Last updated August 19, 2017

These Terms of Service (TOS) apply to all websites, applications (both mobile and web), landing pages, microsites, and other web properties (the “Site” or “Sites”) owned and/or operated by TrueLite Trace, Inc. DBA FleetUp (“FleetUp,” “we” or “us“). Please read these Terms of Service (the “Terms“) carefully because they govern your use of our Service (as defined below). By using our Services, you agree to be bound by these Terms.

1. Description of Service

1.1. The “Service(s)” means FleetUp’s electronic logs, ELD software, ELD and fleet management apps, and fleet management software (including the Site, any mobile device application (“App“), any software embedded in the Electronic Logging Device (“Software“), the hardware (including the Electronic Logging Device, cables, display devices, and accessories) (“Hardware“), the Premium Services (as defined in Section 9 of these Terms), and all of Our Content (as defined below). The Service does not include any software application or service that is provided by you or a third party, regardless of any such third party relationship with FleetUp which you use in connection with the Service, (each a “Non-FleetUp Product“). Any modifications and new features added to the Service are also subject to these Terms. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to FleetUp, including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, data collected by the Services, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services (“Our Content”).

2. Agreement to Terms

2.1. BY USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS INCLUDING ANY POLICIES OR OTHER TERMS REFERENCED IN OR INCORPORATED BY THESE TERMS. BY ACCEPTING THIS AGREEMENT, SIGNING UP FOR AN ACCOUNT (AS DEFINED BELOW) OR BY SUBMITTING AN ORDER FORM, OR ANY OTHER FORM OF ORDERING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

3. Your Access and Use of the Services

3.1. You may access and use the Services only for your lawful internal business purposes and you shall not misuse the Services in any manner (as determined by FleetUp in its sole discretion). You must comply with any and all codes of conduct, policies, or other notices FleetUp provides you or publishes in connection with the Services from time to time. If any of those policies materially change these Terms, we will provide you with reasonable notice as specified herein.

3.2. Any App, Software, Hardware or any of Our Content that may be made available by or on behalf of FleetUp in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, FleetUp only grants you a personal, non-sublicensable, non-exclusive and revocable license to use the executable version of the code of any Software solely in connection with the Service. Any rights not expressly granted to you are reserved to FleetUp.

3.3. Subject to your compliance with these Terms, FleetUp grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to download and install a copy of each of the Apps necessary for the Service, on one mobile device or computer that you own or control and to run such copy of the App. You may move your licensed copy of such Apps to another mobile device or computer provided that you delete the previously installed copy.

3.4. You may not share your Account information with, or allow access to your Account by, any third party, except as required by law. You are solely responsible for all activity that occurs under your access credentials, whether or not a third party accesses your Account.

3.5. You may allow other certain users, e.g. employees, independent contractors, and other third parties, (“End Users“) to access the Services in accordance with these Terms. To the extent that you create, or request us to create on your behalf, any Accounts for other users of the Services, or allow End Users to access the Services, you are responsible for all End Users’ activity and ensuring that they are in compliance with these Terms. Additionally you are responsible for (i) maintaining the confidentiality of usernames and passwords, (ii) managing access to End User Accounts and other Accounts which you create or are created on your behalf, (iii) ensuring that all End Users and users of other Accounts which you create are in compliance with these Terms, (iv) preventing unauthorized access or use by End Users;

3.6. To the extent that you allow End Users to use the Hardware, you are solely responsible for such End Users’ use of the Hardware, including any damage to or misuse of such Hardware.

3.7. You may not sell, resell or lease the Services unless you have entered into a separate agreement with FleetUp to do so.

3.8. You will promptly notify FleetUp if you learn of a security breach related to the Service.

3.9. You assume sole responsibility for your driving logs and for complying with all state and federal regulation including, but not limited to, FMCSA Hours of Service of drivers.

4. Your Privacy

4.1. FleetUp takes the privacy of its users seriously.

For more information on our current practices and policies regarding data privacy, security and confidentiality, please see our Privacy Policy; we keep that document updated as these practices and policies evolve over time.

4.2. You are solely responsible for your conduct (including by and between all End Users), data input by your End Users, and all communications with others while using the Services. We are not responsible for the accuracy, appropriateness, or legality of any other information you and your End Users may be able to access using the Services.

4.3. The Services may provide features that allow you and your End Users to share data and other materials with others. When you choose to share data through our Services, please consider carefully what you allow to be shared.

