SMS Terms and Conditions

TrueDNA Telematics Inc. (“TrueDNA”) provides the TrueDNA Software-as-a-Service platform (the “Platform”) that enables fleet operators to track and manage their fleet operations, and includes the TrueDNA mobile software application (the “App”), hardware devices (the “Hardware”), including optional dashcam hardware (“Dashcam Hardware”) where applicable, and related services provided and/or made available by TrueDNA in connection with the Platform, Hardware, Dashcam Hardware, and/or App (all of the foregoing, collectively, the “TrueDNA Services”). This terms of service agreement (the “Agreement”) sets forth the legally binding terms and conditions governing the access and use of the TrueDNA Services.

IMPORTANT — PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms and conditions governing access and use of the TrueDNA Services. By creating an account for TrueDNA Services, and/or using or accessing the TrueDNA Services in any manner, including, but not limited to, accessing or using the Platform, or downloading, installing and/or using the App: (i) you acknowledge that you have read, understand, and agree to be bound by this Agreement (including all of the terms and conditions specified or referenced below); (ii) you represent that you have the authority to enter into this Agreement (including all of the terms and conditions specified or referenced below), on behalf of the entity or person in respect of whom access and use of the TrueDNA Services was obtained (such entity or person, the “Fleet Operator”); and (iii) you agree that Fleet Operator is entering into this Agreement (including all of the terms and conditions specified or referenced below) with TrueDNA Telematics Inc.

If you do not agree with all of the terms and conditions of this Agreement, or do not have such authority, do not create an account or install the App or otherwise access or use the TrueDNA Services (or any part thereof). The effective date of this Agreement shall be the date that Fleet Operator accepts this Agreement as set forth above or in accordance with Section 17 (the “Effective Date”).

1. ACCESS AND USE OF TRUEDNA SERVICES

1.1. Access to the TrueDNA Services. Subject to the terms of this Agreement, TrueDNA hereby grants Fleet Operator a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right during the Subscription Term (defined in Section 3.1 below) to: (i) access and use, and permit its Authorized Users to access and use, the Platform, over the internet; (ii) install, execute and use, and permit Authorized Users to install, execute and use, the App, in object code only, on mobile phones owned and/or controlled by Fleet Operator or the applicable Authorized User (each, an “Authorized Device”); (iii) install, and permit Authorized Users to install, the Hardware (including Dashcam Hardware, if applicable) in the fleet vehicles owned, leased and/or controlled by Fleet Operator (“Fleet Vehicles”), and (iv) execute and use the firmware embedded in the Hardware (the “Firmware”), in object code form only. The licenses and rights granted in this Section 1.1 are limited to Fleet Operator’s use of the Platform, App, Firmware, and Hardware solely for Fleet Operator’s internal business purposes and in accordance with the applicable user documentation. “Authorized Users” means Fleet Operator’s employees, contractors, and/or agents, that Fleet Operator has authorized to access and use the TrueDNA Services in accordance with this Agreement.

1.2. Restrictions. Fleet Operator agrees that Fleet Operator will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (i) modify, adapt, translate or create derivative works based on the TrueDNA Services (or any part thereof), or any related documentation; (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the App, Platform, and/or Firmware, except as expressly permitted by applicable law; (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the TrueDNA Services (or any part thereof), or any related documentation; (iv) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of TrueDNA or its suppliers on or within the App, Platform, Firmware, and/or related documentation; (v) disassemble the Hardware; (vi) interfere with or disrupt the integrity or performance of the TrueDNA Services (or any part thereof), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the TrueDNA Services; (vii) attempt to gain unauthorized access to the TrueDNA Services (or any part thereof), or its related systems or networks; (viii) frame or utilize framing techniques to enclose Platform and/or App or any portion thereof; (ix) use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, App, Firmware, content, or the personal information of others without TrueDNA’s prior written permission or authorization; (x) use the TrueDNA Services (or any part thereof) to hack, spam, or phish TrueDNA or TrueDNA’s other users; (xi) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent TrueDNA Operator’s affiliation with any person or entity; (xii) violate any contract, rules or policies that govern the use of Authorized Devices, as directed by the applicable wireless carrier and/or mobile device manufacturer and/or Fleet Vehicles, as directed by the applicable vehicle manufacturer; or (xiii) violate any applicable local, state, national or international law in Fleet Operator’s use of the TrueDNA Services. Fleet Operator agrees that the Hardware (including Dashcam Hardware, if applicable) is and shall remain the personal property of TrueDNA and Fleet Operator shall have no right, title, or interest therein, and Fleet Operator shall not act, or fail to act, in any manner inconsistent with TrueDNA ’s title including, but not limited to, not transferring, selling, assigning, sublicensing, pledging, or otherwise disposing, encumbering, or suffering a lien or encumbrance upon or against any interest in the Hardware without TrueDNA’s prior written consent.

