Elm Technologies Terms & Conditions

1. Service: Elm will provide Customer with the following: a) a subscription to Trimble's web-based Telvisant service and b) wireless data communications service; (collectively the "Service") over the term of this agreement (this "Agreement"). Any on-site training or support requested by Customer will involve additional charges. Customer must purchase the necessary in-vehicle hardware separately from Elm. All software items delivered to Customer under this Agreement are licensed and not sold. Customer use of any software items covered by this Agreement shall be governed by the provisions of the relevant End User License Agreement included with the software, if any. Customer's and Customer's end users' ("End User(s)") use of the Service shall be subject to this Agreement and the Terms of Use, incorporated herein by reference, posted at Trimble's service web site, but in the event of a conflict, the Terms of Use shall prevail.
   
   
2. Agreement Term: This Agreement with Elm will be in effect for the full term set forth above in this Agreement (the "Term") commencing upon Elm's acceptance of this Agreement (the "Effective Date"). Cancellation by Customer of the Service, in whole or in part, before the end of the Term is subject to a termination fee equal to the monthly charges times the number of months of Service remaining under the Agreement. After the expiration of the Term, the Agreement will automatically renew on a month-to-month basis and either Customer or Elm may cancel the Service at any time by notifying the other party one (1) month prior to cancellation. Monthly charges for the Service are billed in advance and are not refundable if Service is discontinued in the middle of a billing cycle. Any time after the initial term, Elm may change the price for Service by giving Customer notice thirty (30) days before the effective date of the change. Upon termination of Service for any reason, Customer agrees to discontinue use of the Service and either return or certify as destroyed all copies of software, and related materials and documentation obtained through the Service.
   
   
3. Risk of Loss: Risk of Loss: Customer is responsible for any risk of loss for the hardware equipment required to communicate with the Service, from any cause, including vehicle failure, theft, fire, collision, tampering, and vandalism. Despite any such loss, Customer shall not be excused from its performance under this Agreement.
   
   
4. Payment: All prices are stated and shall be paid in Canadian Dollars unless otherwise indicated in the Agreement. Customer will, upon approval of the Agreement, pay the amounts owed under the Agreement, including any applicable taxes, GST/PST or duties. Customer also agrees to pay charges that result directly or indirectly from government regulations or mandates. Elm will endeavor to give Customer reasonable prior written notice if any such costs and/or charges are implemented after Customer's Service activation date. Customer will be billed for Service, on a monthly basis, at the rate indicated in the Agreement, commencing upon initial use of the Service, pro rated, if appropriate. Service charges are billed monthly, in advance, and are due and payable on the 1st of the month. In the event that Customer fails to make timely Service payments, Elm will be entitled to impose late charges of 2% of the unpaid amount for each month that the amount is unpaid, terminate this Agreement and/or suspend Customer's Service. In the event Service is suspended (which suspension may be granted, conditioned or denied in Elm's sole discretion). Customer will be billed a fee of two hundred fifty dollars ($250.00) per unit upon restoration of Service. Elm shall have the continuing right to approve Customer's credit and change Customer's credit terms. Elm reserves the right to require a security deposit from Customer in its sole discretion. No off-sets by Customer in paying the fees set forth herein are allowed without Elm's prior written approval in its sole discretion. Upon contract expiry, the account billing will continue on a monthly basis until ELM receives written notice 30 days in advance of the effective cancellation date.
   
   
5. Default: If Customer fails to pay any amounts due under this Agreement, breaches any provision of this Agreement, or if Customer makes an assignment for the benefit of creditors, whether voluntary or involuntary, Elm may terminate this Agreement and i) receive from Customer all amounts due under this Agreement plus the costs of collection, attorney's fees and collection agency charges and ii) pursue any other remedy at law or in equity.
   
   
6. Customer's Representations and Warranties to Elm: Customer represents and warrants, to Elm, and Elm relies on the fact that a) all corporate and other authorizations required of Customer to enter into and fully perform Customer obligations per this Agreement have been obtained, b) the individual approving this agreement is duly authorized by Customer, c) Customer assumes all responsibility for its End Users and ensure their compliance with the terms of this Agreement and the Terms of Use; and d) Customer will observe and abide by all applicable statutes, laws, ordinances, rules and regulations. In addition, Customer acknowledges and agrees that applicable Industry Canada, FCC rules and regulations are subject to change and Elm, at its sole discretion , may modify this Agreement, to comply with any such changes without liability to Customer or any third party.
   
