Terms and Conditions

 

DriverTech’s sale of Hardware and provision of the Services to Customer are governed by these terms and conditions (“Terms” or “Terms and Conditions”). Orders by Customer shall be placed by executing DriverTech’s Order Form, or purchase orders under an existing Order Form. The Order Form together with these Terms and Conditions are collectively referred to as the “Agreement.” Every order Customer places with DriverTech is conditioned upon and confirms Customer’s acceptance of these Terms. Any contrary order Customer places will be of no effect. DriverTech will supply the Hardware and access to the Services to Customer, and Customer will receive, accept, and pay for the Hardware and access to the Services, all on the terms and conditions set out in these Terms and Conditions.

Definitions.

1.1. “Affiliate” of a party means any entity, whether incorporated or not, that is controlled by, controls, or is under common control with such party.
1.2. “Control” means the ability, whether directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
1.3. “Customer Material(s)” means data in electronic form input or collected through the DriverTech System by or from Customer, including all Customer data stored in the DriverTech System.
1.4. “Customer Support” means the telephonic support services provided to DriverTech to assist the Customer in operating the Driver Tech System as described in these Terms.
1.5. “Documentation” means any instruction manuals, user guides and other information supplied by DriverTech that relate to the DriverTech System;
1.6. “DriverTech System” means, collectively, the Hardware as listed on the Order Form, Documentation, and during the Term, access to the Services, and Customer Support.
1.7. “End User” means an employee or independent contractor of Customer or an Affiliate of Customer permitted to use the DriverTech System under this Agreement.
1.8. “Hardware” means the DriverTech devices and accessories items listed on the Order Form.
1.9. “Intellectual Property Rights means all intellectual property and other proprietary rights in documents and materials, inventions, discoveries, patents, licenses, trademarks, trade names, trade dress, inventions, trade secrets, copyrights, and know-how, applications for any of the foregoing and all renewals and extensions thereof, relating to the nature, origin, any enhancements or modifications relating to the same, and any accompanying documentation or information.
1.10. “Order Form” means DriverTech’s ordering form setting forth the Hardware and Service Bundles ordered by Customer, in addition to additional applicable terms agreed by the parties.
1.11. “Order Start Date” means the date specified as such on the Order Form.
1.12. “Parties” means, collectively, DriverTech and Customer.
1.13. “Password” means any password used by the Customer and its End Users to access or use the Services.
1.14. “Professional Services” means services provided to Customer subject to a mutually agreeable statement of work for additional services requested by Customer including training and system integration. Professional Services shall be subject to additional terms and conditions specifically applicable to such services.
1.15. “Sales Price” means the purchase price for the Hardware as specified on the Order Form.
1.16. “Service Bundle” means the Software and data connection bundles elected by Customer and described on the Order Form.
1.17. “Services” means those services provided by DriverTech pursuant to a Service Bundle in accordance with these Terms.
1.18. “Software” means, any software, utility or tool or other computer or program code, provided to Customer by DriverTech, and includes mobile software for use with the Hardware, websites the Customer is granted access to and/or software installed on Customer’s computer system.
1.19. “Service Fee(s)” means the monthly fee(s) for the Service Bundle specified in the Order Form.
1.20. “Warranty Period” means the period commencing on the Order Start Date and ending on the third anniversary of the Order State Date, unless otherwise specified in an Order Form.

2. Term.

The term of these Terms and Conditions shall begin on the Order Start Date and run for the term stated in the Order Form (herein referred to as the “Initial Term”) unless terminated by DriverTech in accordance with Section 12.1 hereof, and, unless otherwise set forth on an Order Form, will automatically renew for an additional 12 month period (each such period, and any additional renewal period, a “Renewal Term;” the Initial Term and any Renewal Terms being the “Term”) at DriverTech’s then-current rates unless terminated by Customer by written notice to DriverTech not less than 90 days prior to the end of the then-current Term.

