Master Products & Services Agreement

Summary

PLEASE READ THE TERMS OF THIS MASTER PRODUCTS AND SERVICES AGREEMENT CAREFULLY. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND NETRADYNE.

This Master Products and Services Agreement (the "Master Agreement" or this “Agreement”) constitutes the terms and conditions on which Netradyne, Inc., a Delaware corporation with offices located at 9191 Towne Centre Drive, Suite 200, San Diego, California 92122 and/or its suppliers/licensors (collectively, as applicable, "Netradyne") provide the software licenses, warranty coverage and other services purchased by an end-user, customer, or other entity (“you” or “Customer”) directly from Netradyne (each a "Party", and collectively, the "Parties"), and the related hardware you may have received or purchased from Munich Re America Services, Inc. (“Munich Re”) Your rights and Netradyne’s and its suppliers’/licensors’ obligations hereunder, are conditioned upon your payment of all applicable license fees, subscription fees, and other payments due in connection with your license and/or purchase as well as your compliance with the terms and conditions set forth in this and other agreements with Netradyne.

This Agreement, together with the following agreements (all of which are incorporated herein by reference) constitute the entire contract between Netradyne and Customer, and supersede all prior agreements and understandings between Netradyne and Customer, whether written or oral, relating to the subject matter hereof: (i) the Order Form that we may have issued to you (“Order Form“); (ii) the Services Agreement that we may have issued to you; (iii) the Service Level Agreement located at www.netradyne.com/sla as may be amended by Netradyne from time to time; and (iv) any applicable third-party license agreement(s). The effective date of this Agreement is the date you sign an Order Form (“Effective Date”). In the event of any conflict between the terms of this Agreement and the terms of the Order Form, the terms of the Order Form shall prevail. Netradyne’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions herein.

In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree

Products & services

This Master Agreement is applicable to the use of all Driver•i® mobile video analytics devices ("Hardware"), the license to use software contained, delivered separately, pre-loaded, installed or embedded in the Hardware ("Firmware") and other services related to the Hardware and Firmware ("Services") including without limitation services related to the Driver•i® cloud-based software platform service and customer portal for video-based analytics related to such Hardware ("Driver•i Services"). Notwithstanding anything herein to the contrary, Netradyne may from time to time change the Services without the consent of Customer provided that such changes do not materially or adversely affect the nature or scope of the Services. Netradyne reserves the right, in its sole discretion, to make any non-material changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Netradyne's services to its customers, (ii) the competitive strength of or market for Netradyne's services or (C) the Services' cost efficiency or performance; or (iii) to comply with applicable law.

Purchase & sale of hardware & services

  • Order Form. Netradyne has the right, in its sole discretion, to accept or reject any order from Customer. Netradyne shall not be deemed to have accepted any order from Customer in the absence of a written Order Form signed by Netradyne and Customer.

Prices

Customer may purchase any replacement or additional Hardware (including the associated license to the Firmware) and the Services from Netradyne at the prices set forth on the Order Form. Unless explicitly set forth on the applicable Order Form, all Prices are exclusive of all shipping, installation and related costs and all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Netradyne’s income, revenue, gross receipts, personal or real property, or other assets.

Payment terms

Unless otherwise agreed to in writing by Netradyne and Customer, Customer shall pay all amounts owed to Netradyne under this Agreement on or prior to the due dates set forth in the Order Form. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Netradyne for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Netradyne does not waive by the exercise of any rights hereunder), Netradyne shall be entitled to suspend the performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Netradyne.

Customer's acts or omissions.

If Netradyne's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Netradyne shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Acceptance

Acceptance of Hardware (including associated Firmware) and Services will occur upon delivery to the Delivery Point unless Customer provides Netradyne with written notice of rejection within (5) business days of delivery. Customer may reject Hardware, Firmware and/or Services only if they do not meet Netradyne’s published specifications or are otherwise defective, Customer provides a detailed writing as to how the Hardware, Firmware and/or Services do not meet specifications or are otherwise defective, and Customer gives Netradyne thirty (30) days to correct any such non-conformity(ies).

Installation: maintanence

Except as otherwise expressly set forth in the Order Form, Customer assumes responsibility for installation of Hardware. Customer also assumes responsibility for maintenance of Hardware and ensuring its property meets all specifications and other criteria identified by Netradyne as necessary in order to support the Hardware, the Firmware and the Services.

Performance of Driver•i services

  • Certain Definitions.

