General Terms
Version Effective Date: December 9, 2024
These General Terms apply to all Services.
1. Eligibility; Customer Account
1.1. Eligibility.
To be eligible to use the Services, and any portion thereof, all of the following must be accurate, and Customer so agrees, and represents and warrants that each of the following is accurate: (i) each individual that uses the Services (which includes each driver, passenger, or user of a vehicle on which any Products are installed or with which the Services are used and any end user of the Mobile App) (“End User”) is at least 18 years of age, or otherwise over the age of majority in the applicable jurisdiction; (ii) Customer and the End Users are not currently restricted from the Services or use of the Services and are not otherwise prohibited from having an account related thereto; (iii) all information provided by Customer and each End User to Azuga is accurate and Customer and End Users will only provide accurate information to Azuga; (iv) Customer has full power and authority to enter into the Agreement and doing so will not violate any other agreement to which Customer is a party nor any rights of Azuga or a third party; (v) Customer and the End Users will not take any action, directly or indirectly, to violate or in violation of any rights of Azuga, its resellers, partners, licensors, suppliers, or any other individual or entity; and (vi) in access to and use of the Services, Customer and the End Users will comply with all applicable laws, including all labor, employment, safety, and Data Laws (“Laws”). “Data Laws” means all applicable international, federal, state, provincial and local laws, rules, regulations, directives, and governmental requirements currently in effect and as they become effective relating in any way to Personal Data privacy, Personal Data protection, trans-border data flow, and data security and confidentiality, including relating to telematics data, geolocation services, biometric data, and monitoring and personnel privacy, and any and all successor or supplemental laws relating thereto, and any additional laws or regulations that may be promulgated in the future. “Personal Data” means information relating to an identified or identifiable natural person or device linked to such natural person, as further defined in DPA.
1.2. Customer Account.
Azuga, the Azuga reseller, or the Azuga partner will provide Customer with usernames, passwords, tokens, and other credentials necessary to access and use the Services (“Access Credentials”). The Access Credentials are Confidential Information. Customer is fully liable and responsible, and assumes such liability and responsibility, for all access to and use of the Services through the Access Credentials and through Customer’s account. Accounts are for use by Customer and its End Users only. Any multiple-party use is prohibited. For example, sharing a login between non-entity individual users is prohibited. Customer will, and will ensure that End Users: (i) keep Access Credentials secure and confidential; (ii) not permit unauthorized users to use Access Credentials or otherwise access Customer’s account or the Services; (iii) not use the accounts of others; (iv) not assign or otherwise transfer its account to another party; and (v) promptly (but in all events within twenty-four hours of becoming aware) notify Azuga of any actual or suspected loss or unauthorized access to or use of Access Credentials or Customer’s account. In the Order, Customer will identify an individual to be its administrator(s) (“Administrator”) for the use of the Services and to receive full administrator permissions and access to the Services. Administrator permissions and access include: (vi) access to and use of all Customer Content (as defined below), information about other End Users, and Driver Information (as defined below); and (vii) subject to compliance with the Agreement, the ability to define additional End Users and their respective permissions. Customer represents and warrants that its Administrator(s) have all the necessary authority to act on behalf of Customer and End Users and Customer acknowledges and agrees that Azuga and its resellers, partners, licensors, and suppliers will rely on such authority and the actions of Administrators. Customer is fully liable for the acts and omissions of its Administrators.
2. Customer End Users.
2.1. End User Notices; End User Consents.
Subject to compliance with Section 1.1, Customer at its discretion determines who will become an End User. Customer will comply with its obligations under the DPA. Without limitation of such obligations, prior to any use of the Services by an End User, Customer will at the point of collection: (i) inform the End User that telematics and Personal Data relating to and of the End User, including geolocation data, biometric data, and data and information regarding individual driving habits (all such information, “Driver Information”), is collected, transmitted, accessed, analyzed, stored, deleted, and otherwise processed through the Services, including by third parties as requested by Customer, including Customer’s service providers, suppliers, and partners, Azuga and its Affiliates, and Azuga’s and its Affiliates’ service providers, resellers, partners, licensors, and suppliers, as permitted under the Privacy Policy and DPA, and that Customer will share Driver Information with the foregoing groups for such purposes in compliance with Data Laws; (ii) provide the End User with conspicuous notice of the Privacy Policy, inform the End User of the need to periodically check for Changes to the Privacy Policy, address any questions or concerns by the End User with the Privacy Policy, and (as permitted by applicable law) require that the End User review and agree to Privacy Policy;(iii) provide and update all required notices, including to comply with applicable Laws, including Data Laws, regarding the collection and processing of Driver Information; and (iv) obtain and maintain all consents, authorizations, permissions, releases, and other similar agreements from theEnd User as necessary (including in order to comply with applicable Data Laws)for the collection and processing of Driver Information (“Driver Consents”). Customer will be fully liable and responsible, including to its End Users, for compliance with this Section 2.1. Azuga and its Affiliates, and Azuga’s and itsAffiliates’ resellers, partners, licensors, and suppliers will have no liability or responsibility to any End User, to Customer, or otherwise for a failure of Customer to obtain Driver Consents or otherwise to comply with thisSection 2.1. To the fullest extent permitted by applicable law, Customer hereby releases Azuga and the Azuga Parties (as defined below) and their resellers, partners, licensors, and suppliers from any liability or responsibility arising from, relating to, or caused by a failure by Customer to comply with this Section2.1. If the End User withdraws or revokes its Driver Consent, then the Customer will immediately cease use of the Services in relation to such End User, including as applicable access to and use by the End User of vehicle where a Product is installed or with respect to which Services. Customer will promptly inform Azuga of the withdrawal and revocation. Customer acknowledges and agrees that certain Services may require Customer’s agreement to OEM terms, as modified from time to time, and Customer’s execution of specific OEM consents.Customer will not use any Services that require OEM consents without first issuing the applicable OEM consent directly to the applicable OEM. If Customer does not issue the required OEM Consent directly to the applicable OEM, then Customer hereby represents, warrants, and covenants that Azuga is authorized to act on Customer’s behalf, including by obtaining and processing data and information provided by or obtained from theOEM, as if Customer had issued the required OEM Consent directly to the applicable OEM and Customer defends, indemnifies, and holds the Azuga Parties and Azuga’s resellers and partners harmless from any claim, demand, liabilities, damages, losses, fines, penalties, expenses (including reasonable attorneys’ fees), regulatory actions, and any other proceedings arising out of any claim made by any third party (including OEMs) arising out of or relating to a failure to issue or a failure to comply with any OEM Consent. Azuga will have no liability in any way arising from Customer’s failure to issue orCustomer’s violation of an OEM Consent. In its use of the appliable Services,Customer will comply with the applicable OEM terms. As reasonably practical Azuga will provide Customer will the necessary OEM consent form and OEM terms but Azuga’s failure to do so will not relieve Customer’s obligations or liability to provide the OEM consent or comply with the OEM terms.
