KeepTruckin Dashcam Addendum
This Dashcam Addendum ("Addendum") is entered into as of the Addendum Effective Date by and between Keep Truckin, Inc., a Delaware corporation, with its principal place of business at 370 Townsend St., San Francisco, CA 94107 ("KeepTruckin") and the customer identified in the corresponding Order Form referencing this Addendum ("Customer"). This Addendum supplements and modifies the Terms of Service or other agreement referenced in Customer's Order Form ("Terms") and is incorporated by reference to the Terms. All terms not defined in this Addendum will have the meaning set forth in the Terms.
1. Description of Additional Services
1.1. Additional Services. The "Hardware" will also include KeepTruckin's dashboard camera and other hardware provided pursuant to an Order Form ("Dashcam Hardware"). The "Software" will also include the dashboard camera fleet management software, any software embedded in the Dashcam Hardware, and any other software provided to Customer pursuant to an Order Form ("Dashcam Software"). The "Dashcam Services" means provision of the Dashcam Hardware with the Dashcam Software on a usage or services basis where Customer does not take title to Dashcam Hardware. For the avoidance of doubt, the "Services" will include the Dashcam Hardware, Dashcam Software, and the Dashcam Services.
2. Customer Obligations
2.1. Customer Responsibility. Customer is responsible for obtaining consents and complying with any laws necessary to allow the operation of the Services, collection of Your Data, and permission for KeepTruckin to process, store, and transfer Your Data.
2.2. Restrictions. Customer will not (and will not allow any Software end user, Hardware end user, or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of any part of the Services, (b) modify or create derivative works based on the Services, (c) remove, alter, or obscure any intellectual property or proprietary rights notices incorporated in or accompanying any portion of the Services, (d) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, or (e) use the Services to create any other product. Customer will not sublicense, assign, or transfer the license to the Software contained within the Hardware without KeepTruckin's written consent.
2.3. Suspension. KeepTruckin may suspend Customer's right to use the Services if (a) Customer or end user's use of the Services poses a security risk to the Services, may violate the use policies set forth in Section 11 of the Terms, or may adversely affect the Services, KeepTruckin's systems and infrastructure, or a third party, (b) Customer or end user's use of the Services could subject KeepTruckin to liability, or (c) Customer is in breach of these Terms. KeepTruckin will use commercially reasonable efforts to provide prompt notice of a suspension.
2.4. Non-KeepTruckin Products.. If Customer uses any Non-KeepTruckin Product: (a) KeepTruckin will not be responsible for any act or omission of the Non-KeepTruckin Product, including the Non-KeepTruckin Product's access to or use of Your Data; and (b) KeepTruckin does not warrant or support any Non-KeepTruckin Product. Customer is responsible for complying with licenses for Non-KeepTruckin Products and paying fees for Non-KeepTruckin Products.
3. Intellectual Property Rights
3.1. Reservation of Rights. Except for the limited licenses granted to Customer in the Terms, KeepTruckin and its licensors own and reserve all right, title, and interest in and to the Services, including the Dashcam Hardware, Dashcam Software, and Dashcam Services.
3.2. No Encumbrances. Customer agrees to keep all Dashcam Hardware provided as part of the Dashcam Services free and clear of all claims, liens, and encumbrances.
3.3. Your Data. Your Data will also include video content collected and transmitted by the Dashcam Hardware. As between KeepTruckin and Customer, Customer shall own Your Data. Customer grants KeepTruckin and its contractors a worldwide, non-exclusive, right to use, copy, distribute, create derivative works based on, display, and perform Your Data to provide, analyze, support, operate, and improve the Services and develop new products and services.
3.4. KeepTruckin Data. KeepTruckin may use and distribute the KeepTruckin Data (i) to provide, analyze, operate, and improve the Services and develop new products and services, (ii) to create and distribute reports and materials about the Services, and (iii) for any other lawful purpose. "KeepTruckin Data" means usage data, statistics, aggregate data, and de-identified data derived from Your Data or Driver Data so that such data does not identify a person. KeepTruckin owns and reserves all right, title, and interest in and to the KeepTruckin Data. KeepTruckin will not indicate to any third party that the KeepTruckin Data was provided by, obtained from, or associated with the Customer or Customer's drivers. These rights survive termination of the Terms.
4. Orders; Delivery; Installation; Payment
4.1. Orders and Acceptance. Customer must initiate all purchases under this Agreement by submitting an Order Form, which are subject to KeepTruckin's acceptance. Upon acceptance of Customer's Order Form by KeepTruckin, Customer's Order Forms will be binding, non-cancelable, and non-refundable unless otherwise agreed to by the parties in writing.
4.2. Delivery, Title, and Risk of Loss. All Dashcam Hardware shall be shipped to Customer FCA at KeepTruckin's designated shipping place. With respect to Dashcam Hardware purchased under these Terms, title (except with respect to the Software) shall pass to Customer upon KeepTruckin's delivery to the carrier. In the event that KeepTruckin makes Dashcam Hardware available to Customer as part of the Dashcam Services, title to the Dashcam Hardware shall remain at all times with KeepTruckin. Customer is responsible for all freight, insurance, and other shipping related expenses, including, but not limited to, taxes and duties. Risk of loss for Dashcam Hardware passes to Customer upon KeepTruckin's delivery to the carrier.