    "Authorized User" means each of the individuals authorized to use the Services pursuant to the Order Form and the terms and conditions of this Agreement.

    “Customer Proprietary Data” means Customer confidential information and data that Customer owns and to which Netradyne has access in connection with the provision of the Services. Customer Proprietary Data shall include personally identifiable information of Customer employees, agents or independent contractors. For avoidance of doubt, Customer Proprietary Data does not encompass or include Driving Data nor Netradyne Derived Data.

    "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

    “Deidentified Driving Data” and “Deidentified Netradyne Derived Data” mean respectively, Driving Data or Netradyne Derived Data from which any Personal Identifiers have been disassociated, which data cannot reasonably be used to infer information about, or otherwise link to a particular individual and which adhere to the definition of “de-identified” in the CPRA 1798.140(m). For clarity, Deidentified Driving Data or Deidentified Netradyne Derived Data may include discernible driver or passenger faces in inward-facing videos or discernible license plates or pedestrian faces in outward camera video, provided such videos are not associated with a particular individual via a Personal Identifier.

    "Documentation" means any manuals, instructions or other documents or materials that Netradyne provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, the Firmware, the Hardware or Netradyne Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

    “Driving Data” means video images; still images; sound recordings (unless prohibited by law); location information; GPS or other telematics information; travel information, speed information, or other sensor data taken or gathered by the installed Hardware; all whether or not Processed. For avoidance of doubt, Driving Data does not include Customer Proprietary Data nor Netradyne Derived Data.

    "Intellectual Property Rights" patents, copyrights (including rights in computer software), database rights, design rights and rights in proprietary technical information and know-how, trade secrets and inventions, trademarks, service marks and design marks, all whether registered or not and including all applications for any of them and all equivalent rights in all parts of the world, whenever and however arising for their full term, and including any divisions, re-issues, re-examinations, continuations, continuations-in-part, and renewals.

    "Process" means to take any action or perform any operation or set of operations that the Driveri Services are capable of taking or performing on any data, information or other content, including to collect, receive, 2/24 input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross- reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.

    "Netradyne Materials" means the Service Software, Specifications, Documentation and Netradyne Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Netradyne or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Netradyne Systems. For the avoidance of doubt, Netradyne Materials include Netradyne Derived Data and any information, data or other content derived from Netradyne's monitoring of Customer's access to or use of the Services, but do not include Customer Proprietary Data.

    "Netradyne Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Netradyne or any subcontractor.

    "Netradyne Systems" means the information technology infrastructure used by or on behalf of Netradyne in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Netradyne or through the use of third-party services.

    "Netradyne Derived Data" means information, data and other content that Netradyne derives from the processing and/or analysis of Driving Data including without limitation through the use of algorithms.

    "Service Software" means the Netradyne Driveri platform application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Netradyne provides remote access to and use of as part of the Services.

    "Specifications" means the published specifications for the Services in effect as of the date of the Order Form and to the extent consistent with and not limiting of the foregoing, the Documentation.