3. Access to Services.

3.1. For the duration of the Term and subject to Customer’s compliance with these Terms, Customer has the right to access and use the Services for Customer’s internal business operations only and, in all cases, subject to these Terms, applicable Order Forms, and the Documentation.
3.2. DriverTech shall use commercially reasonable efforts to enable Customer to access the Services 24 hours a day, 7 days a week, 365 days a year with 99% average uptime availability, except for scheduled maintenance or unavailability caused by Force Majeure Events.
3.3. Nothing in this Agreement restricts DriverTech from making changes or updates to the Services during the Term to reflect changes in technology, industry practices, patterns of system use and availability of third party content, provided that any such changes will not result in a material reduction in the level of performance or availability of the Services provided to Customer during the Term. Such changes or updates may include changes to DriverTech’s backend infrastructure, security, technical configurations and application features.
3.4. To assist Customer with its use of the Services, DriverTech may provide Customer, at Customer’s cost, with an applicable programming interface (“API”) and provide certain Professional Services to integrate the Services with Customer’s internal applications or those of third parties providers.
3.5. Limitations on Use:
3.5.1. Customer shall be responsible for: (a) the accuracy, quality and legality of Customer Materials and the means by which Customer acquired Customer Materials; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the DriverTech System, and notify DriverTech promptly of any such unauthorized access or use; (c) use the Services or the DriverTech System only in accordance with these Terms, Documentation, Order Forms and applicable laws and government regulations; and (d) comply with terms of service of any third party content or third party application with which Customer uses the Services or the DriverTech System.
3.5.2. Other than uses permitted in these Terms, Customer shall not copy any part of the DriverTech System, in whole or in part, except that one copy of the Software may be made for archival and backup purposes if so permitted by DriverTech.
3.5.3. Customer shall not distribute, disassemble, analyse, modify, upgrade, enhance, alter, reverse engineer, de-compile, or otherwise change (including the creation of derivative works based on) any part of the DriverTech System.
3.5.4. Customer will use, and will cause the End Users to use, the DriverTech System for Customer’s internal business only. Customer will not sublicense, rent, transfer, use for the benefit of others, or grant any rights in the DriverTech System in any form to any party without the prior written consent of DriverTech.
3.6. End Users:
3.6.1. Customer will be responsible for End Users’ compliance with this these Terms, Documentation and Order Forms.
3.6.2. The Services shall be accessed only by End Users. Account sharing is expressly prohibited and shall be deemed a material breach of these Terms.
3.6.3. End Users who are employees of Customer shall at all times be subject to written policies governing nondisclosure obligations. All other End Users shall have executed a written confidentiality agreement for providing for at least the same level of protection of DriverTech’s Intellectual Property and Confidentiality Rights as the terms of this Agreement.
3.7. Termination of these Terms will terminate Customer’s right to use and access the Services. Nothing in these Terms shall be construed to grant any rights or license to use or access the Services in any manner or for any purpose not expressly permitted by these Terms.

4. Installation and Delivery.

4.1. Customer will install the DriverTech System in accordance with the Documentation and instructions provided by DriverTech from time to time.
4.2. Delivery times for Hardware are as set forth on the applicable Order Form. DriverTech will use commercially reasonable efforts to meet Customer’s requested delivery times unless Customer is in default under these Terms.
4.3. All prices are FOB DriverTech’s facility in Salt Lake City, Utah. DriverTech will deliver the Hardware freight prepaid provided that Customer is responsible for all applicable costs of carriage, freight, insurance, taxes, duty or other related shipping charges. DriverTech may make partial deliveries.
4.4. Title and risk of loss or damage with respect to all Hardware sold by DriverTech will pass to Customer when delivered to the shipping carrier by DriverTech.
4.5. Customer may place orders for additional Hardware or Services subject to the terms of the existing Order Form. All purchase orders shall be subject to acceptance by DriverTech.