4.4. You agree that by submitting suggestions or other feedback regarding our Services or FleetUp, FleetUp may use such feedback for any purpose without compensation to you. We appreciate all of your feedback and suggestions, and you can submit feedback by emailing us at support@fleetup.com

4.4. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, do not attempt to register or sign up for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as soon as practical. If you believe that a child under 13 may have provided us personal information, please immediately contact us at support@fleetup.com

5. Changes and Modifications to these Terms

5.1. We reserve the right, at our discretion, to modify these Terms on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following. In the case of material changes to this Terms of Service, FleetUp will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an Account, through a notification on the Service, or other similar mechanism. The modifications to the Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified Terms. If you do not agree to the modified Terms, your sole and exclusive remedy is to terminate your Account and you may no longer use the Service. Disputes arising under these Terms will be resolved in accordance with the version of the Terms that was in effect at the time the dispute arose.

6. Limitations on Services and Third-Party Relationships

6.1. FleetUp is not a party to any relationships or agreements between you and any third parties for the performance of any duties between the parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed by you or other users of Services. FleetUp acts only as an interface to facilitate, not to direct or control, communications between users of FleetUp’s Services.

7. Who May Use the Services

7.1. You may use the Services only if you are 18 years or older and capable of forming a binding contract with FleetUp and are not barred from using the Services under applicable law.

7.2. In order to use the Services; you must create an account (“Account”). It is important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. Failure to properly maintain your Account may result in suspending or terminating your Account, and missing notifications for which you will be held responsible.

8. Communications between Drivers and Companies

8.1. The Services enable a commercial motor vehicle driver (“Driver“) to connect directly with a motor carrier (“Company“), allowing Drivers to send messages and automatically share their driving logs, documents, location information and other data (“Driver Data“) with the Company. When Drivers connect with a Company through the Services, the Company’s employees and other third parties who are also connected to that Company (“Company Users“) may access Driver Data for any Drivers who are connected to that same Company. Any Driver, by connecting with any Company expressly consents to such sharing.

8.2. If a Driver connects with any Company, the Driver should be aware that the Driver’s Driver Data will be automatically shared with that Company and its Company Users and that Company and its Company Users will be able to communicate to that Driver. Please consider carefully the parties with whom you choose to connect and what you choose to share. FleetUp is not responsible for any Driver Data that may be shared through the Services once the Driver Data has left the Service.

9. Additional Payment Terms

If you have ordered fee based Services and/or Hardware, as applicable, and have a billing relationship with FleetUp for such Services and/or Hardware these Additional Payment Terms apply.

9.2. Payment

9.2.1. Pricing and Payments. Some Services may have an associated fee, which many not be used without an accompanying order which shall be submitted and accepted solely at the discretion of Fleet Up through electronic or other means on the FleetUp web site or other order entry mechanism (“Order Form”). Upon acceptance of your Order Form by FleetUp, you agree to pay FleetUp in accordance with the pricing and payment terms set forth on your Order Form and in these Terms. You authorize FleetUp to bill you through your specified payment method, in advance on a periodic basis, unless otherwise specified on the Order Form.

9.2.2. Billing Arrangement. FleetUp uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”). Payment processing is subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for Payment Processor errors. If FleetUp, through the Payment Processor, does not receive payment from you, you agree to pay all amounts due immediately upon demand.

9.2.3. Recurring Billing. Some Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to termination under these Terms and any Order Forms.

9.2.4. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you authorized (other than amounts due to the imposition or change in the amount of state, federal or local sales or excise taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction payment. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

9.2.5. Billing Disputes. Except for billing errors for which FleetUp is directly responsible, all amounts paid are non-refundable. If you dispute any charges you must notify FleetUp, in writing, within sixty (60) days of the disputed billing date. FleetUp may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus any and all collection expenses.

9.2.6. Taxes. You are responsible to pay any and all taxes that we may be required to collect or pay based on providing the Services other than taxes based on our net income.

9.2.7. AUTO-RENEWAL FOR SERVICES. Unless you opt out of auto-renewal, which can be done by emailing us at support@fleetup.com, or by calling us at (855) 274-2886, any Services you have ordered will be automatically extended for successive renewal periods of the same duration as the Period selected on the Order Form, at the then current non-promotional rate. You may terminate a Service per the terms of your Order Form, or at any time up to thirty days before the end of the current period. However, you won’t be eligible for any refund of any portion of the fee due for the current period.