    "Third-Party Materials" means materials and information, in any form or medium, including any open- source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Hardware, the Firmware or the Services that are not proprietary to Netradyne.
  • Driver·i Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the term set forth in the applicable Order Form, Netradyne shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Driveri Services in accordance with the Specifications, the applicable Order Form and this Agreement, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the Specifications.
  • Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
    • Netradyne has and will retain sole control over the operation, provision, maintenance and management of the Driver·i Services and Netradyne Materials, including the: (A) Netradyne Systems; (B) selection, deployment, modification and replacement of the Service Software; and (C) performance of Service maintenance, upgrades, corrections and repairs; and
    • Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Driveri Services and Netradyne Materials by any person, by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (A) information, instructions or materials provided by any of them to the Driveri Services or Netradyne; (B) results obtained from any use of the Driveri Services or Netradyne Materials; and (C) conclusions, decisions or actions based on such use.
  • Suspension or Termination of Services. Netradyne may, directly or indirectly, by use of any lawful means, including by use of a disabling device, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Driveri Services or Netradyne Materials, without incurring any resulting obligation or liability, if: (i) Netradyne receives a judicial or other governmental 2/24 demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Netradyne to do so; or (ii) Netradyne believes, in its sole reasonable discretion, that: (A) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Driveri Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (B) Customer or any Authorized User reasonably is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (C) this Agreement expires or is terminated. This Section does not limit any of Netradyne's other rights or remedies, whether at law, in equity or under this Agreement.
  • Authorization. Subject to and conditioned on Customer's payment of the applicable fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Netradyne hereby authorizes Customer and its Authorized Users to access and use, during the applicable term, the Driver•i Services and such Netradyne Materials as Netradyne may supply or make available to Customer solely for its internal business operations and in accordance with the Specifications and conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
  • Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Driveri Services, Netradyne Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Driveri Services, the Netradyne Materials and the Third-Party Materials are and will remain with Netradyne and the respective rights holders in the Third-Party Materials.
  • Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Driveri Services or Netradyne Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
    • copy, modify or create derivative works or improvements of the Driveri Services or rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Driver•i Services or Netradyne Materials;
    • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Driveri Services or Netradyne Materials to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
    • reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Driveri Services or Netradyne Materials, in whole or in part;
    • bypass or breach any security device or protection used by the Driveri Services or Netradyne Materials or access or use the Services or Netradyne Materials other than by an Authorized User through the use of his or her own then valid access credentials;
    • input, upload, transmit or otherwise provide to or through the Driveri Services or Netradyne Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
    • damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Driveri Services, Netradyne Systems or Netradyne's provision of services to any third-party, in whole or in part;
    • remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Driveri Services or Netradyne Materials, including any copy thereof;
    • Access, scrape images from, or use the Driveri Services or Netradyne Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third-party, or that violates any applicable law;
    • access or use the Driveri Services or Netradyne Materials for purposes of competitive analysis of the Driveri Services or Netradyne Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Netradyne's detriment or commercial disadvantage;
    • access or use the Driveri Services or Netradyne Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
    • otherwise access or use the Driveri Services or Netradyne Materials beyond the scope of the authorization granted under Section 8(e).
  • Customer Systems and Cooperation. Customer shall at all times during the term: (i) set up, maintain and operate in good repair and in accordance with the Specifications all Hardware and Customer Systems on or through which the Driveri Services are accessed or used; (ii) provide Netradyne Personnel with such access to Customer's premises, the Hardware and Customer Systems as is necessary for Netradyne to perform the Driveri Services in accordance with the Specifications; and (iii) provide all cooperation and assistance as Netradyne may reasonably request to enable Netradyne to exercise its rights and perform its obligations under and in connection with this Agreement.
  • Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 6(g), Customer shall, and shall cause its Authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable reasonable measures to discontinue and prevent unauthorized access to the Driveri Services and Netradyne Materials); and (ii) notify Netradyne of any such actual or threatened activity.
  • Data Backup. The Driveri Services do not replace the need for Customer to maintain regular data backups or redundant data archives. NETRADYNE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER PROPRIETARY DATA OR DRIVING DATA.
  • Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Proprietary Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Driveri Services; (iii) Customer Systems; (iv) the security and use of Customer's and its Authorized Users' Access Credentials; and (v) all access to and use of the Driveri Services and Netradyne Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
  • Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Driveri Services; and (ii) control the content and use of Customer Proprietary Data, including the uploading or other provision of Customer Proprietary Data for Processing by the Driveri Services.
  • Performance of Services. Netradyne shall use reasonable efforts to meet any performance dates to render the Services specified in any accepted Order Form, and any such dates shall be estimates only.

Data protection, privacy & compliance.