1.3. Delivery of Hardware. TrueDNA will use commercially reasonable efforts to ship the Hardware (including Dashcam Hardware, if applicable) on or before the quoted shipment date to Fleet Operator or its carrier agent at TrueDNA ’s facility or the facility of its contract manufacturer, at which time risk of loss will pass to Fleet Operator. In the absence of specific shipping instructions from Fleet Operator, TrueDNA will choose the method of shipment in its discretion. Fleet Operator will pay all freight, insurance, and other shipping expenses. TrueDNA will use reasonable efforts to notify Fleet Operator of any anticipated or actual delay in delivery. Notwithstanding the foregoing, TrueDNA shall not be liable for any liability, loss, damage, cost or expense incurred by Fleet Operator or any other person or entity arising from or related to any failure by TrueDNA to complete delivery of the Hardware hereunder. The Hardware will be deemed accepted upon delivery to Fleet Operator.

1.4. Open Source Software. The App, Firmware, and/or Platform may contain third-party open source software components (“Open Source Components”). Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license. Fleet Operator’s use of each Open Source Component is subject to the terms of each applicable license which are available to Fleet Operator on request from TrueDNA. Notwithstanding any provision herein to the contrary, Fleet Operator is solely responsible for its compliance with such licenses. As used in this Agreement, “App,” “Firmware,” and “Platform” does not include Open Source Components.

1.5. Changes and Modifications. TrueDNA reserves the right to either temporarily or permanently modify, suspend, or discontinue the TrueDNA Services (or any part thereof) with or without notice. Fleet Operator agrees that TrueDNA will not be liable to Fleet Operator or to any third party for any modification, suspension, or discontinuance of the TrueDNA Services (or any part thereof).

2. FLEET OPERATOR OBLIGATIONS

2.1. User Data. Fleet Operator understands and agrees that TrueDNA may collect data and information, which may include Personal Data (as defined in Section 2.2), in connection with Fleet Operator’s and/or its Authorized User’s use of the TrueDNA Services (collectively, “User Data”). Fleet Operator acknowledges and agrees that all User Data collected by TrueDNA shall be owned by TrueDNA Telematics Inc. Fleet Operator grants to TrueDNA a non-exclusive, royalty-free, fully-paid, worldwide license to use, process, and share User Data as reasonably necessary for TrueDNA to provide the TrueDNA Services hereunder and for the purposes set forth in Section 2.3.1 below. Fleet Operator expressly consents to TrueDNA sharing User Data, including Personal Data, with GNet Inc., and their partner insurance carriers for the purpose of rating and offering insurance products and services. Fleet Operator represents and warrants that it has all the rights necessary to grant TrueDNA the licenses and permissions granted herein in and to User Data. Notwithstanding the foregoing, Fleet Operator acknowledges and agrees that TrueDNA may use and exploit any aggregated non-personally identifiable data or information collected or obtained from Fleet Operator’s and/or its Authorized Users’ use of the TrueDNA Services for any purpose, including sharing such aggregated data with third parties.

2.2. Personal Data. Fleet Operator acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing, and/or use of any personally identifiable data and/or information through or in connection with the use of the TrueDNA Services (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Fleet Operator is the data controller and TrueDNA is merely a data processor and/or service provider as such terms are defined pursuant to Data Protection Laws. Personal Data provided to, or collected by, TrueDNA in connection with TrueDNA Services shall only be used in accordance with this Agreement and the TrueDNA Privacy Notice located in the Support section of the TrueDNA app and on the TrueDNA website. In addition, Fleet Operator agrees to, at TrueDNA’s request, execute and/or enter into any documents, agreements, statements, or policies reasonably deemed necessary or appropriate by TrueDNA to comply with any Data Protection Laws with respect to any Personal Data.