2.2. Sanctions.
Customer represents and warrants that Customer, and all End Users, are not the subject or target of sanctions or restrictions under applicable Sanctions Laws, including: (i) any person or entity listed on any U.S. or non-U.S. sanctions-or export-related restricted or prohibited party list, including OFAC’s Specially Designated Nationals and Blocked Persons List, OFAC’s Sectoral Sanctions Identifications List, the United Nations Security Council Consolidated List, the EU Consolidated List and the Consolidated List of Financial Sanctions Targets in the UK; (ii) any person or entity that is, in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled by one or more persons or entities described in clause(i); or (iii) any national of a Sanctioned Country. Further, Customer represents and warrants it will not access or use the Services from or in any Sanctioned Country. “Sanction Laws” means all U.S. and non-U.S. laws or regulations relating to economic or trade sanctions, including but not limited to the laws and regulations administered or enforced by the United States (including by the U.S. Department of theTreasury, Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State), the United Nations Security Council, the European Union and Her Majesty’s Treasury of the United Kingdom. “Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under Sanctions Laws (as of the date hereof, Cuba, Iran, North Korea, Venezuela, Syria, and the Crimea region of Ukraine). Customer will comply, and will ensure its End Users comply, with all export laws in access to and use of the Services.
2.3. On Behalf of End Users.
Customer makes the agreements and representations and warranties in the Agreement on its behalf and on behalf of each End User. For certainty, if Customer is required to take an action or refrain from taking an action and it reasonably would be expected that an EndUser would also be required to take or refrain from taking the action (such as complying with law), then Customer will be liable and responsible for the End User’s taking or failure to take such action. Customer represents and warrants that it has all authority, rights, permissions, authorizations, and consents necessary to make such agreements, representations, and warranties on behalf of End Users.
3. Use of Services
3.1. License Grant.
Subject to the terms and conditions of this Schedule and of the remainder of the Agreement, including payment of Fees, during the applicable Order Term, Azuga grants Customer a limited, revocable, non-transferable, non-sublicensable, non-exclusive license to remotely access and use the Subscription Services for Customer’s internal business purpose. The Subscription Services are licensed, not sold. The Subscription Services and all derivative works and all copies thereof are owned by Azuga or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Azuga reserves all rights not expressly granted to Customer herein. Customer agrees that it has no right to any Azuga trademark or service mark and Customer will not use any such mark in any way unless expressly authorized by Azuga.
3.2. Use Restrictions.
Customer represents and warrants that it will, and will ensure that all End Users:
3.2.1. comply with all applicable Laws in access to and use of the Services, and not use the Services to violate any applicable Laws;
3.2.2. without limitation of the foregoing, not use the Services, or any portion thereof, to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense or give rise to civil liability, and including further any abusive, indecent, defamatory, harassing, obscene or menacing materials, or materials that would cause a breach of confidence, privacy, or similar third party rights;
3.2.3. without limitation of the foregoing, not use the Services to transmit, receive, upload, use, or reuse material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets, or copyrights;
3.2.4. without limitation of the foregoing, not use the Services, or any portion thereof, to perform any acts that involve deceptive online marketing practices or fraud;
3.2.5. not take any acts that may or will materially and adversely affect the quality of other users’ experience;
3.2.6. not attempt or actually engage in unauthorized use or sabotage of any computers, machines, or networks;
3.2.7. not introduce malicious programs into the Services, or any portion thereof, or any network, servers, systems, or devices used to provide or in connection with the Services (e.g. viruses, worms, Trojan horses, etc.);
3.2.8. not engage in any monitoring or interception of content, information, or data, including access credentials or identity information of any other users, not intended for Customer unless expressly authorized to do so;
3.2.9. not attempt to circumvent authentication or security of any systems, services, networks, or devices used to provide the Services, or any portion thereof, including any that impose limitations or restrictions on use of the Services;
3.2.10. not reverse engineer, decompile, disassemble, decipher, or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
3.2.11. not adapt, modify, or create derivative works of or based on the Services, technology underlying the Services, or other users’ content, in whole or part;
3.2.12. not duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer content, information, or data found on the Services (excluding content posted by Customer or End Users) except as permitted in the Agreement;
3.2.13. not use the Services, or any portion thereof, to provide any facility management, service bureau or similar services to third parties, or use the Services, or any portion thereof, to develop a product line that is similar to the Services;
3.2.14. not alter, distort, or remove any confidential, proprietary, copyright, trademark, trade secret, or patent legends from any copy of the Services;
3.2.15. not use any “open source” or “copyleft software” in a manner that would require Azuga to disclose the source code of the Services to any third party;
3.2.16. not disclose the results of any testing or benchmarking of the Services to any third party;
3.2.17. not falsify user identification information;
3.2.18. not abuse or do anything to damage Azuga’s or its Affiliates’ business operations, services, reputation, employees, or facilities, or those of any third party service providers of the Services, Azuga’s resellers, partners, licensors, or suppliers; and
3.2.19. not otherwise use or copy the Services except as expressly allowed under the Agreement.