  • Netradyne’s Data Retention Policy. Netradyne will use and maintain data in accordance with its Data Retention Policy, available at netradyne.com/cdr/ (password = Welcome2TheGreenZone!). Customer understands and agrees that once audio and video data have been de-identified in accordance with such policy, Customer cannot search for and download such data. Therefore, it is Customer’s obligation to access and retain all needed data within the Availability Period. Under certain circumstances, Customer may request (during the Availability Period) that Netradyne retain certain data outside of standard Data Retention Policy procedures; in such cases additional fees may apply.
  • Compliance with Privacy Laws. Customer is responsible for complying with all applicable federal, state, and international data protection and privacy laws, including regulations, ordinances, orders and rules, with respect to any personal data of its employees, independent contractors, subcontractors and any other person on Customer’s property, including all persons present or otherwise audible in any vehicle in which the Hardware is installed (each, a "Driver"), in connection with its use of the Hardware, the Firmware and the Services and in order to comply with the terms and conditions of this Agreement. Netradyne does not represent or warrant, and nothing in this Agreement will be construed to mean, that any Netradyne products, services, or notices that Netradyne requests Customer to provide to any Driver, will put or keep the Customer in compliance with any laws. In addition, when a vehicle utilizing Driveri Services is in a location that prohibits, by law or otherwise, recording of any data including sounds, Customer will ensure compliance therewith.
  • Location-Based Services. Customer will ensure that before using the Driveri Services, the Driver of each vehicle in which Driveri is installed and in use, is notified of such use, including that Netradyne retains and may use such data as contemplated by this Agreement. Customer further ensures compliance with all laws, including with the CTIA Best Practices and Guidelines for Location-Based Services, which can currently be found at For https://www.ctia.org/the-wireless-industry/industry-commitments/best-practices-and-guidelines-for-location-based-services Customers outside the United States, or whose vehicles utilize Driveri outside the United States, Customer will ensure before such use, that it is in compliance with the laws of the jurisdiction where Driveri is in use.
  • Customer Information. Customer (i) is fully responsible for any unauthorized collection, disclosure, disposal or use of, or access to, personal data in Customer’s possession or under Customer’s control, that relates to the Hardware, the Firmware and the Services, including, without limitation, images, sound recordings, location information, and other Customer Proprietary Data; (ii) will implement administrative, physical, and technical safeguards to protect the same; (iii) will maintain an up-to-date privacy policy that fully explains (A) what information it collects, (B) how it uses that information, (C) how it secures that information, (D) to whom it discloses that information, and (E) other privacy disclosures required by law; and (iv) will obtain informed written consent from its Driveri device users consistent with the foregoing for Netradyne to provide the Services as described herein; and (v) will comply with all applicable laws, including without limitation data security, privacy, marketing, and consumer protection laws as applicable within the United States, as well as the applicable data protection and privacy laws and regulations with respect to Customer Proprietary Data and any other personal data that Customer may process or maintain in connection with its use of the Hardware, the Firmware and the Services.
  • Subpoena Compliance. If Customer or Netradyne receives a subpoena relating to Customer’s billing records, or any information collected from or processed in connection with the Hardware, the Firmware or the Services, Customer or Netradyne agree to promptly notify the other of the subpoena, and to assist the other with compliance.
  • Electronic Surveillance. If Customer receives a court order relating to electronic surveillance in connection with its use of the Hardware, the Firmware or the Services, Customer will promptly notify Netradyne of such order, and provide Netradyne any information it needs to help Customer comply with the court order. If Customer either (i) fails to comply with the court order, or (ii) fails to promptly contact Netradyne for any assistance it needs in performing the electronic surveillance, and if Netradyne is fined as a result of Customer’s failure described in (i) or (ii), Customer will reimburse Netradyne for the amount of the fine and its reasonable costs in complying with same. If Netradyne receives a court order relating to electronic surveillance in connection with the Services, Customer will promptly comply with all of Netradyne’s requests.