   
7. Network Coverage: Customer acknowledges that Trimble's Service and network access are subject to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations or lack of coverage of the underlying carrier service and other natural or manmade conditions. In addition, motor and ignition noise, metal shielding, interference by users of the same or adjacent radio channels may limit or interfere with coverage.
   
   
8. Interruption of Service: Trimble and Elm shall not be held liable by Customer or any third party for any loss or damage arising from Service, or its interruption, transmission errors, defects or any other cause, including, but not limited to, interruption caused by the underlying carrier. Trimble/Elm do not assume and shall not have any liability for events beyond Trimble's/Elm's control or the control of Trimble's subcontractors, or licensors, including, but not limited to, acts of God, acts of any governmental entity, acts of public enemy, strikes or weather conditions. In the event of a total Service outage ("Outage") which is not caused by the Customer or its End User, and which lasts for a period of forty-eight (48) hours or more, a credit allowance will be made at Customer's request in the form of a pro rata adjustment of the fixed charges billed by Elm to Customer. Periods of discontinuous Outage may not be accumulated in determining if an Outage has continued for at least forty-eight (48) hours. In order to receive such credit, Customer must submit a written request to Elm, stating the date and location of the Outage, the account(s) affected, and such other information as Elm may reasonably require. Such notice must be received by Elm within ten (10) business days following the last date of the period of Outage. Except as provided herein, Elm/Trimble shall incur no liability for outages.
   
   
9. Misuse of Service: Service to Customer may be restricted or cancelled if there is a reasonable suspicion of misuse or fraudulent use. In the event of misuse or fraudulent use of the Service, which includes, but is not limited to, (i) Attempting or assisting another to access, alter, or interfere with the communications and/or information about another wireless customer; (ii) Tampering with or making an unauthorized connection to the network; (iii) Installing any amplifiers, enhancers, repeaters, or other devices that modify the radio frequencies used to provide the Service; (iii) Subscription fraud; (iv) Using the Service in such a manner so as to interfere unreasonably with the use of Service by one or more other wireless customers or End Users or to interfere unreasonably with the underlying carrier's ability to provide Service; (v) Using the Service to convey obscene, salacious, or unlawful information; (vi) Using the Service without permission on a stolen or lost device; (vii) unauthorized access; (viii) Taking any action that imposes an unreasonable or disproportionately large load on the Service infrastructure; (ix) Using the Service in such a manner that it is not used in compliance with Industry Canada, FCC rules and other regulatory authorities having jurisdiction, Elm may, without notice, take any necessary action, including interrupting, or even terminating Customer's Service. Customer will be responsible to Elm for any costs incurred (including attorneys fees) as a result of misuse or fraudulent use of the Service. Customer agrees not to resell or re-bill the Service provided to Customer to any other individual or entity.
   
   
10. Warranty: ELM FURNISHES AND CUSTOMER ACCEPTS THE SERVICE ON AN "AS-IS, AS AVAILABLE" BASIS WITH NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXPLICITLY DISCLAIMING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF SECURITY, AND INFRINGEMENT, REGARDING THE SERVICE TO CUSTOMER, OR ANY THIRD PARTY. TO THE EXTENT TRIMBLE/ELM PROVIDES ACCESS TO INFORMATION PROVIDED BY OTHER SOURCES, TRIMBLE/ELM ACCEPTS NO LIABILITY FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT THEREOF. CUSTOMER HAS NOT RELIED ON AND WILL NOT CLAIM THAT IT IS ENTITLED TO THE BENEFITS OF ANY REPRESENTATIONS, PROMISES, DESCRIPTION OF SERVICES OR OTHER STATEMENT NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT. The parties agree that this is a contract for services, not goods and therefore the Uniform Commercial Code or similar legislation covering this Agreement does not apply. Elm is not responsible for problems caused by changes made by Customer, problems with Customer computer hardware, operating systems, or operating characteristics, or for problems in the interaction of the hardware or software with non Trimble software components.
    