2.3. Disclosures and Consents. Fleet Operator acknowledges and agrees that it, and not TrueDNA, is responsible for making all appropriate disclosures and for obtaining all necessary consents from its Authorized Users and any Fleet Vehicle drivers and/or passengers under Data Protection Laws and any other applicable laws and regulations that relate to the collection, use, processing, and sharing of data and/or information by the TrueDNA Services, including the sharing of User Data with GNet Inc., and their partner insurance carriers for the purpose of rating and offering insurance. Fleet Operator represents and warrants that, with respect to any Personal Data collected, transmitted, hosted, stored, processed, or shared by Fleet Operator and/or its Authorized Users, or otherwise disclosed, transferred, or provided to TrueDNA, in connection with Fleet Operator’s and its Authorized Users’ use of the TrueDNA Services: (i) Fleet Operator is in compliance, and will comply, with all Data Protection Laws and any other applicable laws and regulations, and (ii) Fleet Operator has taken all steps necessary or required under Data Protection Laws, and any other applicable laws and regulations, to legally collect, transmit, host, store, process, or share such Personal Data through the TrueDNA Services or otherwise disclose, transfer, or provide such Personal Data to TrueDNA and Gnet Inc., and their partner insurance carriers under this Agreement, including, without limitation, making all disclosures and/or providing notice to, and obtaining all permissions, consents, and/or approvals from, each applicable data source (including, without limitation, Authorized Users and any Fleet Vehicle drivers and/or passengers).

2.3.1. Data Sharing for Insurance Purposes. Fleet Operator expressly authorizes and consents to TrueDNA sharing User Data, including Personal Data, with TrueDNA Telematics Inc., and their partner insurance carriers for the purpose of analyzing, rating, underwriting, and offering insurance products and services to Fleet Operator, its Authorized Users, or other relevant parties. Fleet Operator acknowledges that such data sharing may include, but is not limited to, vehicle usage data, driving behavior data, and other metrics collected through the TrueDNA Services. Fleet Operator represents and warrants that it has obtained all necessary consents and provided all required notices to Authorized Users and any Fleet Vehicle drivers and/or passengers to permit such data sharing in compliance with Data Protection Laws and other applicable laws and regulations.

2.4. Installation of Hardware; Reports. Fleet Operator acknowledges and agrees that Fleet Operator is solely responsible for the installation of the Hardware (including Dashcam Hardware, if applicable) in Fleet Vehicles and for ensuring Fleet Vehicles are in good operating condition. Fleet Operator understands and acknowledges that the installation of the Hardware in Fleet Vehicles that are not in good operating condition may cause problems with and/or damage to the Fleet Vehicles, which may include malfunctions of sensors, airbags, information displays, audio functions, battery operation, the OBD port, or other electrical functions. Fleet Operator represents and warrants that each and every Fleet Vehicle is in good operating condition at the time Fleet Operator installs the Hardware in such Fleet Vehicles, and that Fleet Operator shall ensure Fleet Vehicles remain in good operating condition at all times the Hardware is installed. In addition, Fleet Operator understands and agrees that any reports generated by the Hardware and made available to Fleet Operator through the Platform regarding the operational status of vehicle parts (for example, condition of brakes, shocks, engine, oil levels, and sensors) (the “Reports”) are for informational purposes only and do not relieve Fleet Operator of its responsibility and obligation to ensure Fleet Vehicles are safe and in good operating condition. TrueDNA AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT THE REPORTS WILL BE ACCURATE OR RELIABLE. TrueDNA WILL HAVE NO LIABILITY ARISING FROM, AND FLEET OPERATOR IS SOLELY RESPONSIBLE AND LIABLE FOR, THE INSTALLATION OF HARDWARE UNITS IN THE FLEET VEHICLES AND FLEET OPERATOR’S AND/OR ITS AUTHORIZED USERS’ USE OF OR RELIANCE ON ANY REPORTS, AND FLEET OPERATOR ASSUMES ALL COSTS AND RISKS OF, AND ANY CONSEQUENCES ARISING FROM, THE INSTALLATION AND USE OF THE HARDWARE IN FLEET VEHICLES THAT ARE NOT IN GOOD OPERATING CONDITION.

2.5. Accounts. By registering for an account to access, or otherwise accessing and using the TrueDNA Services under a Fleet Operator’s account (an “Account”), Fleet Operator agrees to provide and maintain up-to-date information that is true, accurate, current, and complete. Fleet Operator agrees that Fleet Operator will not (i) create an Account using a false identity or fictitious name or information, and/or (ii) create an Account or use the TrueDNA Services if Fleet Operator has been previously removed or banned by TrueDNA from use of the TrueDNA Services, or any part thereof. Fleet Operator understands and agrees that Fleet Operator is solely responsible for maintaining the confidentiality of and protecting Fleet Operator’s and its Authorized User’s passwords for the Account. Fleet Operator is solely responsible for any activity originating from its Account, regardless of whether such activity is authorized by Fleet Operator. Fleet Operator agrees to notify TrueDNA immediately of any unauthorized use of its Account. TrueDNA reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.