3.3. Security.
Customer will implement and maintain appropriate, adequate, and up-to-date security measures, consistent with the then current standards in Customer’s industry, including use of a secure server, protective firewalls, and threat detection and prevention measures, and strong passwords/user IDs, to avoid unauthorized access to or distribution by or through the internet or any other means of, the Services. If Customer detects or reasonably suspects an Information Security Incident, then Customer will promptly, and in no event later than 24 hours after such detection or suspicion, notify Azuga thereof. “Information Security Incident” means: (i) loss or unauthorized use of Access Credentials; (ii) the actual or suspected unauthorized acquisition, access, or use of the Services or Azuga Confidential Information; or (iii) any unauthorized use of any Customer’s systems, networks, or devices to gain access to the Azuga’s or its third party providers’ systems, networks, devices, information, or content.
3.4. Performance.
Azuga will use commercially reasonable efforts to provide the Subscription Services at all times, except for limited periods for maintenance and repair. However, the provision and performance of Subscription Services is dependent upon and subject to a variety of factors beyond Azuga’s control including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, and signal strength. Customer acknowledges and agrees that the Subscription Services may be interrupted, limited or curtailed, and delays or omissions may occur. Actual service coverage, speeds, locations, and quality may vary.
3.5. Azuga Rights.
Azuga may immediately limit, suspend, or terminate Customer’s and its End Users’ access to the Services, all Orders, and the Agreement if Customer or its End User fail to comply with Section 3.2 or otherwise materially breach the Agreement. Additionally, Azuga may limit or suspend access to the Services in order to maintain the performance and availability of the Services and to protect other users, the Services, and the networks, systems, and devices of Azuga and others. Azuga has the right, but not the obligation, to remove from the Services any content, information, data, files, software, or other material Azuga believes is or may be, in its sole discretion, interfering with use of the Services by any users, presenting a security threat to or damage to the Services or any users, or infringing or otherwise in violation of the rights of others. The foregoing rights are without limitation of any other rights or remedies available to Azuga, its resellers, partners, licensors, and suppliers. If Customer believes in good faith that its copyright has been infringed, please provide a written communication regarding such belief to: Privacy@Azuga.com.
3.6. Beta Testing.
This Section describes the additional terms and conditions under which Customer may access and use certain features, technologies, and services made available to Customer by Azuga that are not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “preview”, “pre-release”, or “experimental”, and such other services, content, information, materials, and data as may be provided with the foregoing (each, a “Beta Service”).
3.6.1. Azuga may add, modify, or remove functionality, features, documentation, or other related aspects of any Beta Service at any time. The generally available version of the Beta Service may not be the same as the Beta Service. Azuga may suspend or terminate Customer’s access to or use of any Beta Service at any time. Beta Services are made available to Customer for evaluation purposes.
3.6.2. Customer must comply with all terms related to Beta Services as posted on the Azuga website or otherwise made available to Customer (“Beta Service Terms”). Azuga may add or modify Beta Service Terms at any time.
3.6.3. Customer may provide Azuga with information and data relating to Customer’s access, use, testing, or evaluation of Beta Services, including regarding the performance, features, and functionality of Beta Services (“Test Information”). Azuga will own and may use and evaluate all Test Information for its own purposes without obligation to Customer. All Test Information and all information about the Beta Services themselves, including the existence of the Beta Services, are Confidential Information of Azuga. Customer will not use any Test Information except for Customer’s internal evaluation purposes of any Beta Service.
3.6.4. Customer’s access to and use of a Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by Azuga. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of Customer’s access to or use of any Beta Service for any reason (i) Customer will have no further right to access or use the applicable Beta Service, and (ii) all Customer Content used in the applicable Beta Service may be deleted or inaccessible. If Customer subscribes to a generally available version of the Beta Service, Customer Content will not be migrated to the generally available version.
3.6.5. BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT, AZUGA PROVIDES BETA SERVICES “AS IS” AND AZUGA AND ITS AFFILIATES AND LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE, BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT AND INCLUDING DRIVER INFORMATION, PERSONAL DATA, AND SENSITIVE INFORMATION, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WITHOUT LIMITATION, EXCEPT TO THE EXTENT PROHIBITED BY LAW, AZUGA AND ITS AFFILIATES AND LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. AZUGA’S, ITS AFFILIATES’ AND ITS LICENSORS’ AND SUPPLIERS’ AGGREGATE LIABILITY FOR ANY BETA SERVICES WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAYS AZUGA UNDER THE AGREEMENT FOR THE BETA SERVICES THAT GAVE RISE TO THE CLAIM DURING THE THREE MONTHS PRECEDING THE CLAIM.
4. Ownership
4.1. Services.
Except as expressly set out in the Hardware Products Schedule in relation to Purchased Devices, Azuga, its licensors, and suppliers own the Services and all intellectual and proprietary rights therein. Except for the limited rights to access and use the Services expressly granted to Customer and End Users in the Agreement, neither Customer nor any End User is granted or obtains any right, title, or interest in or to the Services. All rights not granted under the Agreement are reserved to Azuga, its licensors, and suppliers. Promptly upon becoming aware, Customer agrees to inform Azuga of any infringement, misappropriation, or violation of the Agreement with respect to the Services or any intellectual property or other proprietary items of Azuga, its licensors, or its suppliers.
4.2. Customer Content; Driver Information.
4.2.1. As between Customer and Azuga, Customer owns all information, materials, photos, or other content (“Customer Content) Customer or End Users provide to Azuga, that Customer or End Users input or transmit through the Services, and that is obtained through use of the Services. Customer is the controller of its Personal Data and Driver Information and Azuga will process Customer’s Personal Data and Driver Information in accordance with the DPA. Customer hereby acknowledges and agrees that Azuga, its Affiliates, resellers, partners, licensors, and suppliers, and their respective successors, and assigns will use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use Customer Content, and will process and transfer Customer’s Personal Data, and Driver Information in connection with provision of the Services as described in the Privacy Policy and to the extent the End User does not opt out of such sharing as required under Data Laws. Customer authorizes Azuga to use its corporate logo and corporate name in connection with the marketing, promotion and sale of Azuga services and products (to opt-out, email Azuga at Privacy@Azuga.com).
