ENTERPRISE TECHNOLOGY AND SOFTWARE SERVICES AGREEMENT
between
TELOGIS, INC.[COMPANY]
and
[BUYER’S COMPANY NAME]
This Enterprise Technology and Software Services Agreement (this “Agreement”) is made effective as of ___, 20__(the “Effective Date”) by and between Telogis, Inc.[COMPANY], a Delaware corporation, having a principal place of business at [ADDRESS]20 Enterprise, Suite 100, Aliso Viejo, CA 92656, USA (“Telogis[COMPANY]”) and thecustomer identified below (“Buyer”).
Customer Legal Name:Customer Address:
Customer Place of Incorporation:
Primary Contact Name:
Primary Contact Title:
Primary Contact Phone:
Primary Contact Email:
Primary Contact Fax:
1.General: The terms and conditions contained in this Agreement, including the click-through end user agreements and exhibit(s) referenced in or attached hereto,apply to Telogis[COMPANY]’ssale, lease or provision of anyequipment, accessory,or service listed in Exhibit Ato Buyer pursuant to one or more purchase order(s) that reference this Agreement. Additional equipment, accessories, or services may be added or deleted from the list provided in Exhibit A by written mutual agreement of the parties. Any software service provided under this Agreement is referred to herein as a “Software Service.”Any equipment or accessory provided under this Agreement for use with any Software Service is referred to herein as a “Product.” Any professional service related to any Product or Software Service provided under this Agreement is referred to herein as a “Professional Service”.
2.Purchase Order: Buyer must submit a purchase order in the form attached hereto as Exhibit Bor another form approved by Contracts and Licensing Department of Telogis[COMPANY](a “Purchase Order”) in order to purchase or lease any Product, Software Service, or Professional Service under this Agreement from Telogis[COMPANY]. Buyer commits to purchasing and installingat least the number of units of the Product and the Software Service specified in Exhibit A as the minimum purchase quantity within two (2) weeks after the Effective Date.
3.Payment Terms:
3.1.Product Fees: Buyer shall pay for the Products in the amounts set forth in Exhibit A within thirty (30) days after the date of the invoice.
3.2.Software Service Fees: Buyer will pay for the Software Services in the amounts set forth in Exhibit A. Fees for the Software Services will start to accrue according to Exhibit C based on the Software Services purchased. Payments for the Software Services are due on amonthly basis, and are duein advance for each month in which the Software Services are provided. Buyer will receive the first invoice for the Software Services on or about the first day of the following month in which the initial payment for the Software Services accrue. Thereafter, Buyer will receive an invoice for the Software Services approximately twenty (20) days before the start of each month. Payments for the Software Servicesare due within twenty (20) days after the date of the invoice. Invoices are based on the number of licensed units as described in Exhibit C. Invoices are adjusted in the following month to the extent additional licensed units were addedduring the applicable month. For example, if Buyer has twenty (20) licensed unitsin January, then the February invoice will bill Buyer for twenty (20) licensed units. If Buyerorders ten (10) additional licensed units on February 2nd, prior to the issuance of Telogis[COMPANY]’s March invoice, then Telogis[COMPANY]’s March invoice will bill Buyer for thirty (30) licensed units for March, and include a true up for February for an additional ten (10) licensed units. If Buyer adds ten (10) additional licensed units on February 25th, after the issuance of the March invoice, then Buyer’s April invoice will have another true up to add ten (10) additional licensed units for February and March.
3.3.Professional Service Fees: Buyer will pay for the Professional Services in the amounts set forth in any applicable statement(s) of work within fifteen (15) days after the date of the invoice.
3.4 Dispute: Buyer must notify Telogis[COMPANY] of any payment dispute within 60 days after the date of the invoice.
4.Taxes: Prices provided in each Purchase Orderor Statement of Work exclude any sales, use, excise, import, export, value added, universal service charge, withholding or other similar taxes or governmental charges, including any related penalties and interests however designated, with respect to the sale or lease of the Products and provision of the Software Services or Professional Services, other than taxes based on net income of Telogis[COMPANY] (collectively "Taxes"). Buyer will pay any Taxes imposed on the sale, lease or provision of the Products,Software Services, and Professional Services by Telogis[COMPANY] to Buyer under this Agreement.Buyer will reimburse, indemnify, and hold harmless Telogis[COMPANY] for all liabilities for Taxes.
5.Late Fees: In the event Buyer fails to make any payments when due under this Agreement, Buyer may be charged a late fee on any amount that is not paid when due at a rate of one and one-half percent (1.5%)per month or the maximum rate allowed by applicable law, whichever is lower, calculated from the due date until the date paid. Telogis[COMPANY]will also be entitled to recover from Buyer any out-of-pocket expenses Telogis[COMPANY]incurs in collecting payments due. These expenses may include, without limitation, any bank charges for returned checks,collection agency fees, and legal expenses, including court costs and attorney’s fees. If a payment is late and not cured within ten (10) days after notice, Telogis[COMPANY]may decline to make further shipments of Products,and may suspend theSoftware Services and/or the Professional Servicesuntil all amounts due and late fees are paid in full without in any way affecting its rights under this Agreement. Telogis[COMPANY] may enforce the foregoing rights without waiving any and all other rights or remedies it may have for any breach of this Agreement.
