Terms and Conditions

Terms and Conditions

Element Fleet Management Corp. and its affiliated entities ("Element") provides Software as a Service platform and simulation services for planning, managing and optimizing vehicle fleets, as well as digital interfaces for users including mobile, web-based and APIs (together, the "Solution"). The following terms and conditions ("Terms") govern your ("Your" or correlatively, "You") access and use of the Solution, related services and any proprietary technology of Element incorporated therein.

1. Solution

Subject to the terms and conditions herein, Element shall provide You with access to the Solution on a non-exclusive, limited basis. You may use the Solution solely for Your own commercial purposes. You shall not be entitled to any other software (including any other executable or source code) from Element. No licenses or rights are granted herein by estoppel or by implication. You represent that You have all necessary authority to agree to these Terms and that the fulfillment of the requirements under these Terms and access to the Solution will not conflict with any legal, regulatory or contractual obligations to which You are bound.

2. Restrictions

Except as set forth expressly herein, You shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution, (b) modify the Solution, (c) sublicense, sell, distribute or provide the Solution to any third party, (d) bypass any security measure or access control measure of the Solution, or (e) copy or imitate (or attempt to copy or imitate) the Solution, or any part of it, including, without limitation, business secrets, processes, patents, ideas, innovations, techniques, technologies (actual or planned), strategies, formula, data, know-how, design, discoveries, models, and software of Element or that are included in or embodied by the Solution. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, You shall inform Element in writing in each instance prior to engaging in the activities set forth above.

3. Intellectual Property

3.1. Element has all right, title and interest in the Solution and all parts thereof, including all enhancements, improvements and modifications thereof ("Element Property"). Element does not request Your feedback regarding the Element Property. Notwithstanding the foregoing, if You provides Element with any feedback regarding the Element Property, Element may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.

3.2. Any content, such as logos or other branding material, that is provided by You to be used as part of the Solution ("Materials") shall solely be Your property. You hereby grant Element the rights to use, copy, modify and create derivative works of any Materials for the provision of the Solution or as otherwise permitted under the terms herein.

4. Confidentiality

Either party (a "Disclosing Party") may disclose to the other party (a "Receiving Party") certain confidential information regarding its technology and business ("Confidential Information"). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Solution. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information or the Solution, (b) was lawfully received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees and contractors with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of the Solution shall be deemed the Confidential Information of Element.

5. Use of Web-based or Mobile Interfaces

If You are using any web-based or mobile interface that Element provides as part of the Solution, You are solely responsible for Your configuration and use of such interface and for ensuring that Your use and offering of service is compliant with all applicable laws and does not infringe on any third-party rights.

6. Warranties; Disclaimer

Each party warrants that it has full corporate power and authority to accept this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, delivery and performance of these Terms by it have been taken. You warrant that (i) you are authorized to provide Element with access to the Materials and Data (as defined below) for purposes contemplated hereunder; (ii) that such Materials and Data do not infringe upon any rights of any third party and Element's use thereof in accordance with the terms of these Terms does not and will not infringe upon any third party's right; and (iii) You shall at all times use the Services in compliance with applicable law, including all applicable export laws and regulations to ensure that neither the Services nor any related materials are exported in violation of such laws and regulations. To the extent that You provide any personal data of Your employees or contractors, You represent that You have provided all necessary notices and have and shall maintain throughout the Term all necessary rights and legal bases required under applicable law to provide such personal data to Element in order to allow it to provide the Services hereunder. Element represents and warrants that the Solution shall comply with agreed specifications in all material respects and that, to its knowledge, the Solution does not infringe the intellectual property rights of any third party. SUBJECT TO THE FOREGOING, THE SOLUTION IS PROVIDED "AS IS". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELEMENT DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

7. Support

During the term of these Terms, and provided that You have made timely payment of amounts due to Element, Element shall provide support and maintenance for the Solution as it may customarily provide to users.

8. Privacy and Security

8.1. Any data and information provided by You to Element (including Personal Data, as such term is defined in the Privacy Notice) ("Data") will be handled and processed by Element through the Solution in accordance with its Privacy Notice. You hereby represent and warrant that the provision of all Data to Element for processing on You behalf as set forth in these Terms is in accordance with applicable law. Element may use Data solely for the provision of services hereunder to You, for the general improvement of Element's technology, algorithms, and service, and for statistical information and analysis. Any information used for improving Element's Solution will be aggregated, anonymous and statistical information that does not identify any specific individual or user.

8.2. Element takes commercially reasonable measures and uses industry-standard security methods to protect the information it collects. Element will process, retain, disclose and transfer Data as required by applicable law and/or in compliance with a request from law enforcement authorities. Element may use subcontractors, service providers and processors, located in any jurisdiction, to process Data on its behalf.

9. Indemnification

9.1. Element Indemnification Obligations. Element shall defend, indemnify and hold You harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys' legal fees) which You may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against You arising from any claims that the Solution infringes the intellectual property rights of a third party. Element shall not have any liability to the extent any claim is the result of (a) Element's compliance with specifications provided by You, (b) the combination of the Solution with other hardware, software or services not provided by Element, or (c) Your actions, omissions or breach of these Terms. If the Solution shall be the subject of an indemnifiable claim, or Element reasonably believes that the Solution shall be the subject of an indemnifiable claim, Element may terminate these Terms with written notice if modification of the Solution to be non-infringing or compliant with applicable law is not reasonably practical.

9.2. Indemnification Obligations. You shall defend and indemnify Element (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys' fees) which Element may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising, arising from Your breach of Your obligations hereunder or breach of applicable law, including provision by You of any data not in compliance with applicable law.

9.3. Procedure. The obligations of either party to provide indemnification under these Terms will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party's expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.

10. LIMITATION OF LIABILITY

‍IN NO EVENT SHALL ELEMENT (OR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS OR EMPLOYEES) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE ELEMENT SOFTWARE OR SOLUTION. THE ENTIRE LIABILITY OF ELEMENT (OR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS OR EMPLOYEES) HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT THAT HAS ACTUALLY PAID TO ELEMENT BY YOU IN RESPECT OF THE SOLUTION. ELEMENT SHALL HAVE NO LIABILITY FOR ANY ACTIONS, OMISSIONS OR NEGLIGENCE OF ANY DRIVER OR OTHER STAFF MEMBER OF YOUR OPERATION OR FOR ANY DAMAGE OR INJURY TO ANY VEHICLE OR ITS OCCUPANTS.

11. Term and Termination

The term of these Terms shall commence on the date You accept them and shall continue until such time as Element terminates access to the Solution. Upon any such termination, You shall cease all use of the Solution. Sections 2, 3, 6, 8, 9, 10, and 13 of these Terms shall survive any termination.

12. Publicity

Element may disclose that You are using the Solution, including by displaying Your name and logo on Element's website and other marketing materials.

13. Miscellaneous

These Terms constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. These Terms may be modified or amended by Element. If any part of these Terms shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms. Element may assign its rights or obligations under these Terms to an affiliated company or to a purchaser of all or substantially all of Element's assets or share capital, or to any company succeeding to Element's business. You shall not assign any of its rights or obligations hereunder without Element's prior written consent. Assignments in violation of the foregoing shall be void. These Terms shall be governed by the laws of the State of Delaware, United States, and any dispute arising out of or in connection with these Terms is hereby submitted to the sole and exclusive jurisdiction of the competent state or federal courts in the State of Delaware. Notwithstanding the foregoing, either party may seek an interim injunction or other interim or provisional equitable relief in any court of competent jurisdiction.