4.2.2. Customer is solely responsible and liable for all Customer Content, and for the protection of Customer’s Personal Data and Driver Information, and Customer provides Customer Content, Customer Personal Data, and Driver Information at Customer’s risk, including risk of loss. Customer accepts sole responsibility for errors in the Services that result from Customer Content and for the processing of Customer’s Personal Data and Driver Information. Customer Personal Data, and Driver Information. Customer represents and warrants that: (i) it has all rights, permissions and authority to provide Customer Content, Customer Personal Data, and Driver Information as stated and contemplated under the Agreement for uses and processing as set out in the Agreement and to grant the license and other rights granted in Section 4.2.1 and under the Agreement; and (ii) the Customer Content is not confidential and does not violate any Law, contractual restrictions or other third party rights (including any intellectual property rights). Azuga may store Customer Content, Customer Personal Data, and Driver Information on Azuga’s servers or on third party servers during the Agreement and, for a period of up to 180 days or for as long as necessary for the purpose in the processing of Personal Data (“Retention Period”). So long as Customer is not in default under the Agreement, during the Retention Period, Customer may but Azuga does not guarantee: (i) access Customer Content and Driver Information through the Services; (ii) generate reports using or relating to Customer Content and Driver Information; (iii) backup Customer Content and Driver Information; (iv) delete Customer Content and Driver Information; (v) process, transfer, update and delete Customer’s Personal Data under the applicable Data Law and (vi) delete Customer’s entire account altogether. Customer acknowledges and agrees that certain actions it takes with respect to Customer Content and Driver Information may impact Azuga’s ability to provide Services. Azuga will have no liability or responsibility for any failure or delay in providing Services or for other impact to the Services or Customer’s or its End Users’ access to or use thereof caused by or arising from actions taken by Customer or its Ends Users, including those relating to Customer Content and Driver Information.
4.2.3. During the Agreement, neither Azuga, its Affiliates resellers, partners, licensors, or suppliers has any obligation to retain Customer Content or Driver Information beyond expiration of the Retention Period. Notwithstanding anything to the contrary in the Agreement, unless otherwise expressly agreed by Azuga and Customer, or required under applicable Laws. Azuga may also remove or delete Customer Content, Customer Personal Data, and Driver Information from the Services at any time in its sole discretion.
4.2.4. Customer acknowledges and agrees that Azuga, its Affiliates, its resellers, partners, licensors, and suppliers have the right to deidentify data collected through the Services or otherwise made available to Azuga, its Affiliates, its resellers, partners, licensors, and suppliers (including Driver Information, and other data such as data relating to usage of the Services, user behavior, traffic, and other interactive and telemetric information) and to aggregate such deidentified data with other deidentified data (such deidentified and then aggregated data is “Deidentified Data”). Notwithstanding anything to the contrary in these terms, all Deidentified Data created by Azuga will be owned solely by Azuga and Azuga may use and exploit Deidentified Data for any lawful purpose without any duty of accounting or compensation to Customer. Without limitation, Customer acknowledges and agrees that Azuga may use Deidentified Data to improve the Azuga Services and to sell to other Azuga customers, including to provide benchmarking information.
4.2.5. Customer and its End Users may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to the Services or otherwise relating to Azuga (“Feedback”) to Azuga, its Affiliates, or its resellers, partners, licensors, and suppliers. Customer acknowledges and agrees that all Feedback is and will be given entirely voluntarily and Azuga and its licensors and suppliers are free to use or disclose Feedback for any purpose. Customer further acknowledges and agrees that Feedback is not Customer’s Data or Customer’s or End Users’ confidential or proprietary information and neither Customer nor End Users are entitled to any compensation or reimbursement of any kind from Azuga or its licensors or suppliers under any circumstances relating to such Feedback. Customer will not submit confidential or proprietary information as Feedback and will identify and process any eventual Personal Data included in the Feedback under the applicable Data Laws.
5. Fees; Payment Terms
5.1. If Customer purchases any Services that Azuga offers for a fee (“Paid Services”), Customer agrees to pay when due the applicable fees set out in the applicable Order (“Fees”) for the Paid Services. Upon expiration of the Initial Term and any subsequent Renewal Terms, Customer may request the Services on a month-to-month basis and Customer agrees to pay Manufacturer’s Suggested Retail Price (“MSRP”). Fees are exclusive of taxes and Customer is responsible for paying all applicable related taxes. Taxes are calculated based on the billing and shipping information in the Order. Any wireless carrier charges that exceed the limits set out in the Order, and any charges for unauthorized usage, will be the responsibility of Customer and will be billed on a monthly basis. Unless otherwise denoted, all fees are assessed in U.S. dollars.
5.2. Unless otherwise set out in the applicable Order or agreed to by Azuga, Fees automatically increase by eight percent (8%) upon expiration of the applicable Order Term. The increased Fees will apply as of the first day of the renewal Order Term. Azuga may also increase fees by up to ten percent (10%) annually at any time during an Order Term upon notice to Customer.
5.3. Unless otherwise set forth on the applicable Order, Fees are billed in advance on a quarterly basis and are non-refundable. For any upgrade or downgrade in plan level, Customer’s payment information will automatically be charged the new rate on the next billing cycle. Customer acknowledges and agrees that downgrading a plan level may cause the loss of features or capacity and of the Services and Azuga does not accept any liability or responsibility for such loss.
5.4. Customer must pay all invoices within thirty (30) days of the date of the invoice. Azuga has the right to assess interest at the rate of two percent (2%) per month (or the highest rate permitted by law, if such rate exceeds the highest rate permitted by law) for any amounts not paid by Customer when due. Customer agrees to reimburse Azuga for all collection costs and interest for any overdue amounts.
