“Hardware” means any mobile electronic device, mobile phone, mobile data
terminal, or mobile asset (including vehicles, trailers or containers),
installed modem, related sensors and other equipment or accessories required to
use the Software as intended as described in the Documentation.
“Order” means CI’s invoice or Client’s purchase order, provided that it has been
accepted by CI or one of its authorized resellers or distributors.
“Product” means the Software and the Documentation.
“Subscriber” means a Hardware unit connected to a cellular network that
transmits location information and other data to the servers running the
“Subscription Term” means the license term specified in the Order.
“User” means an employee or contractor of Client.
hereby agrees to provide Client with the Software and user documentation (the
“Documentation”) (the Software and the Documentation are hereinafter sometimes
collectively referred to as the “Product”) and hereby grants to Client a
non-exclusive, non-sublicensable, non-transferable right and license, solely
during the Subscription Term, to install or access and use the Software, on as
many Subscribers for which Client is paying a subscription fee (as specified in
one or more Orders), in accordance with the terms of this Agreement, including
the following rights and restrictions:
You may install or access and use the Software on any computing device, computer
terminal, server, Hardware or Subscriber and the Software may be used by an
unlimited number of Users, provided that the total number of Subscribers tracked
by the Software does not exceed the maximum number of Subscribers for which the
Client is paying a subscription fee to CI or one of its authorized resellers or
You may not:
make copies of the Software and Documentation except as permitted in this
reverse engineer, disassemble, reverse translate, decompile, or in any other
manner decode the object code for the Software in order to derive the source
code form, or decode any passwords or encrypted license or installation keys
that have been provided to You by CI in order to enable the execution of the
Software on unauthorized equipment, or for any other reason do or attempt to do
any of the foregoing, except to the extent the foregoing restriction is
expressly prohibited by applicable law;
assign (by operation of law or otherwise) or transfer this Agreement or Client’s
interest in or rights under this Agreement, or attempt to do so or enter into
any agreement to do so with any other party, without the prior written agreement
of CI, and any such assignment or attempted assignment shall be null and void
and shall result in the automatic and immediate termination of this Agreement;
knowingly interfere with service to any of CI’s users, host or network,
including by means of intentionally submitting a virus, overloading, flooding,
spamming, mail bombing or crashing;
except as expressly provided herein, or unless expressly authorized by CI in
writing, sublicense, distribute, transfer, loan, use, lease or otherwise make
available the Software and Documentation, or any part thereof, to any third
remove any copyright notices, trade-marks, or any other proprietary legends
and/or logos of CI or its licensors appearing on the Software or the
Client may, during the Subscription
Term, use the Documentation provided by CI to assist Client with the operation
and use of the Software solely to support Client’s use of the Software as
If You are evaluating the Software, CI
hereby grants to You, free of charge, a non-exclusive, non-transferable,
limited-term license (the “Evaluation License”) to use the object code version
of the Software solely for internal testing and evaluation. You shall not
publish any results of benchmark tests run on the Software or disclose its
features, errors or bugs to a third party without CI’s prior written consent.
During the term of the Evaluation License CI shall be under no obligation to
provide any technical support; provided however, that CI may in its sole
discretion (i) fix reported errors; (ii) provide You with updates to the
Software for installation by You; and (iii) provide You with support and
consultation concerning the Software and Documentation.
Reservation of Rights.
does not constitute a sale of the Software. Client is granted no title,
ownership or intellectual property rights in or to the Software or
Documentation, in whole or part. All such rights shall remain in CI and/or in
licensors to CI of programs provided within the Software. All copies of the
Software (but not the media on which the copies are encoded) shall be and remain
the property of CI or its licensors. Copyright or other notices marked on the
Product must be reproduced by Client on all copies Client makes.
This subscription license is effective upon the installation of the Software by
You (hereinafter referred to as the “Effective Date”) and shall remain in effect
for the Subscription Term or for as long as the Client continues to pay the
applicable subscription fees to CI or its authorized reseller or distributor, or
for such other term (and on such other terms and conditions relating thereto) as
the Client and CI or its authorized reseller or distributor may agree upon in
Suspension for Non-Payment.
CI may immediately suspend Client’s license use of the Product if Client fails
to make any payment due in respect of the Product and does not cure such
non-payment within ten (10) business days after receiving notice of such
failure. Any suspension of the
licensed rights hereunder by CI under the preceding sentence shall not excuse
Client from its obligation to make all payment(s) under the Agreement.