2.6. Authorized Users. Fleet Operator shall not permit any person other than Authorized Users to access and use the TrueDNA Services, and shall ensure that Authorized Users use the TrueDNA Services solely in accordance with this Agreement. Fleet Operator acknowledges and agrees that Fleet Operator is solely responsible for the use of the TrueDNA Services by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Fleet Operator.

2.7. Authorized Devices. Fleet Operator acknowledges and agrees that in order to use the App, Fleet Operator and its Authorized Users must have a compatible Authorized Device. Fleet Operator is solely responsible for determining whether or not its and/or its Authorized Users’ Authorized Device is or is not compatible with the App and TrueDNA makes no representations or warranties whatsoever regarding the App and compatibility with any computer or mobile device. Fleet Operator further acknowledges and agrees that Fleet Operator is solely responsible for any fees or charges incurred from use of the App by Fleet Operator and/or its Authorized Users through Authorized Devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.

3. SUBSCRIPTIONS; PAYMENT TERMS

3.1. Subscriptions. TrueDNA will provide access to the TrueDNA Services in accordance with the subscription plan purchased by Fleet Operator from TrueDNA (the “Subscription Plan”). Each Subscription Plan shall begin on the date Fleet Operator purchased the Subscription Plan, or on the start date specified in the applicable order form entered into by Fleet Operator and TrueDNA for the purchase of a Subscription Plan, and continue for the applicable subscription period selected by Fleet Operator for such Subscription Plan (the “Subscription Term”). The term of a Subscription Plan is either monthly or annual for a Premium Subscription Plan and the term is perpetual for a Basic Subscription Plan. The Subscription Term for a Premium Subscription Plan shall automatically renew for successive periods equal to the initial Subscription Term, unless Fleet Operator provides us with written notice of non-renewal or termination prior to the expiration of Fleet Operator’s then-current Subscription Term.

3.2. Fees. Fleet Operator shall pay the applicable fees, if any, for the Subscription Plan purchased by Fleet Operator. Except as otherwise set forth in this Agreement, the fees payable by Fleet Operator for the Subscription Plan will remain fixed during the Subscription Term unless Fleet Operator (i) exceeds the permitted user seats or other applicable usage limits of the Subscription Plan, (ii) upgrades the Subscription Plan, and/or (iii) subscribes to additional features or products, including Dashcam Hardware as described in Section 19 below. In the event a price change applies, Fleet Operator will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Fleet Operator acknowledges and agrees that any downgrade to the Subscription Plan shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Fleet Operator’s billing cycle for such Subscription Plan (i.e., for monthly Subscription Plans, prior to the start of the next month, and for annual Subscription Plans, prior to the start of the next year). Subscriptions Plans shall renew at TrueDNA’s then-current pricing for such Subscription Plan.

3.3. Payment Terms. All fees are due and payable by Fleet Operator in advance, unless otherwise expressly and mutually agreed to by Fleet Operator and TrueDNA in writing. Fleet Operator expressly agrees that TrueDNA is permitted to bill Fleet Operator the applicable fees, any applicable tax, and any other charges Fleet Operator may incur with TrueDNA in connection with such Subscription Plan, and Fleet Operator hereby authorizes TrueDNA to charge the fees to the credit card, or other payment method, Fleet Operator provides at the time the Subscription Plan is purchased, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to Fleet Operator for any reason in advance, TrueDNA reserves the right to suspend or terminate Fleet Operator’s and its Authorized User’s access to the TrueDNA Services, downgrade the Subscription Plan, and/or terminate this Agreement. All fees are non-refundable and non-cancellable.

3.4. Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Fleet Operator is and shall be responsible for payment of all such taxes (other than taxes based on TrueDNA’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the TrueDNA Services, or performance of any services by TrueDNA hereunder.

4. TERM; TERMINATION

4.1. Term. The term of this Agreement commences on the Effective Date and will remain in effect during the applicable Subscription Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner).

4.2. Termination. Fleet Operator may terminate this Agreement and the applicable Subscription Plan by (i) providing TrueDNA written notice of such termination to info@truedna.net; subject line: Notice of Termination, or by terminating the Account through the interface of the Platform and/or App; and (ii) permanently deleting and erasing the App from each Authorized Device; and (iii) Hardware (including Dashcam Hardware, if applicable) must be returned to TrueDNA as specified in Section 4.3 or Section 19 below, as applicable. At any time, TrueDNA may (i) suspend or terminate Fleet Operator’s and/or any Authorized User’s right to access or use the TrueDNA Services (or any part thereof), or (ii) terminate this Agreement with respect to Fleet Operator if TrueDNA, in good faith, believes that Fleet Operator has used the TrueDNA Services (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms, or rules. In addition, TrueDNA may terminate a Basic Subscription Plan upon at least thirty (30) days written notice, provided that such termination may only take effect on a date that is at least two (2) years after the start date of that Basic Subscription Plan.

