Hardware Products Schedule
This Hardware Products Schedule (“Schedule”) applies to all Products used by Customer or in its possession or control. Capitalized terms used but not defined in this Schedule have the meaning set out in the General Terms. In the event of a conflict between this Schedule and the General Terms, this Schedule governs.
1. Hardware; Leases and Sales.
Azuga will provide to Customer the Products set forth in the Order, which may include either (a) Devices leased to Customer for the term identified in the Order (“Leased Devices”) or (b) Devices purchased by Customer (“Purchased Devices”). For Leased Devices, Azuga hereby leases to Customer, and Customer hereby lease from Azuga, the Leased Devices for the term set forth in the Order. For Purchased Devices, title to the Purchased Devices (but not to the Device Software) will transfer to Customer at the time of delivery. The term “Devices” includes the physical device and the software included within the Device (“Device Software”). Notwithstanding the foregoing, in no event (even for a Purchased Device) does any right, title or interest in the Device Software, other than the limited right set out in Section 4, transfer to Customer.
2. Customer Acknowledgements and Obligations.
2.1. Customer acknowledges and agrees that Customer has: (i) examined the Devices and found them suitable for Customer’s needs; (ii) relied solely upon Customer’s own judgment and inspection in determining that the Devices are of acceptable quality and fitness for purpose; (iii) satisfied itself that installation and use of the Devices does not and will not interfere or in any other manner affect any vehicle systems beyond limits acceptable to Customer; and (iv) satisfied itself that installation and use of the Devices does not and will not void or in any other manner affect any manufacturer or other applicable vehicle warranty.
2.2. Customer acknowledges and agrees that it is responsible to secure and maintain all necessary and advisable insurance coverages related to the use of the vehicles, including use of the vehicles with the Devices, and Customer will not hold Azuga responsible for any claims due to injury, loss, or damage whatsoever or howsoever caused.
2.3. Customer’s vehicle must have a working electrical system, including adequate battery power, and comply with all other operating conditions as may be provided by Azuga, its licensors, or suppliers.
2.4. If Global Positioning System (GPS) satellite signals are not working or the signals are obstructed Customer’s vehicle’s precise location may not be determinable by the Services.
2.5. Azuga uses commercial mobile wireless service purchased from a third-party provider (the “Underlying Wireless Carrier”). Devices will not work unless Customer is in a place where the Underlying Wireless Carrier has coverage, network capacity, and reception when the service is needed, and has technology that is compatible with the Devices. In the event the Underlying Wireless Carrier sunsets a network, and new hardware is needed, Azuga may charge a reasonable amount for such an upgrade.
2.6. It is Customer’s responsibility to make sure its vehicle and the electronic logging system are working.
2.7. The Devices process data, including Personal Data, in accordance with the settings selected by Customer or as otherwise authorized by Customer in the Agreement.
2.8. In addition to any other requirements of the Agreement and this Schedule, when Customer uses the Devices it acknowledges and agrees to the following:
2.8.1. Customer will use the Devices with due care to prevent injury thereto, and to any person or property, and in conformity with all applicable Laws, requirements of any insurer or governmental body, and with all requirements of the manufacturer with respect to the use, maintenance and operation of the Devices;
2.8.2. Customer will use the Devices in a careful and proper manner in accordance with the documentation, and in compliance with all applicable Laws. Customer agrees to use, and to require all authorized users to use, good judgment in avoiding and reporting any unsafe condition related to the Devices;
2.8.3. Customer will provide a suitable environment for the operation and use of the Devices;
2.8.4. Customer will not modify any Device without the prior written consent of Azuga, which may be granted or withheld in its sole discretion; and
2.8.5. Customer will install any new versions, upgrades, error corrections, modifications, or other updates to the Devices if and when provided by Azuga from time to time.
2.9. Customer is solely responsible for the safekeeping of the Devices and any data stored and processed on the Devices (especially videos stored on the Devices’ memory cards and any data processed exclusively on the Devices) including their protection against accidental or unlawful destruction, loss, stealth, alteration, or unauthorized disclosure of or access to data on the Devices. Customer will notify Azuga without delay, and in all events within 24 hours, of any loss, theft or tampering of or with a Device.
2.10. Azuga Elogs will not function in countries outside of the USA and Canada, when trucks are operating South of the 60th Parallel.
3. Loss or Damage.
In the event of loss or irreparable damage to a Device, Customer will be required to replace the device in order to continue the Services. Replacement costs for the following Devices are as follows:
- Azuga DataLogger: $149
- Azuga Asset Tracker: $120
- Azuga Safetycam: $150
- Azuga AI Camera: $250
- Azuga Auxiliary Camera: $149
4. License of Device Software.
Subject to the terms of this Schedule and the remainder of the Agreement, including payment of applicable Fees, Azuga grants to Customer, for the benefit of Customer and authorized End Users, and Customer accepts, the following limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable right during the applicable Order Term to use one copy of the Device Software on each Device solely for Customer’s internal business purposes.
5. Product-Specific Limited Warranty; Disclaimers.
5.1. Azuga will replace a Device with an identical or similar Device if the Device fails to operate in accordance with the manufacturer's specifications and operation instructions during the Warranty Term (as defined below). Such replacement will be made as soon as practicable after Customer returns the non-conforming Device. Customer will return all non-conforming Devices at Customer’s expense and risk of loss to Azuga to the destination specified by Azuga. Third-Party Products may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Devices. Third-Party Products are not covered by this limited warranty.