CI may terminate this Agreement if (i) it has provided written notice to Client
of the claimed breach and the Client fails to correct such breach to the
reasonable satisfaction of CI within 30 days of receiving such notice, or (ii)
proceedings under bankruptcy or similar insolvency laws are instituted by or
against Client and are not dismissed within 60 days, Client makes an assignment
for the benefit of its creditors, or a receiver, liquidator or similar officer
is appointed for the business, property, affairs or revenues of Client and such
proceedings continue for 30 days. If Client fails to pay the amounts invoiced in
respect of the Product, Client shall be deemed to have materially breached this
Agreement. If CI terminates this Agreement for Client's non-payment, Client must
pay within 30 days all amounts which have accrued prior to such termination, as
well as all amounts payable by Customer on account of the remainder of the
then-current Subscription Term (even if earlier terminated) under this
Obligations on Termination.
Upon the termination of this Agreement, CI will have the right to terminate
Client’s access to and use of the Product and Client shall forthwith (i)
discontinue the use of the Software, (ii) return to CI or destroy all copies of
the Software and Documentation, (iii) remove from all computers all copies of
the Software, and (iv) certify to CI that it has complied with the requirements
of this Section
Unless otherwise agreed to in writing by
CI, all subscription fees for the Product are based upon the number of
Subscribers in use by Client and shall be determined in accordance with the then
current CI price list, the authorized reseller’s or distributor’s price list or
such other terms and conditions relating to subscription fees as may be agreed
upon by the Client and CI or its authorized reseller or distributor.
subscription fees are exclusive of all sales taxes, value-added taxes, Canadian
goods and services taxes, and similar taxes, including withholding taxes,
customs duties or similar charges. Such taxes and charges shall be incremental
to the fees and shall be payable by Client in accordance with applicable law.
CLIENT REQUIREMENTS AND RESPONSIBILITIES
Client agrees that desktop or laptop computers that run the Software will have
the Windows XP Professional or Windows 7 operating system, the latest .NET
framework, a minimum of 2GB of RAM and Internet Explorer 9 or greater (the
Desktop Client Installation.
Client is responsible for the installation of the client application of the
Software on the desktop or laptop computers operating the Software. CI will
provide instructions and technical support on how to download and install the
client application of the Program on the Client’s desktop and laptop computers.
A complete backup of the Client’s database compiled through the use of the
Software will be stored to a file on the CI server every 24 hours.
Once every 30 days a copy of the latest complete backup file will be
transferred and stored in a fire retardant safe at a secondary site which is a
different address from where the production version of Client’s database is
The Software, whether provided in
source code or object code form, including without limitation, the specific
design, structure and logic of individual programs, their interactions both
internal and external, and the programming techniques employed therein are
considered confidential and trade secrets of CI and/or its licensors (the
"Confidential Information"), the unauthorized disclosure of which would cause
irreparable harm to CI. Client shall use the same degree of care and means that
it uses to protect its own information of a similar nature, and in any event,
shall use reasonable efforts to prevent the disclosure of Confidential
Information to any third parties. Client shall not use, reproduce or distribute
the Confidential Information other than for the purposes authorized by this
Agreement. This confidentiality obligation shall continue to apply to the
Confidential Information following the termination hereof, provided that the
confidentiality provisions contained herein shall not apply to Confidential
Information which (i) was known by Client prior to disclosure, as evidenced by
its business records; (ii) was lawfully in the public domain prior to its
disclosure, or becomes publicly available other than through a breach of the
confidentiality provisions contained herein; (iii) was disclosed to Client by a
third party, provided such third party or any other party from whom such third
party receives such information is not in breach of any confidentiality
obligation in respect of such information; or (iv) is disclosed when such
disclosure is compelled pursuant to legal, judicial, or administrative
proceeding, or otherwise required by law, provided that Client shall give all
reasonable prior notice to CI to allow it to seek protective or other court
CI warrants that the Software will perform substantially in accordance with the
Documentation or other specifications published by CI for a period of 60 days
from the date that the Software is made available to You for download,
installation or access, or Your receipt of the Software by Client. CI does not
warrant, however, that Client’s use of the Software will be uninterrupted, that
the operation of the Software will be error-free, that the Software will meet
Client’s requirements or that all errors will be corrected. If during the
warranty period, as defined above, the Software fails to perform in accordance
with the warranty, CI shall use reasonable commercial efforts to correct the
failure of the Software to perform in accordance with the warranty. If CI is
unable to correct the failure within a reasonable time, the Client may terminate
this Agreement and CI shall refund the subscription fees paid by Client to CI
for the Software.