5.5. If Customer in good faith disputes an invoice, then Customer will notify Azuga, or the applicable reseller or partner, of the disputed amount within sixty (60) days following the date of the disputed invoice. Failure to provide such notice results in a waiver of any further right to dispute the invoice. Customer will pay all amounts not disputed in the invoice. Customer and Azuga, or the applicable reseller or partner, will cooperate in good faith to resolve the dispute. However, in the event the dispute cannot be resolved within ninety (90) days, Customer will pay the disputed amount and Customer, Azuga, the reseller or the partner, as applicable, may submit the dispute to arbitration as required in the General Terms.
5.6. Customer agrees that Azuga and its third party service providers providing payment processing services may store Customer’s payment information, including Personal Data. Azuga may charge Customer’s payment information for subsequent charges Customer authorizes, such as account upgrades or other special charges authorized by Customer. If Customer’s payment method reaches its expiration date and Customer does not edit the applicable information or cancel the Paid Service, or if Azuga receives Customer’s updated payment information from its third party service providers providing payment processing services, Customer authorizes Azuga to continue billing that payment method and Customer remains responsible for any uncollected amounts and any fees relating to such continued use. Customer acknowledges and agrees that separate payment processing fees may be assessed by Azuga or its third party payment processing providers and Customer agrees to pay all such fees.
5.7. Azuga may offer certain customers free trials to Paid Services. If Customer purchases a subscription to Paid Services that includes a free trial, Customer will receive free access to such Paid Services for the duration of the free trial period. At the end of the applicable free trial period, Customer will be charged applicable Fees for such Paid Services and will continue to be charged such Fees until Customer cancels the applicable Paid Services. To avoid charges, Customer must cancel before the end of the free trial period. For certainty, if Customer uses Services under a free trial, Customer must comply with the Agreement in such use and if Customer does not cancel, then such Services will automatically be Paid Services under the Agreement.
6. Order Term; Termination
6.1. The Order will set out the initial term of the Order (“Initial Term”). If the Order does not set out the Initial Term, then the Initial Term will be four (4) years. Each Order will automatically renew for a period equal to the Initial Term (a “Renewal Term”) unless Customer provides notice of non-renewal at least sixty (60) days prior to expiration of the Initial Term or the then current Renewal Term. If Customer does not renew for a full Renewal Term, Customer may request and Azuga may offer a month-to-month renewal at Azuga’s discretion at the Manufacturer’s Suggested Retail Price (“MSRP”). The Initial Term and the Renewal Term(s) are the “Order Term”. If Customer adds Paid Services to an existing Order at any time during the Order Term of the existing Order, such Paid Services are purchased and provided for a separate Order Term, commencing on the date of purchase, and are not co-terminus with the Order Term of the original Order.
6.2. Azuga, its resellers, and its partners will each have the right to terminate an Order at any time for any reason without further liability or obligation to Customer.
6.3. In addition to and without limitation of its other rights under this Agreement, Azuga has the right to deny, suspend, or restrict access to the Services, or any part thereof, and to refuse any new Orders, without notice: (i) upon a material breach of the Agreement (for certainty, non-payment is a material breach) by Customer or End Users; and (ii) if it deems that Customer or its End Users have engaged in any conduct or activities that Azuga in its reasonable discretion believes violates the letter or spirit of the Agreement. If Customer does not cure the breach or concern of Azuga within thirty (30) days of the occurrence of the applicable breach or concern, then Azuga has the right to terminate all Orders and the Agreement with notice. Azuga will not refund or credit any prepaid Fees if Azuga terminates, denies, or restricts access to the Services for cause.
6.4. If Customer desires to terminate an Order or reduce the quantity of Services for any reason prior to the end of the then-current Order Term, then Customer: (i) must provide Azuga at least sixty (60) days advance written notice thereof; and (ii) must promptly pay (a) all unpaid Fees for Services provided up to the date of termination and (b) all Fees for the remainder of the Order Term. The parties intend that the early termination fees represent a reasonable estimate of the anticipated or actual harm that might arise from an early termination.
6.5. Upon termination of the Agreement, all licenses and access and use rights granted to Customer under the Agreement automatically terminate and Customer will, and will cause all End Users to, immediately cease all access to and use of the Services. Azuga will not be liable or obligated to Customer, End Users, or any third party as a result of or arising from any suspension or restriction of Services or termination of the Agreement or for any actions taken by Azuga permitted under the Agreement as a result of such suspension, restriction, or termination. Azuga will not be liable or obligated to Customer, End Users, or any third party as the result of or arising from any failure by Customer or any End User to cease use of the Services. Without limiting the generality of the foregoing, Azuga will not be liable or obligated to Customer, End Users, or any third party for damages, compensation, or reimbursement relating to a suspension or restriction of Services, or any termination of the Agreement.
6.6. Sections or terms in the Agreement that by their nature should survive or are otherwise necessary to enforce the purpose of the Agreement will so survive, including Customer’s payment obligations, limitations of liability, confidentiality obligations, and this Section 6.