5.2. For Leased Devices, the Warranty Term is the Order Term. For Purchased Devices (including asset trackers, dashcams, and temperature sensors), the Warranty Term is twelve (12) months from the date of delivery.
5.3. The limited warranty above does not apply if the Device has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Azuga, or used with any Third-Party Product, or used with any other hardware, software, or product that has not been previously approved in writing by Azuga.
5.4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, ALL AZUGA DEVICES ARE PROVIDED "AS IS" AND AZUGA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AZUGA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, AZUGA MAKES NO WARRANTY OF ANY KIND THAT AZUGA DEVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. AZUGA DISCLAIMS ALL RESPONSIBILITY FOR, AND CUSTOMER HEREBY RELEASES AND HOLDS THE AZUGA PARTIES AND AZUGA’S RESELLERS AND PARTNERS HARMLESS FROM, ANY CLAIMS, DAMAGES, OR LIABILITY ARISING FROM ANY MALFUNCTION, ERROR, MISUSE, OR OTHER PROBLEM WITH ANY SUCH DEVICES AND ANY ASSOCIATED LOSSES CUSTOMER INCURS AS A RESULT THEREOF. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND AZUGA'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
6. Damage or Loss; Return.
Customer is solely responsible for any Device that is lost, damaged, or destroyed. Upon expiration or termination of the applicable Order Term, Customer will promptly return all Leased Devices to Azuga at Customer’s expense. If Customer fails to return the Leased Devices to Azuga within fifteen (15) days after any such termination, Azuga is authorized to charge Customer the costs detailed in Section 3 above for each of the Leased Devices.
7. Additional Terms Applicable to Leased Devices.
7.1. If Devices are identified as “Leased Devices” in an applicable Order, the following terms also apply to all such Devices:
7.1.1. Customer has agreed to lease from Azuga, and Azuga has agreed to lease to Customer, the equipment described as “Leased Devices” in the Order.
7.1.2. Title to the Leased Devices remains with Azuga throughout the Order Term, and Customer will acquire no right, title, or interest in such Devices. Customer will not pledge or encumber the Leased Devices in any way except for liens of Azuga or allow any authorized user or other third party to pledge or encumber the Leased Devices (including as part of any vehicle to which it may be attached). Customer will bear all risk of loss, damage, destruction, theft, and condemnation to or of the Leased Devices from any cause whatsoever ("Loss") until the Leased Devices have been returned to Azuga. Customer will notify Azuga in writing within ten (10) days of any such Loss.
7.1.3. Customer agrees to only use the Leased Devices as part of Customer’s ordinary business, and not to use the Leased Devices for any other purpose or location without prior written approval of Azuga. Customer will allow Azuga to enter Customer’s premises at all reasonable times to locate and inspect the state and condition of the Leased Devices. Customer will, at its expense, keep and maintain the Leased Devices in a good state of repair, normal wear and tear excepted, and will use the Leased Devices only for their intended purpose and follow Azuga’s instructions regarding the use and maintenance of the Devices. Customer will not, without the prior written consent of the Azuga: (i) license, lease, or sell any of the Leased Devices; or (ii) use any of the Leased Devices for any unlawful or unethical purpose, or any purpose other than those intended for such Equipment; or (iii) attempt to copy, recreate, reproduce, disassemble, reverse engineer, tamper with, or prepare functionally equivalent versions or derivative works based on the Leased Devices; or (iv) take any action that does or could prejudice Azuga’s ownership rights or ability to enforce its rights to the Leased Devices.
7.1.4. In consideration of Customer’s right to possess and use the Leased Devices during the Order Term, Customer has agreed to use and pay for the Services as described in the Agreement. Failure to pay for the Services constitutes a default of the Lease, and immediately terminates Customer’s rights to continue to possess the Leased Devices.
7.1.5. CUSTOMER’S OBLIGATION TO PAY FOR THE SERVICES AND ANY OTHER AMOUNTS UNDER THE AGREEMENT IS ABSOLUTE AND UNCONDITIONAL AND IS NOT SUBJECT TO ANY ABATEMENT, COUNTERCLAIM, DEFENSE, DEFERMENT, INTERRUPTION, RECOUPMENT, REDUCTION, OR SETOFF FOR ANY REASON WHATSOEVER. CUSTOMER IS UNCONDITIONALLY OBLIGATED TO PAY ALL FEES AND ANY OTHER AMOUNTS DUE UNDER THE AGREEMENT EVEN IF THE PRODUCTS ARE DAMAGED OR DESTROYED, ARE DEFECTIVE, OR IF CUSTOMER EXPERIENCES TEMPORARY OR PERMANENT LOSS OF THEIR USE. NOTHING CONTAINED HEREIN IMPAIRS CUSTOMER’S RIGHT TO MAINTAIN AN INDEPENDENT ACTION AT LAW OR IN EQUITY.
8. Taxes.
Azuga and Customer agree to characterize this Hardware Product Schedule as a lease for Federal income tax purposes, such that Azuga will receive the benefits of any depreciation and investment tax credit, allowance or similar benefit associated with any item of Leased Devices. In the event that this Hardware Product Schedule is not held to be a lease with respect to Leased Devices, Customer hereby grants to Azuga a lien on and security interest in the Leased Devices and all proceeds thereof to secure the payment and performance of Customer’s obligations to Azuga.