EULA

AVIEL SOLUTIONS END-USER LICENSE AGREEMENT

LICENSE AND USE OF THE SERVICES

Grant of License: Aviel Solutions agrees to provide you with a limited, time-bound license to use the Services mentioned in the associated Pricing Schedule(s) for your internal business needs throughout the Term outlined in this Contract. By “Services,” we refer to the Programs, Services, Applications, and access to related websites and portals (“Portals”) that we’ll offer you in accordance with this Contract. This encompasses support, training, and consulting services as detailed in the relevant Pricing Schedule. The term “Programs” includes various software subscriptions specified in the Pricing Schedule, such as Aviel Solutions programs. Additionally, “Applications” refers to prewritten programs from Aviel Solutions or third-party hosts that you can access as described in the Pricing Schedule.

Ownership: The customer acknowledges that Aviel Solutions exclusively owns and controls the Portals, Programs, and Applications. This includes all copyrights, database rights, design rights, and intellectual property rights related to text, graphics, arrangement, markup, software compilations, underlying source materials (HTML, scripts), and any other content accessible or provided to you through the Portals.

Availability: Aviel Solutions will strive to reasonably ensure the availability of Services to the Customer and grant access to Data stored by us. However, interruptions may occur due to system maintenance, upgrades, backup, recovery, and circumstances beyond our control. Whenever feasible, scheduled maintenance and planned outages will be scheduled during non-business hours. You accept that Aviel Solutions is not liable for damages arising from the inoperability or unavailability of the Portals, information, software, or systems.

Pricing Schedules; Orders: The Services provided pursuant to this Contract are illustrated in the applicable Pricing Schedule(s). The customer has the ability to place additional orders for Services, Professional Services, and Technical Services subject to commercial availability. Unless otherwise stated in a Pricing Schedule, Services may be purchased at the then current list price.

Internet Access and Login: The customer is responsible for maintaining Internet connectivity to utilize the Services. Using the Internet carries inherent risks, and you bear full responsibility and liability for information transmitted, sites visited, or services accessed. If applicable, we’ll provide a default username and password for Service access. However, you’re accountable for managing their use, and we hold no liability for their misuse. You accept all risks linked to using the Services and Portals, including potential damage to your computers, software, or data due to viruses or files transmitted or activated via the Portals.

Unauthorized Use/Use Restrictions: You will not use the Programs, Applications or Portals for any Unauthorized Purpose. In the event you use the Programs, Applications or Portals for an Unauthorized Purpose, we may take any and all actions, including, but not limited to, the issuance of a warning, limiting, suspending, or terminating your right to use the Service, cancellation of your order, and involvement of government authorities, that we deem necessary or appropriate. “Unauthorized Purpose” includes but is not limited to:

Introducing viruses, corrupted files or any other similar software or programs that may damage, alter or destroy the Portals or the operation of any computer system, network, software, program, documentation or data;
Accessing or attempting to access or use our computer system, computer network or website for the purpose of devising or executing any scheme or artifice to defraud, obtain money, property or services by means of false or fraudulent pretenses, representations or promises; or commit theft, including, but not limited to, theft of proprietary information;
Engaging in any other conduct to violate any laws;
Soliciting any business from other customers first made known to you through the Portals;
Soliciting or engaging any drivers or equipment owners first made known to you through the Portals;
Monitoring or analyzing operations and performance of other Aviel Solutions customers;
Allowing any third party to use or access the Confidential Information, redistributing the Services to any third party, linking the Services to any open-source software, or subjecting the Services to any open-source licenses;
Unauthorized Brokering. Unauthorized brokering means either: (i) brokering without a proper and current brokerage license, which shall be made available to us immediately upon request; or (ii) re-brokering to another party after receiving load instructions from the initial party brokering to you, commonly known as Double Brokering;
Reproducing the Confidential Information or Aviel Solutions’ intellectual property without our prior written consent, other than temporarily in the course of using the Portals or to keep a record of transactions entered into using the Portals;
Copying our software, except to install it on your hardware;
Selling the Services or any part thereof or incorporating it (or any portion of it) into another product;
Reverse engineering, decompiling or disassembling any part of the Services or otherwise attempting to derive the source code (except where expressly permitted by law);
Modifying, adapting or creating derivative works from the Services in any way or removing proprietary notices; and
Authorizing, assisting or enabling any third party to do any of the foregoing.