5. Pricing, Payment and Taxes.

5.1. Unless otherwise set forth herein or as otherwise agreed, DriverTech’s payment terms are net thirty (30) days from the invoice date. DriverTech is entitled to offset payment against outstanding balances in Customer’s account. Customer’s obligation to pay shall not be subject to any delay, reduction, or set-off.
5.1.1. Unless otherwise agreed in an Order Form, Customer shall pay 50% of the Sales Price in advance of shipment of the Hardware, and the remaining 50% within thirty (30) days from shipment of the Hardware by DriverTech.
5.1.2. Customer shall pay the Service Fee, and associated services set forth on an Order Form, within 30 days of invoice,
5.1.3. In the event Customer has been approved for alternative financing through DriverTech, the terms of that arrangement shall be subject to additional terms and conditions listed on the Order Form or separately executed by Customer.
5.2. Customer shall pay for other out-of-warranty or replacement services provided by DriverTech (at DriverTech’s normal rates), including any sales or use taxes, access fees or other fees required by law on any of DriverTech’s services or products.
5.3. If Customer fails to pay any amount when due, and Customer’s default continues for ten (10) days after written notice thereof from DriverTech, all sums unpaid shall become immediately due and payable, and DriverTech may without prejudice to its other rights or remedies under this Agreement or at law or in equity (i) charge the Customer late fees on the amount owing from the due date until the date of actual payment at the rate of the lesser of 1.5% per month or the highest rate allowed by law; (ii) suspend any services provided under this Agreement until DriverTech is fully paid; and (iii) DriverTech shall have all rights and remedies provided under the applicable Uniform Commercial Code and any applicable state, provincial or federal law. DriverTech’s remedies shall be cumulative.
5.4. DriverTech’s stated prices are exclusive of all federal, state or local sales, use, value-added and similar taxes and customs duties. If any part of the DriverTech System is to be exported, the Sales Price shall be recorded on the export invoice. Customer will pay all such taxes and duties on all products and services supplied pursuant to these Terms.
5.5. Customer is responsible for costs incurred by DriverTech if Customer changes or cancels an order and for all costs incurred by DriverTech for collection of past due amounts (including attorneys’ fees).
5.6. Each Service Bundles includes a defined set of system and communication settings. These settings include: (a) wireless data use settings (b) a wireless data plan with establish maximum data usage limits, (c) settings controlling event reporting triggers, (d) a GPS location update frequency setting. Customer may request changes to the Service Bundle settings but those changes are subject to DriverTech approval and Customer may incur additional service fees.

6. Customer Support.

6.1. During the Term, Customer may contact Customer Support for assistance in operation of the DriverTech System, Monday through Friday (excluding national holidays), from 8 a.m. to 5 p.m. Mountain Time.
6.2. From time to time, DriverTech shall provide updates to the Services. DriverTech’s obligation to support the Services applies only to the most current version of the Services.
6.3. Customer Support does not include services resulting from the misuse or abuse of the DriverTech System or failure to install or use the DriverTech System in accordance with the Documentation or DriverTech instructions, or unauthorized attempts to repair, replace, modify or maintain the DriverTech System by persons other than DriverTech or its authorized service providers.