6.Assignment: Neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party, except that no consent shall be required for an assignment to an affiliate or an assignment made in connection with the sale of all or substantially all of the party’s business related to this Agreement, whether by sale of assets, sale of stock, merger or otherwise. Any attempted assignment in violation of the foregoing is null and void. This Agreement will be binding upon and inure to the benefit of any permitted assigns and successors.
7.Term: This Agreement includes an auto-renewal provision. The initial term of the Software Service portion of this Agreement will be five (5) years beginning on the first full month in which the number of LICENSED UNITSACTIVATED equals or exceedS the MINIMUM quantity Required to be ordered pursuant tothis Agreement (the “Initial Software Service Term”). To the extent Buyer purchases additional units pursuant to one or more subsequent PURCHASE Order(S), the Initial Software Service Term with respect to such additional units remains the same as the Initial Software Service Term for the units purchased pursuant to the first Order Form. notwithstanding the foregoing, if buyer leases products, then the software service term will be on a purchase order by purchase order basis, and each purchase order shall have an initial term of five (5) years beginning on the first full month in which the number of licensed units activated equals or exceed the quantity ordered pursuant to the purchase order. At the end of the Initial Software Service Term, the Software Service will automatically renew for an additional three (3) year term (the “Renewal Software Service Term”) with respect to all Active LICENSED UNITSin existence at the time of the renewal, unless notice is given in writing at least SIXTY(60) days prior to the end of the Initial Software Service Term by either Telogis[COMPANY] or Buyer of intent to cancel or modify the terms of the Software Services. The Initial Software Service Term and the Renewal Software Service Term are referred to herein collectively as the “Software Service Term”. telogis[COMPANY] reserves the right to change the pricing for the software service prior to the start of any renewal software service term with sixty (60) days prior written notice. any such price change and any other price change mutually agreed to by the parties in writing shall take effect the first day of the first full calendar month after the start of such renewal software service term or execution of written agreement (as applicable).
8.Software and Map Data License: The Software Service is provided to Buyer under a “Software as a Service” model through an access restricted website and related databases, servers, and software (collectively, the “Service Website” with the software residing on the server referred to herein as the “Server Software”) to be used in the permitted territory or territories identified in Exhibit A (“Permitted Territory”). For certain Software Services, Telogis[COMPANY]may provide Buyer software to be installed on a permitted device or computer system (the “Remote Software”) to access the Service Website or to use certain additional features of the Software Service. Subject to the terms and conditions of this Agreement, Telogis[COMPANY]hereby grants to Buyer a non-transferable, non-exclusive, limited right within the Permitted Territory to:(i) access and use the Server Software through the Service Website for internal purposes only, (ii) download one copy of the Remote Software to each permitted device or computer system, (iii) install and use, for internal purposes only, the Remote Software on each permitteddevice or computer system, and (iv) view any map data and satellite imagery provided as part of the Software Services (collectively, the “Map Data”). To the extent any vehicles, assets, mobile objects, or persons are tracked, routed, or managed using any Software Service, those vehicles, assets, mobile objects, or persons must be operating within the Permitted Territory only when they are tracked, routed, or managed. Use of Map Data is pursuant to additional terms and conditions of the applicable click-through end user license agreements, incorporated herein by reference (“End User Terms”) and made available to Buyer at Use of the Remote Software is subject to additional terms and conditions of the applicable click-through end user license agreements incorporated herein by reference and made available when the Remote Software is downloaded. Buyer’s employees, agents, and contractors (who are not competitors of Telogis[COMPANY]) may access the Service Website and Remote Software for Buyer’s business purposes. Buyer’s permitted customers may access certain features of the Service Website and Remote Software, provided that Buyer has notified Telogis[COMPANY]. Buyer receives no title or ownership rights to such Service Website, Server Software, Remote Software, and Map Data. Except for the license granted in this Section, all right, title and interest in the Service Website, Server Software, Remote Software, and Map Data shall remain the exclusive property of Telogis[COMPANY] or its licensors. If Telogis[COMPANY] is licensing an API, additional terms and conditions of API addendum shall apply.