System Requirements: You consent to adhere to the system requirements, including any published amendments or upgrades by us. Additionally, you agree that our products should only be installed or used on computer systems meeting the minimum requirements. Any hardware used by you concerning the Programs will be at your sole expense and risk, regardless of any recommendations we may provide.

Service Use Monitoring: The customer expressly consents to administrative monitoring of its use of the Services and the Portals at all times. The customer recognizes and agrees that: (i) system administrators may provide evidence of possible criminal activity identified during such monitoring to appropriate law enforcement officials; and (ii) information provided to Aviel Solutions by Customer through the Portals or otherwise may be subject to United States and Canadian federal, state and provincial laws governing records disclosure and confidentiality, including, but not limited to, the Personal Information Protection and Electronic Documents Act, and the USA PATRIOT Act.

PROFESSIONAL & TECHNICAL SERVICES / WORK PRODUCT

Professional and Technical Services: The customer will have the option to purchase the following: (i) Technical Services, like commercially available training, and (ii) Professional Services, such as consulting, Service installation and deployment, integration, and development services, as outlined in a separately executed Statement of Work (“SOW”). The execution of Technical Services and Professional Services will adhere to the Contract’s terms. Unless specified differently in the SOW, all services may be provided remotely. The pricing for these services remains valid for 12 months from the applicable Pricing Schedule Date or the effective date of an SOW, unless otherwise specified in the Contract. You agree to reimburse us for actual out-of-pocket expenses incurred during the execution of Professional Services and/or Technical Services performed at your site.

Work Product: The customer is not permitted to disclose any Work Product to any party, including subcontractors, without our prior written consent. The term “Work Product” encompasses: (i) Our authored works, discoveries, inventions, and innovations resulting from Technical Services and Professional Services. (ii) Any materials like proposals, research, records, reports, recommendations, manuals, findings, evaluations, forms, reviews, information, data, computer programs, and software originated or prepared by us in performing Technical Services or Professional Services.

All Technical Services, Professional Services, and resulting Work Product provided under the Contract are solely for your use in operating, managing, and developing your business operations. Work Product falls under our Confidential Information (as defined below), and we retain all intellectual property rights in it (including copyrights and derivative works, excluding your Data). We have the unrestricted right to use, reproduce, display, perform, license, distribute, adapt, and modify: (a) The Work Product. (b) All ideas, know-how, concepts, methodologies, and techniques developed by us and used in producing or included in the Work Product. (c) All text in the Work Product (excluding your Data). (d) The format, sequence, and structure of the Work Product.

DATA COLLECTION AND USE: The information generated by your use of the Services (“Data”), along with any login details for the Portals, is considered your confidential information and is governed by the confidentiality terms outlined in this Contract. After the Contract ends, you won’t have access to the Data. We have the right to retain Data indefinitely and may use it: (i) If we’re notified by a third party to preserve such Data for civil or criminal investigations, and if we believe failing to comply might subject us to legal liability. In such cases, we’ll notify you unless disclosure is prohibited by a investigating governmental authority or by law. (ii) For system performance analysis, troubleshooting, maintenance, and similar operational requirements. Additionally: (a) Wireless network providers and third-party application providers might also retain Data. (b) We reserve the right to use Data for legitimate business purposes, including sharing it with third parties, as long as the Data doesn’t contain personally identifying information.