4.3. Effect of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately become due and payable, and Fleet Operator’s and its Authorized Users’ right to access and use the TrueDNA Services will automatically terminate. Fleet Operator will immediately delete and permanently erase all copies of the App from Authorized Devices in Fleet Operator’s or any Authorized User’s possession or control upon termination of this Agreement for any reason. In addition, Fleet Operator shall return to TrueDNA, at Fleet Operator’s cost, all units of the Hardware (excluding Dashcam Hardware, which is governed by Section 19 below) in good working order, reasonable and normal wear and tear excepted, within forty-five (45) days of the date of termination. Fleet Operator shall use the TrueDNA shipping containers to return the Hardware units. If Fleet Operator has not saved the original shipping containers, Fleet Operator may use other appropriate and safe shipping boxes. If Fleet Operator fails to return any Hardware unit (excluding Dashcam Hardware) within forty-five (45) days of termination, TrueDNA reserves the right to charge Fleet Operator a fee of seventy-five dollars ($75.00) per unreturned Hardware unit, which Fleet Operator agrees to pay promptly upon invoicing. TrueDNA agrees to use a designated third-party data cleansing provider to wipe all Fleet Operator data from the returned Hardware units. The following Sections will survive any termination or expiration of this Agreement: 1.2, 1.4, 1.5, 2, 3, 4.3, 5 through 19.

5. OWNERSHIP; FEEDBACK

5.1. Ownership. TrueDNA and/or its licensors and suppliers, as applicable, retain all right, title, and interest in and to the Hardware (including Dashcam Hardware, if applicable), and the Platform, App, and Firmware (including any and all copies thereof), and any other materials (including related documentation) or services provided by TrueDNA, and all aspects thereof, including all patents, copyrights, trade secrets, and other intellectual property rights incorporated therein. TrueDNA and its licensors and suppliers reserve all rights and licenses not expressly granted to Fleet Operator under this Agreement, and no implied licenses or rights are granted by TrueDNA. Title to the App, Platform, Firmware, and Hardware shall not pass from TrueDNA to Fleet Operator. Fleet Operator shall keep the Hardware free from all liens, attachments, encumbrances, or judicial processes.

5.2. Feedback. Fleet Operator acknowledges that any ideas, inventions, suggestions for improvement, or discussions submitted by Fleet Operator regarding any aspect of the TrueDNA Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) that are not already subject to third-party intellectual property rights may be used by TrueDNA or any other user of the TrueDNA Services without compensation or attribution, and Fleet Operator hereby grants to TrueDNA, its subsidiaries, affiliates, and partners a worldwide, irrevocable, royalty-free, non-exclusive, sublicensable, and transferable license under all intellectual property rights in the Feedback for any purpose.

6. INDEMNIFICATION

Fleet Operator shall indemnify, defend, and hold TrueDNA and its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, agents, successors, and assigns (collectively, “ TrueDNA Indemnified Parties”), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands, or damages of any kind, arising out of or related to (i) Fleet Operator’s or any Authorized User’s breach of this Agreement; (ii) claims brought by any Authorized User or any driver or passenger in a Fleet Vehicle; (iii) User Data, or a violation of Data Protection Laws, or any other applicable laws and regulations by Fleet Operator; (iv) failure to give sufficient notice to, or obtain sufficient consent from, applicable data sources with respect to the collection, use, processing, and disclosure of Personal Data, including, without limitation, Authorized Users and Fleet Vehicle drivers or passengers, as set forth in Section 2.3; (v) Fleet Operator’s or its Authorized Users’ use of the TrueDNA Services; (vi) the operation of any Fleet Vehicle by Fleet Operator or its Authorized Users or any driver or passenger in a Fleet Vehicle, including, without limitation, any bodily injury or death to any third party and/or loss of or damage to any third-party property and/or for any and all other loss or damage sustained by any third party arising therefrom; (vii) the installation and/or use of the Hardware (including Dashcam Hardware, if applicable) in any Fleet Vehicle that is not in good operating condition, installation of the Hardware in any Fleet Vehicle, and/or Fleet Operator’s or its Authorized Users’ use of or reliance on any Reports, including, without limitation, any bodily injury (including death) and/or property damage and/or any and all other loss or damage arising therefrom; and/or (viii) Fleet Operator’s gross negligence, fraudulent misrepresentation, or willful misconduct. TrueDNA shall promptly notify Fleet Operator in writing of such action, give Fleet Operator sole control of the defense thereof and any related settlement negotiations, and, at Fleet Operator’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Fleet Operator enter into any settlement that involves an admission of liability, negligence, or other culpability of any TrueDNA Indemnified Party or requires any TrueDNA Indemnified Party to contribute to the settlement without TrueDNA’s prior written consent. TrueDNA and any TrueDNA Indemnified Party may participate and retain its own counsel at its own expense.