7. Representations and Warranties.

7.1. Limited Warranties:
7.1.1. Hardware Warranty. During the Warranty Period, the Hardware will be free from defects in material and workmanship, and will conform in all material respects with DriverTech’s specifications under normal and proper use in accordance with the Documentation and additional instructions provided by DriverTech from time to time.
7.1.2. Services Warranty. During the Term, the Services will perform materially in accordance with this Agreement, applicable Order Forms and the Documentation. If the Services were not performed as warranted, Customer must promptly provide written notice to DriverTech that describes the deficiency in the Services.
7.1.3. DriverTech will, at DriverTech’s option, repair or replace the Hardware or the Services that fail to conform with these foregoing warranties. SECTION 7.4 BELOW STATES CUSTOMER’S SOLE REMEDY, AND DRIVERTECH’S SOLE LIABILITY, ARISING OUT OF THE WARRANTIES PROVIDED IN SECTION 7.1.
7.2. The foregoing warranties are made only to the extent expressly stated and only to Customer and do not extend to: (a) nonconformities, defects or errors in the Hardware or the Services due to accident, abuse, misuse, or negligent use of the DriverTech System or use other than in a normal and customary manner, environmental conditions not conforming to the applicable Documentation and DriverTech’s instructions, or failure to follow prescribed operating maintenance procedures; (b) defects, errors, or nonconformities in the System due to modifications, alterations, additions or changes to the DriverTech System not made or authorized to be made by DriverTech; or (c) normal wear and tear.
7.3. DriverTech does not warrant that (a) the Services will be performed completely error-free or uninterrupted, or that DriverTech will correct all services errors, (b) the Services will operate in combination with Customer Materials or Customer’s applications, or with any other hardware, software, systems or data not provided by DriverTech, and (c) the Hardware or Services will meet Customer’s requirements, specifications or expectations or the results obtained through the use of the Hardware or the DriverTech System. Customer acknowledges that DriverTech does not control the transfer of data over communications facilities, including the internet, and that the Services and access to the DriverTech System may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. DriverTech is not responsible for any delays, delivery failures, or other damage resulting from such problems. In addition, DriverTech is not responsible for the operation, availability or failure telecommunication or wireless networks provided by third parties.
7.4. DRIVERTECH MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE THAT IS NOT EXPRESSLY SET FORTH IN SECTION 7.1. DRIVERTECH EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE, AND ACCURACY OF INFORMATIONAL CONTENT. DRIVERTECH DOES NOT WARRANT, GUARANTEE, OR GIVE ANY ASSURANCE REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SYSTEM IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE. DRIVERTECH DOES NOT REPRESENT, WARRANT, OR GUARANTY THAT WIRELESS SERVICES WILL BE AVAILABLE AT ALL TIMES. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT WIRELESS SERVICE IS SUBJECT TO TERRAIN, ELECTRICAL FAILURES, LIMITATIONS ON WIRELESS COVERAGE OR SERVICE, ATMOSPHERIC CONDITIONS, AND OTHER CONDITIONS BEYOND DRIVERTECH’S CONTROL. DRIVERTECH WILL NOT BE LIABLE FOR LOSS OF SERVICE OR OTHERWISE AS A RESULT OF ACTS, ERRORS, OR OMISSIONS OF DRIVERTECH’S COMMUNICATIONS VENDORS, CUSTOMER’S EMPLOYEES OR AGENTS, OR ANY OTHER ACT OR OMISSION OF A THIRD PARTY.

8. Warranty Procedures.

8.1.1. If any Hardware fails during the Warranty Period for reasons covered by DriverTech’s warranty in Section 7.1.1, Customer must notify DriverTech of such failure during the Warranty Period and request a Return Materials Authorization (“RMA”) number from DriverTech, which will be issued promptly by DriverTech provided the defects are covered by the applicable warranty. After issuance of the RMA number to the Customer, provided that the applicable Hardware fails to conform to the stated warranties in Section 7.1.1, DriverTech shall, at its sole option and expense, repair or replace the defective Hardware.
8.1.2. If DriverTech elects to repair defective Hardware, Customer will ship the defective Hardware to DriverTech at Customer’s expense per DriverTech’s reasonable instructions. DriverTech will ship the repaired Hardware back to Customer at DriverTech’s expense.
8.1.3. If DriverTech elects to replace the defective Hardware, DriverTech will ship the replacement Hardware to Customer, and will include written RMA instructions setting forth the steps required by Customer to return the defective Hardware. Customer shall promptly return the defective Hardware in accordance with the RMA instructions (including paying any shipping charges).
8.1.4. No issuance of an RMA number, acceptance by DriverTech of any returned goods, or shipment by DriverTech of any replacement goods will itself waive any defense of DriverTech or constitute an admission by DriverTech of a breach of any warranty. If Customer returns any goods that do not fail to conform to the stated warranty or otherwise causes DriverTech to expend or commit goods and/or services in connection with goods that conform to the applicable warranty, Customer will pay DriverTech for such replacement Hardware or repair services at DriverTech’s then-current list prices and Customer shall be liable for any shipping or insurance charges incurred in connection with shipment of such goods.