9.2.8. Free Trials and Other Promotions. Any free trial or other promotion that provides access to the Services must be used within the specified time of the trial. You must stop using a Service before the end of the trial period in order to avoid being charged for that Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Service, please contact us at support@fleetup.com or at (855) 274-2886.

9.3. Terms Related to Hardware Devices

The Hardware is licensed or sold subject to a separate limited hardware warranty that accompanied the Hardware.

9.3.1. Delivery. Please refer to your Order Form and further communications with FleetUp regarding the estimated time of delivery of the Hardware. FleetUp is not liable for any delayed or late delivery of the Hardware that is outside of our control.

9.3.2. Installation. You are solely responsible for installing the Hardware in accordance with FleetUp’s written instructions, which may include modifications to your vehicle, that you complete, for which you are solely responsible.

(ii) Return of Hardware. At the end of the initial term specified on the Order Form or any renewal period (“Period“), or if the Services have been terminated for any other reason, you must, at your own expense, uninstall, package and return the Hardware to FleetUp within 30 days of the end of the termination date, in reasonable condition allowing for wear and tear. If we haven’t received the Hardware within 30 days of termination of the Services, or if the Hardware is returned in damaged condition, we will charge you the fee specified on the Order Form.

(iii) Your Responsibility for the Hardware. You are responsible for the loss of, damage to, or the entire cost of any necessary service or repair of the Hardware. You have no right to sell, give away, transfer, pledge, mortgage, alter or tamper with the Hardware.

10. Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our End Users.

11. General Prohibitions

11.1. IT IS STRICTLY FORBIDDEN TO USE THE FLEETUP APP WHILE DRIVING. VOICE OVER HOS ALLOWS DRIVERS TO INTERACT WITH THE FLEETUP APP HANDS FREE WHILE DRIVING. IF YOU DON’T HAVE ACCESS TO VOICE OVER HOS, SEND AN EMAIL TO SUPPORT@FLEETUP.COM

11.2. You further agree not to do any of the following:

11.2.1. Post, upload, publish, submit or transmit anything that: (i) infringes, misappropriates or violates a third party’s rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

11.2.2. Use any FleetUp trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without FleetUp’s express written consent;

11.2.3. Access, tamper with, or use non-public areas of the Services, FleetUp’s computer systems, or the technical delivery systems of FleetUp’s providers;

11.2.4. Attempt to probe, scan, or test the vulnerability of any FleetUp system or network or breach any security or authentication measures;

11.2.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by FleetUp or any of FleetUp’s providers or any other third party (including another user) to protect the Services;

11.2.6. Attempt to access or search the Services or download any Software or Our Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by FleetUp or other generally available third party web browsers;

11.2.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

11.2.9. Use the Services for the benefit of any third party or in any manner not permitted by these Terms;

11.2.10. Attempt to exfiltrate any data or Our Content from the Services;

11.2.11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;

11.2.12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

11.2.13. Collect or store any other information from the Services except as necessary to perform the functions of the Service without authorization from FleetUp;

11.2.14. Impersonate or misrepresent your affiliation with any person or entity;

11.2.15. Violate any applicable law or regulation; or

11.2.17. Resell or otherwise offer to third parties the Services or Our Content.

11.3. Although we’re not obligated to monitor access to or use of the Services or to review or edit any of FleetUp’s Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of Our Content or data, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of Our Content or data to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects The Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

12. Additional Terms for Apple Apps

These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple“) App Store (each an “App Store App“), but the following additional terms also apply to App Store Apps:

To the extent that you are using FleetUp mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section. You acknowledge that these Terms are between you and FleetUp only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

13. Dispute Resolution and Releases

13.1 Dispute Resolution. You and FleetUp will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to these Terms, or any related purchase (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute. For Disputes where the amount under disagreement is less than $100,000 (one hundred thousand dollars) the parties agree to resolve the Dispute through on-line mediation utilizing a mutually agreeable mediation service, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to prevent irreparable harm, to prevent unauthorized use of the Services of Hardware. Although the merits of the underlying Dispute will be resolved in accordance with this paragraph, in the event the parties are unable to resolve the Dispute within 90 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.

13.2. No Class Actions. Unless you and FleetUp agree otherwise, you may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions and consolidations with other Claims are not allowed. Neither you nor FleetUp may consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.

13.3. Consent to Jurisdiction. If the agreement to dispute resolution provided for in these Terms is found not to apply to you or your Claim, or if you or FleetUp challenges any award or seeks to have an award enforced, you and FleetUp agree that any judicial proceeding will be brought in the federal or state courts located in Santa Clara County, California. You and FleetUp consent and agree to both venue and personal jurisdiction in the federal and state courts located in Santa Clara, CA.