7. Disclaimer of Warranty
7.1. General.
IT IS THE RESPONSIBILITY OF CUSTOMER TO ASCERTAIN THE SUITABILITY OF THE SERVICES AND CONTENT, INFORMATION, AND DATA, INCLUDING DRIVER INFORMATION, OBTAINED THROUGH THE SERVICES FOR ITS PURPOSES. CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. AZUGA DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. AZUGA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR DRIVER INFORMATION, INCLUDING RELATING TO ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. AZUGA IS NOT RESPONSIBLE FOR DATA, MESSAGES OR PAGES LOST, NOT DELIVERED, DELAYED, OR MISDIRECTED BECAUSE OF INTERRUPTIONS OR PERFORMANCE ISSUES WITH THE SERVICES OR COMMUNICATIONS SERVICES OR NETWORKS. AZUGA IS NOT LIABLE FOR THE LOSS, CORRUPTION, ALTERATION, OR REMOVAL OF ANY CONTENT, INFORMATION, OR DATA, INCLUDING CUSTOMER CONTENT AND DRIVER INFORMATION, SUBMITTED TO, TRANSMITTED THROUGH, OR OBTAINED FROM THE SERVICES. ALTHOUGH AZUGA MAY STORE CUSTOMER CONTENT AND DRIVER INFORMATION, AZUGA DOES NOT PROVIDE DATA BACKUP SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR RETAINING COPIES OF AND FOR RECONSTRUCTION, REPLACEMENT, REPAIR, AND RECREATING ALL CUSTOMER CONTENT AND DRIVER INFORMATION AND ANY OTHER CONTENT, INFORMATION, OR DATA CUSTOMER OR END USERS SUBMIT TO OR OBTAIN FROM THE SERVICES AND FOR MAINTAINING ALL RECORDS RELATING TO CUSTOMER’S AND END USERS’ USE OF THE SERVICES, INCLUDING RECONCILING ALL RELATED TRANSACTION INFORMATION. CUSTOMER EXPRESSLY WAIVES THE RIGHT TO SEEK DAMAGES AND AGREES TO HOLD AZUGA, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND THE SUCCESSOR AND ASSIGNS OF THE FOREGOING, HARMLESS FOR ANY LOSS, ALTERATION, CORRUPTION, DESTRUCTION, OR REMOVAL OF CUSTOMER CONTENT, DRIVER INFORMATION, OR ANY OTHER CONTENT, INFORMATION, AND DATA INPUTTED INTO, TRANSMITTED THROUGH, OR OBTAINED FROM THE SERVICES.CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THE AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY CONTAINED IN THE AGREEMENT. FOR THE AVOIDANCE OF DOUBT, AZUGA WILL NOT BE RESPONSIBLE FOR PAYMENT OF ANY FINES ASSESSED AGAINST CUSTOMER BY ANY GOVERNMENTAL ENTITY, OTHER REGULATORY AUTHORITY, OR A COURT FOR FAILURE OF CUSTOMER TO COMPLY WITH STATUTORY OR REGULATORY REQUIREMENTS OF ANY KIND.
7.2. Byod (Bring Your Own Device) Disclosure:
IF AZUGA AUTHORIZES IN ADVANCE, IN ITS SOLE DISCRETION, THE CUSTOMER TO OPERATE THE SUBSCRIPTION SERVICES WITH EQUIPMENT OR COMMUNICATION SERVICES (INCLUDING WIRELESS SERVICE) PROVIDED BY CUSTOMER OR BY ANY THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT AZUGA HAS NO CONTROL OVER THE PERFORMANCE OF SUCH EQUIPMENT OR COMMUNICATION SERVICES AND AZUGA UNDERTAKES NO LIABILITY OR OBLIGATION IN RELATION TO SUCH EQUIPMENT OR COMMUNICATION SERVICES INCLUDING IN THE INTEGRATION OR INTERACTION WITH THE SUBSCRIPTION SERVICES, ANY TAMPERING BY END USERS OR ANY OTHER PERSON, AND ANY FAILURE OF SUCH EQUIPMENT OR COMMUNICATION SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT PERFORMANCE OF THE SUBSCRIPTION SERVICES MAY BE ADVERSELY IMPACTED BY THE EQUIPMENT OR COMMUNICATION SERVICES PROVIDED CUSTOMER OR THIRD PARTIES AND THAT AZUGA’S ABILITY TO TROUBLESHOOT, SUPPORT, AND MAINTAIN THE SUBSCRIPTION SERVICES MAY BE HINDERED OR PREVENTED BY EQUIPMENT OR COMMUNICATION SERVICES PROVIDED BY CUSTOMER OR A THIRD PARTY.
7.3. Required Wireless Carrier Disclosure:
CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN AZUGA AND AZUGA’S UNDERLYING WIRELESS CARRIER. CUSTOMER UNDERSTANDS AND AGREES THAT THE UNDERLYING WIRELESS CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH CUSTOMER’S OR END USERS’ USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING WIRELESS CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. CUSTOMER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. CUSTOMER UNDERSTANDS THAT AZUGA AND THE UNDERLYING WIRELESS CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE WIRELESS SERVICES. THE CUSTOMER MAY NOT RESELL THE WIRELESS SERVICE TO ANY OTHER PARTY.
7.4. Driving Disclosure:
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS AND OTHER 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, OR ALCOHOL. WHETHER THE PRODUCTS AND OTHER SERVICES ARE IN USE OR NOT, THE DRIVER IS RESPONSIBLE TO AVOID A COLLISION. A DRIVER AND CUSTOMER SHOULD NEVER WAIT FOR A CAMERA OR OTHER DEVICE TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT. FAILURE TO DO SO CAN RESULT IN SERIOUS PERSONAL INJURY OR DEATH OR SEVERE PROPERTY DAMAGE, AND AZUGA, ITS LICENSORS, AND SUPPLIERS DISCLAIM ANY AND ALL LIABILITY RELATING TO ANY SUCH ACTIONS. IN ADDITION, THE LIVE STREAM CAPABILITIES AVAILABLE WITH THE PRODUCTS AND OTHER SERVICES MAY HAVE A DELAY OF SEVERAL SECONDS. CUSTOMER AND EACH DRIVER ACKNOWLEDGES AND AGREES LIVE STREAM SHOULD NEVER BE USED TO ASSIST A DRIVER IN OPERATING THE VEHICLE AND CUSTOMER WILL REGULARLY WARN AND INSTRUCT ITS DRIVERS ON PROPER USE OF LIVE STREAM. CUSTOMER WILL CONSPICUOUSLY NOTIFY DRIVERS AND END USERS OF THE RESTRICTIONS, LIMITATIONS, AND OBLIGATIONS IN THIS SECTION.