4.3. Payment. All fees paid are non-refundable and not subject to set-off. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to these Terms and are void. If Customer is purchasing Services from a reseller, any terms and conditions between Customer and the reseller that conflict with these Terms are void.
4.4. Termination. If Customer terminates its Services or Account prior to the end of the term set forth on an Order Form, KeepTruckin shall have the right to immediately charge the payment method associated with Customer's account for the remaining balance due with respect to the agreed upon term of the Order Form.
5. Limited Warranties
5.1. Hardware Warranty. The Dashcam Hardware purchased from KeepTruckin is subject to the Hardware Limited Warranty available at keeptruckin.com/warranty and any warranty disclaimers therein. If there is a conflict between this Addendum and the Hardware Limited Warranty, the terms of this Addendum will control.
5.2. Dashcam Hardware Returns. To make a return of Dashcam Hardware under the Hardware Limited Warranty, Customer must first contact KeepTruckin support and assist in troubleshooting to restore the Dashcam Hardware to service. Upon a failure determination by KeepTruckin support, provided Customer requests a Return Merchandise Authorization number (RMA) within the applicable warranty period, KeepTruckin will provide Customer an RMA number and a prepaid return label.
6. Warranty Disclaimer
6.1. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THESE TERMS AND THE LIMITED HARDWARE WARRANTY, KEEPTRUCKIN AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES AND ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT, (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (III) THAT THE SERVICES AND ANY OUTPUT FROM THE SERVICES ARE ERROR-FREE OR UNINTERRUPTED. THE SERVICES AND OUTPUT FROM THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." CUSTOMER IS SOLELY RESPONSIBLE FOR (AND KEEPTRUCKIN DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER'S INSTALLATION OF THE HARDWARE, CUSTOMER'S VEHICLES, AND INTERNET CONNECTIVITY.
6.2. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DASHCAM HARDWARE, DASHCAM SOFTWARE, AND DASHCAM SERVICES ARE A DRIVER AID ONLY. THEY ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER'S DRIVERS SHOULD NEVER WAIT FOR THE DASHCAM HARDWARE, DASHCAM SOFTWARE, OR DASHCAM SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT. FAILURE OR A DRIVER TO TAKE FULL RESPONSIBILITY FOR THE OPERATION OF A VEHICLE AT ALL TIMES CAN RESULT IN SERIOUS PERSONAL INJURY OR PROPERTY DAMAGE.
6.3. BETA PRODUCTS. DESPITE ANYTHING TO THE CONTRARY IN THE TERMS, CUSTOMER ACKNOWLEDGES THAT (A) CUSTOMER HAS THE SOLE DISCRETION WHETHER TO USE ANY BETA PRODUCTS, (B) BETA PRODUCTS MAY NOT BE SUPPORTED AND MAY BE CHANGED AT ANY TIME, INCLUDING IN A MANNER THAT REDUCES FUNCTIONALITY, (C) BETA PRODUCTS MAY NOT BE AVAILABLE OR RELIABLE, AND (D) KEEPTRUCKIN PROVIDES ITS BETA PRODUCTS "AS-IS" AND WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA PRODUCTS. "BETA PRODUCTS" MEANS PRODUCTS, SERVICES, OR SOFTWARE FEATURES AVAILABLE TO CUSTOMER ON A TRIAL, BETA, EARLY ACCESS, OR SIMILAR BASIS.
Customer will indemnify, defend and hold harmless KeepTruckin and its officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with any acts or omissions of Customer's drivers or other end users of its Services. KeepTruckin reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If KeepTruckin decides to control or conduct any such defense, Customer agrees to cooperate with KeepTruckin's requests in assisting KeepTruckin's defense of such matters.
8. Limitation of Liability
8.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL KEEPTRUCKIN'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY KEEPTRUCKIN FROM CUSTOMER FOR THE USE OF SERVICES DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KEEPTRUCKIN AND CUSTOMER.
8.2. TO THE FULLEST EXTENT PERMITTED BY LAW, KEEPTRUCKIN AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS DISCLAIM AND WILL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER KEEPTRUCKIN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.1. Entire Agreement. The Addendum and the Order Form referencing this Addendum are hereby incorporated into the Terms by reference. The Terms, the Order Form referencing this Addendum, and the Addendum constitute the entire agreement between KeepTruckin and Customer with respect to the subject matter of the Terms and supersedes any prior or contemporaneous agreements whether written or oral. If there is a conflict between the documents that make up the Terms, the documents will control in the following order: Order Form, the Addendum, the Terms.
9.2. Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.
9.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties.
9.4. Export Compliance. The Services may be subject to export restriction laws in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer's use of the Services. Customer will not permit access of the Services from or allow export of the Hardware to a U.S. embargoed country.
10.1. "Addendum Effective Date" means the date set forth on Customer's first Order Form for Dashcam Hardware and/or Dashcam Software.
10.2. "FCA" means Free Carrier as further described in the Incoterms published by the International Chamber of Commerce.
10.3. "Order Form" means the ordering document or webpage for the Services.