9. Limitation of Damages and Liability.

9.1.1. IN NO EVENT SHALL DRIVERTECH BE LIABLE FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, COSTS, CHARGES, CLAIMS DEMANDS, FEES OR EXPENSES OF ANY NATURE OR KIND (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOST REVENUE, LOST SAVINGS, LOST BUSINESS OR LOSS OF GOODWILL).
9.1.2. The total liability of DriverTech with respect to the DriverTech System or the performance thereof will be limited exclusively to repair or replacement of the Hardware or, if in DriverTech’s opinion, repair or replacement is impracticable, a refund of the Sales Price. Notwithstanding the foregoing, and notwithstanding any failure of the essential purpose of any right or remedy set forth herein, or that might be found or inferred herein, in no event shall DriverTech’s aggregate liability with respect to any matters whatsoever arising under or in connection with the Agreement exceed the Sales Price. Customer understands that DriverTech is not responsible for, and will have no liability for, hardware, software or other items or any services provided by any persons other than DriverTech. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF WHETHER DRIVERTECH OR ANY AGENT OF DRIVERTECH WAS AWARE OF THE POSSIBILITY OF ANY PARTICULAR DAMAGES AND REGARDLESS OR WHETHER ANY SUCH LIMITATION OF LIABILITY CAUSES THIS AGREEMENT OR ANY REMEDY UNDER THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
9.1.3. CUSTOMER ACKNOWLEDGES THAT THE ACCESS TO THE DRIVERTECH SYSTEM PROVIDED HEREUNDER IS BASED ON CELLULAR NETWORK, WIRELESS OR INTERNET SERVICE THAT IS FURNISHED TO DRIVERTECH BY ONE MORE PARTICIPATING CARRIERS (“CARRIERS”) PURSUANT TO AGREEMENTS BETWEEN SUCH CARRIERS AND DRIVERTECH. CUSTOMER ACKNOWLEDGES THAT SUCH CELLULAR, WIRELESS OR OTHER INTERNET SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, CURTAILED OR OTHERWISE LIMITED BECAUSE OF TRANSMISSOIN LIMITATIONS CAUSED BY ANY FACTOR, INCLUDING ATMOSPHERIC, ENVIRONMENTAL, OR TOPOGRAPHICAL CONDITIONS, CARRIER FACILITIES LIMITATIONS OR CONSTRAINTS OR FACILITIES CHANGES, MODIFICATIONS OR UPDATES, RELOCATIONS, REPAIRS, MAINTENANCE OR OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF THE CARRIER FACILITIES, FORCE MAJEURE EVENTS OR ANY OTHER FACTOR OUTSIDE THE CONTROL OF DRIVERTECH OR THE CARRIER. DRIVERTECH OR CARRIERS ARE NOT LIABLE TO CUSTOMER WITH RESPECT TO ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH ANY CELLULAR, WIRELESS OR OTHER INTERNET SERVICE COVERAGE GAP OR SERVICE REFUSAL, INTERRUPTION, CURTAILMENT OR OTHER LIMITATION DESCRIBED HEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT DRIVERTECH AND CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF CUSTOMER’S USE OF CARRIERS’ ANY CELLULAR, WIRELESS OR INTERNET SERVICES IN CONNECTION WITH THE DRIVERTECH SYSTEM, AND CUSTOMER AGREES THAT CUSTOMER SHALL HAVE NO CLAIM AGAINST DRIVERTECH OR CARRIERS OF ANY KIND WITH RESPECT THERETO.
9.1.4. The Parties acknowledge and agree that the fees and allocation of the risks (as expressed in the indemnities and the limits on warranties, liabilities, damages and remedies) contained herein reflect the economic basis of this Agreement, in the absence of which this Agreement would not have been made.