Proprietary rights

  • Netradyne grants to Customer a non-transferable, non-sub licensable and non-exclusive license to use the Firmware solely to the extent necessary to operate the Hardware in compliance with accompanying documentation. All such Firmware is licensed, not sold, to Customer and is subject to any additional Netradyne license that may accompany such Firmware. All rights, title and interest in Firmware and any other Netradyne software not expressly granted to Customer herein remain the exclusive property of Netradyne or its licensors.Customer and any third-party acting through Customer may not (i) use Firmware or software for any purpose not expressly permitted by this Agreement, (ii) reproduce Firmware or software or any component thereof or any documentation related thereto, (iii) modify or create derivative works of Firmware or software, (iv) decompile, disassemble, compile or reverse engineer Firmware or software or otherwise attempt to gain access to the source code, or (v) use, duplicate or disclose any technical data or any information regarding the Firmware or software for any purpose. These rights are subject to any third-party license underlying any component or application of the Firmware or software. Netradyne is not responsible and bears no liability for malfunction or inoperability of Hardware, Firmware, software or Services resulting from (A) Customer directly or indirectly engaging in any of the foregoing items (i) through (v) above, (B) changes to or de-commitment of operating systems or other applications by any original equipment manufacturer, (C) introduction of a virus or other malware caused directly or indirectly by Customer, (D) inoperability or incompatibility with any Customer network or (v) any breach of this Agreement. Any such actions will render any remaining warranty immediately void and of no further force or effect. For avoidance of doubt, Customer may not transfer or install software or Firmware on any goods not acquired from Netradyne and software and Firmware will only be installed and used on the specific, single workstation or Hardware for which it is licensed, excluding only updates (published by Netradyne for general customer distribution at no charge, i.e., error correction or patch).
  • All right, title and interest in and to the Firmware and other software, Services and Netradyne Materials, including any and all Intellectual Property Rights therein, and all Intellectual Property Rights in and to the Hardware, are and will remain with Netradyne and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services, Firmware, software or Netradyne Materials (including Third-Party Materials) except as expressly set forth in Section 8(e) or the applicable third-party license, in each case subject to Section 8(g). All other rights in and to the Services, Firmware, software and Netradyne Materials (including Third-Party Materials) are expressly reserved by Netradyne and the respective third-party licensors.
  • As between Customer and Netradyne, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Proprietary Data subject to the rights and permissions granted in Sections 10(d) and 10(e) below.
  • Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Proprietary Data to Netradyne, its subcontractors, and Netradyne Personnel as are necessary or useful to (i) perform the Services; (ii) enforce this Agreement and exercise its rights and perform hereunder; and (iii) create and make use of Driving Data and Netradyne Derived Data. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Netradyne an assignment of any and all right, title and interest in and to Driving Data and Netradyne’s Derived Data, including all Intellectual Property Rights relating thereto.
  • Customer shall and hereby does, and shall cause each of its Authorized Users and Drivers to, unconditionally and irrevocably assign to Netradyne, the entire right, title and interest that Customer, Driver or such Authorized User may have or acquire in any Netradyne Materials or any of Netradyne's Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto. Customer further represents, warrants and covenants to Netradyne, that Customer has and will have the necessary rights, and consents to assign to Netradyne all rights in the Netradyne Materials as set forth in this Agreement.
  • Customer represents, warrants and covenants to Netradyne that Customer owns or otherwise has and will have any necessary rights and consents in and relating to the Customer Proprietary Data so that, as received by Netradyne and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any Authorized User, Driver or third party or violate any applicable Law.

Limited warranty

  • Unless otherwise provided in the Order Form, Netradyne warrants to Customer that for a period of twelve (12) months from the date of shipment of the Hardware to Customer ("Warranty Period"), such Hardware will materially conform to Netradyne's published specifications in effect as of the date of the applicable accepted Order Form and such Hardware will be free from material defects in material and workmanship. Customer acknowledges and agrees that Munich Re provides no independent representation or warranty of any kind with respect to any Hardware provided in connection with this Agreement and shall have no liability relative to same.
  • Netradyne warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations underthis Agreement. Any concerns or claims should be directed to support@netradyne.com or 1-833-GRN-ZONE. You can expect a response within one (1) business day. Please note that Netradyne is not responsible for factors outside of Netradyne’s reasonable control (such as your inability to access the internet). Please visit www.netradyne.com/sla for additional terms and conditions.
  • EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 9(a) AND (b), NETRADYNE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE, FIRMWARE OR SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
  • Products manufactured by a third-party ("Third-Party Products") and other Third-Party Materials may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Hardware. Third-Party Products and Third-Party Materials are not covered by the warranty in Section 9(a). For the avoidance of doubt, NETRADYNE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT OR THIRD-PARTY MATERIALS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
  • Netradyne shall not be liable for a breach of the warranties set forth in Section 9(a) and Section 9(b) unless: (i) Customer gives written notice of the defective Hardware, Firmware or Services, as the case may be, reasonably described, to Netradyne within ten (10) days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, Netradyne is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Hardware and Customer (if requested to do so by Netradyne) returns such Hardware to Netradyne's place of business at Netradyne's cost for the examination to take place there; and (iii) Netradyne reasonably verifies Customer's claim that the Hardware, Firmware or Services are defective.
  • Netradyne shall not be liable for a breach of the warranties set forth in Section 9(a) or Section 9(b) if: (i) Customer makes any further use of such Hardware, Firmware or Services after giving such notice (except that Customer may continue to use the Driveri Services after giving such notice); (ii) the defect arises because Customer failed to follow Netradyne's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or the use of the Firmware or Services; (iii) Customer alters or repairs such Hardware or Firmware without the prior written consent of Netradyne.
  • Subject to Section 9(e) and Section 9(f) above, with respect to any such Hardware during the Warranty Period, Netradyne shall, in its sole discretion, either: (i) repair or replace such Hardware (or the defective part) or (ii) credit or refund the price of such Hardware at the pro rata contract rate provided that, if Netradyne so requests, Customer shall, at Netradyne's expense, return such Hardware to Netradyne.
  • Subject to Section 9(e) and Section 9(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 9(b), Netradyne shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
  • THE REMEDIES SET FORTH IN SECTION 11(g) AND (h) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND NETRADYNE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 11(a) AND (b), RESPECTIVELY.