13.4. Release from Third-Party Claims. Because FleetUp is not party to any agreements between you and any third parties or involved in the completion of any associated professional services, in the event that you have a dispute with one or more other Drivers, Company Users or Companies or other third parties, as applicable (each, an “Other Party“), you agree to address such dispute directly with the Other Party in question and you release FleetUp (and our officers, directors, agents, investors, subsidiaries, and employees from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.

14. Links to Third Party Websites or Resources

14.1. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.

15. Termination

15.1. These Terms will continue in full force and effect unless and until your Account or these Terms are terminated as described herein.

15.2. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you or upon any occurrence of non-payment, or actual or suspected breach of these Terms. You may cancel your Account at any time by sending an email to us at support@fleetup.com. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of the Terms that should, by their nature, survive termination will continue in effect. Such provisions include, but are not limited to: Your Access and Use of the Services; Your Privacy; Limitations on Services and Third-Party Relationships; Terms Related to Hardware Devices; General Prohibitions; Dispute Resolution and Releases; Limitation of Liability; Indemnification; and provisions related to ownership

15.3. In the event that you have paid for Services, and we terminate your Account in our own discretion with no fault of your own, we will refund you a proportionate amount of the fees paid for the Services for the time from which we terminated your Account to the end of the then-current period.

15.4. If you choose to discontinue, cancel or terminate any of the Services before the end of the current term, FleetUp shall have the right to accelerate all fees up to the end of the term in effect, and immediately charge the payment method associated with your Account. All accrued rights to payment shall survive termination of the Terms.

15.5. Notwithstanding Section 15.2, please be aware that once your Account has been terminated, we no longer have any obligation to maintain or provide Services, and we may delete or destroy all copies of data in our possession or control, unless legally prohibited.

15.6. Upon termination for any reason, you must stop using the Services including any App, Software or Hardware and return the Hardware.

16. Limited Warranty

16.1. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND THE HARDWARE WARRANTY, IF APPLICABLE TO YOU, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLEETUP EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, FLEET USER, COMPANY OR OTHER THIRD PARTY. We make no warranty that The Services will meet your requirements or will be available on an uninterrupted, secure, or error-free basis.

17. Limitation of Liability

17.1. NEITHER FLEETUP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR THE INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLEETUP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

17.2. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, FLEETUP DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY PROFESSIONAL SERVICES PERFORMED BY USERS OF OUR SERVICES IN CONNECTION WITH THEIR USE OF THE SERVICES. FLEETUP WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF DRIVER DATA BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, OTHER USERS WITH WHOM YOU HAVE CONNECTED THROUGH THE SERVICES OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL FLEETUP’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR DRIVER DATA EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100), OR THE MOST RECENT ONE MONTHS FEES FOR THE SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLEETUP AND YOU.

17.3. Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.

18. Indemnification

18.1. You will indemnify, defend and hold harmless FleetUp and its officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Our Content; (ii) your performance of or participation in professional services in connection with your use of the Services or Our Content; (iii) your violation of any law or regulation associated with Our Content, Driver Data, use of the Services or Hardware; (iv) your violation of these Terms.

FleetUp reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If FleetUp decides to control or conduct any such defense, you agree to cooperate with FleetUp’s requests in assisting FleetUp’s defense of such matters.

19. General Terms

19.1. Integration. These Terms, the Order Form, the Privacy Policy, and, if you have purchased Hardware from FleetUp, the Hardware Warranty constitute the entire and exclusive understanding and agreement between FleetUp and you regarding the Services and the Hardware, and supersede and replace any and all prior oral or written understandings or agreements between FleetUp and you regarding the Services and Hardware. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

19.2. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without FleetUp’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. FleetUp may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

19.3. Governing Law. The Terms and the relationship between you and FleetUp shall be governed by the laws of the State of California.

19.4. Notices. Any notices or other communications provided by FleetUp under these Terms, including those regarding modifications to these Terms, will be given by FleetUp: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

19.5. Waiver and Severability. FleetUp’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of FleetUp. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If any of these Terms are unenforceable, it will not affect the enforceability of the rest of the Terms.

20. Contact Information

If you have any questions about these Terms or the Services please contact us at support@fleetup.com or at 500 Yosemite Drive, Suite 120, Milpitas, CA 95035.