If any modifications are made to the Software by Client during the warranty
period then the above warranty shall immediately be terminated. This warranty
shall not apply if the Software is used on or in conjunction with hardware or
programs other than the unmodified version of the hardware and programs with
which the Software is designed to be used as described in the Documentation.
No Warranty for Evaluations.
IF CLIENT IS EVALUATING THE SOFTWARE THEN THE SOFTWARE AND DOCUMENTATION IS
PROVIDED TO CLIENT BY CI ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR
CONDITIONS OF ANY KIND.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 9,
THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, USAGE OF TRADE
OR COURSE OF DEALING. CI DOES NOT
WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS
OF USE, OF THE PROGRAM AND THE ACCOMPANYING DOCUMENTS IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE.
CI DOES NOT OTHERWISE WARRANT THAT THE PROGRAM WILL MEET CLIENT’S
REQUIREMENTS THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR
FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED.
Internet Connectivity Disclaimer.
CI makes the Software available for access via the Internet. Client shall
provide, at Client’s own expense, all necessary hardware, applications and
Internet connectivity necessary to access the Software over the Internet. Client
acknowledges that the Internet is known to be unpredictable in performance and
may, from time to time, impede access to the Software or performance hereunder.
Except as expressly set forth herein, Client agrees that CI is not responsible
for any interference with Client’s use of or access to the Software to the
extent caused by, arising from or attributable to the Internet.
CI will defend and indemnify Client (including its employees, contractors,
officers and directors) against fines, penalties, losses, costs, damages,
injuries, claims, liabilities, settlements and expenses (including reasonable
legal fees and expenses) arising from third party claims that the exercise of
the rights granted hereunder infringes any third party patent, copyright, or
trade secret (“Infringement Claim Liabilities”).
Conditions to Indemnity.
As a condition of such obligation to defend and indemnify the Client pursuant to
hereof, Client shall give CI prompt written notice of any such claim, and
cooperate and provide, at CI’s expense, reasonable information and assistance in
connection with the defense and settlement of such claims. CI shall have sole
control of the settlement or defense of all infringement claims.
CI shall not be responsible for
indemnifying Client to the extent that the infringement claim liability results
from (i) compliance with Client’s designs, specifications, or written
instructions as requested and provided by Client to CI; (ii) modification by
Client of the Product if such infringement would have been avoided but for such
modification; (iii) the combination of Product with equipment or software not
authorized or provided by CI or otherwise approved by CI in the Product
documentation, if such infringement would have been avoided but for such
combination; or (iv) the failure by Client to use an updated or current version
of the Product provided by CI following notice by CI that the previous version
of the Product infringes any third party intellectual property right.
Remedies. Without limiting the
provisions of Section
above, and in addition thereto, when notified of an action or motion that seeks
to restrict the exercise of any of the rights granted herein, CI may, (and in
the case of a judgment, order or injunction that restricts the exercise of any
of the rights granted herein, shall), in good faith, at its option and expense,
(a) obtain the right for Client to exercise their rights in accordance with this
Agreement, (b) substitute other non-infringing software with equivalent
functional capabilities, (c) modify the Software while retaining equivalent
functional capabilities, so that it no longer infringes, or (d) if none of the
foregoing are commercially feasible, as determined by CI in its sole discretion,
terminate the license(s) for such Software and refund to Customer that portion
of any prepaid subscription Fees that is applicable to the period following the
termination of the License pursuant to this Section
HEREOF CONTAINS CI’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES,
FOR INFRINGEMENT CLAIM LIABILITIES.
LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTION 8
HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS
OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST,
PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY)
RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH),
STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS
CI SHALL ONLY BE LIABLE FOR DIRECT DAMAGES. EXCEPT FOR CLAIMS MADE UNDER SECTION
HEREOF, THE TOTAL LIABILITY OF CI FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR
ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY,
WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT
LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT CI HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY
FORESEEABLE, SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY THE CLIENT TO CI FOR
THE SOFTWARE GIVING RISE TO THE CLAIM.