7. DISCLAIMER

THE TrueDNA SERVICES (AND ANY PART THEREOF), THE REPORTS, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY TrueDNA, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TrueDNA AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. TrueDNA AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT TrueDNA SERVICES (OR ANY PART THEREOF), THE REPORTS, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY TrueDNA OR CONTENT MADE AVAILABLE THROUGH TrueDNA SERVICES: (I) WILL MEET FLEET OPERATOR’S REQUIREMENTS; (II) WILL BE COMPATIBLE WITH FLEET OPERATOR’S NETWORK, COMPUTER, OR MOBILE DEVICE, OR ANY THIRD-PARTY PRODUCTS OR SERVICES; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. FLEET OPERATOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE TrueDNA SERVICES, THE REPORTS, AND ALL RESULTS OF SUCH USE, IS SOLELY AT FLEET OPERATOR’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY FLEET OPERATOR FROM TrueDNA, ANY THIRD PARTY, OR THROUGH TrueDNA SERVICES, SHALL CREATE ANY WARRANTY.

8. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL TrueDNA BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE TrueDNA SERVICES (OR ANY PART THEREOF), THE REPORTS, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY TrueDNA, EVEN IF TrueDNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF TrueDNA, AND (II) IN NO EVENT SHALL TrueDNA’s TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE TrueDNA SERVICES (OR ANY PART THEREOF), THE REPORTS, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY TrueDNA EXCEED THE GREATER OF THE SUBSCRIPTION FEES PAID OR PAYABLE TO TrueDNA BY FLEET OPERATOR HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00). TrueDNA DISCLAIMS ALL LIABILITY OF ANY KIND OF TrueDNA’s LICENSORS AND SUPPLIERS.

9. APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 7 and 8 above may not apply to Fleet Operator if Fleet Operator is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to Fleet Operator as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where Fleet Operator is located.

10. BASIS OF THE BARGAIN

The warranty disclaimer and limitation of liability set forth above in Sections 7 and 8 are fundamental elements of the basis of the agreement between TrueDNA and Fleet Operator. TrueDNA would not be able to provide the TrueDNA Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of TrueDNA’s suppliers.

11. EXCLUSIONS

Notwithstanding anything in this Agreement to the contrary, TrueDNA will have no responsibility or liability of any kind under this Agreement or otherwise, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software, or equipment which is not owned, controlled, or operated by TrueDNA; (ii) nonconformities resulting from Fleet Operator’s or any Authorized User’s, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the TrueDNA Services, or other services provided hereunder by TrueDNA; (iii) modification, amendment, revision, or change to the TrueDNA Services, or any part thereof, by any person other than TrueDNA; or (iv) any other factor outside of TrueDNA’s reasonable control.

12. AVAILABILITY OF THE SERVICES

Information describing the TrueDNA Services is accessible worldwide, but this does not mean the TrueDNA Services, or certain portions thereof, are available in Fleet Operator’s country. TrueDNA may restrict access to the TrueDNA Services, or portions thereof, in certain countries in its sole discretion. It is Fleet Operator’s responsibility to make sure Fleet Operator’s use of the TrueDNA Services is legal in Fleet Operator’s country of residence. The TrueDNA Services may not be available or accessible in all languages. If at TrueDNA’s reasonable determination, Fleet Operator uses the TrueDNA Services or any other material or services provided by TrueDNA to Fleet Operator in a manner that violates laws, creates an excessive burden or potential adverse impact on TrueDNA’s systems, in addition to any of its other rights or remedies, TrueDNA may, without liability to TrueDNA, immediately suspend or terminate Fleet Operator’s access to the TrueDNA Services.

13. EXPORT CONTROL

Fleet Operator may not use or otherwise export or re-export the App, Hardware (including Dashcam Hardware, if applicable), and/or Platform (or any aspect of the foregoing) except as authorized by United States law and the laws of the jurisdiction in which the App, Hardware, and/or Platform was obtained. In particular, but without limitation, the App, Hardware, and Platform may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the TrueDNA Services, Fleet Operator represents and warrants that Fleet Operator is not located in any such country or on any such list.

