier or a reseller thereof is terminated, you may be able to continue the provision of services, provided however that such continued provision may be subject to such underlying carrier’s or reseller’s then current terms and conditions.
  17. The underlying carrier and/or its reseller is a third party beneficiary of these terms, and may take any equitable or legal action required to enforce same.
  18. We may change, modify or amend these terms at any time in accordance with the terms of the T&Cs, provided however the notice period applicable will be 15 days.
  19. Data Storage

We use more than one provider for data storage services. Currently, we use a third party colocation facility in Canada to house our data storage servers, and we use Google Cloud Platform as our primary cloud data storage provider. As such, your data will be stored either on our servers at the Canadian colocation facilities or on Google’s servers in various locations. The following terms are applicable to data storage services. If you have any questions about where your individual vehicle data is stored, please contact us.

  1. Internet Bandwidth Services – Acceptable Use Policy

With respect to any Internet Bandwidth Services, you shall not use and shall not permit such Internet Bandwidth Services or any related Services to be used, including any use by your employees, agents, representatives, clients, contractors, endusers and any third parties who use or access such Services (collectively, “Users”), in any manner which: (i) could cause loss or degradation of our service or our service providers’ service to any of other of our or their customers or Internet users; (ii) could compromise the security or integrity of others’ computer systems or software; (iii) creates, collects, transmits, stores or exchanges any material in violation of any applicable laws; or (iv) would be reasonably expected to constitute grounds for our or our service providers’ exposure to civil or criminal liability.

The acts and omissions of Users shall be deemed to be your acts and omissions for the purposes hereof (including for purposes of liability) and you shall be held directly accountable for any actual or attempted contravention of this Acceptable Use Policy (“AUP”) by any User. If we or our service providers detect or becomes aware of any use of any Internet Bandwidth Services in contravention of this AUP, we and our service providers will favour responses that address the breach while minimizing any disruption of the Internet Bandwidth Services or other Services. For example, if the contravention is ongoing and the contravention puts the ongoing operation of our or our service providers’ data centres or the provision of Services to our or our service providers’ other customers in jeopardy, or exposes us or our service providers to civil or criminal liability, we or our service providers may suspend the Internet Bandwidth Services and any related Services and inform you of the suspension. If the contravention does not put the ongoing operation of us or our service providers’ data centres or the provision of Services to us or our service providers’ other customers in jeopardy or expose us or our service providers to civil or criminal liability, we will inform you of the contravention. Once informed of any such contravention, you will take reasonable steps to promptly stop any ongoing contravention and mitigate the effect of the contravention. We and our service providers reserve the right to change this AUP from time to time and will notify you by posting a revised copy of the AUP at our website or by such other method of communication as we or our service providers determine appropriate.

  1. Google Cloud Platform Terms

Consent. You consent to the transmission, storage, use and processing of your data by us and/or Google according to these Third Party Terms using Google’s Cloud Platform. Additionally, you consent to Google processing and storing your data anywhere Google or its agents and subprocessors maintain facilities for which we have contracted, except if you are located in Europe, in which case we have made arrangements to have your data stored on Google servers in Europe. By using the services, you consent to this processing and storage of your data. Under these Third Party Terms, Google is merely a data processor.

Google Cloud Platform Acceptable Use Policy. You agree to be bound by the Google Cloud Platform Acceptable Use Policy, available at: https://cloud.google.com/terms/aup . Violation of the Google Cloud Platform Acceptable Use Policy may result in immediate removal (and loss) of your data.

U.S. Government Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.

  1. Posted Speed Limit Data – End-User Terms

If you are using posted speed limit data provided by HERE, the following terms apply to you.

Copyright. The posted speed limit data (“Speed Data”) is provided for your personal, internal use only and not for resale. It is protected by copyright, and is subject to the following terms and conditions which are agreed to by you, on the one hand, and BSM Technologies Ltd. (“BSM”, “we” or “us”) and our licensors (including their licensors and suppliers) on the other hand.

© 20XX HERE. Copyright notices for specific countries can be found at: https://legal.here.com/terms/generalcontentsupplier/termsandnotices\. All rights reserved.

Internal Business Use Only. You agree to use this Speed Data together with our Products and services for the internal business purposes for which you were licensed, and not for service bureau, timesharing or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy this Speed Data only as necessary for your internal business use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Speed Data in any way. You agree not to otherwise reproduce, copy, modify, decompile, disassemble, create any derivative works of, or reverse engineer any portion of this Speed Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws.

Restrictions. Except where you have been specifically licensed to do so by us, and without limiting the preceding paragraph, you may not (a) use this Speed Data with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, capable of vehicle navigation, positioning, dispatch, real time route guidance or similar applications; or (b) with or in communication with any positioning devices or any mobile or wireless connected electronic or computer devices, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs.

HERE End User Terms. Except for use as part of the BSM service, where you have been specifically licensed by BSM, you agree that you are bound by the HERE End User Terms, available at: https://legal.here.com/en/terms/eula/us.

  1. MAPPING TERMS
  2. Google Maps Terms

If you are using map data provided by Google, the following terms apply to you.