7.5. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND TO SUCH EXTENT THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, AZUGA’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
8. Limitation of Liability
8.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, UNDER NO CIRCUMSTANCES WILL AZUGA, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, OR THE SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING (“AZUGA PARTIES”) BE LIABLE TO CUSTOMER, ITS AFFILIATES, END USERS, SUPPLIERS OR SERVICE PROVIDERS, OR ANY OTHER ENTITY OR INDIVIDUAL FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS, OR BUSINESS INTERRUPTION RELATING TO OR IN ANY MANNER ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES AND ANY CONTENT, INFORMATION, OR DATA OBTAINED THEREFROM, INCLUDING DRIVER INFORMATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
8.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY,THE TOTAL CUMULATIVE LIABILITY OF THE AZUGA PARTIES, AND EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THE APPLICABLE THIRD-PARTY TERMS OF AZUGA’S LICENSORS OR SUPPLIERS, UNDER OR ARISING FROM OR RELATING TO THE AGREEMENT WILL IN NO EVENT EXCEED THE LESSER OF: (i) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AZUGA FOR THE SERVICES IN THE THREE (3) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY; AND (ii) THE SUM OF ONE THOUSAND US DOLLARS (US$1,000.00).
8.3. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE AZUGA PARTIES’ AND EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THE APPLICABLE THIRD-PARTY TERMS, THE AZUGA LICENSORS’ OR SUPPLIERS’, LIABILITY TO CUSTOMER WILL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY AZUGA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND AZUGA. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE PRIOR SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. Indemnity.
Customer agrees to defend, indemnify and hold the Azuga Parties and Azuga’s resellers and partners harmless from any claim, demand, liabilities, damages, losses, fines, penalties, expenses (including reasonable attorneys’ fees), regulatory actions, and any other proceedings arising out of any claim made by any third party arising out of or relating to: (i) any failure to comply with or violation of the Agreement by Customer, its Affiliates, or End Users; (ii) failure to obtain or violation of any required OEM Consent; (iii) Customer Content; (iv) Driver Information; (v) Customer’s reliance on any content, information or data, including Driver Information, obtained through or from the Services; (vi) Customer’s violation of any rights of another including End Users; or (vii) otherwise relating to Customer’s or End Users’ use of the Services. Azuga reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter otherwise subject to defense by Customer, and, at its expense, to participate in the defense of any matter otherwise subject to defense by Customer. Customer will not enter into any settlement of a matter for which it has indemnification obligations under this Section 9 without the prior, express, written approval of Azuga which can be conditioned or withheld. Azuga may, at its discretion and at Customer’s expense, retain counsel and defend a claim in any of the following circumstances: (a) Customer fails to promptly and diligently defend the claim; (b) there is a defense or claim that Customer may not bring; and (c) there is a defense or claim that may create a conflict between the parties.
10. Confidentiality.
“Confidential Information” means all non-public, confidential, or proprietary information disclosed by or on behalf of Azuga, its Affiliates, licensors, or suppliers in any form and in any manner. The Services are Confidential Information. Customer will hold the Confidential Information in strict confidence, will not disclose the Confidential Information to any third party, and will only use theConfidential Information as necessary to use the Services. Promptly upon Azuga’s request at any time, and upon expiration or termination of theAgreement, Customer will return, or at Azuga’s request destroy, all Confidential Information. In no event will Customer disclose any Confidential Information of competitor of Azuga or its affiliates.
11. Dispute Resolution.
Excluding claims for injunctive or other equitable relief, or for any claim where the total amount of the award sought is less than $10,000, any dispute, controversy, or claim arising out of the Agreement, or the breach, termination or invalidity thereof, which cannot be resolved by Azuga and Customer through reasonable discussion shall be adjudicated by binding arbitration in accordance with the American Arbitration Association (“AAA”) rules, The place of the arbitration shall be Santa Clara County, California. Each party will bear its own costs of arbitration. Any judgment on the award rendered by the arbitrator will be final and may be entered in any court of competent jurisdiction. Customer agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial. The Agreement will be governed by, and construed in accordance with, the laws of the state of California, without reference to its choice of law rules. Notwithstanding the foregoing, each party will be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, Customer agrees that it must commence any cause of action arising out of or related to the Agreement or the Services within one (1) year after the cause of action accrues, or such action will be permanently barred.
12. Electronic Notices and Disclosures.
Customer acknowledges and agrees that Azuga may provide notices and other disclosures to Customer electronically by posting such notices or other disclosures on Azuga’s website or general customer portals, by posting to Customer’s account on the Services, or by emailing it to Customer at any email address set out in the Order. Such notices or other disclosures will be considered received by Customer following the posting on the website, portal, or Customer’s account or twenty-four (24) hours following the email being sent to Customer, as applicable. Any such electronic notice or other disclosure will have the same effect and meaning as if it had been provided to Customer as a paper copy.
13. Third-Party Terms and Content
13.1. In its use, or as part of, the Services, Customer may elect to access, download, receive, or purchase Third-Party Products. Customer acknowledges and agrees that Third-Party Products may be subject to Third-Party Terms. If Customer accesses, downloads, receives, or purchases Third-Party Products, then Customer will comply with all applicable Third-Party Terms. Azuga does not control, and Azuga does not have any responsibility, obligations, or liability for any Third-Party Products or under any Third-Party Terms. Without limitation of the foregoing, Azuga is not a publisher of third party content accessed through the Services and Azuga is not responsible for the content, accuracy, timeliness, or delivery of any opinions, advice, statements, messages, services, graphics, data, or any other information provided to or by third parties accessible through the Service.
13.2. From time to time, the Services may contain references or links to third party sites, content, and materials that are not controlled by Azuga, including the sites, content, and materials of Azuga’s resellers, partners, licensors, and suppliers. Azuga provides such refences and links as a convenience to Customer and Azuga does not endorse, nor should its provision of the references and links be considered endorsements of, such sites, content, or materials. Customer acknowledges and agrees that Azuga is not responsible or liable for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Services or for Customer’s use thereof, under the Agreement or otherwise. Customer is responsible for evaluating whether Customer wants to access or use a third party’s site, content, and materials and Customer does so at its own risk. Customer should review any applicable terms or privacy policy of a third party site before using it or sharing any information on or with such site.