CONFIDENTIALITY OF CONTRACT AND INFORMATION: In the course of fulfilling the Contract, both parties may share Confidential Information (as defined below). Any disclosed business, operational, technical, or product-related information marked as confidential or inherently considered as such is deemed the disclosing party’s Confidential Information (collectively referred to as “Confidential Information”). The party receiving Confidential Information will: (i) Maintain in confidence any received Confidential Information from the disclosing party. (ii) Use Confidential Information solely for Contract-related purposes. (iii) Reproduce Confidential Information only to the extent necessary for fulfilling the Contract. (iv) Limit disclosure of Confidential Information to employees and consultants requiring access in the course of their work, provided they acknowledge and agree to confidentiality obligations. (v) Refrain from disclosing Confidential Information to any third party without prior written consent from the disclosing party. However, Data is considered the Customer’s Confidential Information, and the Contract terms, including pricing, are deemed Aviel Solutions’ Confidential Information. The restrictions on the receiving party’s use and disclosure of Confidential Information won’t apply if the receiving party can demonstrate that the information: (i) Was independently developed without using the disclosing party’s Confidential Information. (ii) Became publicly available without breaching the Contract. (iii) Was already known to the receiving party without restrictions at the time of disclosure. (iv) Is authorized for release in writing by the disclosing party. Disclosure of Confidential Information in response to a valid court or governmental order won’t breach this Section if the disclosure aligns with the order’s scope and purpose. However, the receiving party must notify the disclosing party in writing of the order and allow them to seek a protective order, unless such notification is prohibited by law. Upon Contract termination, both parties will promptly return or destroy (and certify the destruction of) all received Confidential Information. If a separate Non-Disclosure Agreement is executed for safeguarding confidential information, its terms will take precedence over this Section.

LIMITATION OF LIABILITY AND REMEDIES: Aviel Solutions’ entire liability and the customer’s sole and exclusive remedies for any and all damages (whether in contract, tort or otherwise) arising from the performance or non-performance under this Contract shall be limited to the amount of the fees paid by Customer to Aviel Solutions during the 1-month period prior to the last occurrence of the events or conditions giving rise to such damages.

UNDER NO CIRCUMSTANCES OR IN ANY EVENT WILL AVIEL SOLUTIONS, OUR WIRELESS NETWORK PROVIDER, OR OUR LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, NON-COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA OR BUSINESS OPPORTUNITY OR OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR MISUSE OF THE PROGRAMS OR THE PORTALS, EVEN IF WE, OUR SATELLITE SERVICE PROVIDER, OUR WIRELESS NETWORK PROVIDER, OR OUR LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH IN THE CONTRACT FAILS OF ITS ESSENTIAL PURPOSE.

DISCLAIMERS: EXCLUDING THE WARRANTIES SPECIFICALLY SET FORTH IN THIS CONTRACT, ALL PRODUCTS, PROGRAMS, PROFESSIONAL SERVICES AND TECHNICAL SERVICES DELIVERABLES AND SERVICES PROVIDED UNDER THE CONTRACT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THERE ARE NO OTHER WARRANTIES MADE BY US, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF DEALING, USAGE OF TRADE OR TRADE PRACTICE.

Despite any explicit rights granted to you within this Contract, the provision of Services or any part of this Contract should not be interpreted as conferring upon the Customer any right, license, covenant, or immunity from infringement liability, whether expressly, implicitly, by estoppel, or otherwise, regarding patents, patent applications, inventions or disclosures, or any other intellectual property rights.

You recognize that this disclaimer doesn’t reduce any specific rights granted to you in this Contract. The Portals might feature links to other websites for user convenience. We explicitly disclaim any responsibility for the content, including information, links, and the quality of products or services available or advertised on any third-party sites (“Third-Party Sites”). We do not oversee, endorse, endorse, or hold affiliations with any Third-Party Sites unless expressly mentioned herein. Any fees resulting from your use of Third-Party Sites or information obtained from them are your responsibility.