9.Restrictions on Use: Buyer acknowledges and agrees that the proprietary information and know-how, techniques, algorithms, and processes provided by or contained in the Service Website, Server Software, Remote Software, or Map Data, or any modification or extraction thereof, constitute trade secrets and confidential information of Telogis[COMPANY] or its suppliers and shall only be used by Buyer in accordance with the terms of this Agreement. Therefore, Buyer shall protect such trade secrets and confidential information, and Buyer shall not modify, create derivative works of, copy, publicly display, publicly perform, resell, transfer, distribute, sublicense, or reproduce the Service Website, Server Software, Remote Software, or Map Data. Buyer shall not use the Service Website, Server Software, Remote Software, or Map Data to develop any other software, product, or service including any other software, product or service that is competitive with the Software Services, and shall not assist or permit any third party to do so. Buyer agrees that it shall not decompile, disassemble, or reverse engineer the Server Software or Remote Software or otherwise attempt to gain access to any underlying code used to implement or deploy the Service Website. Buyer may not remove or obscure any proprietary rights notice provided on the Service Website, Remote Software, Server Software, and/or the Map Data.
10.Feedback. To the extent Buyer or its employees, agents, or contractors provide Telogis[COMPANY] with any suggestions, ideas, enhancement requests, recommendations or feedback regarding any Product, Software Service, Remote Software, Server Software, Server Website, Map Data (including any road condition or location information), and/or Professional Service or Telogis[COMPANY] otherwise conceives of or creates any ideas, enhancements, improvements, or modifications to the Product, Software Service, Remote Software, Server Software, Service Website, Map Data and/or Professional Service (collectively, “Feedback and Improvements”), Telogis[COMPANY] will be free to use and disclose such Feedback and Improvements without any restriction.
11.Data. In the course of providing the Software Service, Telogis[COMPANY] may receive or collect spatial data or data relating to the vehicles, mobile objects, devices, locations, employees, contractors, suppliers, and/or customers of Buyer, including but not limited to, vehicle identification number (VIN), GPS location, vehicle speed, acceleration, vehicle diagnostics information, names and ID numbers of employees, and addresses of customers (“Collected Data”). Buyer agrees that (i) Telogis[COMPANY] may retain and use Collected Data for purposes of providing the Software Services and the Professional Services, conducting research and development, engaging in marketing activities, and engaging in other business activities of Telogis[COMPANY], (ii) Telogis[COMPANY] may share Collected Data with Third Party Service Providers (defined in Section 15 below) to the extent the services are specified or requested by Buyer and other third parties providing services to Telogis[COMPANY] or collaborating with Telogis[COMPANY], and (iii) Telogis[COMPANY] may use and share with third parties any Collected Data in aggregated or anonymized form or that is publicly available without any restriction. Telogis[COMPANY]’s use of the Collected Data, in all instances, will comply with applicable laws and regulations. Buyer may access and use Collected Data for Buyer’s business purposes. Buyer’s use of the Collected Data, in all instances, will comply with applicable laws and regulations.
12.Shipment, Title and Delivery: All Products are made available to BuyerF.O.B. (as defined in U.C.C. Section 2-319)Telogis[COMPANY]’s facility if delivered within the United States and Ex Works (Incoterms 2010) Telogis[COMPANY]’s facility if delivered outside the United States, notwithstanding any prepayment of freight and/or insurance by Telogis[COMPANY] on behalf of Buyer. Buyer will be responsible for and will reimburse Telogis[COMPANY]for all shipping and insurance charges incurred by Telogis[COMPANY]. At the time the Products are made available to Buyer or an agent of Buyer, including common carrier, to pickup at Telogis[COMPANY]’s facility, title (except in the case where the Products are leased) and risk of loss of the Products shall pass to Buyer and Telogis[COMPANY]is not responsible for any subsequent delay in transportation or non-delivery of the Products. Buyer shall provide whatever insurance against loss or damage it considers necessary once the Products leave Telogis[COMPANY]. Regardless of the description of a Product provided in Exhibit A or a Purchase Order, Telogis[COMPANY] may provide the same, functionally equivalent, or functionally better product as a substitute without violating the terms of this Agreement. For certain Products, additional terms and conditions provided by the applicable manufacturer and provided in the applicable Product addendum attached hereto shall apply.
13.Lease. If any Product is leased to Buyer, additional terms and conditions provided in an applicable lease addendum attached hereto shall apply.
14.Professional Services: If Buyer purchases any Professional Service(s), theadditional terms and conditions provided in Exhibit Dshall apply.
15.Third Party Services: Buyer may elect to receive directly from a third party wireless service, internet service, safety monitoring, fuel card, or any other services related to the Software Services (“Third Party Service(s)”). The contractual relationship will be directly between Buyer and the providers of the Third Party Service(s) (“Third Party Service Providers”). Telogis[COMPANY] will have no responsibility for any damages or loss that may result from interruption or delay in such Third Party Service(s) or any interruption or delay in the Software Services caused by such Third Party Service(s). Additional terms and conditions provided in Exhibit E shall apply if Buyer is purchasing any Third Party Service(s) that are provided through the Service Website or used in connection with the Software Services. To the extent Telogis[COMPANY] is reselling any third party software license or service to Buyer, additional terms and conditions provided in the applicable third party software addendum attached hereto shall apply.