14. ELECTRONIC COMMUNICATIONS

By using the TrueDNA Services, Fleet Operator consents to receiving electronic communications from TrueDNA. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to Fleet Operator’s use of the TrueDNA Services. These electronic communications are part of Fleet Operator’s relationship with TrueDNA, and Fleet Operator receives them as part of Fleet Operator’s access and use of the TrueDNA Services. Fleet Operator agrees that any notices, agreements, disclosures, or other communications that TrueDNA sends Fleet Operator electronically will satisfy any legal communication requirements, including that such communications be in writing.

15. GOVERNING LAW AND DISPUTE RESOLUTION

15.1. Governing Law. This Agreement will be governed by the laws of the State of California, United States of America, without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the App, Firmware, Platform, or any software and services provided hereunder. Furthermore, this Agreement (including without limitation, the App, Firmware, Platform, and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.

15.2. Disputes. Except as otherwise set forth in this Agreement, Fleet Operator agrees that any dispute between Fleet Operator and TrueDNA arising out of or relating to this Agreement, the TrueDNA Services (or any part thereof) (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.

15.3. Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Fleet Operator agrees to first contact TrueDNA directly at info@truedna.net to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, Fleet Operator or TrueDNA may institute arbitration in accordance with the procedures set forth in this Section.

15.4. Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 15.3 above shall be resolved exclusively through final, binding, and confidential arbitration and shall take place in Santa Clara, California, unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.

15.5. Exception to Arbitration. Notwithstanding anything in this Agreement to the contrary, to the extent Fleet Operator and/or any Authorized User has in any manner violated or threatened to violate any of TrueDNA’s intellectual property rights, TrueDNA may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Fleet Operator hereby consents to the personal jurisdiction and exclusive venue in such courts.

16. THIRD-PARTY RIGHTS

16.1. Third-Party Rights. Fleet Operator acknowledges and agrees that certain distributors (such as app store providers) are intended beneficiaries of this Agreement and have the right to enforce this Agreement directly against Fleet Operator. Other than as set out in this Section 16, this Agreement is not intended to grant rights to anyone except Fleet Operator and TrueDNA, and in no event shall this Agreement create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.

16.2. iOS App. The following additional terms and conditions apply with respect to any App provided or made available to Fleet Operator by TrueDNA hereunder designed for use on an Apple iOS-powered mobile device (an “iOS App”): Fleet Operator acknowledges that this Agreement is between Fleet Operator and TrueDNA only, and not with Apple, Inc. (“Apple”). Fleet Operator’s use of the iOS App must comply with Apple’s then-current App Store Terms of Service. TrueDNA, and not Apple, is solely responsible for the iOS App and related content available thereon. Fleet Operator acknowledges that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. Fleet Operator agrees that TrueDNA, and not Apple, is responsible for addressing any claims by Fleet Operator relating to the iOS App or Fleet Operator’s possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to TrueDNA as provider of the iOS App. Fleet Operator agrees that TrueDNA, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement, and discharge of any third-party intellectual property infringement claim related to the iOS App or Fleet Operator’s possession and use of the iOS App. Fleet Operator represents and warrants that Fleet Operator: (a) is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) is not listed on any U.S. Government list of prohibited or restricted parties. Fleet Operator agrees to comply with all applicable third-party terms of agreement when using the iOS App (e.g., Fleet Operator must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to the license granted herein to Fleet Operator to use the iOS App. Upon Fleet Operator’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Fleet Operator as they relate to the license granted herein to Fleet Operator to use the iOS App as a third-party beneficiary thereof.

16.3. Android App. The following additional terms and conditions apply with respect to any App provided or made available to Fleet Operator by TrueDNA, designed for use on an Android-powered mobile device and/or tablet (an “Android App”): Fleet Operator acknowledges that this Agreement is between Fleet Operator and TrueDNA only, and not with Google, Inc. (“Google”). Fleet Operator’s use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where Fleet Operator and/or its Authorized Users have obtained the Android App. TrueDNA, and not Google, is solely responsible for the Android App and the related content available thereon. Google has no obligation or liability to Fleet Operator or any Authorized User with respect to the Android App or this Agreement. Fleet Operator acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to the Android App.