13.3. Azuga and its licensors and suppliers, including providers of Third-Party Products, may, but have any obligation to, block information, transmissions, or access to certain information, services, products, or domains to protect the Services, the networks, systems, and devices of Azuga, its resellers, partners, licensors, or suppliers, the public, or other users.
13.4. If Customer accesses the Services through an application from the Apple App Store, Customer and Azuga agree to the following additional terms:
- Azuga and Customer acknowledge that these Terms are concluded between Customer and Azuga only, and not with Apple, and Azuga, not Apple, is solely responsible for the Services and the content thereof. Azuga and Customer agree to be bound by the App Store Terms of Service as of the Effective Date (which Customer acknowledges it has had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
- Customer may only access the Services on an iOS product that Customer owns or controls and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
- To the extent set forth herein or required by applicable law, Azuga is solely responsible for providing any maintenance and support services with respect to the Services. Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
- Azuga, not Apple, is solely responsible for any product warranties set forth in the Agreement, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the application to Customer; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Azuga’ sole responsibility, to the extent not disclaimed herein.
- Azuga and Customer acknowledge that Azuga, not Apple, is responsible for addressing any claims by Customer or any third party relating to the Services or Customer’s possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or Customer’s possession and use of the Services infringe any third party’s intellectual property rights.
- If Customer sends SMS messages through Services, Customer acknowledges that standard text messaging rates or other carrier charges may apply to such use.
14. Government Customers.
If the Agreement is entered into on behalf of any unit or agency of the United States Government (the “Government”), this section will apply. The Subscription Services and related documentation are “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” and provided to government users with the same rights and restrictions as are granted and applicable to all other end users pursuant to the terms and conditions herein. The terms “commercial item”, “commercial computer software”, “commercial computer software documentation”, and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement. For certainty, except where otherwise required by applicable law, the Agreement applies to all use of the Services by the Government.
15. Audits.
Azuga has the right to conduct Reasonable Audits to determine Customer’s compliance with the Agreement. A “Reasonable Audit” means an audit (i) conducted no more than once per calendar year, (ii) with at least ten (10) days’ prior written notice, which notice will include a reasonable description of scope of the audit, items needed from Customer, and anticipated time for completion, and (iii) during Customer’s normal business hours and without unreasonable interruption of Customer’s day to day operations. The foregoing criteria and limitations will not be required for an audit in response to an actual or suspected Information Security Incident or threatened or actual harm to the Services or to the systems, networks, and devices of Azuga, its resellers, partners, licensors, suppliers, or other users; for certainty, Azuga may immediately or at any time conduct an audit upon the occurrence of any of the foregoing events. The parties agree to work in good faith to resolve any non-compliance discovered in an audit. If the parties cannot reach a resolution and in Azuga’s reasonable judgement the non-compliance is material, Azuga will have the right to terminate the Agreement without liability or obligation.
16. Force Majeure.
Azuga will not be liable for any delay or failure to perform arising out of causes beyond its reasonable control, including government action, riots, epidemics, severe weather, acts or omissions of Customer or End Users, Azuga’s resellers, partners, licensors, or suppliers, third party systems, networks, and devices (including those of Azuga’s resellers, partners, licensors, and suppliers), communication failures, fire, flood, terrorism, war, acts of the enemy, embargoes or work stoppages, labor disputes, or strikes.
17. Miscellaneous.
The Agreement constitutes the entire agreement between Azuga and Customer with respect to Customer’s and End Users’ access to and use of the Services. Any term or condition in any other order, purchase order, confirmation, or other document furnished by Customer is hereby expressly rejected and will be null and void. Customer acknowledges that the Services are controlled, operated, and administered by Azuga and its Affiliates from the United States of America (USA) and India and that Azuga makes no representation that the Services are appropriate, accessible, or available for use outside of the USA. For certainty, Customer acknowledges and agrees that Driver Information and Personal Data may be processed, accessed, collected, used, sold, stored, disclosed, analyzed, deleted, or modified from outside of the USA. Azuga reserves the right to block access to the Services by certain international users. If Customer uses Services from outside of the USA, Customer and the End User will be solely responsible for compliance, and shall comply, with all applicable Laws and Customer indemnifies and hold harmless Azuga from any liability arising from a failure to comply. If any portion of the Agreement is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of the Agreement will otherwise remain in full force and effect. Customer will not assign, transfer or delegate its rights or obligations under the Agreement without the express, prior, written consent of Azuga and any attempted assignment, transfer or delegation without such consent will be void. The agreement will be binding upon each permitted successor and assign. Azuga’s failure to insist upon or enforce any provision of the Agreement will not be construed as a waiver of any provision or right. All headings included in the Agreement are included for convenience only and will not be considered in interpreting the Agreement. The terms “herein”, “hereof”, “hereunder”, and similar expressions refer to these General Terms and not to any particular section or other portion hereof. Any use of the term “including” in the Agreement will be construed as if followed by the phrase “without limitation”. As used herein, all references to the plural number will include the singular number and vice versa. Unless the context requires otherwise, “will”, “shall”, “will not”, and “shall not” are expressions of command, not merely expressions of future intent or expectation. All references to “days” will mean calendar days, unless stated otherwise. The Agreement does not limit any rights that Azuga may have pursuant to any intellectual property laws or any other Laws. All rights and remedies available to Azuga, pursuant to the Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Azuga. In no event will Customer seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation or exploitation of the Services, or any other content, information, or data issued, used, or displayed in connection therewith. Except as otherwise expressly set forth herein, there will exist no right of any person (including End Users), other than Customer and Azuga, to claim a beneficial interest in the Agreement or any rights occurring by virtue of the Agreement. No independent contractor relationship, partnership, joint venture, employer-employee, or franchise relationship is created by the Agreement. If Customer has any questions, complaints, or claims, it may contact Azuga in writing sent to Azuga at 42840 Christy St #205, Fremont, CA 94538.