Google Universal Terms of Service. You agree to be bound by Google’s Universal Terms of Service, available at: https://www.google.com/intl/ALL/policies/terms/.

Google Maps Terms. You agree to be bound by the Google Maps Terms, available at: https://www.google.com/help/terms_maps.html.

Google Legal Notices. You agree to be bound by Google’s Legal Notices, available at: http://www.google.com/intl/enus/help/legalnotices_maps.html.

Google Maps Acceptable Use Policy. You agree to be bound by the Google Maps Acceptable Use Policy, available at: https://www.google.com/work/earthmaps/legal/universal_aup.html.

License to Google under Privacy Policy. You agree to grant Google a license to use your data to enable Google to provide and improve the map service and treat your data in accordance with Google’s Privacy Policy, available at: http://www.google.com/privacy/privacypolicy.html.

Export Laws. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Prohibited Territory . You agree to refrain from using Google maps in the “Prohibited Territory”, defined by Google as the countries listed at: http://www.google.com/enterprise/earthmaps/legal/us/maps_integrator_territory.html.

Consent. You agree to consent and to obtain the consent of every driver and other person whose location can be determined with BSM and Google services to BSM obtaining and caching location data, noting that such consent is revocable and that without such consent, services either cannot be provided or cannot be provided with the same functionality.

US Government Users. The Google Services were developed solely at private expense and is commercial computer software and related documentation within the meaning of the applicable U.S. civilian and military Federal acquisition regulations and any supplements thereto. If the user of the Services is an agency, department, employee, or other entity of the United States Government, under FAR 12.212 and DFARS 227.7202, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, including technical data or manuals, is governed by the terms and conditions contained in Google’s standard commercial license agreement.

Google does not accept government flow down provisions, including but not limited to, the United States Federal Acquisition Regulations (FARs) and its supplements, Defense FARs or NASA FARs. Government flow down provisions, if any, will be addressed with supplementary documentation and require Google’s signed acceptance of any supplementary documentation.

 

The Universal Terms section entitled “Business uses of our Services” is replaced in its entirety with the following:

“If you are using our Services on behalf of a government entity, that entity accepts these terms. Solely to the extent permitted by applicable law, regulation, or privileges and immunities, that entity will hold harmless and indemnify Google and its affiliates, officers, agents and employees from any claim, action or proceedings arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, judgements, litigation costs and legal fees.”

For city or state government entities in the United States and European Union, the Universal Terms section regarding governing law and venue will not apply.

For United States federal government entities, the Universal Terms section regarding governing law and venue is replaced in its entirety with the following:

“This Agreement will be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. Solely to the extent permitted by federal law (A) the laws of the State of California (excluding California’s conflict of laws rules) will apply in the absence of applicable federal law; and (B) any dispute arising out of or relating to this Agreement or the Services will be litigated exclusively in the federal courts of Santa Clara county, California, and the parties consent to personal jurisdiction in those courts.”

All access of use of Google Maps/Google Earth by or for the United States federal government is subject to the “U.S. Government Restricted Rights” section in Legal Notices; set out here for convenience:

  1. This computer software is submitted with restricted rights under the Google Terms of Service, the Google Maps/Google Earth Additional Terms, and the Google Maps/Google Earth APIs Terms of Service. It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice or as otherwise expressly stated in the contract.
  2. This computer software may be:
  3. Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred;
  4. Used or copied for use with a backup computer if any computer for which it was acquired is inoperative;
  5. Reproduced for safekeeping (archives) or backup purposes;
  6. Modified, adapted or combined with other computer software, provided that the modified, adapted or combined portions of the derivative software incorporating any of the delivered, restricted computer software will be subject to the same restricted rights;
  7. Disclosed to and reproduced for use by support service Contractors or their subcontractors in accordance with paragraphs (B)(a) through (d) of this notice; and
  8. Used or copied for use with a replacement computer.
  9. Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (B) of this notice.
  10. Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the contract.
  11. This notice will be marked on any reproduction of this computer software, in whole or in part.
  12. HERE Maps Terms

If you are using map data provided by HERE, the following terms apply to you.

HERE End-User Terms. You understand and acknowledge that map and related data or services provided by or through HERE (the “HERE Location Platform Services”), is subject to HERE’s end-user terms (designated to apply to either business or consumer end-users, as applicable), privacy policy and other end-user communications provided by HERE or as set forth at, or linked through, http://here.com/services/terms and “report and issue” links for purposes of reporting e.g. privacy concerns related to images (collectively, “End User Terms”), and you confirm that you accept and agree to such End User Terms.

  1. Mapbox Maps Terms

If you are using map data from Mapbox, the following terms apply to you.

License to Use Your Data. Limited to the purpose of hosting your content so that mapping services can be provided, you grant Mapbox a nonexclusive, worldwide, royaltyfree, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works, and store such content and to allow others to do so. This right and license enables Mapbox to host and mirror your content on its distributed platform. You warrant, represent, and agree that you have the right to grant Mapbox these rights.

US Government. If you are a US Government User there are modified/additional terms that apply to you; available at: https://www.mapbox.com/usgtos/.

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