17. MODIFICATIONS TO THIS AGREEMENT

TrueDNA reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on TrueDNA’s website located at www.truedna.net (the “Site”). All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 17). If TrueDNA makes any material changes to this Agreement, TrueDNA will notify Fleet Operator of these changes by sending a notification to the email address TrueDNA has on file for Fleet Operator, or, if TrueDNA does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Platform and/or App. It is Fleet Operator’s responsibility to regularly visit and review this Agreement. If Fleet Operator does not agree to any updates or modifications to this Agreement, Fleet Operator may cease access and use of the TrueDNA Services. Fleet Operator’s continued use of the TrueDNA Services after TrueDNA has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date TrueDNA first notified Fleet Operator of such material changes either through email or the date TrueDNA posted the notice of such changes on the Site or through the user interface of the Platform and/or App, signifies Fleet Operator’s acknowledgment and agreement to be bound by the revised Agreement.

18. GENERAL

Neither the rights nor the obligations arising under this Agreement are assignable by Fleet Operator, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability, or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between TrueDNA and Fleet Operator. TrueDNA may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement and any other policies or terms and conditions referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Fleet Operator may be provided by email. TrueDNA may include Fleet Operator’s business name and/or logo in TrueDNA’s and its affiliates’ internal and external presentations, websites, promotional activities, sales materials, presentation materials, social media, blogs, and press releases for the purpose of referring to Fleet Operator as a customer of TrueDNA’s products and services. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Fleet Operator agrees that this Agreement will not be construed against TrueDNA by virtue of having drafted them. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications, or Internet failure, or any other event beyond the reasonable control of such party.

19. DASHCAM HARDWARE TERMS

This Section 19 applies only to Fleet Operators who elect to use Dashcam Hardware as part of the TrueDNA Services. By using Dashcam Hardware, Fleet Operator agrees to the following additional terms and conditions, which supplement and amend this Agreement:

19.1. Setup and Fees.
a. Fleet Operator agrees to pay a one-time setup fee (“Setup Fee”) per Dashcam Hardware device for the installation and activation of the Dashcam Hardware.
b. Fleet Operator agrees to pay a recurring monthly fee (“Monthly Fee”) per Dashcam Hardware device for the use of the Dashcam Hardware and associated services. These fees are in addition to any fees charged for other TrueDNA Services, including those related to OBDII-based Hardware.

19.2. Term of Dashcam Hardware Use.
The terms in this Section 19 shall commence on the date Fleet Operator accepts these terms (e.g., through signing an order form, activating the Dashcam Hardware, or paying the Setup Fee) and continue for a period of two (2) years (“Dashcam Term”). The Dashcam Term shall automatically begin upon Fleet Operator’s acceptance of these terms and payment of the Setup Fee.

19.3. Ownership of Dashcam Hardware.
The Dashcam Hardware provided under this Section 19 remains the sole property of TrueDNA Telematics Inc. Fleet Operator is granted a limited, non-exclusive, non-transferable right to use the Dashcam Hardware during the Dashcam Term, subject to compliance with this Agreement.

19.4. Return of Dashcam Hardware.
Upon expiration or termination of the Dashcam Term or this Agreement, whichever occurs first, Fleet Operator must return all Dashcam Hardware to TrueDNA within thirty (30) days. If the Dashcam Hardware is not returned within this timeframe, Fleet Operator will be charged a lost device fee of seventy-five dollars ($75.00) per unreturned Dashcam Hardware device, which Fleet Operator agrees to pay promptly upon invoicing.

19.5. Breach of Dashcam Terms.
a. In the event of a breach of this Section 19, including but not limited to non-payment of the Monthly Fee or any other violation of these terms, Fleet Operator shall be liable for the full remaining balance of the Monthly Fees owed for the entirety of the two-year Dashcam Term.
b. If this Agreement or the Dashcam Term is terminated due to a breach of this Section 19 and the Dashcam Hardware is not returned within thirty (30) days of termination, Fleet Operator will be charged an increased lost device fee of one hundred seventy-five dollars ($175.00) per unreturned Dashcam Hardware device, which Fleet Operator agrees to pay promptly upon invoicing.

19.6. Integration with Agreement.
By using Dashcam Hardware, Fleet Operator agrees to be bound by this Section 19 in addition to all other provisions of this Agreement. All other provisions of this Agreement not modified by this Section 19 remain in full force and effect.

20. QUESTIONS AND ADDITIONAL INFORMATION

Please feel free to contact TrueDNA at info@truedna.net if you have any questions about this Agreement.

21. SMS Terms of Service

By opting into SMS from a web form or other medium, you are agreeing to receive SMS messages from TrueDNA. This includes SMS messages for customer care. Message frequency varies. Message and data rates may apply. See privacy policy at https://truedna.net. Message HELP for help. Reply STOP to any message to opt out.