INDEMNIFICATION AND PROCEDURES: The customer will defend and indemnify Aviel Solutions, our successors and assigns and each of their respective directors, officers, employees and agents against any and all losses, claims, damages or expenses (including attorneys’ fees) alleged by a third party that arise or result from: (i) any personal injury to or death of any person or persons, any loss or damage of any property or any interruption of services which are caused or claimed to have been caused directly or indirectly from your (including your employees’ or independent contractors’) misuse of the Program, including, without limitation, use when the vehicle is in motion; (ii) any use of the Programs by you for anu Unauthorized Purpose; (iii) data or other information transmitted by you, your employees or your independent contractors, excluding any database provided by us (collectively a “Claim”).In the event of any Claim giving rise to an indemnification obligation hereunder: (i) Aviel Solutions will promptly notify you of any such Claim or potential Claim of which we have knowledge, provided, however, that any failure to provide such notification will not relieve you from your indemnification obligation, except to the extent that you were prejudiced by such failure to provide notice; (ii) we will tender to you sole control of the defense of the Claim and any related settlement negotiations, provided, however, that you will not enter into any settlement that imposes any duties or obligations on us, monetary or otherwise, or requires us to make any admissions, without our express prior written consent; and (iii) we will provide reasonable assistance to you, upon the reasonable request of you and at your cost and expense, in defending and settling such Claim.

TERM AND TERMINATION

Term: The “Initial Term” mentioned above will commence upon the Effective Date and will be automatically extended on a moth-to-moth basis (each, an “Extended Term”) unless terminated by either party through written notice to the other party no less than 30 days prior to the end of the then-current Initial Term or Extended Term. The Initial Term and any Extended Terms taken together will be referred to as the “Term”. All Program subscriptions purchased under this Contract will have the same Term (ending or renewing at the same time regardless of when submitted under a Pricing Schedule).

Termination: Aviel Solutions reserves the right to terminate the Contract, along with any referenced documents, if there is nonpayment of invoices or any violation of the terms outlined in this Contract. Termination under this Section won’t release the Customer from any financial or other obligations specified in this Contract.

Effect of Early Termination: If a Program subscription is terminated for any reason other than a material breach by Aviel Solutions, the customer will not be subject to any Early Termination Fee. However, Due to charges being assigned in monthly increments the client will be required to pay any charges incurred during the 30 day-notice period.

OTHER TERMS

Customer-Provided Information & Load Arrangements / Rates: You acknowledge that the information available on the Portals is solely provided by other customers. We do not take responsibility for the accuracy of this information or for any alleged losses or damages resulting from relying on it. The arrangement of individual loads is the sole responsibility of the respective customers. Regarding specific loads, the involved customers are accountable for exchanging necessary communications and forming agreements about rates, payments, pickup and delivery schedules, shipper and consignee requirements, freight valuation, and other details related to the freight movements. Aviel Solutions personnel won’t serve as communication intermediaries between individual customers concerning specific units or shipments. We won’t negotiate rates between customers or involve ourselves in discussing or setting prices for transportation or equipment services between customers. Any disputes between customers should be resolved through standard business or legal procedures without our intervention. This Contract is an agreement solely between Aviel Solutions and the Customer. You explicitly agree that you’re not entitled to any legal remedy against any other customer due to either customer’s involvement in this Contract.

Severability Waiver: If any of the provisions of the Contract are determined to be unenforceable, the enforceability of the remaining provisions will not in any way be affected or impaired, and the parties will substitute an enforceable provision for the affected provision which approximates the intent and economic effect of the affected provision as closely as possible. The waiver by any party of a breach of any of the provisions of the Contract will not operate as a waiver of any subsequent breach.

Survivability: The following provisions will survive any expiration or complete termination of the Contract: Section 1.2 (Ownership), Section 1.6 (Unauthorized Use/Use Restrictions), Section 2 (Pricing / Invoicing / Taxes), Section 3 (Professional & Technical Services / Work Product), Section 4 (Data Collection and Use), Section 5 (Confidentiality of Contract and Information), Section 6 (Limitation of Liability and Remedies), Section 8 (Indemnification and Procedures), Section 9 (Term and Termination), and Section 10 (Other Terms).

Notices: All notices must be in writing and will be deemed given: (i) when delivered personally; (ii) via email; (iv) five (5) calendar days after having been mailed registered or certified mail, return receipt requested, postage prepaid; or (v) 1 calendar day after having been mailed by overnight mail with a reliable express mail courier. Notices will be addressed or delivered to your address or valid email address and to us at 12232 Gouin Street, Tecumseh ON, N8N 1P9, Canada.