10. Intellectual Property and Confidentiality.

10.1. All Intellectual Property Rights in the manufacture, programming, operating and or servicing of the DriverTech System, the Services and the Documentation provided for use hereunder, and created in the provision of any scheduled maintenance or technical support shall remain the exclusive property of DriverTech or its licensors, as appropriate.
10.2. Customer will (a) take all reasonable steps to prevent any unauthorized access to the DriverTech System and to ensure the non-disclosure and confidentiality of the DriverTech System and Documentation; (b) ensure that it and its officers, employees and agents take all reasonable steps to prevent any unauthorized access to the DriverTech System and do not disclose or copy any part of the DriverTech System and Documentation; (c) not transfer, assign, or deal in the System and Documentation or the Customer’s rights under this these Terms; (d) maintain all copyright and other proprietary notices on the DriverTech System and Documentation; (d) will ensure that its officers, employees and agents do not, disclose any Passwords and such Passwords are changed regularly; and (e) will notify DriverTech in writing immediately it has knowledge of the existence of any circumstances that suggest that any person has unauthorized knowledge, possession, or use of the DriverTech System and Documentation or any Password.
10.3. Customer will maintain all information about, related to, or describing, the DriverTech System and these Terms in strict confidence and will refrain from disclosing the same to any third party, except to the extent that observation by third parties is necessary in the course of the ordinary utilization of the DriverTech System as contemplated by these Terms.
10.4. DriverTech reserves the right to respond as it reasonably deems necessary to any inquiry, investigation, or other request by any governmental agency, including, but not limited to, law enforcement, as and if requested or ordered to do so.
10.5. The Parties acknowledges that a breach of this Section 10 may result in serious and irreparable harm to the harmed party for which there is no adequate remedy at law. In the event of such a breach, the harmed party shall be entitled to seek any temporary or permanent injunctive or other equitable relief in addition to any monetary damages hereunder.
10.6. DriverTech has not agreed to and does not agree to treat as confidential any industry engagement or suggestion or idea provided by Customer (“Feedback”), and nothing in this Agreement restricts DriverTech’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation.

11. Indemnification.

11.1. DriverTech, at its expense, shall indemnify or hold Customer harmless against any damages awarded against Customer as a result of any claim that the Hardware provided by DriverTech pursuant to these Terms or that the Software in the form hosted by DriverTech as part of the Services for Customer infringes any Intellectual Property Rights of any third party; provided, that Customer promptly notifies DriverTech of the claim in writing, cooperates with DriverTech in the defense, and allows DriverTech sole control of the defense or settlement of the claim; provided, further, in the event such an infringement claim is made or is likely, DriverTech, at its sole discretion, shall have the right to modify the Hardware or the Software, to replace the Hardware or the Software with a functional equivalent, or otherwise to procure the rights for Customer to continue accessing the allegedly infringing Hardware or Software. DriverTech shall also have the right to terminate Customer’s access to the DriverTech System. DriverTech shall have no liability hereunder in the event any such claim arises out of Customer’s (a) access to or use of the DriverTech System other than in accordance with these Terms or the Documentation, or (b) use of third party equipment, content or applications not intended for use with the Device or System. This Section 11.1 contains Customer’s exclusive remedies and DriverTech’s sole liability for intellectual property infringement claims under the Agreement.
11.2. Customer, at its expense, will indemnify and hold harmless DriverTech (and its officers, directors, employees, agents and Affiliates) from and against any claim, loss, damages, costs (including reasonable attorneys’ fees) or actions to the extent based on a claim arising out of or related to (a) allegations or claims that, if true, would be a material breach of this Agreement; (b) any claim arising out of or related to intentionally wrongful, reckless or negligent acts or omissions of Customer or End Users; (c) any claim by a third party, including liability for personal injury and product liability, arising out of or related to the use of the DriverTech System; or (d) any claim that its use of an API to access the Services infringes on the Intellectual Property Rights of a third party.