The Software and Documentation is a
"commercial item" as that term is defined at FAR 2.101, consisting of
"commercial computer software" and "commercial computer software documentation"
as such terms are defined in FAR 12.212, and is provided to the U.S. Government
only as a commercial end item. Government end users acquire the rights set out
in this Agreement for the Software, Plug-in(s) and Documentation consistent
with: (i) for acquisition by or on behalf of civilian agencies, the terms set
forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the
Department of Defense, the terms set forth in DFARS 227.7202. Use of the
Software and related Documentation is further restricted by the terms and
conditions of this Agreement. Manufacturer is Complete Innovations Inc., 475
Cochrane Dr, Unionville, ON L3R 9R5, Ontario, Canada.
The Software and related
information are subject to export and import restrictions. By downloading,
installing, accessing or using the Software, You are representing and warranting
that You are not located in, under the control of, and are not a national or
resident of, any country to which the export of the Software or related
information would be prohibited by the laws and/or regulations of Canada and/or
the United States. You are also representing and warranting that You are not an
individual to whom the export of the Software or related information would be
prohibited by the laws and/or regulations of Canada and/or the United States.
You shall comply with the export laws and regulations of Canada and the United
States that are applicable to the Software and related information and You shall
comply with any local laws and/or regulations in Your jurisdiction that may
impact Your right to export, import, or use the Software or related information,
and You represent and warrant that You have complied with any such applicable
laws and/or regulations. The Software shall not be used for any purposes
prohibited by export laws and/or regulations, including, without limitation,
nuclear, chemical, or biological weapons proliferation. You shall be responsible
for procuring all required permissions for any subsequent export, import, or use
of the Software or related information.
Support is included in the license
fees and is provided by CI in accordance with its then-current standard support
terms, a copy of which can be found at www.completeinnovations.com/support (the
“Support Terms”). CI’s Support Terms are subject to change from time to time in
CI’s sole discretion.
CI will only provide technical support for the Product and not in relation to
any other supporting hardware or software. CI may assist customer in getting
technical support and warranty service for hardware sold by CI or its partners.
CUSTOMER'S PURCHASE ORDER
otherwise agreed to in writing by Client and CI or its authorized reseller or
distributor, the acceptance of any Order placed by Client for the Software is
expressly made conditional upon Client’s acceptance of and agreement to the
terms and conditions contained herein and in the Order relating to the Software
and CI agrees to furnish the Software only upon these terms and conditions and
not on the terms and conditions contained in Client’s Order. Any terms and
conditions contained in Client’s Order or other document issued by Client
relating to this Agreement that are inconsistent with the terms and conditions
hereof are hereby rejected.
Client shall not indirectly or directly, disparage CI or any affiliated company,
including after termination of this Agreement.
No amendment to any portion of this Agreement shall be binding upon the Parties
unless in writing signed by duly authorized officers of both Parties.
Neither party may assign the whole or any part of this Agreement without prior
written consent by both parties. Notwithstanding the foregoing, either party may
assign this Agreement or any of its rights or obligations hereunder to an
affiliated entity or to a third party in connection with the sale of all or
substantially all of the assigning party’s business or assets relating to this
Agreement, whether by merger, sale of stock or shares, sale of assets, or
otherwise, without the prior written consent of the other party,
provided that the assignee agrees to assume all of the assignor’s
obligations under this Agreement.
This Agreement constitutes the entire agreement between the parties concerning
the subject matter hereof, and supersedes and replaces any prior verbal
agreements or other understandings, whether written or oral between the parties.
The parties agree to execute such further documents and to perform such
further acts, from time to time, as may be necessary or desirable to give full
effect to the letter and spirit of this Agreement. Any changes to this Agreement
must be authorized and agreed upon by both Parties and documented as amendments
to this Agreement.
This License shall be governed by and
construed in accordance with the laws of the Province of Ontario, Canada.
Any lawsuit relating to any matter arising under, or related to this
Agreement, shall be commenced in the Courts of the Province of Ontario, and the
Parties irrevocably attorn to the jurisdiction of such Court. The
United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement or the
transactions contemplated hereunder.
Any failure by any Party to exercise its rights, powers or remedies
hereunder or any delay by such Party in the exercise of any of its rights and
remedies hereunder shall not, to the extent permitted by law, operate as a
waiver or variation of such or any other right or remedy hereunder.
This Agreement shall be binding upon and enure to the benefit of the
respective Parties hereto, their heirs or legal representatives, successors and