Force Majeure: Apart from the obligation to pay money, neither party will be held liable to the other for failing or delaying a required obligation if this failure or delay is due to: Acts of God, natural disasters, strikes, acts of terrorism, declared or undeclared wars, riots, civil disturbances, compliance with governmental laws or orders (including those of the FCC), third-party delays or performance failures (including suppliers12 events that are unforeseeable or unavoidable and beyond remedy if predicted, or other events beyond the reasonable control of the party. These events make the full or partial performance of the Contract impossible or impractical. However, the party experiencing such conditions must promptly give written notice and resume performance as soon as reasonably possible. The other party has the right to terminate the Contract if such conditions persist for 90 days without a demonstration by the non-performing party of their ability to resume obligations within a reasonable timeframe.

Export Compliance Assurance: The customer is required to adhere to all relevant laws, regulations, ordinances, and product documentation, including any laws that limit device use while driving. Additionally, maintaining all necessary licenses, permissions, authorizations, consents, and permits to fulfill your obligations under this Contract is your responsibility. You acknowledge that all hardware, software, source code, and technology obtained from us (“Products”) are subject to US government export control and economic sanctions laws. You assure that neither you nor your subsidiaries and affiliates will directly or indirectly export, re-export, transfer, or release (“export”) any Products or their direct derivatives to any destination, person, entity, or end-use prohibited or restricted under US laws without prior US government authorization, as required by applicable regulations.

No Right to Distribute, Resell, or Remarket: You have no right under the Contract and agree not to act as a distributor, reseller, or remarketer of the software or service without our prior written consent.

Modifications to Contract: This Contract holds the possibility of being amended or updated by us at any time, with notice provided in written or electronic form. If such changes or updates occur, your system administrator must accept the modified Contract on behalf of the Customer before continued use of the Programs and Portals by you. By continuing to use the Services and Portals following any such changes or updates, you indicate your agreement to abide by these modifications. If you are unwilling to accept these changes or updates, you have the option to suspend your use of the Services and Portals. You can cancel your participation in the Programs by providing written notice 30 days prior to the intended cancellation date.

Assignment; Change in Control: Unless specifically outlined in a written agreement between both parties: (i) You are prohibited from assigning your rights under this Contract or granting access to the Services or Portals to any other party. (ii) You must inform us of any Change in Control. In the event of such a change, we reserve the right to terminate your access to the Services and Portals. “Change in Control” encompasses any alterations in Customer ownership or the completion of any reorganization, merger, acquisition, share exchange, consolidation, or sale/disposition of the majority of Customer’s assets or stock shares.

Governing Law and Venue: This Contract will be governed by, interpreted, and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada that apply there, excluding conflict of laws provisions. The Customer agrees to the exclusive jurisdiction of the Ontario courts and waives any objection to the venue of any proceedings in such courts or that such courts might provide an inconvenient forum for all matters concerning the relationship between Aviel Solutions and the Customer. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any aspect of the business arrangement between the parties.

ENTIRE CONTRACT: This Contract, along with any Pricing Schedule(s), relevant SOWs, executed amendments, and other referenced documents, constitutes the singular, complete, and existing agreement between Aviel Solutions and the Customer. It supersedes all previous agreements, oral or written, explicit or implicit, or prior practices between the parties, encompassing all obligations and restrictions during the Term, except for modifications specifically altered by mutual written agreement or concerning a separate Non-Disclosure Agreement as specified in Section 5 above. Any additional or differing terms or conditions proposed by you or included in any purchase order are declined by us and hold no validity unless explicitly agreed upon in writing by us. For any amendment or modification of the Contract to be binding, it must be in writing and signed by duly authorized representatives of both parties. In case of conflict between the above terms and any written amendment or modification, the later document will prevail, except for a separate Non-Disclosure Agreement as detailed in Section 5 above. Aviel Solutions and the Customer confirm agreement to these terms and conditions and have executed this Contract through their authorized representatives as of the Effective Date.