12. Termination.

12.1. DriverTech may, by written notice of default, terminate or suspect an accepted Order Form and refuse additional orders if Customer breaches any provision of this Agreement, or ceases business operations or enters into bankruptcy or similar proceeding not dismissed in thirty (30) days, or a receiver is appointed for the assets of Customer.
12.2. On termination of this Agreement, Customer will remain liable for payment of any charges that become due for payment before or after termination, and shall immediately cease to use the Services and all Documentation and deliver to DriverTech all copies of the Software and Documentation in the Customer’s possession.

13. Force Majeure.

Neither party will be liable for any delay or failure in the performance, except for payment obligations, if such delay or failure is due to a force majeure event (any cause outside its reasonable control) including without limitation, acts of God, disease, war, terrorism or the public enemy, riot, civil commotion or sabotage, expropriation, condemnation of facilities, changes in law, national or state emergencies or other governmental action, strikes, lockouts, work stoppages or other such labor difficulties, floods, droughts or other severe weather, fires, explosions or other catastrophes, or accidents causing damage to or destruction, in whole or in part, of the equipment or property necessary to perform the Services (“Force Majeure Event”).

14. Notices.

Any notice under this Agreement must be in writing and will be deemed given, if by personal delivery, upon receipt thereof; or if by nationally-recognized courier or mail service when delivered to the recipient’s premises. Customer’s notice address is the address set forth on the Order Form. DriverTech’s notice address is: DriverTech, LLC, Attention: _____________, 1960 Milestone Dr, Salt Lake City, UT 84104. Either party may designate a different address by giving notice to the other party in accordance with this Agreement.

15. Execution of Agreements.

15.1. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Parties; it being understood that all Parties need not sign the same counterparts.
15.2. The exchange of copies of this Agreement and of signature pages by facsimile transmission (whether directly from one facsimile device to another), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.

16. Insurance.

During the Term, the Parties shall obtain and maintain commercial general liability insurance on an occurrence basis with limits not less than $1,000,000 per occurrence and an annual aggregate of not less than $2,000,000 for property damage, injury or death to any number of persons.

17. General.

17.1. The Agreement constitutes the entire agreement between the Parties with regard to the subject matter of this Agreement and this Agreement supersedes all prior or contemporaneous agreements between the Parties with regard to the subject matter of this Agreement.
17.2. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect. If DriverTech waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver, modification, amendment or addition to these Terms is valid or binding on DriverTech unless in writing and signed by an authorized representative of DriverTech. Notwithstanding the foregoing provision of this Section 17.2, DriverTech may revise its posted policies at any time by posting a new version and such new versions will become effective on the date posted.
17.3. This Agreement shall be binding on the Parties and their respective successors and permitted assignors. Either Party may assign this Agreement or any Order Form to an Affiliate provided that the assignor remains responsible for the obligations of the assignee. Neither party may otherwise assign this Agreement or any Order Form without the prior written consent of the other, which consent will not be unreasonably withheld or delayed.
17.4. Customer shall not export any Services provided by DriverTech except in compliance with U.S. laws and regulations.
17.5. This Agreement will be governed by and construed in accordance with the laws of Utah, without giving effect to conflict of law rules. The exclusive venue for any dispute arising out of this Agreement will be the Utah courts sitting in Salt Lake City or the United States District Court for the District of Utah. To the extent it may be applicable, the Parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act to this Agreement.
17.6. This Agreement is between DriverTech and Customer. No third party beneficiaries are intended or permitted. In connection with this Agreement each party is an independent contractor and as such does not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the Parties for any purpose.
17.7. Customer may be referred to as DriverTech’s customer of the Services in sales presentations and other marketing activities.
17.8. The following provisions shall survive termination or expiration of this Agreement for any reason: Section 1 (Definitions), Section 3 (Access to the Services), Section 5 (Pricing, Payment and Taxes), Section 7 (Representations and Warranties), Section 10 (Intellectual Property and Confidentiality), Section 9 (Limitation of Liability) and Section 11 (Indemnification).