Limitation of liability

  • IN NO EVENT SHALL NETRADYNE OR MUNICH RE BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL,INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NETRADYNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • IN NO EVENT SHALL NETRADYNE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NETRADYNE FOR THE HARDWARE AND SERVICES SOLD HEREUNDER. ADDITIONALLY, THOUGH CUSTOMER IS RECEIVING HARDWARE FROM MUNICH RE, MUNICH RE SHALL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT.

Indemnification

Customer shall indemnify, defend and hold harmless Netradyne and its subcontractors, affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Netradyne Indemnitee") from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers ("Losses"), incurred by such Netradyne Indemnitee in connection with any claim, suit, action or proceeding that arises out of or relates to: (a) Customer Proprietary Data, including any Processing of Customer Proprietary Data by or on behalf of Netradyne; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User; (c) allegation of facts that, if true, would constitute Customer's material breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third-party on behalf of Customer or any Authorized User, in connection with this Agreement; (e) libel, slander, infringement of copyright, or invasion of privacy related to the Customer Proprietary Data or any other material contained in, processed in, or sent using the Services; or (f) any surveillance that Customer may direct Netradyne to undertake in connection with the Services. Customer’s indemnification hereunder does not limit any right or remedy that Netradyne has or may have in the future under the Agreement, at law, in equity, or under statute.

Equitable relief

Customer acknowledges and agrees that a breach or threatened breach by it of any of its obligations under Sections 6(g), 6(i), 810 and 168 would cause Netradyne irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Netradyne will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

Compliance with law

Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement and to utilize the Hardware, the Firmware and the Services. Netradyne may suspend, terminate, withdraw or discontinue all or part of the Services when Netradyne believes, in its sole judgment, that Customer is in breach of this Section.

Termination

  • This Agreement shall terminate at the time and under the terms and conditions set forth in the applicable Commercial Agreement Order Form or pursuant to section 16(b) below. If not otherwise stated in the Commercial Agreement and Order Form, the “Term” of the Agreement begins as of the date of Customer’s signature on such Commercial Agreement and Order Form. If the Term is renewed for any Renewal Term(s), the terms and conditions of this Agreement during such Renewal Term(s) are the same as those in effect immediately prior to such renewal. If you have executed a Data Share Agreement concurrently with this Agreement, this Agreement will continue notwithstanding the termination of such Data Share Agreement. Additionally, the Customer’s and Netradyne’s obligations under this Agreement will continue for the full Term of the Agreement, regardless of whether Customer or Munich Re owns the Hardware.
  • In addition to any remedies that may be provided under this Agreement, Netradyne may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with the material terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Customer may terminate this Agreement upon a continued, material breach by Netradyne of its SLA.
  • Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (A) all rights, licenses, consents and authorizations granted by Netradyne hereunder will immediately terminate; (B) Customer shall immediately cease all use of any Services, Firmware and Netradyne Materials; (C) all accrued rights to payments shall survive, and Customer shall promptly pay in full to Netradyne all outstanding and unpaid fees; and (D) Netradyne may disable all Customer and Authorized User access to the Driveri Services and Netradyne Materials.

Waiver

No waiver by Netradyne of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Netradyne. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Confidential information

From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") or to any of such Receiving Party's employees, officers, directors, partners, shareholders, agents, vendors, attorneys, accountants or advisors (collectively, "Representatives"), information about its business affairs, products/services, confidential intellectual property, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 18 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement or as otherwise set forth under a separate writing signed by the parties; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 18 caused by any of its Representatives. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section 18 and to secure its enforcement. For the avoidance of doubt, Driving Data and Netradyne Derived Data constitute the exclusive Confidential Information of Netradyne.

Force majeure

Netradyne shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Netradyne including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Assignment; subcontracting

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Netradyne, not to be unreasonably withheld. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Netradyne has the right to assign, subcontract or delegate in whole or in part this Agreement or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Netradyne shall remain responsible for the performance of such Services under this Agreement.

Relationship of the parties

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form ofjoint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

No third-party beneficiaries

This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the terms of this Agreement.

Governing law; jurisdiction

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in the County of San Diego, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival

Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth in the Order Form or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

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