    
11. Liability Limitation: THE ENTIRE LIABILITY OF ELM AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE AND CUSTOMER'S EXCLUSIVE REMEDY UNDER OR FOR BREACH OF THIS AGREEMENT SHALL BE REFUND OF THE SERVICE FEES PAID FOR THE TWO MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, REGARDLESS OF ANY DEFECT IN THE SERVICE, SOFTWARE, COMMUNICATIONS NETWORKS, OR NEGLIGENCE ON ELM'S PART, OR ELM'S SUBCONTRACTOR'S PART AND REGARDLESS OF THE CLAIM OR FORM OF ACTION. IN NO EVENT WILL ELM AND THIRD-PARTIES WHO CONTRIBUTE TO THE, SERVICE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER PECUNIARY LOSS) THAT CUSTOMER OR ANY THIRD PARTY MIGHT INCUR DUE TO CUSTOMER'S USE OR INABILITY TO USE THE TRIMBLE SERVICE OR ELM'S FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ELM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES ALL RISK OF USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE RISK OF TRAFFIC ACCIDENTS WHILE USING THE SERVICE. THE SERVICE IS NOT GUARANTEED AGAINST EAVESDROPPERS OR INTERCEPTORS. CUSTOMER AGREES THAT TRIMBLE/ELM SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LACK OF PRIVACY OR SECURITY. Customer agrees to defend, indemnify and hold harmless Elm and third parties who contribute to the Service from any loss, liability or damage, consequential or otherwise, occasioned by, growing out of, or arising from Customer's breach of this Agreement, use or misuse of the Service or any other act or failure to act by Customer, Customer's agents or employees. The failure of Customer to perform its obligations under any other agreement between Elm and Customer shall be a default under this Agreement.
    
    
12. Assignment: This Agreement may not be assigned in whole or in any part by Customer to any other entity without Elm's written consent, which may be withheld in Elm's sole discretion. Elm reserves the right to assign this Agreement or subcontract any of its obligations hereunder to a third party.
    
    
13. Export: Customer shall not export, directly or indirectly, any item covered by this Agreement to any country in violation of any law or regulation, including without limitation any law or regulation of the Canadian and U.S. Governments or any agency. Customer is solely responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any item covered by this Agreement. Customer will defend, indemnify and hold Elm harmless against any liability (including attorneys' fees) arising out of Customer's failure to comply with the terms of this paragraph.
    
    
14. Waiver/Partial Invalidity: The failure of Elm to exercise or enforce any right or provision of the agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality or unenforceability, or, if that is not possible, such provision shall, to the extent of such invalidity, illegality or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect, provided, however, that the court shall have authority and jurisdiction to, and shall, add to this Agreement a provision as similar in terms and intended effect to such severed provision as may be possible and be legal, valid and enforceable.
    
    
15. Notices: Any notice required or permitted under these Terms and Conditions will be deemed given and served when personally delivered, or five (5) business days after being sent by reputable international courier requiring signature for receipt, addressed to the party at its notice address. Either party may change its notice address by written notice to the other. The Customer's notice address shall be its address appearing on the first page of this Agreement. Elm's notice address shall be: Elm Technologies Limited, 4141 Sladeview Cres., Unit 11, Mississauga, Ontario L5L 5T1, Canada.
    
    
16. General: This Agreement, along with the Terms of Use and any relevant end user license agreement(s), constitute the entire agreement between Customer and Elm, and supersedes any and all prior agreements, negotiations and communications (whether written, oral or electronic) between Customer and Elm with respect to the Service. No change, modification, or wavier of the terms and conditions of this Agreement, shall be binding on Elm unless made in writing, with Elm's approval. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and applicable Canadian federal law, without reference to "conflict of laws" provisions or principles. The United Nations Convention on Contracts for International Sale of Goods will not apply to this Agreement. Jurisdiction and venue of any dispute or legal action brought by either party arising out of or relating to this Agreement, the items or services provided under this Agreement, or the commercial relationship of the parties, shall lie exclusively in, or be transferred to, the courts of the Province of Ontario. Customer hereby submits, consents, and agrees not to contest such jurisdiction and venue. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
    
    
17. Carrier Required Disclosures:
    1. CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN TRIMBLE AND THE UNDERLYING CARRIER. CUSTOMER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, CUSTOMER'S EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOIIIIER FOR THE SERVICES DURING THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
    2. CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE NUMBER EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
    3. CUSTOMER HAS NO PROPRIETARY RIGHT IN ANY NUMBER ASSIGNED TO IT AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO TIME.
    4. CUSTOMER UNDERSTANDS THAT TRIMBLE AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
    
    
18. Language: The Parties hereto have requested that this Agreement and all correspondence and all documentation relating to this Agreement, be written in the English language. Les parties aux présentes ont exigées que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en la langue anglaise.